V. MARK SOFTWARE vs. BOARD OF APPEALS OF THE TOWN OF NATICK, EDWARD C. EHRLICH, CHRISTINE D. HUBBARD, ROBERT D. MERRYMAN, STEPHEN J. JOACHIN and RONALD E. LUSTIG.

In Miscellaneous Case No. 127423 the plaintiff, V. Mark Software, a small computer software manufacturer, appeals pursuant to the provisions of G.L. c. 40A, §17 from the denial by the Natick Board of Appeals ("ZBA") of its application for a special permit to allow the continued maintenance of its sign identifying its presence on Strathmore Road within a small industrial park located across Route 9 from the Natick Shopping Mall. A sketch prepared by the court of the street configuration is attached hereto as Exhibit A. There also is pending in this department Miscellaneous Case No. 130481, an appeal of the ZBA's decision sustaining the Building Inspector's denial of the application for a sign permit and ordering removal of the sign; the parties agreed to a stay of the order by the Building Inspector until the outcome of the litigation. No question is raised in this appeal as to the issue of commercial free speech.

A trial was held at the Land Court on September 11, 1990 at which a stenographer was appointed to record and transcribe the testimony. James Walsh, the chief financial officer of the plaintiff, and Robert Nelson; a registered land surveyor, testified for the plaintiff. The defendant ZBA called no witnesses. Twelve exhibits, some with multiple parts, were admitted in evidence and are incorporated herein for the purpose of any appeal. In the latter category were many photographs of the businesses in the vicinity of the plaintiff's premises and the signs which advertise their presence.

The parties entered into the following Agreed Statement of Facts (Exhibit No. 9) which I also find:

1. The plaintiff is a tenant in a commercial building located at 5 Strathmore Road, in Natick, Middlesex County, Massachusetts.

2. The property is located in an Industrial I Zoning District.

3. The Board of Appeals of the Town of Natick is the duly constituted Board under the Natick Zoning By-Laws to hear applications for special permits. The Natick Board of Appeals has a usual place of business at 13 East Central Street, Natick, Middlesex County, Massachusetts.

4. The plaintiff hired a sign company to erect and construct a sign in the front of the building at 5 Strathmore Road and to obtain all necessary permit and approvals therefor.

5. The sign company erected and installed a sign in front of the building at 5 Strathmore Road, Natick but did not obtain the necessary permit for the sign.

6. When the Natick Building Inspector learned that said sign had been erected and installed without a permit, he informed that Plaintiff and directed the Plaintiff to apply for a sign permit. The Plaintiff did apply for a sign permit.

7. The Natick Building Inspector denied the request for a sign permit on January 7, 1988 because it did not meet the front yard set back [sic] requirements. [Note 1]

8. The sign is located closer to the front lot line of the premises than is permitted by the Natick zoning by­laws. The zoning by-laws require a sign in the zoning district to be set back at least 25 feet from the front lot line, and the sign is located 2 feet from the front lot line. The sign is approximately nine feet from the travelled way.

9. The building at 5 Strathmore Road is set back approximately 30 feet from the front lot line.

10. On or about January 22, 1988 the Plaintiff applied to the Natick Board of Appeals for a special permit for the sign. The only issue before the Board of Appeals was the front yard setback of the sign.

11. The Board of Appeals published proper and adequate notice pursuant to the statutory requirements, and thereafter held a public hearing on February 17, 1988, at which hearing the Plaintiff presented its arguments in support of its petition.

12. The Natick Planning Board objected in a written report to the application for a sign permit. No other objection to the request was submitted to the Board of Appeals.

13. By decision filed March 10, 1988 the Natick Board of Appeals denied the request for a special permit.

On all the evidence I also find and rule as follows:

14. The building occupied by the plaintiff is located in a commercial subdivision; the office park consists of aproximately twelve to fifteen buildings and is located southerly off Route 9 in Natick. The buildings appear uniformly constructed. Two of the three subdivision roadways, Strathmore Road and Dean Road, run off Route 9; and Strathmore Road, on which the premises are located has a long neck from Route 9 which leads into a semi-circle crossed at its two ends by Mercer Road. As noted above a sketch prepared by the Court is attached hereto as Exhibit A. The premises leased by the plaintiff are at 5 Strathmore Road which is the second property on the westerly end of Strathmore from its intersection with Mercer Road. A driveway extends from Strathmore Road between numbers 3 and 5 thereon to a parking area behind the building.

