BOSTON OUTDOOR VENTURES, LLC vs. MARTIN AIKENS, MICHAEL HANLEY, JOHN FAGERLUND, ROBERT KACHINSKY, JOHN BROWN, JR. and FRANCIS SANDONATO, as members of the CITY OF QUINCY ZONING BOARD OF APPEALS, and JAY DUCA, as DIRECTOR OF INSPECTIONAL SERVICES OF THE CITY OF QUINCY

Plaintiff Boston Outdoor Ventures, LLC, filed its unverified Complaint (08 MISC 386457) on October 24, 2008, pursuant to G. L. c. 40A, § 17, appealing a decision (“ZBA Decision 3”) of Defendant City of Quincy Zoning Board of Appeals (the “ZBA”) which denied Plaintiff’s appeal of a decision (“ISD Decision 1”) of Defendant Jay Duca, Director of Inspectional Services of the City of Quincy (“Building Inspector”) authorizing a cease and desist order relative to an off-site sign (the “Sign”) owned by Plaintiff. On the same day, Plaintiff filed its unverified Complaint (08 MISC 386458), also pursuant to G. L. c. 40A, § 17, appealing a decision (“ZBA Decision 4”) of the ZBA which upheld Defendant Maloney Capital Company, LLC’s (“Maloney”) appeal of ISD Decision 1. A case management conference was held on these two cases on December 8, 2008, and the two cases were consolidated. On February 13, 2009, Plaintiff filed its unverified Complaint (09 MISC 393468), pursuant to G. L. c. 40A, §17, appealing a decision of the ZBA (“ZBA Decision 5”) which denied Plaintiff’s appeal of a second cease and desist order of the Building Inspector (“ISD Decision 2”) relative to the Sign. At a status conference on May 19, 2009, this case was consolidated with the two earlier cases.

On April 16, 2010, Plaintiff filed its Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Facts, and Appendix containing Affidavits of Jonathan Serra (principal of Plaintiff) and Kathryn Georgian (paralegal). Maloney filed its Cross-Motion for Summary Judgment on May 21, 2010, together with supporting memorandum, Statement of Additional Material Facts, and Appendix containing Affidavits of Robert E. Hannigan (civil engineer), Thomas M. Maloney, Jr. (principal of Maloney), and Webster A. Collins (real estate appraiser), and depositions transcripts of Joseph J. Duca, Thomas M. Maloney, Jr. and Michael F. Hanley (attorney for the ZBA). On May 24, 2010, the ZBA and the Building Inspector filed their Cross-Motion for Partial Summary Judgment, together with supporting memorandum. Plaintiff filed its Reply on June 15, 2010, together with Supplemental Affidavit of Kathryn A. Georgian and Motion to Strike the Affidavit of Webster A. Collins. On July 12, 2010, Maloney filed its opposition to Plaintiff’s Motion to Strike, together with Supplemental Affidavit of Webster A. Collins. A hearing was held on all motions on July 12, 2010, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following facts are not in dispute:

1. Plaintiff has a lease to operate a sign at property located at 313-315 Willard Street in Quincy, MA (“Locus”). Locus is owned by James V. Biondi, Trustee of the 313 Willard Street Trust, contains 7,764 square feet, and is located in a Business “B” zoning district. [Note 1] An automobile service station, which was built in 1963 in conformance with local zoning, is located on Locus.

2. Maloney owns property located at 350-352 Copeland Street,Quincy, MA, which is near Locus, but Maloney is neither an abutter nor an abutter to an abutter within 300 feet of Locus.

3. The Quincy Zoning Ordinance (the “Ordinance”) requires a minimum of 12,000 square feet for an automobile service station. [Note 2] The Ordinance also prohibits signs in the Business “B” zoning district.

4. On October 21, 1992, the ZBA (“ZBA Decision 1”) issued a variance (“Variance 1”) to the owners of Locus to “relocate existing fuel dispensers for petroleum products” at the automobile service station on Locus. ZBA Decision 1 was never appealed.

5. On April 6, 2007, Plaintiff filed an application with the ZBA for a variance for an off-premises sign on Locus (the Sign); such variance was required for relief from the Ordinance’s prohibition of signs and from setback requirements in the Business “B” zoning district. The application included a sketch of the Sign and a site plan showing the location of the Sign. The Proposed Site Plan for the construction of the Sign, prepared by Green Environmental, Inc. dated January 3, 2007 (the “Proposed Site Plan”) showed the Sign to have a length of forty-eight feet and the diameter of the pole to be three feet.

