Aesthetics Off the Pedestal: Massachusetts Supreme Judicial Court Upholds Aesthetics as Basis for Exercise of the Police Power

[6 ELR 10036]

Beauty can indeed by viewed by the eyes of the law, the Massachusetts Supreme Judicial Court has concluded, rejecting a statutory and constitutional challenge to a town by-law prohibiting off-premise advertising signs in residential, industrial or business zones.¹ The court held that a police power regulation does not violate due process simply because it is based solely on aesthetic considerations, and that municipalities may enact reasonable billboard regulations in order to preserve or enhance their urban environment. The ruling in John Donnelly & Sons, Inc. v. Outdoor Advertising Board adds Massachusetts to the growing ranks of states which have now progressed beyond Justice Pound's famous statement:

Beauty may not be queen but she is not an outcast beyond the pale of protection or respect. She may at least shelter herself under the wing of safety, morality or decency.²

Brookline Cuts Down the Billboards

In 1967, the town of Brookline adopted a sign zoning by-law prohibiting non-accessory (off-premise) advertising signs in residential zones, and severely restricting the size and placement of off-premise signs in other parts of town. Apparently not satisfied with this restrictive provision, the town replaced it in 1971 with a by-law prohibiting off-premise advertising signs in all residential, business and industrial zones in the town. The Donnelly company stood to lose 22 billboards it had erected under permit in non-residential areas of Brookline. Donnelly, which has been in the billboard business since 1850 and has a history of litigating against attempts to regulate billboard advertising,³ challenged the by-law before the state Outdoor Advertising Board. The Board found that Brookline's by-law effectively prohibited off-premise advertising in the town. Nevertheless, it held that the Massachusetts [6 ELR 10037] Constitution permitted zoning for aesthetic purposes and that Brookline had validly enacted the by-law under its police power in conformance with the United States Constitution's First and Fourteenth Amendments. The Board then determined that renewal permits for Donnelly's 22 billboards should be denied.

The Supreme Judicial Court, in an exhaustive opinion written by Chief Justice Tauro, wholly agreed with the Board's rationale. Concerning Donnelly's challenge under state law, the court initially noted that the Massachusetts Constitution in 1918 explicitly conferred upon the state legislature the power to regulate and restrict advertising in public places and in the public view. Rejecting plaintiff's assertion that Brookline had exceeded the zoning powers delegated to it by the state, the court observed that the legislature had provided for local regulation of billboards and that the Outdoor Advertising Board had recently adopted rules giving a greater measure of regulatory discretion to local officials. The Board's action removed any possible issue of state preemption in the field of billboard regulation. Brookline therefore could permissibly enact billboard restrictions more stringent than those in effect at the state level.

Ban Consistent with State Policy

Having determined that Brookline's by-laws can properly exceed state billboard regulation, the court next faced Donnelly's argument that town by-laws effectively prohibiting billboards within the town violated state policy. The court viewed its prior decisions as holding that the state's power to regulate billboard advertising, while not actually authorizing a total ban on billboards throughout the state, nevertheless allowed prohibitions of advertising signs in certain designated areas.⁴ Since Brookline's prohibition affected billboards only within its boundaries, it was consistent with state policy.

The court then turned to Donnelly's more serious contention that a municipality's total exclusion of billboards violates the due process clause of the Fourteenth Amendment. For purposes of judicial review, the court said, billboard regulation is equivalent to the state's zoning power. Thus, the court adopted the arbitrary and capricious standard of judicial review.

Donnelly argued that the end sought to be achieved — exclusion of off-premise billboards — is constitutionally impermissible. The court first discussed whether the town's objective is a legitimate police power function. Many cases have said no, holding either than aesthetic judgments are inherently subjective and therefore can be applied only in an arbitrary and capricious manner,⁵ or, taking a narrow view of the permissible range of police power objectives, that aesthetic considerations "are a matter of luxury and indulgence rather than of necessity, and it is necessity alone which justifies the exercise of the police power…."⁶ Even those courts which have sustained the strict regulation of billboards have frequently employed the legal fiction that billboards are a continuing menace to public safety and morals.⁷

Public Safety Fiction Discarded

The town urged the Massachusetts court to uphold its by-law on this traditional public safety rationale. Refusing to accept the proferred bait by noting that public safety evidence is inconclusive, the court instead chose a frank approach. It exploded the legal fiction, concluding that

aesthetics alone may justify the exercise of the police power; that within the broad concept of "general welfare," cities and towns may enact reasonable billboard regulations designed to preserve and improve their physical environment.⁸

One justification for this conclusion, the court noted, is the flexible scope of federal constitutional guarantees.⁹ [6 ELR 10038] The court derived further support for its decision from the Massachusetts constitutional provision establishing a right of the people to the natural and aesthetic qualities of their environment.¹⁰

The court supplied two, additional reasons for holding aesthetics to be a permissible police power objective. First, its decision was consistent with prior Massachusetts cases concerning billboard regulation.¹¹ It should be noted, however, that the court's prior cases had only by obiter dictum said that aesthetics could legitimately serve as a basis for the exercise of the police power. It appears that the 1972 adoption of the constitutional right to an aesthetically appealing environment may have tipped the balance in the court's mind to hold squarely that aesthetics alone can serve a police power function.