15. The zoning by-law relative to signs was in effect in 1988 and at all times relevant to these proceedings. As defined by the by-law the plaintiff's sign is a standing accessory sign since it is not attached to the building. See Sections V-H.B.2 and 4 of the by-law. The plaintiff's sign extends on each side of a concrete base with a brick facade about two feet high which doubles as a planter and which is in the shape of a "V", modeled after the plaintiff's name. Each side of the sign is about 5.2 feet long and 2.1 feet high, which falls within the requirements of the by-law. The members of the ZBA suggested at the hearing that the two ends of the sign be joined to constitute a single sign, and this change seems appropriate. Evidence of other signs in the neighborhood established that they also are two-faced so that the identification of the occupant of the building appears on each side. The plaintiff's sign is located entirely on property of its lessor. Between the line of the street and the actual travelled way is a grassy area, apparently originally designed for a sidewalk. The "V" of the planter at its nearest point is about two feet from the street line but nine feet from the travelled way.

16. The building of which the plaintiff now is the sole occupant is set back approximately 30 feet from the street line. The space between it and the street is occupied by a wheelchair ramp for accessible access for the handicapped required by the Commonwealth of Massachusetts, and a walkway extending 12 feet from the structure. A line of shrubs extends another five feet with the result that there is only 14 feet for placement of the free standing sign. The sign itself is set two feet from the shrub line, but since it continues for ten feet, the end result is that it is only two feet from the front lot line. The plaintiff previously occupied a portion of the building in question and used a different access to it. The sign for such entrance was approximately the same distance from the street line as is the current sign. To comply with the by-law's setback provision would interefere with the handicap access and also would be difficult to see from a car.

17. It is unclear when other signs in the industrial park were erected, whether before or after the adoption in 1988 of the sign by-law. In 1988 there were six signs located within the 25 foot setback required from Strathmore Road. By 1990 there were 12 signs in the park which were within 25 feet of the travelled way including that here in litigation and one belonging to the United States Department of the Navy. Exhibit Nos. l0A and l0B establish that there are signs right on the street line with no setback to a sign set back as much as 27 feet. There was no testimony as to whether the ZBA ever had granted special permits to maintain the sign closer than the by-law required, and if so, when and for what reasons such special permits would issue.

18. A sign for "J&S", another occupant of premises within the park at Strathmore and Mercer Roads, was the only one that the exhibits show also to be on a brick base. It is substantially larger than the bases or stanchions depicted in other photographs in evidence including that of the plaintiff's.

19. The zoning by-law provides the following regulations and restrictions applicable to use districts. The provisions pertaining to signs in the Industrial I District state:

In . . . Industrial One . . . accessory signs that comply with the provisions herein set forth are permitted. All other accessory signs are expressly prohibited.

(a) Accessory Signs where building setback does not exceed Two Hundred ( 200) feet

1. Location: . . . No part of any standing sign shall be located within twenty-five (25) feet of any property line.

2. Size: . . .

A standing sign shall not be more than ten (10) feet in overall height with the total area not to exceed fifty (50) square feet. [Note 2]

3. Number: . . . There shall be no more than one (1) standing sign on any lot, regardless of the number of businesses or structures which may be located on the lot.

20. Sub-section E., paragraph 4 of the sign by-law governs the issuance of special permits.

Special Permits - The Board of Appeals may grant a special permit for a sign not complying with the provisions of this by-law, if it determines that the particular sign will be in harmony with the general purpose and intent of this section[,] will not be injurious to the neighborhood in which such sign or signs are to be located nor to traffic and safety conditions therein, nor otherwise detrimental to the public safety and welfare.