6. On May 22, 2007, the ZBA (“ZBA Decision 2”) unanimously voted to approve the variance for the Sign (“Variance 2”). The ZBA issued a written decision dated June 6, 2007, in which it found that “the impact at this location will be minimal,” and that “the Variance can be granted without substantial detriment [to the public good].” ZBA Decision 2 contained eight conditions, including that annual payments be made to a middle school and to a neighborhood association, and that the Sign be made available, free of charge, for the City of Quincy (the “City”) to use at any time that the Sign was not rented, with certain minimal usage requirements. ZBA Decision 2 was never appealed.

7. On May 22, 2007, Plaintiff submitted an application for two permits for the Sign to the Outdoor Advertising Board (the “OAB”). [Note 3] On June 7, 2007, the OAB issued two permits authorizing the Sign for 2007. These permits were renewed in May 2008 (for calendar year 2008), January 2009 (for calendar year 2009) and October 2009 (for calendar year 2010).

8. On December 17, 2007, Plaintiff filed an application for a building permit to construct the Sign on Locus. On February 5, 2008, the Building Inspector issued a building permit to Plaintiff (the “Building Permit”). Notice of the issuance of the Building Permit was not published and Maloney did not receive actual notice of the issuance of the Building Permit. Plaintiff commenced construction of the Sign on or about March 21, 2008, and the pole for the Sign was erected in mid-April 2008, in the location shown on the Proposed Site Plan. Maloney became “aware that construction had begun [in late March of 2008] but [he] didn’t know what they were building.” and first became aware they were building the Sign, “when they put the pole up” on Locus in mid-April. Construction of the Sign was completed in early May, 2008, at a cost of approximately $500,000 to Plaintiff.

9. The Quincy City Council held two public meetings relative to the Sign on May 19, 2008, and June 9, 2008, and adopted several resolutions relative to denying the City’s use of the Sign and requesting the OAB, the ZBA, and all elected and appointed city and state officials to revoke approvals for the Sign.

10. On May 30, 2008, the Quincy City Solicitor sent a letter to the OAB requesting the OAB to revoke its permits for the Sign. By letter dated July 10, 2008, the OAB refused to do so. Thereafter, the City filed an action against the OAB in Norfolk Superior Court challenging the OAB permits (Case No. 08-1152-D).

11. By letter dated June 17, 2008, Maloney requested the Building Inspector to order the removal of the Sign, based on the fact that the Sign needed additional zoning relief (a variance for lot area, a variance for lot size, and a Section 6 finding), and suggested the construction of the Sign did not comply with the Proposed Site Plan. The as-built plan of the Sign dated July 3, 2008 and prepared by Albert A Romano (the “As-built Plan”), shows the Sign to be fifty feet in length and the diameter of the pole to be five feet. By letter to the Building Inspector dated June 18, 2008, the Mayor of the City expressed his concerns over the procedural legalities relative to the Sign.

12. By letter addressed to Plaintiff dated June 30, 2008 (ISD Decision 1), the Building Inspector stated that “I have determined that a “finding” pursuant to both (1) G.L. c. 40A, § 6, and (2) the Quincy Zoning Ordinance Chapter 17.24.020 should have been considered by the Zoning Board - but was not.” The Building Inspector ordered Plaintiff to “cease and desist the use of the [Sign] forthwith, until you receive a favorable decision from the Zoning Board of Appeals.” [Note 4]

13. On July 21, 2008, Maloney filed an appeal of ISD Decision 1 with the ZBA, citing the fact that the Building Inspector did not require additional variances. On July 28, 2008, Plaintiff filed an appeal of ISD Decision 1 with the ZBA, challenging the requirement for a section 6 finding. The ZBA held a hearing on both appeals on September 9, 2008, and voted to require a Section 6 finding (ZBA Decision 3) in addition to the two additional variances (“Variances 3 and 4”) (ZBA Decision 4). The ZBA issued its written decisions on October 8, 2008. [Note 5]

14. As a result of ZBA Decision 3 and ZBA Decision 4, the Building Inspector, by letter dated October 14, 2008, issued a second cease and desist order to Plaintiff relative to use of the Sign (ISD Decision 2).

