Court: Massachusetts Appeals Court; December 11, 1996; Massachusetts; State Appellate Court
On June 2, 1993, the Outdoor Advertising Board approved permit applications from Rite Media, Inc. to erect billboards at two sites in Boston, located at 100 Tenean Street and 650-700 Morrissey Boulevard, adjacent to the Southeast Expressway. The decision followed three days of hearings and recommendations from a hearing officer. The city of Boston appealed the board's decision, which was affirmed by a Superior Court judge under G. L. c. 30A. 14, prompting the city's further appeal based on alleged errors in the administrative process.
Under General Laws Chapter 93D, outdoor advertising is generally prohibited within 660 feet of interstate highways unless located in industrial or commercial zones with proper permits. The board is authorized to issue such permits, provided they comply with agreements between the Department of Highways and the U.S. Secretary of Transportation. Specific provisions include a spacing requirement of at least 500 feet between signs and a restriction against locating signs within 300 feet of designated parks and scenic areas.
In the case of the Tenean Street application, Rite Media's proposal included a certification from the Department of Highways confirming compliance with Chapter 93D. The legal framework allows for a rebuttable presumption of compliance based on such certification.
The administrative record includes Inspector Regan's outdoor advertising inspection report from June 11, 1989, which fails to provide a measurement of the distance to the nearest billboard. The report states, "Conforms to 93D," but does not address spacing requirements. Media's application included a certificate from Robert H. Johnson, chief engineer of the DH, affirming that the proposed sign complies with Chapter 93D, yet it also omits details on spacing. At the hearing, inspector Edmund Pantalone testified that a sign on the J. Freeman building is located between 300 and 400 feet from the proposed Media sign. An area plan indicates that the J. Freeman building is within 500 feet of the Southeast Expressway.
The hearing officer's recommended decision to approve the application did not address the lack of measurements in Regan's report or the implications of Pantalone's testimony, which could indicate a spacing violation. The board adopted the hearing officer's findings without modification. In the Superior Court, there was a dispute over the interpretation of the spacing agreement, with Media and the board asserting it pertains only to off-premises signs, while the city argued it also applies to on-premises signs, placing the proposed sign within a prohibited area.
The judge, not resolving the interpretation issue, concluded that the spacing must be measured along each side of the highway, and the city did not provide evidence of such measurements. Consequently, the judge held that the board could rely on the DH certification of conformity. The absence of Regan's measurement, combined with Pantalone's credible testimony, challenges the presumption of compliance. The matter of whether the proposed sign violates spacing requirements must be reassessed by the hearing officer, who needs to determine both the measurement method and the actual distance to the nearest existing outdoor sign visible from the highway. This resolution requires the board's expertise to uphold the agreement's objectives of safety and aesthetic preservation along interstate highways, and the board's decision will receive deference.
The appellate tax board's expertise in tax matters warrants some deference to its decisions when reviewing mixed questions of fact and law. A decision will not be overturned if supported by substantial evidence, but this case lacks such evidence. The agreement's clause regarding "spacing between signs along each side of the highway" is ambiguous, leading to two interpretations: either it modifies "signs" and measures distance based on the nearest sign within the regulated zone, or it modifies "spacing," requiring a more complex measurement seen by travelers on the highway. The board must decide the appropriate method of measurement to fulfill the Federal-Aid Highway Act of 1958's purposes and may impose multiple tests for sign acceptability.
The signs in question include both on-premises and off-premises signs, despite the distinctions in the relevant sections of the law regarding permit availability. The spacing requirement issue, particularly pertaining to the testimony from Pantalone regarding compliance with spacing rules, was overlooked by the hearing officer and not addressed by the board, constituting an error of law. The city, as the appealing party, has met its burden to demonstrate the invalidity of the administrative determination, necessitating the reversal of the board's decision regarding Tenean Street due to this oversight. The same reasoning applies to the proposed sign on Morrissey Boulevard, where testimonies indicated that other signs within 500 feet were present, further supporting the need for reconsideration of the spacing requirements.
The Department of Highways (DH) certified an application on July 3, 1989, affirming compliance with Chapter 93D, while Regan's inspection report noted that the nearest billboard was over 500 feet away. Conversely, Pantalone's report from September 12, 1989, indicated that an on-premises sign was within 500 feet of the proposed sign, contradicting the earlier certification. The hearing officer acknowledged DH certification but failed to address the critical spacing issue central to the case. The judge supported the hearing officer’s reliance on the DH certification but disagreed that it was adequate for Media’s position, given the testimonies and reports that effectively rebutted the DH certification. The spacing requirement, raised during the hearing, needed to be addressed by both the hearing officer and the board, rendering the board’s decision legally defective.
The proposed sign's location within 300 feet of Morrissey Boulevard raised concerns regarding its classification as a 'public park' under federal or state law, potentially invalidating the permit. Julia O’Brien, the city’s planning director, confirmed Morrissey Boulevard's designation as a metropolitan parkway intended for pleasure driving, despite commercial activities nearby. A DH inspector later determined that Morrissey Boulevard did not meet the regulatory definition of a park. The court affirmed the judge's finding that substantial evidence showed Morrissey Boulevard is neither a public park nor designated for recreational purposes. The decision mandates remanding the case to the Superior Court for further proceedings regarding spacing requirements for both Tenean Street and Morrissey Boulevard permit applications. The excerpt also references Chapter 93D, which governs outdoor advertising adjacent to highways and outlines standards for sign spacing.
Section 131(d) of 23 U.S.C. (1994) authorizes the relevant agreement, while board regulations prohibit billboard permits within 500 feet of public parks or reservations if visible at any time of year (711 Code Mass. Regs. 3.12(6)(1988)). The determination of spacing from parks is not pivotal to the current proceedings. General Laws c. 93, as amended by St. 1955, c. 584. 4, empowers the board to regulate billboards and signs visible from public highways or parks. Testimony from Pantalone and Media's application assumes measurement of distance in a straight line between existing and proposed signs. However, the hearing officer did not address the spacing requirement, and the judge based her decision on testimony regarding compliance with c. 93D without discussing the 300-400 foot distance between signs. The Federal Department of Transportation defers to local authorities on these matters. Under Title 23 of the Code of Federal Regulations (1996), states must establish criteria for outdoor advertising sign spacing conforming to agreements with the Secretary. Measurement must follow specific federal guidelines, either using perpendicular lines from the highway centerline or calculating from the nearest edge of the right-of-way. Section 3 clarifies that certain signs are exempt from these regulations, and the board's inspection reports do not differentiate between on-premises and off-premises signs, indicating a consistent interpretation of regulations. The hearing officer’s decision acknowledged conformity with G. L. c. 93D but ignored the spacing dispute. The board's claim of waiver by the city is incorrect; the agreement prohibits sign erection within 300 feet of designated public spaces, while state regulations set a 500-foot limit for visibility. The definition of public parks includes all lands available for public use. The case's resolution does not require addressing whether the stricter 300-foot agreement supersedes state regulations.