In granting such permission the Board shall specify the size, type and location of the sign and impose such other terms, restrictions and conditions as it may deem to be in the public interest.

There are no design standards short of the number permitted and maximum dimensions allowed by the by-law in relation to standing signs although detailed requirements are given in relation to those affixed to the side of buildings.

21. The decision of the ZBA found that the sign structure as located "was in very close proximity of the front lotline [sic], and as such would not tend to be in harmony with the intent and/or purpose of the sign code." The decision continued "That the proposed sign would tend to be injurious to the neighborhood in which it is located since the sign is located too close to the front lotline [sic], (2) feet, and the setback required is (25) feet, and this deficiency is deemed by the Board to be excessive, and a substantial departure from the provisions of the sign code" and "That the proposed sign is such close proximity to the road way would tend to be injurious to traffic and safety conditions in the neighborhood and would tend to present a distraction and impede vision to, from and along Strathmore Road."

The plaintiff alleges that the decision of the Board in refusing to grant it a special permit pursuant to the provisions of the sign by-law was arbitrary and capricious and based on legally untenable grounds. The plaintiff based its argument on the physical surroundings of the building and the failure of other buildings in the neighborhood to comply with the setback requirements.

Standard of Review

In its review of an appeal brought pursuant to G.L. c. 40A, §17, the Judge hears the matter de novo, making its own findings and drawing its own conclusions from the evidence presented at trial. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-559 (1954). Bicknell v. Board of Appeals of Boston, 330 Mass. 676 , 679 (1953). A decision of the special permit granting authority may be annulled where it is found to be arbitrary, capricious, unreasonable, or based on a legally untenable ground. Humble Oil & Refining Co. v. Board of Appeals of Amherst, 360 Mass. 604 , 605 (1971). MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). Gulf Oil Corp. v. Board of Appeal of Framingham, 355 Mass. 275 , 277 (1969).

It is long settled that no applicant is entitled to a special permit, and the Board's power to grant or deny suph a permit is purely discretionary, even where the facts could have supported its being issued. Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482 , 484 (1970). MacGibbon, supra, 356 Mass. at 638. The Court may not exercise the same discretionary prerogative as the special permit granting authority, Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979), and "[t]o hold that a decision of the board denying a permit is arbitrary and capricious per se whenever the board, on the facts found by the trial judge, could have granted a permit, would eliminate the Board's intended discretion." Gulf Oil Corp., supra, 355 Mass. at 277-278; the board's, not the Court's evaluation of the local circumstances controls. Subaru of New England, Inc., supra, 8 Mass. App. Ct. at 688. "The judge's function on appeal [is]to ascertain whether the reasons given by the [board have] a substantial basis in fact, or [are], on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law." Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973).

The law is well-settled that no one is entitled to a special permit and that it is the discretion of the ZBA, not the judge, which is to prevail. However, when the decision made by the Board is arbitrary and unreasonable, then it may be reversed. In the present case the nature of the signs is simply to identify the occupant of the building. The neighborhood is such that there is very little traffic and that those traversing Strathmore Road are attempting to reach one of the occupants of the buildings located thereon and are not using it as a main thoroughfare. A sign would much better serve this purpose if it were located closer to the street line than the by-law authorizes so that a driver would be able to observe it rather than at a distance where it could not be read. The sign which presently is in place appears to be attractive and to serve its principal purpose. Moreover, the signs in the Industrial Office Park appear evenly divided between compliance with the setback requirement and those which are erected closer to the street line. Finally, there is the question as to the paucity of distance available in the front yard of the building with the wheelchair accessible entrance, the walkway and the existing shrubs.

On all the evidence therefore it appears to me that denial of the plaintiff's application for special permit under these peculiar circumstances was legally untenable and arbitrary, whimsical and capricious. Accordingly I remand the matter to the ZBA with an order that it grant the special permit subject to such conditions as it may reasonably impose as to the joinder of the two faces of the sign.

Jurisdiction is retained by this department.

Judgment accordingly.

exhibit 1