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OA VW LLC v. Massachusetts Department of Transportation

United States District Court, D. Massachusetts

January 6, 2015


For OA VW LLC, Outfront Medial Boston LLC, Plaintiffs: Elizabeth Abimbola Thomas, Henry C. Dinger, Katherine Connolly Sadeck, Michael K. Murray, Goodwin Procter LLP, Boston, MA.

For Massachusetts Department of Transportation, Massachusetts Office of Outdoor Advertising, Richard A. Davey, in his official capacity, Edward J. Farley, in his official capacity, Defendants: Sookyoung Shin, LEAD ATTORNEY, Office of the Attorney General, Boston, MA.

For Scenic Massachusetts, Inc., Amicus: James P. Whitters, III, LEAD ATTORNEY, Boston, MA.

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Nathaniel M. Gorton, United States District Judge.

Plaintiffs OA VW LLC and Outfront Media Boston LLC (collectively " Outfront" ) bring this action challenging the enforceability of 700 C.M.R. § 3.07 et seq., which are regulations of outdoor advertising promulgated in 2012 by defendant Massachusetts Department of Transportation (" MassDOT" ).[1] Their complaint also names as defendants the Massachusetts Office of Outdoor Advertising (" OOA" ), which is a subdivision of the Highway Division of MassDOT, Richard Davey, the Secretary of Transportation and Edward

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Farley, the Director of the OOA in their official capacities.

I. Background

A. History of the Massachusetts Office of Outdoor Advertising

In 1946 the Massachusetts legislature amended M.G.L. c. 93 to vest exclusive authority to regulate outdoor advertising in the Outdoor Advertising Authority (" OAA" ). The OAA was controlled by a three-member board, appointed by the governor. In 1955 the OAA was renamed the Outdoor Advertising Board (" OAB" ).

In 1965 Congress enacted the Federal Highway Beautification Act (" FHBA" ) which provides for the regulation and control of " outdoor advertising signs, displays, and devices in areas adjacent to" interstate and federal-aid primary highways. 23 U.S.C. § 131(a). Under the FHBA, in order to receive full allotment of federal highway funds, each state must ensure that outdoor advertising near federal highways in the state conform to " size, lighting and spacing" requirements " to be determined by agreement" with the U.S. Department of Transportation.

Massachusetts entered into such an agreement with the federal government in 1971 (" the Federal/State Agreement" ) following the enactment of M.G.L. c. 93D to ensure compliance with the FHBA. The text of the Federal/State Agreement indicates that it applies to

all zoned and unzoned commercial and industrial areas within 600 feet of the nearest edge of the right-of-way of all portions of the Interstate and primary systems within the Commonwealth of Massachusetts in which outdoor advertising, signs, displays and devices may be visible from the main traveled way of said systems.

In 2009 the Massachusetts legislature enacted M.G.L. c. 6C (" the 2009 Transportation Act" ), which repealed the statutes that created OAB and consolidated several state agencies into MassDOT. The Act authorizes MassDOT to " exercise any powers necessary for the commonwealth to be in compliance with" its obligation under FHBA. Early drafts of the legislation expressly delegated the OAB's broader authority to a new entity but none of those was enacted. The Commonwealth maintains that OAB was " integrated" into MassDOT while plaintiffs contend that the Act eliminated the OAB without conveying its powers to MassDOT or to any other entity.

In November, 2009, MassDOT adopted temporary regulations which essentially mirrored those that had been in place under OAB but also created defendant Massachusetts Office of Outdoor Advertising (" OOA" ) to replace the OAB. The OOA is administered by a single Director with permit granting authority. In June, 2012, MassDOT proposed further regulatory changes which went into effect in December, 2012 (" New Regulations" ).

B. New Regulations

Plaintiffs assert that the New Regulations impose numerous restrictions on off-premise signs that were not explicitly authorized by the Massachusetts legislature. In particular, plaintiffs contend that the 2009 Transportation Act did not create an entity to succeed the OAB and authorized MassDOT to regulate outdoor advertising only to the extent necessary to ensure compliance with the FHBA and the Federal/State Agreement. Plaintiffs claim that the New Regulations do far more than that, including that they regulate outdoor advertising everywhere in the Commonwealth rather than just advertising near an Interstate Highway.

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Plaintiffs object specifically to the language of 700 C.M.R. ยง ...

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