15. By letter dated October 29, 2008, the OAB agreed to hold a hearing relative to the Sign, and such a hearing was held on December 11, 2008. On January 8, 2009, the OAB voted to deny the City’s challenge to the OAB permits, and on February 19, 2009, it issued its written decision in that regard. The City has filed another action in Norfolk Superior Court challenging the OAB February 2009 decision. The City’s two actions against the OAB have been consolidated.

16. On November 10, 2008, Plaintiff filed an appeal of ISD Decision 2 with the ZBA. On January 28, 2009, the ZBA issued a decision denying Plaintiff’s appeal and upholding ISD Decision 2 (ZBA Decision 5) (together with ZBA Decision 3 and ZBA Decision 4, the “ZBA Decisions”).

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The three ZBA Decisions in this matter all relate to the issue of whether the ZBA proceedings comported with Due Process and whether the ZBA exceeded its authority in imposing new conditions on the Sign after it had initially authorized the Sign and a building permit had been issued for the Sign. Plaintiff also raises an issue of whether Maloney has standing to challenge the Building Inspector’s decision that only a finding pursuant to G.L. c. 40A, § 6 was required, but no additional variances were necessary. I shall look at each of these issues in turn.

Motion to Strike.

Plaintiff filed its Motion to Strike the Affidavit of Webster A. Collins (the “Collins Affidavit”) and Maloney filed its Opposition. Plaintiff argues the Collins Affidavit, which alleges diminution of value in Maloney’s property as a result of the Sign, is flawed for a number of reasons: it compares commercial property to residential property, it uses faulty methodology, it does not cite arms length transactions, and it is not credible. Maloney argues the Collins Affidavit should not be struck because the challenges go to the issue of what weight should be given to the Collins Affidavit rather than whether the Collins Affidavit should be struck. Moreover, Maloney points out that Collins uses a reliable methodology and such methodology is not refuted by any evidence from Plaintiff. I agree and shall not strike the Collins Affidavit, but shall give the Collins Affidavit such weight as I deem appropriate.

Due Process.

Plaintiff asserts its substantive due process rights were violated when the ZBA was improperly pressured by various city officials to deny the Plaintiff’s appeal of ISD Decision 1. The counts include failure to provide adequate notice, violation of open meeting laws, ex parte discussions, and undue influence. To support its claims, Plaintiff relies on Kennie v. Natural Res. Dep’t of Dennis, 451 Mass. 745 (2008), a case involving an application to construct a dock. In Kennie, the Supreme Judicial Court (“SJC”) denied summary judgment because of the existence of alleged threats and alleged fraudulent activity of the shellfish constable. Id. at 761 (“one might characterize a governmental agency’s basing its decision on tainted evidence - especially evidence intentionally tainted by a public officer - as striking at the core of official action, and therefore such an abuse of governmental power as to constitute a denial of substantive due process.”). The SJC held that verbal posturing alone would not be sufficient to demonstrate threats, intimidation or coercion, but by linking such behavior with fraudulent activity, a violation of due process may occur. However, Plaintiff in this case does not allege the City Council or the Mayor committed any fraudulent activity in order to subvert the ZBA’s decision. The statements by the Mayor and the City Council rise to the level of verbal posturing typical of neighborhood disputes. See id. at 765. I find that Plaintiff’s substantive due process rights were not violated by the City’s actions.

Standing.

“Only a ‘person aggrieved’ may challenge a decision of a zoning board of appeals.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G. L. c. 40A, § 17. A plaintiff is presumed to be a “person aggrieved” if it is a “party in interest” pursuant to G. L. c. 40A, § 11. [Note 6] Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). Neither party challenges the standing of Plaintiff to appeal these three decisions of the ZBA pursuant to G.L. c. 40A, § 17. However, Plaintiff disputes the standing of Maloney to assert an enforcement request against the Building Inspector pursuant to G.L. c. 40A, § 8, and then to appeal the Building Inspector’s decision to the ZBA. In order to appeal ISD Decision 1, Maloney must demonstrate its status as a “person aggrieved.” See Green v. Bd. of Appeals of Provincetown, 404 Mass. 571 , 573 (1989). “[I]ndividual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). “To qualify for that limited class, a plaintiff must establish – by direct facts and not by speculative personal opinion – that his injury is special and different from the concerns of the rest of the community.” Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (noting plaintiff’s injury flowing from board’s decision must be “special and different from the injury the action will cause to the community at large”). To assert a plausible claim, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. “Credible evidence” consists of

both a quantitative and a qualitative component . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action. Conjecture, personal opinion, and hypothesis are therefore insufficient.