Secondly, the court recognized and expressly joined the growing number of courts which grant aesthetics their proper place among the police powers.¹² This trend now appears to be secure, despite a few recalcitrant states which have recently invalidated regulations based solely upon aesthetics.¹³

Urban-Rural Distinction Rejected

Having declared aesthetics-based regulation to be a legitimate police power function, the court turned to the other half of Donnelly's constitutional argument: whether the means employed by the town bore a reasonable relationship to the prohibitory objective. Stated more plainly, this argument asserts that billboard prohibition conceivably has salutary effects in rural and residential areas, but cannot possibly benefit an urban environment. To ban billboards would not, it is contended, cure the pervading urban blight. The court emphatically rejected this urban-rural distinction:

We believe it is within the scope of the police power for the town to decide that its total living area should be improved so as to be more attractive to both its residents and visitors. Whether an area is urban, suburban, or rural should not be determinative of whether the residents are entitled to preserve and enhance their environment. Urban residents are not immune to ugliness.¹⁴

Moreover, the court said, it is not sufficient to restrict the privilege of aesthetic control to only amalgamated residential and business communities. Logic and common sense dictate that a municipality's well-being is served by aesthetically pleasing business districts.

Donnelly's final challenge to the by-law, as might be expected, asserted its free speech interests. While acknowledging that commercial speech deserves some constitutional protection, the court noted that pure commercial advertising merits less protection than speech which, though communicated through a commercial medium, communicates non-commercial ideas. The court also seized upon the notion that billboard viewers are captive audiences and, as such, are entitled to greater governmental protection of their privacy than other citizens. Although the captive audience doctrine is currently somewhat garbled,¹⁵ it seems clear that billboard regulation conforms to permissible time, place and manner restrictions on the nominal free speech interests of billboard advertisers.

Conclusions

The Massachusetts court's task in Donnelly was considerably simplified in several respects. First, by adopting a narrow standard of judicial review, the court saved itself from the pitfall of judicially-created aesthetic judgments. Reviewing the reasonableness of a legislative standard is far easier than articulating one's own aesthetic predilections. Secondly, and surprisingly, Donnelly did not attack the Brookline billboard by-law as an uncompensated taking. And thirdly, the expansion of police powers to include aesthetics conforms to the continuing liberalization of courts' attitudes towards the Fourteenth Amendment's effect on governmental powers.

Donnelly is a bold step toward resolution of the historically intractable problem of legislating for beauty's sake. Tentative attempts in this direction are embodied in NEPA.¹⁶ To be sure, community standards as expressed in aesthetic legislation may become oppressive or overbearing, as they can in the areas of residential zoning¹⁷ or pornography.¹⁸ Balanced against [6 ELR 10039] this possibility, however, are two important considerations. It is a short hop from regulating environmental quality for its beauty to governing it for its own sake.¹⁹ Also, environmentalists have now been supplied with potent ammunition for the forthcoming battles against urban, as well as natural, environmental degradation.

1. John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 6 ELR 20123 (Mass. Sup. Jud. Ct. Dec. 15, 1975).

2. Perlmutter v. Greene, 259 N.Y. 327, 332, 182 N.E. 5, 6 (1932).

3. See, e.g., John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 361 Mass. 746, 282 N.E.2d 661 (1972).

4. General Outdoor Advertising Co. v. Dep't of Pub. Works, 289 Mass. 149, 193 N.E. 799 (1935), appeal dismissed, 297 U.S. 725 (1936). Decisions in other states have sustained prohibition of billboard advertising in an entire community, Cromwell v. Ferrier, 19 N.Y.2d 263, 225 N.E.2d 749, 279 N.Y.S.2d 22 (1967), and throughout a state, State v. Diamond Motors, Inc., 50 Haw. 33, 429 P.2d 825 (1967), citing Hawaii Const. art. VIII, § 5:

The State shall have power to conserve and develop its natural beauty, objects and places of historic or cultural interest, sightliness and physical good order, and for that purpose private property shall be subject to reasonable regulation.

