MURRAY MARKETING, INC. v. CITY OF WORCESTER ZONING BOARD OF APPEALS AND ITS MEMBERS, LEONARD CIUFFREDO, KOLA AKINDELE, LAWRENCE ABRAMOFF, ANDREW FREILICH, BRIAN MURPHY, DAVID GEORGE, VADIM MICHALJLOW and WILLIAM BILOTTA, JR.

INTRODUCTION

This case involves Plaintiff Murray Marketing, Inc.’s G.L. c. 40A, § 17 appeal from a decision of the City of Worcester Zoning Board of Appeals (the “Board”), which denied Plaintiff’s special permit application for a billboard. The Plaintiff challenges the special permit denial as being legally untenable, arbitrary, and capricious. More specifically, the Plaintiff challenges the Board’s determination that the proposed billboard would block the “view corridor” from Interstate Highway I-290 (“I-290”) to the City’s historically and architecturally significant Union Station, disputes that the City’s long-range planning goals can be a proper basis for denial of a special permit, and contends that the denial of the special permit for a billboard is arbitrary and capricious in view of the fact that the City’s Zoning Ordinance (the “Ordinance”) would permit the by-right construction of a large office building on the subject site which would completely block the view of Union Station from I-290.

A de novo trial was conducted on November 5, 2012, at which four (4) witnesses testified, and eighteen (18) exhibits were admitted into evidence. Following the trial, the parties each submitted proposed findings of fact and rulings of law. Now, for the reasons discussed below, I decide that the Plaintiff has failed to meet its burden to show that the special permit denial was arbitrary and capricious, or based upon a legally untenable ground. Accordingly, Plaintiff’s Complaint shall be DISMISSED.

FACTS

Based upon the pleadings, the parties’ agreed facts, the trial testimony and the exhibits admitted into evidence, I find the following facts:

The Locus

The Plaintiff executed a letter of intent in 2008 to purchase an option for a permanent easement over 212 Summer Street, Worcester, Massachusetts (the “Locus”) from the landowners, Houston Brothers, LLC, for the purpose of constructing and maintaining a single-pole, non-accessory sign, or billboard. [Note 1] The Locus is comprised of two adjacent lots, Lot 1 and Lot 2, with a combined area of just over one (1) acre. [Note 2] Both Lots are within a Business General zoning district, “BG-6.0,” in which the maximum ratio of building area to lot area is 6.0, i.e., six (6) square feet of building per one (1) square foot of land.

There are presently three (3) buildings on the Locus, none of which exceed three (3) stories. Based on the configuration and size of the Locus, and the requirements of the Ordinance, there is potential for a twelve (12) story building to be constructed thereon, as-of-right.

The Locus is situated west of, and adjacent to, I-290, which is elevated above the Locus. Also abutting the Locus to the north and west is a semi-circular, westbound on-ramp to I-290. To the south, the Locus abuts an approximately one-acre, vacant lot owned by the City of Worcester (the “City Lot”). The southern boundary of the City Lot borders Washington Square. [Note 3] On the south side of Washington Square, approximately 480 feet from the southernmost boundary of the Locus, is Union Station – a building of particular historical and architectural significance to the City of Worcester, and a centerpiece of the City’s economic development strategy for the Union Station/Washington Square area.

Union Station and Washington Square Area

Union Station opened in 1911, and served as a point of connection for train service between Worcester and Boston. The Station was closed down in the early 1970’s. In 1991, the Worcester Redevelopment Authority (“WRA”) purchased the Station and commenced renovation at a cost of over $30 million. Union Station was reopened in 2004, and is currently served by the MBTA commuter rail, the Amtrak regional train, and an intercity bus system. It is listed in the National Register of Historic Places, as well as in the State Register of Historic Places.

In 1996, while Union Station was undergoing renovation, the City of Worcester and the WRA established the Union Station Urban Renewal Area (the “Union Station URA”). [Note 4] In 2006, a planning report entitled “Washington Square Redevelopment Strategy” (the “Report”) was prepared for the City of Worcester Division of Economic Development. The Report, dated March 26, 2006, prepared by BSC TerraSphere (“BSC”) and adopted by the Worcester City Council, outlines recommended development opportunities for properties in the Union Station URA. The Locus is included in the Union Station URA.