Butler, 63 Mass. App. Ct. at 441.

Because Maloney does not enjoy a presumption of standing as defined by G.L. c. 40A, § 11, the burden is on Maloney to assert its alleged harms. If it cannot, Plaintiff need only show that Maloney has no reasonable expectation of proving a legally cognizable injury. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991).

This is not a typical standing issue. Typically, one party challenges the standing of another to seek judicial review of a decision from a board of appeals under G.L. c. 40A, § 17. Plaintiff in this case challenges Maloney’s standing to question the Building Inspector’s decision under G.L. c. 40A, § 8. Pursuant to G.L. c. 40A, § 7, Maloney had the right to make an enforcement request to the Building Inspector, an action not requiring aggrieved person status. See Green, 404 Mass. at 573. But in order for Maloney to appeal the Building Inspector’s decision pursuant to G.L. c. 40A, §8, it must demonstrate its status as an aggrieved person. See Id. (distinguishing, “between a right of a nonaggrieved person to seek enforcement (see § 7) and the greater right of an aggrieved person to start an administrative proceeding seeking to compel enforcement (see § 8)”); Warrington v. Zoning Bd. of Appeals of Rutland, 78 Mass. App. Ct. 903 , 904 (2010).

The standard for an ‘aggrieved person’ for purposes of G.L. c. 40A, § 8, is the same as the standard for an ‘aggrieved person’ under G.L. c. 40A, § 17. See Id. at 904-05 (holding the standing requirement of G.L. c. 40A, § 17 is the same as G.L. c. 40A, § 8). See also Com. v Connor C., 432 Mass. 635 , 645 (2000) (holding the same words in different parts of a statute enacted at the same time are presumed to have the same meaning). Maloney asserts two alleged harms, diminution in property values and increased density on an undersized lot. Both of these harms are recognized harms under existing case law. Diminution in property value, however, cannot stand alone and must be tied to a recognized harm. See Standerwick, supra at 30-31. Maloney relies on the Collins Affidavit in support of its argument of decreased property values. [Note 7] Collins is a certified real estate appraiser and in his affidavit he gives an analysis of various factors used to establish diminution in value. Plaintiff does not supply any contradictory evidence in this regard, but instead challenges the analysis in the Collins Affidavit. Maloney points to §§ 17.20.020, 17.20.040, and 17.24.090 of the Ordinance to tether the diminution in value claim with the claim of increased density.

Standing in the summary judgment context is a threshold issue, and Maloney has presented credible evidence of diminution of value and tethered such harm with an interest recognized by case law as well as by the Ordinance. See Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 12-13 (2009) (recognizing density as protected interest); Standerwick, supra at 31 (recognizing diminution in value as protected interest when tethered to another recognized interest); see also City of Quincy Zoning Ordinance Section 17.04.130 (“There shall be a board of appeals...subject always to the rule that it shall give due consideration to...conserving property values”). The Ordinance sets limitations on lot sizes generally in Section 17.20.020, for business B-2 lots in Section 17.20.040, and for service stations in Section 17.24.090. The harm of increased density is protected by the Ordinance and sufficient to be tethered with the diminution of value claim. In this case Maloney points to the Collins Affidavit to demonstrate its individualized harm in regards to the Sign. Collins describes the principle of balance within the real estate context which connects a property with its surrounding environment. Collins also discusses how Maloney’s property was adversely affected as, “[t]he construction of the Sign has created an unbalance in its surrounding neighborhood.” This assertion provides evidence that the increased density has adversely effected Maloney’s property and is sufficient to tether a claim of diminution of value.

