This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
By letter dated April 7, 2011, the building inspector of the town of Webster (town) ordered the plaintiffs to reduce the height of their billboard to comply with the height limit for buildings and structures provided in § 650-33 of the town zoning by-law. The plaintiffs appealed and, although three members of the board of appeals (board) voted to reverse the order, the board lacked the supermajority necessary to overturn the decision of the building inspector pursuant to G. L. c. 40A, § 15. As a result, the board effectively affirmed his decision.
The plaintiffs appealed to the Superior Court, where the parties filed cross motions for summary judgment. The judge concluded that, as determined by the building inspector, the billboard exceeds the height limitation contained in § 650-33 of the by-law. The judge declined, however, to order demolition of the billboard or reduction in its height unless ownership of the billboard changes or it is substantially damaged due to weather, accident or other cause. Both parties filed notices of appeal, but only the plaintiffs perfected their appeal. For the reasons set forth below, we reverse.
The building inspector concluded that the height limitation applicable to " structures" in the zoning district in which the billboard is located limits the billboard to four stories, or forty feet, and the eighty-five foot billboard, therefore, exceeds the allowed height. The plaintiffs argue that the billboard is not a " structure," as that term is used in the town zoning by-law, § 650-33, and, therefore, need not meet the height limitation for " structures." In his analysis, the judge below describes as instructive the case of John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 361 Mass. 746, 756, 282 N.E.2d 661 (1972), in which the Supreme Judicial Court refers to a billboard as a " structure," although the judge noted that the issue of whether a billboard is a " structure" was not directly addressed in that case. In the circumstances, however, he concluded that a billboard is a structure within the meaning of the town zoning by-law and ruled that the height limitation for " structures" found in § 650-33 applies to the plaintiffs' billboard.
We agree with the judge that it is now well settled that a town, by a provision in its zoning by-law, may regulate billboards provided the regulations are not inconsistent with the Commonwealth's permitting authority under G. L. c. 93, § § 29-33. See G. L. c. 93, § 29 (last sentence); General Outdoor Advertising Co. v. Department of Pub. Works, 289 Mass. 149, 196-198, 193 N.E. 799 (1935); . John Donnelly & Sons, Inc., supra at 752-754. Indeed, the town adopted a " signs" provision in § 650-38 of its zoning by-law which, after imposing some restrictions on signs in a residential area, simply provides that " [a]dvertising signs [and] billboards . . . in districts other than Residential Districts shall conform with the regulations of the Massachusetts Outdoor Advertising Authority." The regulations adopted by the Outdoor Advertising Board do not contain a specific height restriction, however, although height may be considered as a factor in determining whether a billboard is " in harmony with or suitable for the surrounding area or would do significant damage to the visual environment." 711 Code Mass. Regs. § 3.07(4) (2010).
The question before us is whether a billboard, which is the subject of a separate zoning subsection specifically relating to signs, also constitutes a " structure" subject to the height limitation contained in § 650-33(A) of the by-law. The term " structure" is not defined, however, in the town zoning by-law. Although a billboard could constitute a " structure" as that term is defined in the State building code, the question remains as to how the term " structure" is defined in a local zoning context. Our examination of the case law indicates that it would be inappropriate to consider a billboard a " structure" in a zoning context without some indication that the town intended that interpretation.
When the Supreme Judicial Court initially addressed the interplay between G. L. c. 93, § § 29-33, controlling billboards and signs, and the amendment to the zoning act extending its reach to " structures" in addition to " buildings," it held that to interpret the term " structure" as including billboards would essentially supersede c. 93. Inspector of Bldgs. of Falmouth v. General Outdoor Advertising Co., 264 Mass. 85, 89, 161 N.E. 899 (1928). Thus, it declined to adopt an interpretation of the term " structure" in the zoning act that includes billboards. While clarifying in subsequent cases that a town or city may adopt zoning by-laws that regulate billboards and even impose stricter regulations or prohibit billboards altogether, John Donnelly & Sons, Inc., supra at 754, the Falmouth case consistently has been cited for the proposition that a billboard is not a " structure" as that term is used in the zoning act. See Millbury v. Galligon, 371 Mass. 737, 740, 359 N.E.2d 936 (1977); Globe Newspaper Co. v. Beacon Hill Architectural Commn., 421 Mass. 570, 578-579, 659 N.E.2d 710 (1996). Considering the state of the case law on this point, it is evident that not all provisions in a zoning scheme that apply to " structures" automatically apply to billboards. It is not difficult to conceive, however, definitional wording that could be used to specify that a billboard is a structure within the meaning of a zoning by-law.
Absent some indication of a contrary intent, we are constrained to interpret the term " structure" as used in the Webster zoning by-law in a manner consistent with the foregoing cases. Consequently, we conclude that the drafters of the local by-law would recognize that an undefined use of the word " structure" would not include billboards. While it was open to the town to define " structure" in such a way to include billboards, it did not do so. Moreover, when it specifically adopted a provision in its zoning by-law regulating billboards, it did not adopt a height limitation or incorporate by reference height or dimensional limitations contained in other parts of the zoning by-law. This is in stark contrast to § 650-42 of the town zoning by-law applicable to windmills, which expressly limits their height to sixty feet and establishes setbacks as " the same as a structure." The drafters clearly knew how to incorporate height and dimensional limitations contained in other provisions of the by-law when desired. A plain reading of the " signs" subsection leads to the conclusion that in districts other than residential, the town was content with the regulations adopted by the Outdoor Advertising Board to regulate billboards in the town.
We conclude that in imposing a height limitation on " structures," the town's zoning by-law does not apply to billboards. The judgment is reversed and judgment shall enter for the plaintiffs.
Rapoza, C.J., Katzmann & Wolohojian, JJ.