Clear Channel Outdoor, Inc. v. Zoning Board of Appeals of Salisbury , 94 Mass. App. Ct. 594 ( 2018 )

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17-P-1609 Appeals Court
CLEAR CHANNEL OUTDOOR, INC., & another1 vs. ZONING BOARD OF
APPEALS OF SALISBURY & others.2
No. 17-P-1609.
Essex. September 10, 2018. - December 18, 2018.
Present: Wolohojian, Massing, & Lemire, JJ.
Billboard. Zoning, Billboards, Special permit, Person
aggrieved, Board of appeals: decision. Practice, Civil,
Zoning appeal, Standing, Entry of judgment, Judicial
discretion.
Civil action commenced in the Superior Court Department on
July 17, 2014.
The case was heard by Joshua I. Wall, J.
Jason R. Scopa for the plaintiffs.
David J. Gallagher for Northvision, LLC.
Jackie Cowin for zoning board of appeals of Salisbury.
1 Checkpoint Charlie, LLC, trustee of the Checkpoint Charlie
Nominee Trust.
2 Northvision, LLC; and Herman Fortin, trustee of the
Countryside Realty Trust.
2
WOLOHOJIAN, J. At issue here are two abutters'
(Northvision, LLC [Northvision] and Clear Channel Outdoor, Inc.
[Clear Channel]3) competing efforts to erect digital billboards
in the town of Salisbury. Only one such application could
succeed because no two digital billboards may be erected within
1,000 feet of each other. 700 Code Mass. Regs. § 3.17(5)(g) and
(h) (2012). The ultimate decision as to whether a digital
billboard (and which one, in the case of competing proposals) is
approved rests with the Department of Transportation Office of
Outdoor Advertising (OOA). However, an applicant must first
receive local zoning board approval before applying to the OOA.
See 700 Code Mass. Regs. § 3.06(1)(i) (2012).
Unhappy with this two-step regulatory framework, two
members of the Salisbury zoning board of appeals (board) decided
to defeat it by approving only one of the two competing
applications for a special permit that were simultaneously
before the board for decision. For purposes of this litigation,
all parties have accepted that both applications met the
3 The two properties are located at 74 and 75 Main Street,
Salisbury.
Clear Channel Outdoor, Inc. is the permit applicant for 74
Main Street, and Checkpoint Charlie Nominee Trust is the
property owner. We refer to them collectively as Clear Channel,
except where otherwise necessary.
The property at 75 Main Street is owned by Countryside
Realty Trust, and the permit applicant is Northvision, LLC; we
refer to them collectively as Northvision.
3
criteria necessary for a special permit.4 The two board members
who nonetheless voted to deny Clear Channel's application
admittedly did so on impermissible grounds. Acting ultra vires
in this way, they ensured that only Northvision's application
could (and did) proceed to the OOA. The OOA was thus deprived
of its opportunity to consider the competing Clear Channel
application (which the parties agree met the requirements for
zoning approval), and its ability to decide which of the two
4 Chapter 214 of the Salisbury bylaw is entitled "Signs" and
§ 214-12 is entitled "Appeals." Section 214-12.B provides:
"The applicant of the appeal for the relaxation of these
bylaws and the issuance of a special permit must be able to
prove to the satisfaction of the Board: (1) There is a
hardship of the condition of the land or preexisting
building location which necessitates the granting of the
special permit. (2) The granting of the special permit
will not have a negative effect on surrounding property
values. (3) Sign scale is appropriate in relation to
development scale, viewer distance and travel speed and
sign sizes on adjacent properties. (4) Sign materials,
colors, lettering style and form are compatible with
building design and use. (5) The issuance of the special
permit is not contrary to the purpose of this bylaw."
