Full opinion text
MEMORANDUM WOODLOCK, District Judge. For more than ten years the City of Somerville, Massachusetts, has sought to regulate billboard signs through zoning regulation. One such effort was found constitutionally defective in 1985. Now before me is a challenge to Somerville’s 1986 revision of its regulatory scheme. In this action, the plaintiff, Ackerley Communications of Massachusetts, Inc. (“Ackerley”), challenges the constitutionality of revised Article 10 of Somerville’s zoning ordinance. Revised Article 10 regulates the size and location of all signs in the City, and prohibits the erection or maintenance of signs that fail to conform to its requirements. Section 10.7, which is denominated “Nonconforming Signs,” constitutes the ex-emptive section of revised Article 10. It contains two subsections especially important to analysis of the claims in this matter. Subsection 10.7.1 is a retrospective provision which looks to the period beginning one year before the effective date of the revised Article to provide the operative time for evaluating nonconforming signs. Subsection 10.7.2 is a grandfather provision for certain existing nonconforming signs erected before the effective date of the revised Article. The exemptive section is convoluted and works obliquely. Under Section 10.7.1, a nonconforming sign is expressly prohibited if — at any time after the operative date of the provision, July 28, 1985 — that sign advertised or promoted the sale of goods, products and services not sold, provided or manufactured upon the premises where the sign is located. The unartieulated negative pregnant of this formulation is, as the parties agree, that an otherwise nonconforming sign, e.g. a billboard, has grandfather protection under Section 10.7.2 and is exempted from prohibition by Article 10 if it has been used since July 28,1985 exclusively to deliver either: (a) on-premise commercial advertising or promotions, or (b) noncommercial messages of any kind, or both. Otherwise, the sign is deemed an off-premise commercial sign unprotected by any exemption. Thus, as constructed, Section 10.7 functions in two dimensions, the substantive and the temporal. In the substantive dimension, a typology of nonconforming signs is established. One class consists of off-premise commercial signs; these are expressly prohibited. The second class consists of the remaining signs — on-premise commercial signs and noncommercial signs of any kind; these may be exempt from prohibition. Whether a given sign in the second class is, in fact, exempt depends upon the temporal dimension. In the temporal dimension, the operative date of July 28, 1985, establishes an additional test of consistency of use to determine whether a potentially exempt nonconforming sign may remain undisturbed by revised Article 10. A sign, otherwise exempted on substantive grounds, becomes tainted — and subject to removal — if at any time after July 28, 1985, it has been used for the prohibited purpose of delivering an off-premise commercial message. The interplay between the substantive and temporal dimensions of the exemptive section defines the battleground where the constitutional dispute in this case is fought. Ackerley’s constitutional challenge to Article 10 is mounted on four fronts. Ackerley contends: —That revised Article 10, by choosing an operative date in its exemptive section which does not permit those using nonconforming signs on the effective date to change the content and satisfy the noncommercial exception prospectively, violates the First Amendment by impermissibly favoring commercial over noncommercial messages; —That revised Article 10 violates the First Amendment by impermissibly favoring on-premise commercial advertising over off-premise commercial advertising; —That revised Article 10 violates the constitutional prohibition against ex post facto laws as well as the constitutional guarantee of due process because, by choosing an operative date well before the effective date, it has — without fair warning — exposed the plaintiff to penalties for conduct that was legal at the time it occurred; and —That revised Article 10 constitutes an unconstitutional taking of private property without just compensation. Somerville has responded with what it contends is a compulsory counterclaim. This counterclaim seeks enforcement of Article 10 under state zoning law if Ackerley’s federal constitutional challenges are rejected. With the cooperation of the parties, discovery was expedited to permit an advanced trial on the merits. In addition, the parties cooperated in reopening the evidence to provide an adequate basis for findings concerning the actual impact of full enforcement of Article 10. By agreement of the parties, interim enforcement of the ordinance has not been undertaken pending resolution of the constitutional issues. The constitutional issues will be disposed of in accordance with this Memorandum by a declaratory judgment upholding revised Article 10 against plaintiff’s challenge. I decline, however, to resolve the problems of enforcement raised by the counterclaim because those problems involve essentially state law questions and concerns. The counterclaim will, accordingly, be dismissed. This Memorandum sets forth the findings of fact and conclusions of law required for resolution of this non-jury matter. Fed.R.Civ.P. 52. I. FINDINGS OF FACT The City of Somerville, Massachusetts, is a compact and densely populated older urban locality with limited open space. It is the third most populous city in the Boston metropolitan area. Somerville’s development predated the enactment of its first comprehensive zoning ordinance in 1925. As a result, commercial, industrial and residential uses — while ostensibly ordered by zoning — exist side by side in Somerville through the continuation of prior nonconforming uses. As part of the Boston metropolitan area, Somerville has a wide variety of communication media available to its citizens. These include network affiliated, local and cable television channels and radio stations from throughout metropolitan Boston, together with national, regional and local newspapers and signs which conform to revised Article 10. For some period of time the residents of the City, its political leaders and its planners have been concerned with revitalizing the City economically and, in a related as well as independent sense, aesthetically. The problems of signs generally — and billboards in particular — have been a focus of these concerns. Article 10 is a regulatory expression of that concern. A. Ackerley’s Business Ackerley is a company engaged in the outdoor advertising business. It leases property on which it erects sign structures and then makes the space on such structures available to the public for commercial, political, charitable and social messages. Those signs are generally known as billboards. The erection and maintenance of Ackerley’s billboards in Massachusetts is subject to the permit authority of the state’s Outdoor Advertising Board (“OAB”). Mass. Gen.L. ch. 93, §§ 29-33 and ch. 93D. Each of Ackerley’s current billboards was issued a permit prior to erection. Until 1982, the permits were subject to annual renewal. After 1982, the Commonwealth began to issue five-year permits. Permits granted by the OAB are subject, under Massachusetts law, to municipal zoning amendments. 