Heard: September 10, 2018.
action commenced in the Superior Court Department on July 17,
2014. The case was heard by Joshua I. Wall, J.
R. Scopa for the plaintiffs.
J. Gallagher for Northvision, LLC.
Cowin for zoning board of appeals of Salisbury.
Present: Wolohojian, Massing, & Lemire, JJ.
issue here are two abutters' (Northvision, LLC
[Northvision] and Clear Channel Outdoor, Inc. [Clear
Channel]) 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) .
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. 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.
reasons set out below, we conclude that the board's
decisions must be set aside because they rest on legally
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.' 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.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'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. 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."
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,