Both Northvision's and Clear Channel's applications required
relief from certain sections of the bylaw. For example, § 214-
8.E prohibits "electronic message boards," and § 214-8.B limits
sign heights to twenty feet above grade at the entrance to the
property. Northvision's sign was to be eighty-nine feet high
and Clear Channel's sign was to be fifty-five feet high. The
parties and the judge assume that the board had the authority to
waive those provisions under the "Appeals" section of the bylaw.
While we have some skepticism as to the board's authority, the
issue is not briefed and the parties have stipulated that both
Northvision's and Clear Channel's applications met the criteria
for a special permit.
4
competing proposals should be approved within this particular
1,000 foot stretch in Salisbury.
For the reasons set out below, we conclude that the board's
decisions must be set aside because they rest on legally
impermissible grounds.
Background. Clear Channel commenced this action pursuant
to G. L. c. 40A, § 17, seeking to overturn the board's decision
granting Northvision's special permit application and denying
its own application.5,6 Clear Channel claimed that (a) two of
5 Northvision's application proceeded as follows. Herman
Fortin, as trustee of Countryside Realty Trust, submitted an
application for an electronic billboard at 75 Main Street dated
April 8, 2014. On April 10, 2014, the building inspector
informed Fortin that due "to the size and type of the proposed
signage" the request was denied, but advised that Fortin had the
option of applying to the board within thirty days to seek a
special permit pursuant to § 214-12 of the Salisbury bylaw.
Northvision, on behalf of Countryside Realty Trust, submitted a
special permit application on May 8, 2014. After a hearing, the
board approved the special permit. The OOA granted Northvision
a license to erect an electronic billboard on July 30, 2014.
6 Clear Channel's application proceeded as follows. Clear
Channel submitted to the building inspector a building permit
application for the placement of a freestanding sign at 74 Main
Street. Although the date of Clear Channel's application is not
clear from the record, the parties agree that it was submitted a
week or more after Northvision's application. On May 20, 2014,
the building inspector informed Clear Channel that its building
permit application was denied due to the size and shape of the
proposed sign. The building inspector also informed Clear
Channel that it had the option of appealing to the board for a
special permit. On May 21, 2014, Clear Channel filed an
application for a special permit with the board. The board
conducted a hearing on the special permit application on the
same date it heard Northvision's application. The board denied
Clear Channel's application.
5
the four board members had clear conflicts of interest that
rendered them ineligible to vote on Northvision's application,
and (b) Clear Channel's proposal was superior to Northvision's.7
As to the first claim, Clear Channel pointed to the fact that
Kevin Henderson and Edwin Hunt, Sr., the two board members who
voted to approve Northvision's application and deny Clear
Channel's application had connections to Northvision.8
After Northvision's motions to dismiss and for summary
judgment were denied, and after the parties submitted their
first joint pretrial memorandum, the board took the unusual step
of filing a "motion for entry of judgment," admitting that the
board had no proper basis to deny Clear Channel's application
for a special permit and urging that judgment be entered against
itself.9 The board conceded that Hunt and Henderson, the two
7 Deciding as we do, we need not reach this second issue.
8 More specifically, Clear Channel asserted that (1)
Henderson is employed by a company also owned by the owner of
Northvision, Wayne Capolupo; and (2) Hunt is a first cousin once
removed of Herman Fortin, trustee of the owner of the property
on which Northvision's proposed billboard was to be erected.
Henderson disclosed to the town manager, who we assume is the
appointing authority, that he was "an officer, director,
trustee, partner, or employee of a business organization [that]
has a financial interest in the matter"; the town manager
nonetheless authorized him to vote on the matter.
9 The motion was not made pursuant to any rule of civil
procedure and, in fact, the motion does not appear to be
governed or expressly permitted by any rule. Nor have we found
any precedent identifying the standard to be applied in ruling
6
board members who had voted to deny Clear Channel's special
permit application, had considered factors that were irrelevant
to the zoning scheme and that "would not withstand judicial
scrutiny." In its motion, the board acknowledged that "[t]he
proposals at issue here call for the two billboards to be
located within 1,000 feet of each other; thus only one can be
approved by the State. The two [b]oard members who voted to
deny Clear Channel's application testified at deposition that
they were aware of the State Regulation, they believed the
determination as to which billboard should be built should be up
to local authorities, and they approved Northvision's
application over Clear Channel's because [Northvision's] was
filed first."