311 Code of Massachusetts Regulations (“C.M.R.”) 3.01(2). See also 311 C.M.R. 3.04(7) (“No permit shall be granted or renewed for the location or maintenance of a Sign within a city or town except where such location or maintenance is in conformity with applicable city and town ordinances”). Ackerley maintains Approximately 3,000 signs subject to this regulatory regime in 64 cities and towns in Massachusetts. In Somerville, it maintains 81 sign faces at 43 separate locations. All of Ackerley’s Somerville signs have been standing for at least 10 years, and a substantial majority have been standing for over 30 years. All of Ackerley’s Somerville billboards are maintained pursuant to leases with the owners of the various properties upon which the billboards are located. Under the leases, Ackerley typically erects its billboards on a roof or a parking lot of the leased premises. Ackerley’s current Somerville leases have varying expiration dates: leases for 24 of the billboards at issue here will not expire until after 1990, and leases for eleven of the billboards will not expire until after 1995. The leases generally contain clauses that provide a basis for Ackerley to reduce payments if government regulations restrict billboards. Ackerley’s signs have historically been used to display both commercial and noncommercial messages. Prior to July 28, 1986, the effective date of the challenged ordinance, Ackerley’s signs were used primarily for off-premise commercial messages. However, even during that time Ackerley devoted a substantial amount of advertising space to noncommercial messages, occasionally donating advertising space on its Somerville billboards to public service organizations or using its billboards to carry editorial messages expressive of its own views. Before passage of revised Article 10, Ackerley on average donated 15% of its advertising space at any given time to noncommercial organizations. Ackerley has also leased space on its billboards to political candidates. Ackerley’s billboard rates are not modest. A 12 by 25 foot billboard rents for an average of $400 per month and a 14 by 48 foot billboard rents at approximately $3,000 per month. Ackerley calculated that its gross revenue from billboards in Somerville, before adjustments were made in light of revised Article 10, was in the range of $400,000 to $450,000 annually. None of Ackerley’s signs in Somerville conforms to the location, height, or size requirements of Article 10; consequently, all of the signs are “nonconforming” under Section 10.7 of the Ordinance. Moreover, with no more than four to seven possible exceptions, all of Ackerley’s billboards, were used between July 28,1985 — the operative date under the ordinance — and July 28, 1986 — the effective date of the Ordinance — or thereafter, to advertise the sale of goods or services not available on the premises where the billboards are located. In other words, the vast majority of Ackerley’s billboards have concededly not been used exclusively since the operative date to carry either class of message — on-premise commercial advertising or noncommercial statements of any kind — necessary to bring them within the protection of the grandfather clause. Thus, despite the noncommercial messages that many of the billboards have periodically carried in the past and irrespective of Ackerley’s expressed and demonstrated current intent to use most, if not all, of its billboards for noncommercial messages or on-premise advertising for as long as commercial billboards are disfavored in Somerville, full enforcement of Section 10.7 will require that virtually all Ackerley’s billboards be removed. B. Somerville’s Regulatory Efforts Article 10 of the Zoning Ordinance is the most recent product of a long standing effort by Somerville to ameliorate the City’s economic difficulties and improve the City’s aesthetic appearance by reducing the number of visually displeasing sign and billboard structures. In 1969, 17 years before the passage of the current revised Article 10, a “Comprehensive Plan” was prepared for the City by the Planning Services Group, Inc. of Cambridge. The plan contained recommendations for revitalizing the City’s Davis Square area which included advice to “[r]educe the clutter of business signs in the square” generally, and specifically to “[rjeduce the number of rooftop billboards.” This type of advice continued to appear in planning documents prepared for the City throughout the 1970’s and into the 1980’s. These planning views provided the policy basis for Article 10. 1. The 1977 Ordinance In 1977, Somerville enacted Article 10 to its Zoning Ordinance. This was the City’s initial attempt to legislate the planning recompiendations it had been receiving regarding signs. This first version of Article 10 was a comprehensive sign regulatory scheme, which had the practical effect of banning all off-premise billboards in the City while extending grandfather status to existing on-premise commercial signs. Under the 1977 Article 10, nonconforming signs were given a five-year grace period before they were required to be removed. When the five-year period expired in 1982, 118 Ackerley billboards remained in Somerville in violation of the Ordinance. In response to Ackerley’s recalcitrant stance, Somerville commenced, pursuant to Mass.Gen.L. ch. 40A, § 7, a zoning enforcement action in the Massachusetts Superior Court to compel Ackerley to remove its nonconforming billboards. In that action, the 1977 version of Article 10 was declared unconstitutional on its face by my present colleague, William Young, then an Associate Justice of the Massachusetts Superior Court. City of Somerville v. Ackerley Communications of Massachusetts, Inc., Middlesex No. 83-6299 (Feb. 25, 1985). The 1977 Ordinance distinguished between “accessory” and “nonaccessory” signs; it permitted accessory signs, but prohibited nonaccessory signs. An accessory sign under the Ordinance was a sign which identified “the occupant of the premises, the business transacted thereon, or advertise[d] the property itself as for sale or to let.” Id. at 6. Judge Young found the Ordinance left to the discretion of City officials the determinations as to whether signs were accessory or nonaccessory. Making these determinations required Somerville officials to distinguish permissible from nonpermissible signs on the basis of each sign’s relative commercial and noncommercial content. However, the Ordinance did not set out any standards for making the determinations. Consequently, Judge Young observed that the Ordinance “... ‘presented] a real danger of curtailing noncommercial speech in the guise of regulating commercial speech.’ ” Id. at 7, quoting Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 536-37, 101 S.Ct. 2882, 2907-08, 69 L.Ed.2d 800 (1981) (Brennan, J., dissenting). He concluded that the Ordinance allowed Somerville arbitrarily to allow or prohibit signs on the basis of content. Accordingly, Judge Young found the 1977 version of Article 10 “unconstitutional on its face,” id. at 11, as either “unduly vague” or impermissibly “favoring ... commercial over noncommercial speech.” Id. at 10. 