Opinion
No. 16–P–415.
01-09-2017
MASSACHUSETTS DEPARTMENT OF TRANSPORTATION v. HAT 9 BOWDOIN REALTY, LLC & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, the Massachusetts Department of Transportation (DOT), commenced the present action against the defendants, Hat 9 Bowdoin Realty, LLC (Hat 9), and Sponsor Co., LLC, seeking injunctive relief and civil penalties for their continued display of outdoor advertising without a permit. The DOT moved for summary judgment, which a judge of the Superior Court allowed. The defendants appeal, arguing that the DOT has not met its burden of proving that a permit is required. We disagree and affirm.
Legal framework. In 1971, Massachusetts enacted G.L. c. 93D to ensure compliance with the recently enacted Federal Highway Beautification Act, 23 U.S.C. § 131(act). General Laws c. 93D, § 2, inserted by St.1971, c. 1070, § 1, prohibits outdoor advertising "within six hundred and sixty feet of the nearest edge of the right-of-way ... of a highway in the interstate or primary systems," with certain exceptions that are not relevant here. See Boston v. Outdoor Advertising Bd., 41 Mass.App.Ct. 775, 776–777 (1996). The act defines the primary system as "the Federal-aid primary system in existence on June 1, 1991, and any highway which is not on such system but which is on the National Highway System." 23 U.S.C. § 131(t) (2012). The Office of Outdoor Advertising (OOA), a body within the DOT's highway division, is responsible for the implementation and enforcement of statutes and regulations concerning outdoor advertising in the Commonwealth, including G.L. c. 93D, § 2. See 700 Code Mass. Regs. §§ 3.00 et seq. (2012).
Shortly thereafter, the Massachusetts Highway Department entered into an agreement with the Federal government to implement and enforce the act. See G.L. c. 93D, § 7.
Background. The verified complaint, signed by the director of the OOA and uncontested by the defendants, provides as follows. Hat 9 is the owner of a multistory building located at 9 Bowdoin Street in Boston, near the intersection of Cambridge Street. Since 2011, two signs, owned and maintained by Sponsor, have been attached on the outside of the building facing Cambridge Street. For several months prior to the filing of the complaint on February 1, 2013, the signs advertised various alcoholic beverages and other products. The signs are within 660 feet of the nearest right of way, and are visible from the "main travelled way of a highway in the interstate or primary systems." The OOA has never issued a permit for the signs, and has made several written demands for their removal. In January of 2013, Sponsor submitted an application for a permit that did not comply with the DOT's regulations and was later returned. No other applications seeking permitting for the signs have been received by the OOA.
As part of its motion for summary judgment, the DOT submitted an affidavit from the director of the OOA, generally repeating the information contained in the verified complaint, with accompanying maps maintained by the DOT indicating that Cambridge Street is a principle arterial and an interstate within the National Highway System. On the basis of this undisputed evidence, in a detailed and thoughtful memorandum of decision, the judge allowed the DOT's motion. This appeal followed.
As an exhibit to the affidavit, the DOT submitted a letter from a realty specialist within the Federal Highway Administration confirming that Cambridge Street is part of the National Highway System, with a classification of "Principal Arterial." Like the motion judge, we do not consider the letter because it is not in the form of a sworn affidavit. See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).
Discussion. On appeal, "[w]e review a grant of summary judgment de novo." Miller v. Cotter, 448 Mass. 671, 676 (2007). We look to the summary judgment record to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
On appeal, the defendants primarily argue that the DOT has not met its burden of proof as to the statutory requirements. The claim has no merit, particularly where the defendants submitted nothing, other than their own assertions, to contradict the DOT's evidence. See LaLonde v. Eissner, 405 Mass. 207, 209 (1989) (party opposing summary judgment "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment").
The defendants' claim that they are entitled to a permit as a matter of right is equally without merit. Because no State, county, or local zoning authority has made a determination of the defendants' "customary use" of the signs that appears in the record, any grounds for their entitlement to a customary use by right is without foundation. See 23 U.S.C. § 131(d) (2012). Nor do the signs fall within the G.L. c. 93D, § 2(d ), exception for "[s]igns, displays and devices which are located in areas which are zoned industrial or commercial under authority of law and which have permits issued under the provisions of [G.L. c. 93D, § 3 ]," as the defendants concede that the signs do not have permits.
Conclusion. Because the summary judgment record raises no genuine issue of material fact, the motion judge properly allowed summary judgment in favor of the DOT.
Judgment affirmed.