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John Donnelly & Sons, Inc. v. Outdoor Advertising Bd.

Citation: 6 ELR 20123
No. No. S-166, 339 N.E.2d 709/8 ERC 1671/369 Mass. 206, (Mass., 12/15/1975)

The Massachusetts Supreme Judicial Court rejects a constitutional and statutory challenge to a Brookline by-law prohibiting off-premise advertising signs in any residential, industrial or business zone. The town acted properly within powers delegated by statute and administrative rule. "[A]esthetics alone may justify the exercise of the police power; . . . within the broad concept of 'general welfare,' cities and towns may enact reasonable billboard regulations designed to preserve and improve their physical environment." Traditional theories uphelding aesthetic regulation are based partially on a public safety rationale and both obscure the issues and ignore legal trends. Citing the Massachusetts constitutional provision guaranteeing a right to an aesthetically pleasing environment, the court declares visual pollution to be inimical to the general welfare. Such pollution is detrimental to urban and business areas, as well as to rural and residential areas. Adopting the arbitrary or capricious standard of review, the court refuses to determine judicially that some types of communities but not others may regulate their appearance. The governmental interest in regulating billboard advertising outweighs the minimal free speech interests of commercial advertisers.

Counsel for Plaintiff
Joseph J. Hurley
Daniel J. Gleason
Edward P. Leidensperger
Nutter, McClennen & Fish
75 Federal Street
Boston, MA 02110
(617) 423-7011

Counsel for Defendant Outdoor Advertising Board
Ellyn R. Weiss
Deputy Asst. Attorney General
131 Tremont Street
Boston, MA 02108
(617) 727-8400

Counsel for Defendant Town of Brookline
Donald L. Connors
Tyler & Reynolds
One Boston Place
Boston, MA 02108
(617) 523-6550

Counsel for Amicus Curiae Outdoor Advertising Association of America
Phillip Tocker
1660 L Street, N.W.
Washington, DC 20036
(202) 223-5566