Maloney supports its claim for diminution of value with the Collins Affidavit which serves to link its personalized harm and legally protected interest. See Standerwick, 447 Mass. at 31-32. By establishing an individualized harm created by the increase in density and then linking the harm to the Ordinance’s exclusion of Signs, Maloney has demonstrated a cognizable interest protected by the zoning scheme. See id. As such, I find that Maloney has standing to appeal ISD Decision 1 to the ZBA pursuant to G.L. c. 40A, §8.

Timeliness of Maloney’s Appeal.

Plaintiff asserts Maloney’s enforcement request is an untimely collateral attack on the issuance of Variance 2. Because Variance 2 was not appealed pursuant to G.L. c. 40A, § 17, the use of an enforcement request to appeal the issuance of Variance 2 would be improper. See Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 855 (2008) (holding party may not forego appeal only to later seek an enforcement request). To the extent the enforcement request is a challenge to Variance 2, this court agrees with Plaintiff’s argument and finds Maloney precluded from attacking Variance 2. However, Plaintiff also attempts to assert that Maloney’s attack of the validity of the Building Permit is also a collateral attack on Variance 2 and thus precludes Maloney from appealing the issuance of the Building Permit through an enforcement request. While Maloney did not appeal ZBA Decision 2, the enforcement request does not seek revocation of Variance 2; it merely asserts the issuance of the building permit was improper because additional zoning relief was required – mainly a finding pursuant to G.L. c. 40A, § 6, and two additional variances. The differences between a variance and a building permit are significant and the fact that a party is barred from arguing the validity of a variance does not mean a party may not challenge the validity of a building permit related to the variance. A variance may be only one part of the zoning relief necessary for the proper issuance of a building permit. As a result, I find that Maloney may challenge the issuance of the Building Permit.

Notwithstanding the foregoing, when a party is on notice of the issuance of a building permit and does not timely appeal the issuance of the building permit, the party may not initiate an enforcement request to accomplish that result. See Gallivan, Mass. App. Ct. at 855. The issue, then is the timeliness of the challenge to the Building Permit. An aggrieved party properly opposes the issuance of a building permit so long as the aggrieved party challenges the permit within thirty days of its issuance, as set out in G.L. c. 40A, § 15, or within six years of its issuance as set out in G.L. c. 40A, § 7, depending on the circumstances.

Maloney argues G.L. c. 40A, § 7, applies to this case, [Note 8] while Plaintiff argues G.L. c. 40A, § 15 applies. [Note 9] Because Maloney is bringing an enforcement action pursuant to G.L. c. 40A, § 8, which is typically governed by the shorter statute of limitations contained in G.L. c. 40A, § 15, at first blush Plaintiff’s argument appears to have some merit. Case law distinguishes these two statutes on the basis of notice. In circumstances where the party seeking the enforcement action has a fair opportunity to appeal the issuance of the permit, G.L. c. 40A, § 15, applies. See Gallivan, 71 Mass. App. Ct. at 855. In circumstances where notice was not adequate, such as not being directly mailed to abutters, and there is no evidence to show the party had actual or constructive notice within thirty days of the issuance of the permit, G.L. c. 40A, § 7, applies. See Fitch v. Bd. of Appeals of Concord, 55 Mass. App. Ct. 748 , 751 (2002) (holding G.L. c. 40A, § 7, was created in order to allow additional time for those parties without notice the opportunity to appeal allegedly unlawful construction). [Note 10]

Actual notice typically consists of a letter delivered to those with presumptive standing (abutters and abutters to abutters within 300 feet) as well as public notification in a local newspaper. In the present case it is undisputed that notice of issuance of the Building Permit was not published. It is also undisputed that Maloney did not receive any letter of notification pertaining to the issuance of the Building Permit. As the parties agree that actual notice was not given to Maloney, the dispute in this case involves Plaintiff’s contention that Maloney was on constructive notice of the issuance of the Building Permit. [Note 11]

Plaintiff contends Maloney had “actual knowledge of construction” for the Sign. Plaintiff then relies on Chiuccariello v. Building Comm’r. of Boston, 29 Mass. App. Ct. 482 (1990) to demonstrate a party that was uninformed as to the issuance of a variance or a permit, but had actual notice of the construction by virtue of witnessing the construction on the property, should be deemed to have actual notice of the permit and should be held to the shorter appeal period. Chiuccariello, supra at 488-89 (analyzing facts under former version of G.L. c. 40A, § 17).

