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American Sign & Indicator Corp. v. Framingham

Appeals Court of Massachusetts, Middlesex

November 15, 1979, Argued ; January 22, 1980, Decided

No Number in Original


 [*67]   [**42]  This appeal raises the question whether the town of Framingham can regulate signs under a town by-law adopted pursuant to G. L. c. 93 and c. 43B which does not comply with the provisions of the Zoning Enabling Act, G. L. c. 40A. We hold that it can.

The plaintiff, American Sign and Indicator Corp., constructed and operated a changing message sign for the Sheraton Tara Hotel in Framingham. On September 13, 1976, the plaintiff was directed by a letter from the sign officer of the town to reduce the frequency of its message changes on the Sheraton Tara sign to not less than thirty seconds. The plaintiff failed to do so, and, by letter of October 19, 1976, the management of the hotel was informed that the sign violated the Framingham sign by-law. The hotel was ordered to cease and desist operation of the sign within thirty days and was advised of its right to appeal the order to the Framingham sign review board. The order was never appealed.

Instead, the plaintiff brought an action seeking a declaration that the portion of the Framingham sign by-law which affects changing message signs is null and void. The [***3]  sign by-law, which became effective on March 18, 1976, provides in art. 4.2 that a sign may be erected only after a permit has been issued by the sign officer, and in art. 5.1, set forth in the margin, 2 that signs with automatically changing messages require, in addition to a permit, written approval of the sign review board.

 [*68]  The plaintiff's primary argument is that because signs are included within the term "structures" under G. L. c. 143, § 1, and § 3.1 of the town sign by-law, they are subject to G. L. c. 40A, which preempts the manner in which a municipality may [***4]  exercise its zoning power. It claims that the delegation of the right to grant permits to the sign officer and the sign review board is contrary to the Zoning Enabling Act, c. 40A, § 4, as in effect prior to St. 1975, c. 808, § 3, 3 [***5]  and that permit granting authority can only be exercised  [**43]  by the board of appeals or selectmen of the town. 4

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9 Mass. App. Ct. 66 *; 399 N.E.2d 41 **; 1980 Mass. App. LEXIS 982 ***


Prior History:  [***1]  Civil action commenced in the Superior Court on February 18, 1977.

The case was heard by Mitchell, J., on a motion for summary judgment.

The case was submitted on briefs.

Disposition: So ordered.


by-law, zoning, signs, review board, regulated, message, trial court, ordinances, definitions

Business & Corporate Compliance, Real Property Law, Zoning, Local Planning, Governments, Local Governments, Ordinances & Regulations, Ordinances, Regional & State Planning, Constitutional Limits, Home Rule, State & Territorial Governments, Relations With Governments