2. The September 1985 Proposal After Judge Young issued his decision in February 1985 striking down the 1977 version of Article 10, Somerville immediately began the process of revising the Article in order to cure its constitutional difficulties. On September 12, 1985, Eugene C. Bruñe, Mayor of Somerville, submitted a revised version of Article 10 to the Board of Aider-men. As proposed, the new Ordinance contained a variety of restrictions on the size and location of all signs in Somerville. None of Ackerley’s existing signs conformed to all of the proposed Article 10’s requirements, primarily because they exceeded the maximum area restrictions or were located on roofs. As proposed in September 1985, Article 10 contained a “grandfather” provision for existing signs which provided: Section 10.7 Nonconforming Signs. Section 10.7.1. This Article shall not apply to any nonconforming sign legally erected prior to the effective date of this Article, except as provided in Section 10.-7.2. Section 10.7.2. This Article shall apply to any nonconforming sign used at the time this Article becomes effective, or at any time thereafter, to advertise or otherwise promote the sale or existence of goods, products, services or business offered, sold manufactured, or conducted elsewhere than upon the same premises on which the sign is located. Such nonconforming signs shall be removed within 120 days of the effective date of this Article or within 120 days of the time they are so used, whichever occurs later, (emphasis supplied) 3.Somerville and Ackerley Negotiate After the proposed revision to Article 10 was submitted to the Board of Aldermen, Ackerley contacted Somerville officials and asked for an opportunity to discuss a resolution of the differences between them and perhaps forestall further litigation. In particular, Ackerley suggested that it would be willing to remove some billboards, relocate others, and donate some advertising space to public service messages of direct interest to the people of Somerville in exchange for being permitted to maintain a specific number of billboards in designated areas. A period of negotiations followed. Ackerley representatives met on several occasions with Somerville officials, primarily Thomas Pelham, Somerville’s Director of the 'Office of Planning and Community Development; Anthony Sullivan, the City Solicitor; and Mayor Bruñe. In April 1986, the negotiations between Ackerley and Somerville ended without agreement. At the final negotiating session between the parties on April 15, 1986, Louis Nickinello, Ackerley’s representative, indicated to Mayor Bruñe that if the proposed Ordinance were enacted, Ackerley would conform to the requirements of the Ordinance by using its Somerville billboards exclusively for either noncommercial messages or to advertise products offered for sale on the premises. Mr. Nickinello’s comments about compliance convinced the Mayor that Ackerley would pursue a strategy designed to keep its billboard structures in place. The May- or decided, therefore, to revise Article 10 further to ensure that the fewest possible Ackerley billboards would remain standing. 4. The 1986 Enactment On May 8,1985, soon after the April 15th session with Ackerley, Mayor Bruñe, after consulting with legal advisers, submitted a further revised version of Article 10 to the Board of Aldermen. The version of Article 10 proposed on May 8,1986 was identical in all material respects to the Ordinance proposed on September 12, 1985, except for Sections 10.7.1. and 10.7.2., the provisions concerning existing, nonconforming signs. The changes, about which Mayor Bruñe made no reference in his transmittal letter to the Board of Aldermen, significantly affected the operative date for exemptions for nonconforming signs. Under the May 8, 1986, proposal, any billboard used for off-premise commercial advertising on July 28, 1985, or thereafter, would not be protected. Thus, the owner of a nonconforming sign would not be in a position — under the May 8,1986, proposal — to take prospective action to bring that sign within either the on-premise advertising or the noncommercial message exception, as would have been possible had the September 1985 proposal been enacted. The Mayor’s May 8, 1986 proposal was approved by the Somerville Planning Board and enacted by the Board of Aldermen with minimal discussion on July 24, 1986, and became effective on July 28, 1986. This is the version of Article 10 that is at issue in this litigation. 5. Intent and Impact a. Intent The overall intent of the sign regulation is set forth in the “Findings and Purpose” section of Article 10, Section 10.1. Section 10.1.1 states that the Article is based on four findings: (a) The regulation of signs is necessary in order to preserve and enhance the substantial governmental interests of the City of Somerville in its natural, scenic, historic, cultural, and aesthetic qualities; (b) There is a substantial governmental interest in enhancing the physical appearance of all parts of the City of Somerville, including residential, commercial, and industrial areas; (c) Regulating signs will improve the City’s appearance, thereby attracting both permanent residents and commercial development; (d) The regulations set forth in this Article will directly advance the public interest in aesthetics and other qualities by preserving and enhancing the appearance of residential, commercial and industrial areas; preserving and enhancing the appearance of public streets, parks and other public properties; and by minimizing the intrusiveness of sign structures. Section 10.1.2 states: The purposes of this Article are to preserve and enhance the substantial interests of the City of Somerville in the appearance of the City; to preserve and enhance the public interest in aesthetics; to preserve and increase the amenities of the municipality; to control and reduce visual clutter and blight; and to carry out the authority conferred by General Laws, Chapter 40A and Chapter 93, Section 29. The intent of providing an exception for noncommercial signs was set forth in the Planning Board’s July 24, 1986 letter to the Aldermen recommending approval of May- or Brune’s May 8, 1986 proposal. The Planning Board, repeating Mayor Brune’s words in his September 12, 1985 letter to the Aldermen proposing the initial revision, stated that “the intent of the [exemptive] provision is to ban nonconforming ‘off-premise’ signs used for commercial advertising but to allow nonconforming ‘off-premise’ signs which contain noncommercial messages.” The Board observed that Sections 10.7.1 and 10.7.2 had “been drafted to conform to recent First Amendment decisions by the United States Supreme Court and other federal and state courts.” In conclusion, the Board stated that while the exemptive provision “may mean that some billboards containing noncommercial messages will remain, we believe that the public interest in protecting freedom of speech outweighs the adverse impacts which the relatively small number of structures bearing noncommercial messages will have on the various public interests____” Nowhere in the various statements of purpose and intent offered by Somerville is there an explanation offered for excepting on-premise commercial advertising. Nevertheless, it may be inferred, and I find, that Somerville chose to recognize the imperative needs of its local merchants to advertise their wares at the location of their shops. There is also no contemporaneous explanation of Somerville’s intent behind the fundamental change made in the operative date in the