Chiuccariello is distinguished from the present case as it was undisputed in Chiuccariello that the plaintiffs had actual notice the project was proposed and that a conditional permit had been granted for the project before and during the statutory window to appeal. Id. at 487. The exact date Maloney observed the construction of the Sign on Locus is unclear in the present case, but Maloney admits in its deposition that it knew of construction in late March and learned the construction was for a billboard by mid-April. Assuming Maloney did in fact have actual notice of construction on or about March 21, 2008, the beginning of the construction, the thirty day period for an appeal had already run back in early March. Based on the earliest date for actual knowledge of construction on the Locus, it is impossible for Maloney to have appealed the issuance of the Building Permit within the thirty day window of G.L. c. 40A, § 15. Because Maloney did not have actual or constructive notice of the issuance of the Building Permit within thirty days of the issuance of the Building Permit, I find that G.L. c. 40A, § 7, applies to the challenge to the Building Permit, and as a result Maloney has filed a timely appeal on June 17, 2008.

ZBA Decision 3.

In ZBA Decision 3, the ZBA stated that Plaintiff needed to file for a Section 6 finding for the Sign because of the non-conforming nature of Locus, and the change/expansion in the use at Locus. Locus was non-conforming because it was an undersized lot for service station use. The use was as-of-right provided the lot size was adequate. However, ZBA Decision 1 appeared to address the undersized lot concern with respect to the automobile service station when it granted a variance for Locus for the upgrading and expansion of the service station use, and the only nonconformity was the size of the lot for such purpose. Moreover, Variance 1 stated that “[t]he Board finds that a hardship was created when the City of Quincy took land in 1963 to increase the size of California Avenue, and due to the shape of the lot, literal enforcement of the dimensional requirement would involve a substantial hardship to the applicant.” ZBA Decision 2 appeared to address the setback requirements with respect to the Sign when it granted a variance for the Sign, finding that “[t]he lot is oddly shaped and there is a high traffic volume in the area. The proposed billboard will not generate traffic and is not affected by the shape of the lot. The impact at this location will be minimal . . . and desirable relief may be granted without substantial detriment [to the public good].” [Note 12] Since the Ordinance prohibits off-premises signs, Plaintiff was required to get a use variance for the Sign rather than a special permit. Locus was conforming as to size for purposes of the Sign; it was the use that violated the Ordinance. [Note 13] The location of the Sign also violated the setback requirements of the Ordinance. ZBA Decision 2 allowed the use of the Sign on Locus, as well as violation of certain setback requirements. As a result, the “change/expansion of the use at the site” cited in ZBA Decision 3 (the use of Locus for the Sign) had already been addressed by ZBA Decision 2, which was not appealed.

G. L. c. 40A, § 6 provides in relevant part,

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing [concerning a by-law change], but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure . . . Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

The Sign is not a pre-existing nonconforming use. It was allowed by Variance 2 and the Building Permit, and built in 2008. As a result, G. L. c. 40A, § 6 does not apply to the Sign. Maloney cites Rockwood v. Snow Inn Corp., 409 Mass. 361 (1991) in support of its argument that a section 6 finding is required. In that case, the applicants had applied for a special permit for changes to a pre-existing structure with dimensional violations, and the SJC established the two-pronged test for a special permit. Such test is not relevant to the case at bar.

As a result, it does not appear that a Section 6 finding is required for the Sign. I find that ZBA Decision 3 exceeded the scope of authority of the ZBA.

ZBA Decision 4.

In ZBA Decision 4, the ZBA stated Plaintiff was required to seek two additional variances for the Sign in order to provide relief from § 17.20.020 and §17.20.040 of the Ordinance. [Note 14], [Note 15] Plaintiff argues that the Variance obtained through ZBA Decision 2 covered the use of the Sign on the Locus and all setback requirements for the Sign. Plaintiff points out that the Sign meets all requirements of Section 17.20.040 of the Ordinance (Table of Dimensional Requirements) except setbacks which were covered by Variance 2. Additionally, the Members of the ZBA, in their Request for Admission, stated that “[t]he Quincy Zoning Code does not and did not at the time of the 2007 Variance set forth lot size requirements for any signs.” Maloney argues that Locus was already nonconforming as to one use (the automobile service station), and another nonconforming use (the Sign) was being added, thereby increasing the already nonconforming density for Locus. As a result, Maloney argued the request for two additional variances was not a collateral attack on ZBA Decision 2. ZBA Decision 2, however, which was not appealed and therefore was res judicata as to the Sign, had granted a variance for the use and location of the Sign on Locus with no other conditions. In granting Variance 2, the ZBA considered the Ordinance and stated a variance could be granted so long as the decision would not nullify or substantially derogate from the intent or purpose of such ordinance or by-law. [Note 16] Because this part of Maloney’s argument requires reconsideration of ZBA Decision 2, it will not be entertained. As a result, I find that ZBA Decision 4 exceeded the scope of authority of the ZBA. [Note 17]

