Van Wagner Communications, LLC et al v. Massachusetts Department of Transportation et al

Filing 44

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "Plaintiffs have requested that this Court enter a preliminary injunction to stay the Massachusetts permitting regime, to maintain the status quo with respect to outstanding OOA pe rmits and to forbid the issuance of any such new permits. Because this Court has determined to dismiss plaintiffs' claims arising under federal law and to decline supplemental jurisdiction over the remaining state law claims for lack of subject matter jurisdiction: 1) Plaintiff's Motion for a Temporary Injunction (Docket No. 2 ) is DENIED, and 2) Defendants' Motion to Dismiss (Docket No. 28 ) is ALLOWED. So ordered." (Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
VAN WAGNER COMMUNICATIONS, LLC, )
VAN WAGNER BOSTON, LLC,
)
Plaintiffs,
)
)
v.
)
)
MASSACHUSETTS DEPARTMENT OF
)
TRANSPORTATION, MASSACHUSETTS
)
OFFICE OF OUTDOOR ADVERTISING,
)
RICHARD A. DAVEY, EDWARD J.
)
FARLEY,
)
Defendants.
)
________________________________ )

Civil Case No.
13-11028-NMG

MEMORANDUM & ORDER
GORTON, J.
Plaintiffs bring this action challenging the enforceability
of 700 C.M.R. § 3.07 et seq., which are regulations of outdoor
advertising recently promulgated by defendant Massachusetts
Department of Transportation (“MassDOT”).
I.

Background
Plaintiffs Van Wagner Communications, LLC (“VWC”) and Van

Wagner Boston, LLC (“VWB”) are New York entities.

VWC is the

fourth largest national outdoor advertising company in the United
States. VWB is a wholly owned subsidiary of VWC.

Together they

hold more than 80 permits from defendant Massachusetts Office of
Outdoor Advertising (“OOA”), which is a subdivision of the

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Highway Division of MassDOT.

The Complaint also names as

defendants Richard Davey, Secretary of Transportation and Edward
Farley, Director of the OOA in their official capacities.
A. History of the OOA
In 1946 the Massachusetts legislature amended M.G.L. c. 93
to vest exclusive authority to regulate outdoor advertising in
the Outdoor Advertising Authority (“OAA”).

The OAA was

controlled by a three-member board, appointed by the governor.
In 1955 the OAA was renamed the Outdoor Advertising Board
(“OAB”).
In 1965 Congress enacted the Federal Highway Beautification
Act (“FHBA”).

In 1971 Massachusetts, in turn, enacted M.G.L. c.

93D to ensure compliance with the FHBA.

The Commonwealth later

entered into an agreement with the federal government to
implement the FHBA (“Federal/State Agreement”).

The text of that

agreement indicates that it applies to
all zoned and unzoned commercial and industrial areas
within 600 feet of the nearest edge of the right-of-way
of all portions of the Interstate and primary systems
within the Commonwealth of Massachusetts in which outdoor
advertising, signs, displays and devices may be visible
from the main traveled way of said systems.
In 2009 Massachusetts enacted the 2009 Transportation Act,
which consolidated the Department of Highways into MassDOT.
Drafts of the legislation called for the elimination of the OAB
and an express delegation of authority to a new entity to perform
the OAB’s previous functions, but the statute as enacted did not
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create such an entity.
In November, 2009, MassDOT adopted temporary regulations
which essentially mirrored those that had been in place under OAB
but also created the OOA.

The OOA is administered by a single

Director with permit granting authority.

In June, 2012, MassDOT

proposed further changes which went into effect in December, 2012
(“New Regulations”).
B.

New Regulations

Plaintiffs assert that the New Regulations impose numerous
restrictions on off-premise signs that were not explicitly
authorized by the Massachusetts legislature.

In particular,

plaintiffs contend that the 2009 Transportation Act did not
create an entity to succeed OAB and authorized MassDOT to
regulate outdoor advertising only to the extent necessary to
ensure compliance with the FHBA and the Federal/State Agreement.
Plaintiffs claim that the New Regulations do far more than that,
including that they regulate outdoor advertising that is not near
a highway.
Plaintiffs object specifically to the language of 700 C.M.R.
§ 3.07(4) which states that:
No permit shall be granted for a sign which the
Director, in its discretion, determines would not be in
harmony with or suitable for the surrounding area or
would do significant damage to the visual environment.
In making this determination, the Director may consider,
among other factors, the health, safety and general
welfare of the public; the scenic beauty of the area;
the physical, environmental, cultural, historical or

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architectural characteristics of the location and the
area; the structure, height and size of the sign; the
illumination and brightness of the sign; and the number
of signs, including on premises and accessory use signs,
which are in the area wherein the sign is to be located.
The existence of any sign or signs in an area shall not
require a finding that the erection of another sign will
be in harmony with the area.