5. See, e.g., St. Louis Gunning Advertising Co. v. City of St. Louis, 235 Mo. 99, 202, 137 S.W. 929, 961-62 (1911). Perhaps the most cogent statement of the subjectivity argument appears in City of Youngstown v. Kahn Bros. Bldg. Co., 112 Ohio St. 654, 661-62, 148 N.E. 842, 844 (1925):

It is commendable and desirable, but not essential to the public need, that our aesthetic desires be gratified. Moreover, authorities in general agree as to the essentials of a public health program, while the public view as to what is necessary for aesthetic progress greatly varies. Certain Legislatures might consider that it was more important to cultivate a taste for jazz than for Beethoven, for posters than for Rembrandt, and for limericks than for Keats. Successive city councils might never agree as to what the public needs from an aesthetic standpoint, and this fact makes the aesthetic standard impractical as a standard for use restriction upon property. The world would be at continual seesaw if aesthetic considerations were permitted to govern the use of the police power. We are therefore remitted to the proposition that the police power is based upon public necessity, and that the public health, morals, or safety, and not merely aesthetic interest, must be in danger in order to justify its use.

6. City of Passaic v. Patterson Bill Posting, Advertising, and Sign Painting Co., 72 N.J.L. 285, 287, 62 A. 267, 268 (1905).

7. In St. Louis Gunning, supra note 5, 235 Mo. at 145, 137 S.W. at 942, the court said, in reference to signboards:

In cases of fire they often cause their spread and constitute barriers against their extinction; and in cases of high wind, their temporary character, frail structure and broad surface, render them liable to be blown down and to fall upon and injure those who may happen to be in their vicinity. The evidence shows and common observation teaches us that the ground in the rear thereof is being constantly used as privies and the dumping ground for all kinds of wastes and deleterious matters, and thereby creating public nuisances and jeopardizing public health; the evidence also shows that behind these obstructions the lowest form of prostitution and other acts of immorality are frequently carried on, almost under public gaze; they offer shelter and concealment for the criminal while lying in wait for his victim; and last, but not least, they obstruct the light, sunshine and air, which are so conducive to health and comfort.

See also St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269 (1919).

8. 6 ELR at 10125.

9. In the revolutionary case of Berman v. Parker, 348 U.S. 26, 33 (1954), the court, per Justice Douglas, said:

The concept of the public welfare is broad and inclusive…. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that a community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

Although Berman involved the legitimacy of a taking of private property for slum clearance, its rationale that aesthetics can be a basisfor eminent domain would seem to apply a fortiori to more police power regulation.

10. Mass. Const., Amend. art 97. See generally Frye, Environmental Provisions in State Constitutions, 5 ELR 50028, 50031 n. 37.

11. See General Outdoor Advertising Co. v. Dep't of Pub. Works, 289 Mass. 149, 184-87, 193 N.E. 799, 815-17 (1935), appeal dismissed, 297 U.S. 725 (1936).

12. As of 1973, 14 out of the 37 states which had faced the aestheticspolice power question had accepted or indicated receptiveness to this concept. Note, Beyond the Eye of the Beholder: Aesthetics and Objectivity, 71 Mich. L. Rev. 1438, 1440-41 and nn. 12-13. Colorado, one of the majority jurisdictions noted above, may be changing its view to join the minority. See Green v. Castle Concrete Co., 2 ELR 20347 (Dist. Ct. Colo. 1972). The Fifth Circuit has been especially vigilant in protecting aesthetic regulation. See Stone v. City of Maitland, 3 ELR 20443 (5th Cir. 1973); Maher v. New Orleans, 5 ELR 20524 (5th Cir. 1975).

13. See, e.g., Mayor & City Council v. Mano Swartz, Inc., 3 ELR 20232, 268 Md. 79, 299 A.2d 828 (1973).

14. 6 ELR at 20126.

15. Cf. Lehman v. Shaker Heights, 418 U.S. 298 (1974) (political advertising prohibited on city buses; riders are captive audience) with Erznoznik v. Jacksonville, 422 U.S. 205 (1975) (ordinance prohibiting showing of nudity in drive-in theater movies declared invalid; passers-by not necessarily, captive audience).

16. NEPA, § 101(b)(2), ELR 41009, creates a national policy to "assure for all Americans … esthetically and culturally pleasing surroundings." See Port of Astoria v. Hodel, 5 ELR 20657 (D. Ore. 1975).

17. See Village of Belle Terre v. Boraas, 4 ELR 20302, 20304-07 (Marshall, J., dissenting), discussed in Comment, The Supreme Court Breaks the Zoning Silence: Village of Belle Terre v. Boraas, 4 ELR 10057 (1974). The lurking exclusionary character of the imposition of a community's aesthetic standards on individual action is softened whenever such standards can be justified by additional environmental amenity, public health, or safety reasons. See Construction Industry Ass'n v. City of Petaluma 5 ELR 20519 (9th Cir. 1975), discussed in Comment, How Slow Can You Grow? Ninth Circuit Upholds Constitutionality of Petaluma's Growth Control Plan, 5 ELR 10169 (1975)

18. See Miller v. California, 413 U.S. 15 (1973).

19. See Sierra Club v. Morton, 2 ELR 20192, 20196 (Douglas, J., dissenting). See also Stone, Should Trees Have Standing? — Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972).