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Clear Channel Outdoor, Inc. v. Zoning Board of Appeals of Salisbury

Appeals Court of Massachusetts, Essex

December 18, 2018

CLEAR CHANNEL OUTDOOR, INC., & another [1]
v.
ZONING BOARD OF APPEALS OF SALISBURY & others. [2]

          Heard: September 10, 2018.

          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.

          Present: Wolohojian, Massing, & Lemire, JJ.

          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 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 00A. The 00A 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 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. 4OA, § 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 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 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 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, ...


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