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Gordon M. Orloff
A Massachusetts regulation stating that no two digital billboards may be erected within 1,000 feet of one another set up a race between competing billboard companies that owned abutting land.
Although the final approval for a billboard must come from the Department of Transportation’s Office of Outdoor Advertising (OOA), an applicant must first receive local zoning board approval before filing its OOA application. Clear Channel and Northvision both had special permit applications for their billboards pending before the Salisbury Zoning Board of Appeals simultaneously. That ZBA denied the application of the former, clearing the way for the latter’s billboard.
In Clear Channel Outdoor, Inc. v. ZBA of Salisbury, the state Appeals Court considered Clear Channel’s appeal of the denial of its special permit and of the grant of Northvision’s special permit.
The case came before the court in an unusual posture in that the ZBA admitted that it “had no proper basis to deny Clear Channel’s application for a special permit and urg[ed] that judgment be entered against itself. The board conceded that Hunt and Henderson, the two 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.’
More specifically, during discovery, Hunt and Henderson each testified that they believed that the choice between the two competing billboards should be up to the local authority, not the state entity and that, to accomplish this end, they voted against Clear Channel, choosing Northvision because its application was filed first and not based on the merits of the application.
In addition, Comcast had alleged that Henderson is employed by a company also owned by the owner of Northvision and that Hunt is a first cousin once removed of the trustee of the owner of the property on which Northvision’s proposed billboard was to be erected.
The court revisited some well–settled principles, but with a different point of view than in the usual case. For example, although business competition typically does not create standing to challenge a zoning board’s decision, here Clear Channel was an abutter granted presumptive standing, which it was ultimately found to have because “[i]mpacts on use and enjoyment of one’s own property are clearly interests protected by the zoning bylaw.”
Further, board members’ mental processes and the reasons for their votes are typically off–limits in a zoning appeal. However, given the admissions made by the ZBA, Clear Channel was entitled to explore the ZBA’s reasons for granting Northvision’s application in order to demonstrate that the board improperly injected into its decision criteria not found in the enabling act.
The court also noted that, even if the record reveals that a desired special permit could be lawfully granted by a board because the applicant’s evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit. As a result, the ZBA’s reasons for granting Northvision’s special permit were relevant to the challenge.
By carefully parsing these principles of zoning law the Appeals Court was able to reach the result that fairness plainly required.
Gordon M. Orloff is a Boston-based lawyer at Rackemann, Sawyer & Brewster, P.C., focusing on business, real estate and probate litigation in the trial and appellate courts of Massachusetts.