ZBA Decision 5.

In ZBA Decision 5, the ZBA upheld ISD Decision 2. ISD Decision 2 states that it is based on ZBA Decision 3 and ZBA Decision 4. Since this court has found that both of those decisions are beyond the scope of authority of the ZBA, I find that ZBA Decision 5 also exceeded the scope of authority of the ZBA.

Finally, Maloney argues that the ZBA is entitled to deference in issuing ZBA Decision 3, ZBA Decision 4 and ZBA Decision 5. As discussed, supra, this court has determined that all three decisions are beyond the scope of authority of the ZBA, therefore deferring to the ZBA is unsuitable in this case. See Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381-82 (2009) (holding local board’s decision may be overturned if decision was unreasonable, whimsical, capricious or arbitrary).

Construction of the Sign.

The final issue Maloney raises is that the Sign as-built does not conform to the Proposed Site Plan relied upon by the ZBA in granting Variance 2. The application for Variance 2 included the Proposed Site Plan for the construction of the Sign, as well as photographs of the Sign. In ZBA Decision 2, the ZBA relied upon “[A] true copy of the application.” As a result, Variance 2 allowed construction of the Sign in accordance with the copy of the application filed with the Office of the ZBA. Relying upon this information, the ZBA decided Variance 2 could be granted, “without substantial detriment.” The terms of Variance 2 are clear and Plaintiff does not have authority to construct a sign which does not conform to the terms of Variance 2, including the Proposed Site Plan.

To support its allegation that the as-built Sign differs from the Proposed Site Plan, Maloney relies on the Affidavit of Robert Hannigan, a Professional Civil Engineer. Hannigan states the As-built Plan differs from the Proposed Site Plan for the Sign in six different ways, including the length dimension of the Sign and the diameter of the pole. [Note 18] In particular, Maloney argues the Proposed Site Plan shows the length of the Sign to be forty-eight feet and the diameter of the pole to be thirty-six inches. As Hannigan states in his affidavit, and as the As-built Plan shows, the length of the billboards are fifty feet each and the base of the pole is five feet in diameter. In his Affidavit, John Serra, President of Media Vision, Inc., the partial owner of Plaintiff, stated, “As constructed, the Sign pole has a maximum diameter of five feet (60 inches).” Additionally the as-built plan demonstrates the billboards in the Sign were constructed at a length of fifty feet as opposed to forty-eight feet. It appears undisputed the provisions detailing the diameter of the pole and the length of the billboards of the Sign as shown on the Proposed Site Plan have not been met.

Because Variance 2 only allows the Sign to be built in accordance with the Proposed Site Plan, I find that the Sign must be made to conform to the Proposed Site Plan or Plaintiff must seek a modification of Variance 2 from the ZBA. [Note 19]

As a result of the foregoing, I ALLOW Plaintiff’s Motion for Summary Judgment pertaining to the fact that ZBA Decisions 3, 4, and 5 exceed the authority of the ZBA, but DENY Plaintiff’s Motion for Summary Judgment as to its due process claim, Maloney’s lack of standing, and Maloney’s untimely appeal. I DENY Maloney’s Cross-Motion for Summary Judgment and the ZBA and Building Inspector’s Cross-Motion for Partial Summary Judgment as to the validity of ZBA Decisions 3, 4, and 5, and ALLOW Maloney’s Cross-Motion for Summary Judgment and the ZBA and Building Inspector’s Cross-Motion for Partial Summary Judgment as to Plaintiff’s due process claim, Maloney’s standing, and Maloney’s timely appeal.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: April 25, 2011