Agenda - Planning Commission - 10/04/2012

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August 10, 2012 I Volume 6 I Issue 15 Zoning Bulletin illboard/Injunctive Relief— tate Agency Issues Permit for =`-inboard Neighboring landowners assert permit applicant failed to satisfy regulatory requirements Citation: Plamondon v. Outcepts Management & Consulting, LLC, 81 Mass. App. Ct. 845, 969 N.E.2d 730 (2012) MASSACHUSETTS (06/11/12)—This case addressed the issue of whether a permit was wrongly issued for a billboard (under state regulations), warrant- ing injunctive relief of removal of the billboard. The Background/Facts: Michael Rodrigues ("Rodrigues") owned prop- erty in Westport, Connecticut. For 40 years, a billboard had stood on his property. In 2009, Rodrigues agreed to partner with Outcepts Management & Consulting, LLC ("Outcepts") to replace an existing billboard. Because the new billboard was to be different from the old one, it had no grandfather status and was required to meet all of the requirements for new billboards as contained under Massachusetts statutory and regulatory law—G.L. c. 93 and 711 Code Mass Regs. § 3.00. Under G.L. c. 93, § 29, the state's Outdoor Advertising Board ("OAB")— now known as the Massachusetts Office of Outdoor Advertising ("MOOA")— was given the power to make rules and regulations that "may require billboards . . . be located in business, commercial, industrial, marketing or mercantile areas." Under 711 Code Mass. Regs. § 3.07, OAB regulations provide that: "No peuuit shall be granted or renewed for a sign that is not located in an area of a business character." An area of "business character" is defined as one, when viewed from the principal highway upon which the sign is to face, both of the following requirements are met: "(a) At least two separate business, industrial or commercial activities are being conducted within a distance of 500 feet from the proposed location of the sign, measuring from such proposed location to the buildings or parking lots or other places of actual business, industrial or commercial activity . . ."; and "(b) The area in which the sign is to be located is not predominantly residential, agricultural or open space or natural area." As required by law, in 2010, Outcepts filed two written applications with the MOOA. Since the OAB had been essentially dismantled in 2009, permitting deci- sions were made solely by MOOA's director, Edward Farley ("Farley"), without a public hearing. In acting on applications to approve billboards, Farley relied on information provided by applicants, as well as information from MOOA's field inspectors. A MOOA field inspector had visited Rodri- gues' property and concluded that: there were two businesses (i.e., storage ga- rages) within 500 feet of the proposed billboard location; and the area was not residential in character. Based partly on this information, Farley approved Outcepts' application. Subsequently, residents living within a 500 foot radius of the billboard (the 10 ©2012 Thomson Reuters