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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.
