Agenda - Planning Commission - 10/04/2012

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Zoning Bulletin August 10, 2012 I Volume 6 I Issue 15 "Neighbors") filed an action in superior court, seeking injunctive relief. The Neighbors argued that the requirements of 711 Code Mass. Regs. § 3.07(3)(b) had not been met because the billboard was placed in a residential area. Within a 500-foot radius of the billboard there were seven homes, a large tract of undeveloped residential agricultural land, and two garages used for com- mercial storage. The superior court judge visited the site, and agreed with the Neighbors. The judge concluded that Outcepts failed to show that the area in which their new billboard was located was "not predominately residential, agricultural or open space or natural area" "when viewed from the principal highway upon which the sign [was] to face." (711 Code Mass. Regs. § 3.07(3) (2010).) The judge ordered the billboard be removed within 90 days. Outcepts appealed. DECISION: Affirmed. The Appeals Court of Massachusetts agreed that removal of the billboard was warranted. The court found it undisputed that the new billboard did not satisfy the regulatory requirements of 711 Code Mass. Regs. § 3.07 in two respects: First, the MOOA did not consider the characteristics of the neighbor- hood as viewed from the highway. Second, the MOOA ignored the word "both" in § 3.07. MOOA, found the court, in concluding that the area was "not residential in character," relied only on the fact that two separate busi- nesses were being conducted within 500 feet of the billboard (§ 3.07(a)); it did not give independent meaning to § 3.07(b), which required that the billboard location area not be predominantly residential, agricultural or open space or natural. Here, the court found that the presence of two businesses within 500 feet of the billboard location satisfied subsection (a). However, the court also found that there was nothing more to satisfy the independent requirements of subsection (b). The court said that while MOOA could consider the presence of two businesses in determining whether the neighbor- hood was primarily residential, it could not rely solely on the two businesses without considering the entire composition and character of the relevant area. Considering the fact that there were seven homes within a 500-foot radius of the billboard, and 20 homes within a 1,000-foot radius, the court concluded that the area around the billboard was not primarily of a business character as viewed from the highway. Having found the requirements of 711 Code Mass. Regs. § 3.07 were not satisfied, the court concluded that ordering removal of the billboard was warranted. Zoning News from -Around the Nation MICHIGAN Michigan lawmakers are considering a bill that may make development on dunes easier. Under current law, "[p]eople wanting to build in critical dune ar- eas must prove the construction won't harm the ecosystem." Under the l proposed bill, the burden of proof would shift; in order to deny a construction permit, the Michigan Department of Environmental Quality would have to ©2012 Thomson Reuters 11