The board's motion for entry of judgment was opposed by
Clear Channel and Northvision. Clear Channel's opposition
expressed a desire not to limit the issues at trial and to
upon a party's motion for entry of judgment against itself. But
where, as here, such a motion is made over opposition, it is
incumbent upon the motion judge to ensure that allowing the
motion will not have unfair or unintended consequences for the
nonmoving party, especially if those consequences affect the
remaining parts of the case. For example, here, the allowance
of the board's motion for entry of judgment on the Clear Channel
permit was subsequently used by Northvision (and the trial
judge) as the basis for excluding evidence that was otherwise
relevant and admissible in the portion of the case relating to
Northvision's permit. The collateral consequences of allowing
such a motion should be thoroughly considered before ruling on
it.
7
litigate both decisions to ensure that the finder of fact hear
the entire story and overturn both decisions. The board's
motion was allowed by the motion judge and, on July 26, 2016,
judgment was entered against the board, ordering it to issue a
special permit to Clear Channel. Both Clear Channel and
Northvision filed timely notices of appeal.
On August 22, 2016, Clear Channel filed a motion for entry
of judgment requesting the rescission of the grant of special
permit to Northvision, arguing that -- given the board's
admission in its motion for entry of judgment -- Northvision's
special permit could not withstand judicial scrutiny. The
motion was denied.
What remained for trial, therefore, was only Clear
Channel's claim that the board improperly granted Northvision's
special permit application. However, the trial judge allowed
Northvision's two motions in limine, one seeking to bar evidence
regarding Hunt's and Henderson's conflicts of interest and the
"mental processes" of all board members in granting
Northvision's special permit, and the second seeking to "exclude
any evidence of the [board's] denial of" Clear Channel's
application for a special permit. Thus limited to the narrow
issue of whether Northvision's special permit application
complied with the local bylaw and regulations, which Clear
Channel had already conceded, the trial was short. After first
8
deciding Clear Channel lacked standing, the trial judge also
rejected Clear Channel's claims on the merits and determined
that Clear Channel had not proved "that the [b]oard acted
unreasonably, whimsically, or arbitrarily in granting the
Northvision Special Permit." Clear Channel appealed from the
ensuing judgment entered on December 7, 2017.
Discussion. Standing. Keeping in mind that both Clear
Channel Outdoor, Inc. and the property's owner, Checkpoint
Charlie Nominee Trust (Checkpoint Charlie), were the plaintiffs
below and the appellants on appeal, we first consider whether in
the circumstances of this case, they have standing to challenge
the special permit granted to Northvision. Only one of the
plaintiffs must be an "aggrieved person" under G. L. c. 40A to
establish standing. See 81 Spooner Rd., LLC v. Zoning Bd. of
Appeals of Brookline, 461 Mass. 692, 697 n.10 (2012), and cases
cited. The trial judge concluded that Clear Channel Outdoor,
Inc. lacks standing because its harms arise from impaired
business competition and are purely economic, which are not
interests sought to be protected by the zoning code. We agree
that it is well-settled that the purpose of zoning regulations
is not to protect businesses from competition. Circle Lounge &
Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 429-
430 (1949). Thus, a person alleging injury from a zoning
decision due to an increase in competition is not a "person
9
aggrieved" for purposes of an appeal under G. L. c. 40A, § 17.
See id.
However, more is at issue here than business competition.
