Opinion
16-P-1245
07-24-2017
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Framingham-Franklin LLC, filed a complaint in the Superior Court challenging a decision of the zoning board of appeals (board) of Framingham (town) requiring the removal of the plaintiff's commercial signs. A judge allowed the board's motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and judgment entered accordingly. We affirm.
Background. Between August, 2013, and June, 2015, the town's assistant sign officer issued numerous notices and citations to the plaintiff for violations of the town's sign by-law. The nonconforming signs in question were constructed over forty years ago. The sign by-law required that all signs in the town conform with the by-law by December 1, 2012. On September 24, 2009, the plaintiff received a permit for its nonconforming signs, subject to the condition that the plaintiff bring its signs into compliance with the by-law by March, 2012. The town subsequently approved an extension to a landscaping variance for the plaintiff on the condition that the two nonconforming signs would be removed by November 12, 2015. While the signs had been used to advertise commercial tenants of the shopping center on the plaintiff's property, the signs have not advertised a current tenant since February, 2015.
The plaintiff was cited for violating the following sections of the sign by-law: § 1.10.3.3(c) ("All internally illuminated single sign panels between two supporting poles must be the same width and shape regardless of the number of businesses on each panel"), § 1.10.3.3 (titled "Dimensions for a Freestanding Sign for Multiple Businesses"), and § 1.10.3.1(b) ("All freestanding signs shall include the street number on the sign and may include the street name").
Photographs of the property provided at the motion hearing and in the record appendix appear to show the remaining legible signs, which advertise Friendly Cleaners and Society of Vincent de Paul. Neither of those businesses currently occupies any part of the property. While the plaintiff indicated a barber shop was a current tenant although not advertised on the signs, plaintiff's counsel stated at the motion hearing that no business activity currently takes place on the property and that there is no longer any public access to the property.
On November 16, 2015, the board, "acting as the Sign Appeals Board," held a hearing to review a decision by the town building commissioner that the plaintiff's signs did not conform to the sign by-law and must be altered or removed. The board concluded that the signs were nonconforming and upheld the building commissioner's decision. On December 18, 2015, the plaintiff filed a complaint under the Zoning Act, G. L. c. 40A, in the Superior Court appealing the board's decision. After a hearing on the board's motion to dismiss, the motion judge dismissed the complaint.
Discussion. "We review the allowance of a motion to dismiss de novo," Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), taking the factual allegations as true and drawing reasonable inferences in the plaintiff's favor. See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). "To survive a motion to dismiss, the factual allegations must plausibly suggest that the plaintiff is entitled to relief [and] must ‘raise a right to relief above the speculative level....’ " Harrington v. Costello, 467 Mass. 720, 724 (2014), quoting from Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
The question before us is whether the Zoning Act preempts or supersedes the sign by-law. The plaintiff maintains that signs are structures and therefore are governed by the Zoning Act and not the sign by-law. The board, on the other hand, argues that sign by-law applies in this case and, as a result, there is no basis for judicial review under G. L. c. 40A, § 17.
Additionally, the plaintiff argues that the motion judge failed to make detailed findings pursuant to Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). We find no error in the judge's rulings on the motion to dismiss. A rule 12(b)(6) motion calls for a ruling of law, not a resolution of disputed facts. See Mass.R.Civ.P. 52(a) ("Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41[b][2]").
The board argues that the appeal should not have reached this court because the plaintiff failed to appeal the town's notices, citations, and the conditional extension of the variance, and because the proceedings are governed by the provisions of G. L. c. 93, §§ 29 -33, and not the Zoning Act. While we agree that judicial review of proceedings under G. L. c. 93 is by a petition for certiorari, see G. L. c. 249, § 4, we nonetheless exercise our discretion to reach the merits because "the case has been fully briefed" and "the answer to be given is reasonably clear." Brown v. Guerrier, 390 Mass. 631, 632-633 (1983). See Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 820 n.2 (2015) ("In our discretion, we reach the merits of the issues briefed by the parties").
This court has previously considered whether the Framingham sign by-law was superseded by the Zoning Act. American Sign & Indicator Corp. v. Framingham, 9 Mass. App. Ct. 66, 67 (1980). In American Sign, the plaintiff sought a declaration that the section of the sign by-law concerning "changing message" signs was null and void, arguing that signs are structures subject to the Zoning Act, which preempted the town's sign by-law. Id. at 67-68. The court determined that the sign by-law was not adopted pursuant to the Zoning Act, but rather pursuant to G. L. c. 93 and the home rule procedures of G. L. c. 43B. Id. at 70 ("[T]he Framingham sign by-law, which was not enacted as a zoning by-law, need not comply with the prescriptions set forth in [the zoning law]").
The plaintiff has not called to our attention any authority that calls into question our decision in American Sign. Furthermore, the plaintiff's argument contravenes the view expressed by the Supreme Judicial Court in Inspector of Buildings of Falmouth v. General Outdoor Advertising Co., 264 Mass. 85, 89 (1928), that "the Legislature did not intend by the amendment to the zoning act to include billboards and by implication to supersede and repeal G. L. c. 93, § 29. A statute is not to be deemed to supersede a prior statute in whole or in part in the absence of express words or clear implication."
We are not persuaded by the plaintiff's contention that signs are structures as a matter of law. While it is true that the State building code, see G. L. c. 143, § 1, treats signs as structures, see Globe Newspaper Co. v. Beacon Hill Architectural Commn., 421 Mass. 570, 575 (1996), our review of case law indicates a town-by-town definition of whether a sign is a structure according to zoning by-laws or sign by-laws. See, e.g., Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404, 410, 413 (1995) ; Globe Newspaper Co., supra at 578-581. See generally American Sign, supra at 69 ("There is no evidence that there is or ever has been a comprehensive zoning by-law covering signs in Framingham").
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Judgment affirmed.