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 and located at 313-315 Willard Street in Quincy, MA ("Locus"). [Note 1] 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 (these three cases together, the "Litigated Cases").
A summary judgment hearing was held for the Litigated Cases on July 12, 2010, and a Decision ("Land Court Decision 1") was issued on April 25, 2011, finding that Maloney had standing to appeal ISD Decision 1 to the ZBA pursuant to G.L. c. 40A, § 8, Maloney may challenge the issuance of the Sign's building permit (issued by the Building Inspector on February 5, 2008) (the "Building Permit"), Maloney had filed a timely appeal of the Building Permit, and ZBA Decision 3, ZBA Decision 4, and ZBA Decision 5 exceeded the scope of the authority of the ZBA. This court also initially found that the Sign must be made to conform to the proposed site plan for the construction of the Sign (prepared by Green Environmental, Inc. and dated January 3, 2007) (the "Proposed Site Plan") or Plaintiff must seek a modification of the terms of Variance 2 from the ZBA. [Note 2] However, such finding was withdrawn by Order of this court dated May 27, 2011, based on the fact that the Building Inspector "should have a chance to weigh in on the issue of the compliance of the Sign with [Variance 2]." [Note 3] The matter was remanded to the Building Inspector to respond to the As-Built Plan for the Sign.
On October 17, 2011, Plaintiff filed its unverified Complaint (11 MISC 454704), pursuant to G. L. c. 40A, §17, appealing a ZBA decision dated September 28, 2011 ("ZBA Decision 6") that reversed a decision of the Building Inspector ("ISD Decision 3"). ISD Decision 3 upheld the Sign as built pursuant to Variance 2. The ZBA, conversely, found that the Sign did not comply with the terms of Variance 2 and the Proposed Site Plan with regard to the size of its support beam, the presence of catwalks, and the Sign's cantilevering. Maloney filed its Answer on November 3, 2011, and a Case Management Conference was held on December 21, 2011, at which time this case was consolidated with the Litigated Cases.
On March 19, 2012, Plaintiff filed its Motion for Summary Judgment, along with supporting memorandum, Statement of Undisputed Facts, and Appendix, which included the Affidavits of Jonathan Serra (principal of Plaintiff), Kathryn A. Georgian (paralegal), and Donald P. Bouchard (certified real estate appraiser) (the "Bouchard Affidavit"), and the deposition transcript of Thomas M. Maloney, Jr. On April 18, 2012, Maloney filed its Opposition, supporting memorandum, Response to Plaintiff's Statement of Undisputed Facts, Statement of Additional Undisputed Facts, and Appendix including Affidavit of Matthew Lawlor, Esq. [Note 4] On April 20, 2012, the ZBA and the Building Inspector, Jay Duca, (together with Maloney, "Defendants"), filed their Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Motion for Partial Summary Judgment. Plaintiff replied to Defendants' memoranda with a Reply memorandum on May 2, 2012, and included a Response to Maloney's Additional Undisputed Facts.
A hearing was held on all motions on May 23, 2012, and a Decision of today's date ("Land Court Decision 2") was issued.
In accordance with Amended Land Court Decision1 and Land Court Decision 2, it is:
ORDERED and ADJUDGED that the affidavit of Webster A. Collins shall not be struck, but this court shall give the affidavit such weight as it deems appropriate.
ORDERED and ADJUDGED that Plaintiff's substantive due process rights were not violated by the City of Quincy's actions.
ORDERED and ADJUDGED that Maloney has standing to appeal ISD Decision 1 to the ZBA pursuant to G.L. c. 40A, §8.
ORDERED and ADJUDGED that Maloney may challenge the issuance of the Building Permit.
ORDERED and ADJUDGED that G.L. c. 40A, § 7 applies to the challenge to the Building Permit dated February 5, 2008, and as a result Maloney has filed a timely appeal on June 17, 2008.
ORDERED and ADJUDGED that ZBA Decision 3 exceeded the scope of authority of the ZBA.
ORDERED and ADJUDGED that ZBA Decision 4 exceeded the scope of authority of the ZBA.
ORDERED and ADJUDGED that ZBA Decision 5 exceeded the scope of authority of the ZBA.
ORDERED and ADJUDGED that Plaintiff's Motion for Summary Judgment is ALLOWED pertaining to the fact that ZBA Decisions 3, 4, and 5 exceed the authority of the ZBA, and DENIED as to its due process claim, Maloney's lack of standing, and Maloney's untimely appeal.
ORDERED and ADJUDGED that Maloney's Cross-Motion for Summary Judgment and the ZBA and Building Inspector's Cross-Motion for Partial Summary Judgment is DENIED as to the validity of ZBA Decisions 3, 4 and 5, and ALLOWED as to Plaintiff's due process claim, Maloney's standing, and Maloney's timely appeal.
ORDERED and ADJUDGED that Maloney is not entitled to a presumption of standing when it admits to not being an abutter, an abutter to an abutter within 300 feet, or an owner of land directly across a way from Locus.
ORDERED and ADJUDGED that Maloney has offered sufficient credible evidence of aggrievement to show standing for its appeal of ISD Decision 3 at the summary judgment stage, even in light of the Bouchard Affidavit.
ORDERED and ADJUDGED that as the text of Variance 2 contains no conditions as to the size of the support pole, the presence of catwalks, or the orientation of the Sign, and the Proposed Sign Plans are not incorporated by reference into Variance 2, the ZBA's determination that the Sign is not in conformity with the conditions of Variance 2 in ZBA Decision 6 is legally untenable and in excess of its authority.
ORDERED and ADJUDGED that Plaintiff's Motion for Summary Judgment is DENIED as to Maloney's standing and ALLOWED as to the invalidity of ZBA Decision 6.
ORDERED and ADJUDGED that Defendants' Motion for Partial Summary Judgment is ALLOWED as to Maloney's standing and DENIED as to the validity of ZBA Decision 6.
By the court. (Sands, J.)
[Note 1] The Sign had been allowed by a variance ("Variance 2") approved by the ZBA on May 22, 2007.
[Note 2] The Sign as shown on the Proposed Site Plan differs from the as-built plan of the Sign dated July 3, 2008 and prepared by Albert A. Romano (the "As-Built Plan").
[Note 3] Such finding, while originally part of the Land Court Decision 1, was subsequently deleted from the decision ("Amended Land Court Decision 1," dated May 27, 2011).
[Note 4] Defendants are also relying on the Affidavit of Webster A. Collins (real estate appraiser) (the "Collins Affidavit") which was filed with the Litigated Cases.