As an abutting owner, Checkpoint Charlie enjoys a presumption of
standing. 81 Spooner Rd., LLC, 461 Mass. at 700. Moreover,
under the interdependent local and State license requirements at
issue here, the decision granting a special permit to
Northvision for construction of an electronic billboard within
1,000 feet of Checkpoint Charlie's property directly affects
what is allowed to be built on Checkpoint Charlie's property.
Impacts on use and enjoyment of one's own property are clearly
interests protected by the zoning bylaw. We conclude,
therefore, that Checkpoint Charlie has standing to appeal from
the board's decision to grant a special permit to Northvision.10
Motions in limine. We agree with Clear Channel that in the
circumstances of this case the trial judge abused his discretion
in allowing Northvision's motions in limine to prohibit evidence
of the board members' "mental processes" and the reasons the
board members voted to deny Clear Channel's application and
approve Northvision's application. See N.E. Physical Therapy
Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013)
10Because only one party need have standing, we need not
consider Clear Channel Outdoor, Inc.'s independent status as a
person aggrieved.
10
("We review a trial judge's evidentiary decisions under an abuse
of discretion standard"). Henderson and Hunt each testified at
deposition that they believed that the choice between the two
competing billboards should be up to the local authority, not
the State entity. In order to accomplish this end, they voted
against Clear Channel, choosing Northvision because its
application was filed first. The board conceded that, in
casting their votes as they did, Henderson and Hunt considered
factors that were irrelevant to the zoning scheme and that would
not withstand judicial scrutiny. When a board "injects criteria
not found in the enabling act," its decision is legally
untenable. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct.
148, 156 (1977). Given the admissions made by the board, Clear
Channel should have been allowed to explore the board members'
reasons for granting Northvision's application in order to meet
its burden to demonstrate that the board's decision was
arbitrary, capricious, or legally untenable.
Northvision argues that examination of the mental processes
of administrative decision makers is appropriate only "in
extraordinary circumstances where there is a strong showing of
improper behavior or bad faith on the part of the
administrator." New England Med. Center, Inc. v. Rate Setting
Comm'n, 384 Mass. 46, 56 (1981). Even if Northvision's position
is generally correct even as to discretionary zoning decisions
11
such as special permits, which we need not decide, we find it
difficult to conceive that there is any stronger showing of
improper behavior than the board's admission that it issued its
Clear Channel and Northvision decisions based on legally
irrelevant grounds, which the board itself characterized as
"unrelated to zoning interests" and unable to "withstand
judicial scrutiny." The board's efforts on appeal to
characterize its improper considerations as affecting only Clear
Channel's application are unavailing in light of the admission
in its motion for entry of judgment that the same considerations
were taken into account when granting Northvision's special
permit.
To the extent Northvision argues that it met all the
special permit criteria and, therefore, the board's
consideration of extraneous factors is irrelevant, Northvision
ignores that a special permit has both a discretionary and
objective component. "Even if the record reveals that a desired
special permit could lawfully be granted by the board because
the applicant's evidence satisfied the statutory and regulatory
criteria, the board retains discretionary authority to deny the
permit." Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of
Lenox, 87 Mass. App. Ct. 871, 874 (2015), quoting Davis v.
Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355 (2001). Thus,
although the parties have accepted for purposes of this
12
litigation that the board could approve Northvision's special
permit application, it does not follow that the board was
required to. Therefore, the board's reasons for granting
Northvision's special permit are relevant. We cannot be certain
on this record that the board's consideration of legally
irrelevant factors did not infect its decision as to
Northvision's application.
Conclusion. For the reasons set out above, the decisions
of the board must be set aside. The judgments of the Superior
Court entered on July 26, 2016, and December 7, 2017, are
vacated. A new judgment is to be entered (a) annulling the
decision of the board allowing Northvision's special permit
application, (b) annulling the decision of the board denying
Clear Channel's special permit application, and (c) directing
the board to hold such further proceedings as may be necessary
on the two applications, conducted in such manner as not to
defeat the two-step, municipal-State process contemplated by the
Legislature.
So ordered.