Plaintiffs assert that this particular provision of the New
Regulations gives the Director “unbridled discretion” over
permitting decisions and that such standardless discretion
constitutes an unconstitutional prior restraint on their First
Amendment right to free speech.
Plaintiffs’ Complaint seeks declaratory judgments that:
1) the MassDOT lacks authority to impose the New Regulations
(Count I), 2) the New Regulations violate platintiff’s First
Amendment rights (Count II), 3) by promulgating and enforcing the
New Regulations defendants have a) deprived plaintiffs of rights
secured by the First and Fourteenth Amendments and § 1983 (Count
III) and b) deprived plaintiffs of their right to free speech
under Article 16 of the Massachusetts Constitution (Count IV) and
4) defendants violated the Massachusetts Administrative
Procedures Act when they adopted substantive changes to the
proposed regulations without holding a public hearing (Count V).
The Court heard oral argument on plaintiffs’ motion for a
preliminary injunction and defendants’ motion to dismiss on June
13, 2013, after which the Court ordered additional briefing and
took both motions under advisement.
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II.

Motion to Dismiss
A. Count II
Count II of the Complaint is entitled “Declaratory Judgment-

First Amendment”.

Defendants assert that this count should be

dismissed because the Declaratory Judgment Act is not an
independent basis for jurisdiction and plaintiffs’ Complaint
provides no other statutory grounds for jurisdiction over that
Count.

This Court agrees that the Declaratory Judgment Act “is

not a grant of jurisdiction.”.

Watchtower Bible & Tract Soc. of

N.Y., Inc. v. Colombiana, 712 F.3d 6, 11 (1st Cir. 2013).

In

fact, plaintiffs acknowledge that dismissing Count II would make
little difference to their case given that they have also brought
a First Amendment claim under § 1983 in Count III.

As a result,

Count II will be dismissed.
B. Count III
Defendants assert that plaintiffs lack standing to raise
their First Amendment challenge in Count III because plaintiffs
have not identified any injury they have suffered as a result of
the New Regulations.
In order to establish Article III standing a plaintiff must
show 1) an injury in fact, 2) a causal connection between the
injury and the conduct complained of and 3) a likelihood that the
injury will be redressed by a favorable decision.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).

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Lujan v.

Plaintiffs claim that the Director determined that nine of
their permit applications were incomplete for failure to comply
with a requirement of the New Regulations that applicants notify
all property owners located within 500 feet of a proposed outdoor
sign.

Plaintiffs assert that the denial of their permit

applications for failure to comply with that requirement
constitutes an injury in fact and is evidence that the Director
is using the New Regulations to “stall the process”.
Although plaintiffs complain that the notice requirement is
“onerous”, such an assertion is not sufficient to establish
standing. Plaintiffs do not cite the specific regulation in which
the notice requirement appears but it is clear that no such
provision is included within the language of § 3.07(4), the
provision which constitutes the basis for plaintiffs’ prior
restraint claim.

As a result, this Court agrees with defendants

that plaintiffs’ mere assertion that they have been harmed by the
notice requirement does not confer upon plaintiffs standing to
challenge § 3.07(4) or any other provision of the New
Regulations unrelated to the notice requirement.
Plaintiffs have not identified any specific injury they have
suffered as a result of § 3.07(4).

Instead, they rely on City of

Lakewood v. Plain Dealer Publishing Company, 486 U.S. 750 (1988).
In that case a newspaper challenged a municipal ordinance
governing the provision of permits for the placement of newspaper

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racks on city property.

In concluding that a facial challenge to

the ordinance was permissible, the Court stated that when
a licensing statute allegedly vests unbridled
discretion in a government official over whether to
permit or deny expressive activity, one who is subject
to the law may challenge it facially without the
necessity of first applying for, and being denied, a
license.
Id. at 755-56.

Relying on that language, plaintiffs assert that

the fact that they have not been denied permits under § 3.07(4)
is immaterial and they are entitled to bring a facial challenge
merely by being subject to the New Regulations.

Taking

plaintiffs’ argument to its logical conclusion would, however,
allow any plaintiff to bring a facial challenge without first
satisfying the additional standards that the Court propounded in
City of Lakewood.

Here, plaintiffs have failed to meet those

requirements.
As an initial matter, the City of Lakewood decision, unlike
this case, did not involve commercial speech.

Here plaintiffs

request that the Court apply the prior restraint doctrine to
commercial speech, despite the fact that the Supreme Court has
expressly called such an application into question. See e.g.
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York,
447 U.S. 557, 571, 100 S. Ct. 2343, 2354, 65 L. Ed. 2d 341
(1980)(“[C]ommercial speech is such a sturdy brand of expression
that traditional prior restraint doctrine may not apply to it.”)
Even if the prior restraint doctrine is applicable to the
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realm of commercial speech, a facial challenge is not appropriate
in this case because City of Lakewood is distinguishable.