revision to Article 10. In his letter to the Aldermen by which he transmitted the May 8, 1986 proposed revision to the originally proposed revision of Article 10, Mayor Bruñe stated that “[t]his proposed ordinance is almost identical to the proposed ordinance which I submitted to you on September 12, 1985. A few very minor revisions have been made to incorporate informal suggestions made to me by members of the Planning Board.” Apart from this brief general statement, there is no mention in the Mayor’s letter of anything that bears on the changing of the operative date in Section 10.7. I find that when Mayor Bruñe proposed his May 8th revision to the grandfather provision of the proposed Ordinance, he knew: (1) that Ackerley intended to maintain its signs in a fashion designed to conform to the September 1985 proposal; (2) that Ackerley owned most if not all of the existing off-premise, nonconforming signs in Somerville, and consequently would be the only ‘person’ even potentially affected by the revision; (3) that few, if any, of Ackerley’s billboards were likely to have been used exclusively for noncommercial purposes during the preceding year; and, consequently, (4) that the introduction in the revised Ordinance of an operative date one year before the effective date would assure removal of virtually all of Ackerley’s billboards. I further find that Mayor Bruñe in making his May 8th proposal intended that it would result in the removal of virtually all of Ackerley’s billboards, not because they were Ackerley’s, but because they were oversized structures, the continued presence of which would seriously undercut the aesthetic goals of the Ordinance; and that he intended that result without any intent that the enactment would favor certain viewpoints or ideas at the expense of others. b. Impact (i) As a Theoretical Matter It is theoretically possible for a nonconforming sign to satisfy the grandfather provisions of revised Article 10 through consistent use after July 28,1985 for either on-premise advertising or promotion or the delivery of noncommercial messages, or both. (ii) As a Practical Matter As a practical matter, however, it is unlikely that the theoretical possibility of conforming by consistent delivery of noncommercial speech — as opposed to on-premise commercial messsages — was realized in any significant number of circumstances. In response to a court order dated December 23, 1987, the parties jointly retained R.M. Bradley & Co., Inc. for the purpose of preparing a catalogue of existing nonconforming signs in Somerville. R.M. Bradley surveyed the nonconforming signs on all of the major thoroughfares in Somerville during December 1987-January 1988. The company then prepared a catalogue which identified each surveyed nonconforming sign by location and zoning violation and contained a picture of each. The evidence was reopened to receive the R.M. Bradley catalogue. The parties have stipulated that the catalogue is not a complete record of each and every nonconforming sign in Somerville. However, they have also agreed that it provides a fair approximation of the total number of nonconforming signs on the major thoroughfares in Somerville, and, as such, it provides a reasonably precise basis from which to assess the actual impact of the challenged Ordinance. The catalogue identifies 65 Ackerley billboards, all of which would have to be removed pursuant to Section 10.7.1 of the Ordinance. Most, if not all, of these billboards have been used to carry noncommercial messages at one time or another and, as more fully developed below, will be used to carry noncommercial messages in the future if not eliminated by enforcement of revised Article 10. By contrast, the catalogue identifies at least 200 nonconforming signs at 196 other separate locations, the overwhelming majority of which are plainly commercial, and all of which would survive enforcement of revised Article 10 because their messages deal with on-premise activity. ■ Extrapolating from the survey, I find that the effect of the Ordinance will be to eliminate virtually all noncommercial messages conveyed by nonconforming signs in Somerville while leaving undisturbed nonconforming signs delivering on-premise commercial advertising. The only arguably noncommercial nonconforming signs which will remain after enforcement of revised Article 10 will be those which identify essentially eleemosynary institutions. The parties agree that the 1986 version of Article 10 permits the use of existing nonconforming, on-premise commercial signs to display noncommercial messages; and the Ordinance would not require the removal of any such signs were they to be used in the future to display noncommercial messages; and the Ordinance would not require the removal of any such signs were they to be used in the future to display noncommercial messages. I find, however, no evidence that any of these on-premise, nonconforming commercial signs has ever actually been used — or is likely in the future to be used — for a noncommercial purpose. The parties are in agreement that nonconforming, on-premise commercial signs that have been afforded grandfather protection under Section 10.7.2 may be converted to noncommercial use by the present or successor owners of the properties. For example, the on-premise nonconforming commercial sign “Hair Flair By Larry,” could be converted to a noncommercial sign by the current or a subsequent property owner at that location. Such continuations of prior nonconforming use would apparently enable the converted sign to retain protected grandfather status in a manner analogous to the Massachusetts law of pri- or nonconforming uses as set out in Mass. Gen.L. ch. 40A, § 6. I recognize that ch. 40A, § 6 by its terms “does not apply to billboards, signs and other advertising devices subject to the provisions of sections twenty-nine through thirty-three, inclusive, of chapter ninety-three, and to chapter ninety-three D,” and, consequently, the Massachusetts law of pri- or nonconforming uses does not technically apply to the subject matter of this lawsuit. However, there was agreement by the parties, after inquiry by me, that all on-premise nonconforming commercial signs that have been afforded grandfather protection under Section 10.7.2 will effectiVely be treated as if the law of prior nonconforming uses applies to them. Accordingly, any alteration of a protected on-premise nonconforming commercial sign that is not “substantially more detrimental than the existing nonconforming use,” ch. 40A, Sec. 6, 111, shall be deemed protected to the same degree as was the sign prior to alteration. Thus, if the sign “Hair Flair by Larry” is replaced by an “Abortion Kills” sign, or the property is sold to Brigham’s which replaces the sign with a “Brigham’s Ice Cream” sign, the alterations will be protected from the effects of the Ordinance on other nonconforming signs so long as the changes are not substantially more detrimental to the neighborhood. The determination of whether the alterations are protected will have to be made on a case by case basis. Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653, 653-58, 296 N.E.2d 491 (1973) (“rule of law governing nonconforming uses [is applied] on a case by case basis, with the result depending almost entirely on the particular facts of each case”) (collecting cases that have upheld and those that have limited nonconforming uses). However, it should be observed that the fact that “Hair Flair By Larry” is a neon sign and its replacements may be made of a different material will presumably be viewed as irrelevant so long as the replacements are of a size commensurate with the prior nonconforming use, and their “use is [not] different in kind in its effect on the neighborhood.” Id. (iii) Ackerley’s Response But for the final revision of Section 10.7, proposed in May 1986 by Mayor Bruñe, and enacted by the City in July 1986, the actual impact of the Ordinance upon noncommercial signs would have been far less severe. Had the September 1985 revision of Section 10.7 been enacted, Ackerley would have been allowed to maintain such existing, nonconforming billboards as were used to present noncommercial messages or on-premise commercial messages. The relative proportion of noncommercial messages to commercial messages appearing on a routine basis on nonconforming signs in Somerville would have been vastly greater than it will be under the revised Article 10 which was ultimately enacted. Since the passage of the challenged Ordinance, Ackerley has substantially increased the noncommercial use of its billboards. Ackerley’s billboards are now used almost exclusively to deliver noncommercial messages. Ackerley’s motive for transforming and offering to transform all its billboards to noncommercial uses since the 1986 enactment is not necessarily the emergence of a broader interest in asserting noncommercial positions. The cost of tearing down existing structures would be substantial. Ackerley saves dismantling costs by transforming its inventory to noncommercial messages. In addition, the transformation to an inventory of predominantly noncommercial messages provides a positive public relations statement in a hostile political environment. Finally, changing the temporary mix of messages in Ackerley’s Somerville billboard inventory is a hedge against the prospect that future judicial or legislative developments will again permit use of those billboards which remain in place with noncommercial messages — even if not covered by the grandfather provision — for the continued delivery of noncommercial and, perhaps at some point, commercial messages. Whatever Ackerley’s motives in choosing to respond to Somerville’s regulatory scheme with a policy of increased noncommercial billboard use, I find that implementation of revised Article 10 will substantially reduce the use of signs to deliver noncommercial messages in Somerville. This reduction will include not merely the 15% of Ackerley’s billboard inventory which customarily was devoted to noncommercial messages but also the increased proportion of noncommercial billboards generated by Ackerley’s recent response to Somerville’s regulatory efforts. II. CONCLUSIONS OF LAW — CONSTITUTIONAL CLAIMS Ackerley’s attack on the 1986 version of Article 10 is framed broadly and invokes a wide range of federal constitutional constraints upon state regulation. A. From the perspective of the First Amendment, Ackerley contends that Section 10.7.1 is unconstitutional because the operation of the exemptive provision affords commercial speech greater protection than noncommercial speech. Further, Ackerley contends that even if treated as regulation of commercial speech, the 1986 revised sign ordinance is unconstitutional under the First Amendment. B. From the perspective of Article I and the Due Process Clause of the Fourteenth Amendment of the Constitution, Ackerley contends that even if valid as a First Amendment matter, Section 10 is an invalid ex post facto law or an improper retroactive enactment. C. From a different perspective on the Due Process Clause of the Fourteenth Amendment, Ackerley contends Section 10 constitutes a regulatory taking of Ackerley’s billboards for which just compensation is required. I address these contentions in turn. A. First Amendment Claims The first order of business in addressing Ackerley’s First Amendment claims is to determine what type of regulation of speech is implicated by Article 10. First Amendment law establishes two basic tracks for review of restrictions on speech. Professor Tribe describes these two tracks as generated respectively by “government actions aimed at communicative impact” or by “government actions aimed at non-communicative impact but nonetheless having adverse effects on communicative opportunity.” L.Tribe, American Constitutional Law (2d ed. 1988) 790 (emphasis in original). Judicial hospitality to regulation involving impact on communicative activity differs substantially depending upon whether the regulation falls onto track one and is termed “content-based” or onto track two and is termed “content-neutral.” The First Circuit has observed that “if the government seeks to regulate speech on the basis of content, it must, of course, meet a much more exacting standard than would be the case if only time, place, or manner were implicated.” Matthews v. Town of Needham, 764 F.2d 58, 60 (1st Cir.1985). This is because ‘above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content’ ... A restriction, however, on the ‘time, place, and manner’ of speech is permissible if it advances a significant governmental interest, is justified without reference to the content of the speech, and leaves open ‘ample alternative channels for communication of the information.’ Id. at 59 (citations omitted) (emphasis in original). But the forceful statement in Matthews that government has no power to restrict expression because of “its message, its ideas, its subject matter, or its content” is overbroad. Commercial speech, for exampié, communicates content; however, the message, ideas and subject matter of commercial speech may be restricted under certain circumstances. In this case the distinction between commercial speech and noncommercial speech is critical to a determination whether the regulation of the content of the speech is permissible. Thus, in addressing the impact of the regulation it is important not merely to ask whether revised Article 10 addresses the content of speech, but also what type of speech is affected and how. 1. How, if at all, Does Article 10 Turn on the Content of the Speech Regulated? Determining whether Article 10 is a permissible content-based regulation involves analysis of the regulation from three different perspectives. First, the regulation will be examined on its face. Second, the actual effect of the ordinance upon different forms of communicative activity will be examined. Third, what may broadly be called the intent in enacting the regulation will be examined. a. On Its Face The protections of Section 10.7.1 for nonconforming signs are determined with reference to the content of the signs. Any sign which “advertises, or promotes the sale of goods, products, or services not sold, provided, or manufactured upon the same premises on which the sign is located,” is barred; other signs are not. Thhs, the provision on its face directs itself to the message the signs seek to communicate: off-premise commercial information. At first blush, the regulation appears to be plainly content-based. But the content specifically burdened on the face of Section 10.7.1 is a form of commercial speech. And burdens on that form of commercial speech are not the type of content regulation which the courts have found beyond the power of municipalities. The First Amendment “accords less protection to commercial speech than to other constitutionally safeguarded forms of expression.” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 64-65, 103 S.Ct. 2875, 2879, 77 L.Ed.2d 469 (1983). In this connection a deferential approach to regulation of off-premise signs with commercial content was established in the Supreme Court’s last major treatment of “the law of billboards.” Metromedia, Inc. v. San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981). The Court in Metromedia found the regulation of off-premise commercial speech justifiable but went on to conclude that because the regulation there also burdened all noncommercial billboard speech the San Diego ordinance was unconstitutional. The Metromedia judgment was “based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance,” id. 453 U.S. at 522 n. 26,101 S.Ct. at 2900 n. 26, i.e. on the plurality’s assessment that the ordinance favored commercial over noncommercial speech. This position commanded a majority of the Court as evidenced by Justice Brennan’s separate opinion in Metromedia. See also Georgia Outdoor Advertising, Inc. v. The City of Waynesville, 833 F.2d 43, 46 n. 6 (4th Cir.1987); Matthews, 764 F.2d at 61 (a bylaw that gives more protection to commercial than to noncommercial speech “inverts a well-established constitutional principle”). On its face, Section 10.7.1 applies evenhandedly between noncommercial and commercial speech. The parties agree the ex-emptive section would allow a nonconforming noncommercial sign to be displayed at a restaurant just as it would permit the restaurant to display a nonconforming commercial sign advertising its bill of fare. Indeed, on the face of revised Article 10, noncommercial signs appear to have an advantage over commercial signs. Nonconforming off-premise signs which have consistently contained noncommercial messages since July 28, 1985 are not subject to removal while nonconforming off-premise signs which have carried commercial messages must be removed. Article 10 is thus distinguishable on its face from the provision found unconstitutional by the Supreme Court in Metromedia. The San Diego ordinance in Metromedia permitted on-premise commercial advertising, but prohibited noncommercial advertising everywhere. The Court found that San Diego could not hold its official interests in aesthetics and safety as less deserving of protection than private interests in commercial on-premise communications, without affording at least the same degree of protection to private interests in noncommercial communications. See Metromedia, 453 U.S. at 521, 101- S.Ct. at 2899-2900. Implicit in the Court’s findings, was the premise that if San Diego had treated commercial and noncommercial private interests equally, then its ordinance would have withstood Metromedia’s challenge. Here Somerville has made the determination in Section 10.7 that its official interest in aesthetics is not as strong as either private interests in on-premise commercial communication or private interests in noncommercial communications anywhere. Hence, Section 10.7.1 is distinguishable from the unconstitutional San Diego ordinance struck down in Metromedia. For the same reason, Section 10.7.1 may also be distinguished from the ordinances found unconstitutional by the First Circuit in John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir.1980), aff'd, 453 U.S. 916, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981) and Matthews v. Town of Needham, supra. The Maine statutory sign and billboard regulations struck down in John Donnelly & Sons, made accommodation for on-premise commercial advertising but did not make this on-premise exception available for “[mjessages such as ‘Abortion is Murder,’ ‘Save the Whales,’ ‘No Nukes,’ and ‘Contribute to your Community Fund,’ ” which were “altogether banned.” 639 F.2d at 15. As a consequence of this facially disparate treatment of commercial and noncommercial (or, in the court’s term, “ideological”) speech — an inequity that the court characterized as “a peculiar inversion of First Amendment values” — the First Circuit found itself “obliged to hold the statute unconstitutional.” Id. at 16. The Town of Needham Sign By-law struck down in Matthews, permitted various commercial exceptions to its general prohibition on outdoor signs in the Town, but did not make the exceptions available to “political signs.” As a result, the First Circuit found that the by-law was “concerned with the content, as opposed to the time, place, or manner, of the speech” and that it failed to meet the “much more exacting standard [of review for content-based restrictions upon speech] than would be the case if only time, place, or manner were implicated.” Id. at 60. In contrast to the Maine statute and the Town of Needham By-law found unconstitutional by the First Circuit, the Somerville Ordinance at issue here shows no preference on its face for commercial speech as against noncommercial speech. It does not invert traditional First Amendment values. The structure of Article 10’s exemptions facially burden commercial speech more heavily than speech delivering noncommercial, ideological and political messages. The Somerville Ordinance is, in this respect, quite similar to the sign ordinances which recently withstood First Amendment constitutional challenges in the Fourth and Sixth Circuits. See Georgia Outdoor Advertising, Inc., 833 F.2d at 46 (“crucial” feature of challenged ordinance that protected it from successful constitutional challenge is provision that all authorized nonconforming signs are permitted “‘... to contain non-commercial copy in lieu of other copy’ ”); Wheeler v. Commissioner of Highways, Commonwealth of Kentucky, 822 F.2d 586, 593 (6th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 702, 98 L.Ed.2d 653 (1988) (“Unlike the restriction at issue in Metromedia, the on-premises exception in the present case is not limited to commercial speech: the on-site exception can be applied to any topic, commercial or non-commercial ... ”). See also Rzadkowolski v. Village of Lake Orion, 845 F.2d 653 (6th Cir.1988). Like the ordinances found constitutional by the Fourth , and Sixth Circuits, the Somerville Ordinance on its face permits any noncommercial message to be placed on an on-premise nonconforming sign, thereby removing the preference toward commercial speech that was fatal to the San Diego ordinance in Metromedia, the Maine statute in John Donnelly & Sons, and the Needham by-law in Matthews. b. By its Impact What the Somerville Ordinance provides on its face, and what its actual effect will be, I have found to be different phenomena. On its face, the Somerville Ordinance, if it shows any preference, shows a preference for noncommercial speech. However, there can be no dispute that the impact of revised Article 10 upon noncommercial speech will, at least for the short term, be proportionately far more burdensome than its impact upon commercial speech. Although facially distinguishable from the regulations struck down in Metromedia, Donnelly, and Matthews, the Somerville ordinance appears initially to have precisely the same de facto effect upon preferred noncommercial speech as the provisions at issue in those cases had de jure. In light of the disparate impact that enforcement of the revised Ordinance is bound to have upon noncommercial speech, Ackerley argues that it would elevate form over substance to insulate Article 10 from successful constitutional challenge. There is some recent support for this argument. See Jackson v. City of Charlottesville, 659 F.Supp. 470 (W.D.Va.1987), aff'd in part on other grounds, vacated in part on other grounds, 840 F.2d 10 (4th Cir.1988). In Jackson, the court considered a constitutional challenge to a zoning ordinance which prohibited “ ‘(a)ny sign which advertises any activity, business, product or service which is not conducted, produced or sold on the premises where the sign is located.’ ” Id. at 471. The court noted that “[o]f course, signs advertising noncommercial activities which are conducted on-premises are permitted under the language of § 31-182(e) [the ordinance] itself.” Id. at 471 n. 1. Nevertheless, the court held the ordinance unconstitutional because it found that [w]hile the ordinance in Metromedia differs somewhat in form from the local ordinance challenged in this case, a careful analysis of the two ordinances shows that each reaches the same result, i.e. the virtual prohibition of non-commercial advertising and off-premises commercial advertising____ [I]t is inescapable that the Charlottesville sign ordinance virtually prohibits non-commercial advertising and off-premises commercial advertising, while permitting on-premises commercial advertising. As such, the sign ordinance effectively affords greater protection to commercial speech than non-commercial speech, and thereby runs afoul of the plurality’s analysis and ruling in Metromedia. Id. at 473 n. 3 and 473. See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 n. 35, 96 S.Ct. 2440, 2453 n. 35, 49 L.Ed.2d 310 (1976) (cautioning against the enactment of zoning regulations that have “the effect of suppressing, or greatly restricting access to, lawful speech”) (emphasis supplied); Donnelly & Sons v. Campbell, 639 F.2d at 16 (statute is struck down because its “impositions are both legally and practically the most burdensome on ideological speech”) (emphasis supplied). To the degree Jackson may be applicable here, I do not find it persuasive. The effect of revised Article 10 is not itself the result of Somerville’s action. Rather the impact is a function of the ways in which those who use signs choose or have chosen to employ that medium. Of course, the use of on-premise nonconforming signs for noncommercial speech is improbable. As Justice Stevens observed in his Metromedia dissent, It is conceivable that some public-spirited or eccentric businessman might want to use a permanent sign on his commercial property to display a noncommercial message. The record, however, discloses no such use in the past, and it seems safe to assume that such uses in the future will be at best infrequent. 453 U.S. at 545 (Stevens, J., dissenting in part). But First Amendment law requires only that Somerville provide equal opportunity for the expression of noncommercial and commercial messages; it does not require equal results. Insofar as I have found that the challenged ordinance provides an opportunity for on-premise noncommercial signs, it is constitutionally irrelevant that those signs are — as a practical matter — unlikely to become media for noncommercial messages. The constitutional command is that government permit noncommercial speech to compete on at least an equal basis with commercial speech not that government guarantee equality or otherwise underwrite the competition. Revised Article 10 permits noncommercial signs to the same, if not a greater, degree than it permits commercial signs. If such permission does not result in noncommercial use of the grandfathered nonconforming signs, that will be a function of private choice. And that is not a result for which Somerville may be held responsible. As the Fourth Circuit explained in Georgia Outdoor Advertising, “the possibility that owners of on-premise signs [will] not allow their signs to be used for non-commercial messages [is] not constitutionally significant, since that [will] ‘derive from the decisions of the individual property owners ... (and not) the ... ordinance itself.’ ” Georgia Outdoor Advertising, 833 F.2d at 46, quoting Major Media of the Southeast, Inc. v. City of Raleigh, 792 F.2d 1269, 1273 (4th Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). c. In its Motivation The Supreme Court has this term reaffirmed that a regulatory provision should be viewed as content neutral, “[s]o long as the justifications for regulation have nothing to do with content, ... [i.e. so long as a] regulation targets [not] a particular category of speech, [but] a secondary feature that happens to be associated with that type of speech.” Boos v. Barry, 108 S.Ct. at 1163. This mode of analysis in Boos was drawn from a recent approach to the question whether an enactment restricting speech through zoning regulation was content based. See note 19 supra. That approach was outlined in City of Renton v. Playtime Theaters Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), where the Supreme Court directed that inquiry be made regarding the “ ‘predominate concerns’ ” of the enacting body. Id. 106 S.Ct. at 929 (emphasis in original). Renton involved a challenge to a city ordinance which prohibited “adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school.” Id. at 926. Justice Rehnquist, in an opinion joined by five other members of the Court observed that “[t]o be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, ... the Renton ordinance is completely consistent with our definition of ‘content-neutral’ speech regulations as those that ‘are justified without reference to the content of the regulated speech.’ ” Id. at 929 (emphasis in original) (citations omitted). The Renton Court found that the “ordinance is aimed not at the content of the films shown at ‘adult motion picture theatres,’ but rather at the secondary effects of such theaters on the surrounding community ... [and] that the City Council’s ‘predominate concerns’ were with the secondary effects of adult theaters, and not with the content of adult films themselves.” Id. at 929 (emphasis in original). On this basis, the Court held that “[t]he ordinance does not contravene the fundamental principle that underlies our concern about ‘content-based’ speech regulations: that ‘government may not grant the use of a fprum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.’ ” Id. (citation omitted). I find the Renton emphasis on predominate concern to be a helpful means of approaching the somewhat uncertain considerations which surround the problem of analyzing intent, purpose or motive in First Amendment litigation. Despite broad pronouncements in United States v. O’Brien, 391 U.S. 367, 382-385, 88 S.Ct. 1673, 1681-84, 20 L.Ed.2d 672 (1968) that the constitutionality of First Amendment regulation is in no way dependent upon the intent, purpose or motive that led to its enactment, it is clear that those factors have remained relevant considerations in constitutional adjudication. This is particularly true in settings other than pure free speech litigation. See, e.g., Edwards v. Aguillard, — U.S. -, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (establishment clause); Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (voting rights under Fourteenth and Fifteenth Amendment); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (equal protection). Renton suggests that courts must also ascertain the “predominate concern” of the government in enacting a regulation infringing upon free speech. Indeed, in this case, where the defendants have justified the Ordinance as serving an aesthetic purpose, it is especially incumbent upon me to examine the City’s alleged ulterior motive. As the Supreme Court plurality observed in Metromedia, 453 U.S. at 510, 101 S.Ct. at 2893-94, "esthetic judgments are necessarily subjective, defying objective evaluation, and for that reason must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose.” Ackerley contends that the combination of Mayor Brune’s knowledge and the timing of his proposed revision — just three weeks after the final negotiation session between Somerville and Ackerley — leads inescapably to the conclusion that in proposing and then enacting the revision, Somerville was motivated and acted with the specific intent to prevent Ackerley from using its billboards for noncommercial purposes. Somerville disputes the contention that it acted with an improper motive in enacting the revised sign Ordinance. It asserts that it did not intend by the one-year language in Section 10.7.1 to suppress noncommercial messages. Somerville claims that at most the evidence reflects a concern by the City that Ackerley might try to exploit the exemptive relief in Section 10.7, which had originally been included to give protection to established sign usage for noncommercial speech. The City perceived an effort by Ackerley to protect its unsightly billboard structures by trying to convert them to noncommercial speech irrespective of their customary past usage for the display of commercial messages. Somerville contends that the true motivation for the change was simply to close a glaring “loophole” in the original proposal which would have prevented full effectuation of the aesthetic purposes of the Ordinance. I have concluded that Mayor Brune’s motive in revising the originally proposed Ordinance and the Somerville City Counsel’s motive in adopting the Mayor’s revised proposal were not constitutionally improper. In arriving at this conclusion, I have, of course, carefully evaluated the credibility, in light of all the evidence, of Mayor Bruñe and his aides by assessing the substance of their trial testimony as well as their demeanor in the court. When Mayor Bruñe revised his initially proposed Ordinance, he was not motivated by any animus toward the messages, topics or subject matter delivered from Ackerley’s billboard structures — whether noncommercial or commercial. Rather he was animated by a desire to eliminate as many billboard structures from Somerville as could be done, while leaving numerous on-premise commercial signs unaffected. His sole purpose and predominate concern was, in fact, the constitutionally valid one of wanting to close what he had come to realize was the potential for underinclusiveness in the regulatory scheme for eliminating billboards from his city. Of course, I have also found the Mayor recognized that the likely effect of the revision would be to eliminate a substantial number of billboards which would be used in the future for noncommercial purposes, and to decrease substantially the proportion of noncommercial as opposed to commercial signs in Somerville. However, knowledge of a likely secondary effect of a public action may not be equated with a predominate concern to bring about that particular effect. In making my determination that the defendant’s intent in adopting Article 10 was not unconstitutional, I have found particularly useful the three factors identified by the District of Columbia Circuit as relevant to the determination of whether facially neutral restrictions on speech “mask constitutionally improper motives.” White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1536 (D.C.Cir.1984). The three factors are the following: i. Whether “the government can prove [that it] has regulated for the benefit of the public rather than for the promotion of its own aesthetic preferences.” On this factor “the government must show that the regulation was enacted for purposes other than the effectuation of its drafters’ personal tastes.” Id. at 1536 (emphasis in original). Somerville’s generalized public concern with the offensiveness of billboard structures is apparent. It has been informed by the views of planning professionals. The lack of any opposition, save that of Ackerley, bespeaks settled community views favoring the aesthetic preference of revised Article 10. It does not merely reflect the views of Mayor Bruñe, although he has been a leader in this area. ii. “[T]he extent to which it burdens speech.” On this factor, “[t]he more restrictive an aesthetic regulation, the closer a court must look to determine if it is based on constitutionally improper motives.” Id. at 1537 (emphasis in original). The breadth of the restrictions imposed by revised Article 10 will be explored more closely in the discussion of time, place and manner restrictions. Let it suffice for the moment that a searching inquiry has disclosed no constitutionally improper motive in the enactment of Section 10.7 as revised. iii. Whether the challenged regulation is merely “an isolated attempt to regulate ... aesthetics,” or part of an ongoing and genuine aesthetic purpose. On this factor, if it is found to be an isolated effort, the court will have to engage “in a more searching inquiry to ensure that the agency has regulated for genuinely aesthetic reasons and not for the purpose of curtailing protected expression.” Id. at 1538 (emphasis in original). Somerville’s concerns with the aesthetic dimension to signs generally and billboards in particular are long standing. The City’s systematic and professional approach to planning evidenced by its use of outside planners and advisers attests to an integrated effort to make billboard regulation an aspect of its larger aesthetic policy. This approach to billboard regulation is indifferent to the content of any expression which might be curtailed. d. Conclusion The permissible facial distinctions between commercial and noncommercial speech made in the exemptive section of revised Article 10 are not rendered impermissible by either a disproportionately adverse impact upon Aekerley’s noncommercial speech or a constitutionally improper motive on the part of Somerville to select the particular messages the public may hear. Revised Article 10, accordingly, may be treated as a “content-neutral” enactment, as the relevant case law has come to define that term. I, therefore, turn to inquire whether revised Article 10 constitutes a proper time, place and manner restriction on speech. 2. Is Article 10 Valid Time, Place and Manner Regulation? A challenge to an ordinance on the ground that it unconstitutionally impedes the time, place and manner of non-commercial speech may be reviewed under the three-part test recently recognized in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984): Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, and manner restrictions---- [Restrictions of this kind are valid provided that they are [1] justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication of the information. I have treated at lengt