Posted by: Patricia Salkin | July 17, 2012

MA Appeals Court Affirms Ruling Restricting Billboard in Residential Area

Michael Rodrigues, who had a billboard on his property for about forty years, agreed to partner with defendant, Outcepts Management and Consulting, LLC, to replace an existing billboard. The new billboard faced Route 195 and was the side in which it was to be erected was predominately residential and the opposing side was undeveloped.  Since the new billboard was different from the old one, it had no grandfather status and Outcepts filed two written applications with the Massachusetts Office of Outdoor Advertising (MOOA). Although MOOA had customarily held public hearings to review permit applications, since a 2009 act dismantled the old organization, permitting decisions were now made solely by the director, Edward Farley. Farley did not visit the site, but approved the application based upon the applicant’s information and a field inspector’s assessment. In this case the inspector had determined that the area was not residential since there were two businesses within 500 feet.

Plaintiff, Theresa Plamondon, lived within 500 feet of the billboard and complained to Farley about the billboard not meeting the zoning laws. Farley said that he would take no further action and from that point Plamondon filed this action in seeking injunctive relief.

The Massachusetts Code states that “no permit shall be granted or renewed for a sign that is not located in an area of a business character.” It goes on to state that an area is considered of business character if, when viewed from the highway upon which the sign is to face, at least two businesses are operated within 500 feet and the area is “not predominately residential, agricultural or open space or natural area.”

Here, MOOA did not consider the characteristics of the neighborhood as viewed from the highway. They also did not give consideration to the second element, since it rested solely on the idea that there were two businesses within 500 feet and did not consider whether the area was predominately residential. For these reasons, the prior judgment in favor of the plaintiff is affirmed.

William R. Plamondon v. Outcepts Management & Consulting, LLC, 2012 WL 2053205 (Mass. App. Ct. 6/11/2012)

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