The

holding in City of Lakewood was conditioned upon unique First
Amendment concerns arising from the fact that plaintiff in that
case was a newspaper and the Court found the presence of the
“twin threats of self-censorship and undetectable censorship”.
486 U.S. at 760.

Neither is present in this case.

With respect to the first “threat”, in City of Lakewood the
Court determined that the ordinance gave a government official
“substantial power to discriminate” based on the content or
viewpoint of speech “by suppressing disfavored speech or disliked
speakers.” Id. at 759.

Here, there is no evidence that the

Director is likely to discriminate based on content or viewpoint.
In fact, the permitting application scheme under the New
Regulations requires that permits be submitted without any
reference to the content of the proposed signs.

Furthermore, the

content displayed on many of the signs changes frequently
following the approval of a permit and such changes in content do
not require the approval of the Director.

Id. at 760 (laws that

“do not permit licensing determinations to be made on the basis
of ongoing expression or the words about to be spoken carry
little danger of censorship.”).
Consequently, plaintiffs’ only argument in support of an
alleged risk of content-based discrimination is the vague

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suggestion that a member of the public might complain about the
content of a particular advertisement.

Such a complaint, might,

in turn, cause the Director privately to decline to renew the
permit based on its content while publicly justifying the denial
based on the factors laid out in § 3.07(4).

Plaintiffs’ argument

is speculative and does not rise to the level of a “real and
substantial threat” of “identified censorship risks” required by
City of Lakewood. Id. 759.
Plaintiffs’ Complaint also provides no evidence of the risk
of “self-censorship by speakers in order to avoid being denied a
license to speak”. Id.

This case is distinguishable from City of

Lakewood in which there was a genuine concern that a newspaper
might feel “significant pressure” to endorse or refrain from
criticizing a political candidate for fear it might affect the
disposition on its permit application. Id. at 756.

Here there is

no suggestion that plaintiffs have or are likely to change their
behavior in any way as a result of § 3.07(4).

In fact, here it

is apparent that plaintiffs have not been engaging in selfcensorship since being subject to § 3.07(4) of the New
Regulations.

They have submitted numerous permit applications

under the new regime during which the only regulatory difference
in § 3.07(4) has been the Director’s discretion to consider “the
illumination and brightness of the sign.”
at issue in this case.

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That language is not

As a result, this case is not appropriate for a facial
challenge because neither of the factors the Court relied upon in
City of Lakewood is present here.

Instead, the Court finds that

§ 3.07(4) of New Regulations constitutes “too blunt a censorship
instrument to warrant judicial intervention prior to an
allegation of actual misuse” Id. at 761.

Plaintiffs have failed

to make the prerequisite showing of standing and Count III will
therefore be dismissed.
C. Counts I, IV and V
Counts I, IV and V are before this Court on supplemental
jurisdiction pursuant to 28 U.S.C. § 1367.

When, as here, the

Court dismisses the foundational federal claims, “it must
reassess its jurisdiction” over any remaining pendant state law
claims.

Camelio v. Am. Fed'n, 137 F.3d 666, 672 (1st Cir. 1998).

Factors for the Court to weigh in determining whether to retain
jurisdiction include the interests of fairness, judicial economy,
convenience and comity. Id.

Because comity is a “particularly

important” concern
the balance of competing factors ordinarily will weigh
strongly in favor of declining jurisdiction over state
law claims where the foundational federal claims have
been dismissed at an early stage in the litigation.
Id.
In this case the factors weigh strongly against retaining
jurisdiction over the state law claims.

The case is still in the

earliest stages and the parties will not be unduly prejudiced by
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a remand of the state law claims.

Furthermore, the remaining

state law claims asserting that defendants lacked statutory
authority to enforce the regulations at issue “raise substantial
questions of state law that are best resolved in state court.”
Id.

As a result, the Court will decline jurisdiction over Counts

I, IV or V and those counts will be dismissed.
ORDER
Plaintiffs have requested that this Court enter a
preliminary injunction to stay the Massachusetts permitting
regime, to maintain the status quo with respect to outstanding
OOA permits and to forbid the issuance of any such new permits.
Because this Court has determined to dismiss plaintiffs’ claims
arising under federal law and to decline supplemental
jurisdiction over the remaining state law claims for lack of
subject matter jurisdiction:
1) Plaintiff’s Motion for a Temporary Injunction (Docket
No. 2) is DENIED, and
2) Defendants’ Motion to Dismiss (Docket No. 28) is ALLOWED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated July 10, 2013

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