The Report divides the Union Station URA into four areas or parcels. Parcel #1 is comprised of the Locus and the City Lot. For Parcel #1, the Report recommends that “[a]ny new development in this area needs to be of the appropriate scale and quality to enhance this key gateway, while at the same time not detracting from Union Station, the major architectural element of the Washington Square area.” Applying these criteria to the Locus, BSC recommends that it be developed as a four-story hotel, either with an attached one-story restaurant or with a restaurant within the hotel building. The Report specifies that the recommended development options are designed to provide “building placement and massing that complements the Washington Square area and does not detract from Union Station.”

In addition to the Report, a second planning document was submitted into evidence at trial. Entitled “Market Analysis and Disposition Strategy for Parcels at Washington Square in Worcester, MA” (the “Market Analysis”), prepared for BSC Group by RKG Associates, Inc. and dated December 1, 2005, the Market Analysis purports to have had a “primary focus… [on] the hotel sector,” but that it had “also reviewed office market characteristics, and to a more limited extent, other commercial sectors such as restaurants and automotive services.” [Note 5] After engaging in a hotel and commercial market analysis for the Union Station area, the Market Analysis recommends that the City create “design and landscape guidelines for hotel/restaurant uses in the area.” It also suggests that an “office use would likely be a good [alternative].” Additionally, the Market Analysis observes, under the category of “Other Uses,” that “[m]ost of the parcels have some sort of exposure to I-290 and using a site or a portion of one for a billboard sign would also seem logical.” Although the 2005 Market Analysis was apparently submitted as an appendix to the 2006 Report, the Report itself did not incorporate this particular observation into its final recommendations for the Union Station URA.

Special Permit Application

Under Article IV, § 6(A)(1)(b) of the Ordinance, non-accessory signs, such as billboards, are allowed in a BG district by special permit only, subject to specified standards. Pertinent to the Plaintiff’s proposed sign, § 6(F)(3) of Article IV limits the size of non-accessory signs to a maximum of sixty (60) feet wide by twenty-five (25) feet high. Also, § 6(G)(2) requires a proposed non-accessory sign to be at least 300 feet from the nearest non-accessory sign on the same side of the street.

On or about July 28, 2009, the Plaintiff submitted a special permit application to erect a forty-eight (48) foot by fourteen (14) foot billboard on the eastern boundary of the Locus, approximately 767 feet north of Union Station. When erected on its supporting structure, the proposed billboard would stand approximately sixty (60) feet high. The proposed billboard would have been placed about 800 feet from nearest non-accessory sign on the west side of I-290.

On October 29, 2009, in order to demonstrate to the Board the billboard’s approximate location, the Plaintiff arranged for a crane to be placed in the proposed billboard location. Hanging from the crane arm, at approximately the same height as the proposed billboard, was a four-foot by eight-foot rectangular piece of mesh fabric (the “mesh rectangle”). The thirty-two (32) square foot mesh rectangle, which was only about five percent (5%) or 1/20th of the size of the proposed 672 square foot billboard, was nevertheless visible from I-290 and obscured or partially obscured the view of Union Station from several points along the southbound side of the highway.

On November 2, 2009, the Board denied the Plaintiff’s special permit application. In its decision, entitled “Special Permit – Findings of Fact and Decision 212 Summer Street – MBL: 01-03-00006” (the “Decision”), the Board concluded in part:

Per Article II, Section 6(A)(2) of the City of Worcester Zoning Ordinance, the Board considered whether the adverse effects of the proposed use outweigh its beneficial impacts to the City with respect to each of the following considerations, and found that: …

9. Neighborhood character and social structure:

a. The proposed location and use is not consistent with the purposes and intent of the Zoning Ordinance. . . .

i. The proposed location of the sign, in close proximity to Union Station, is within the view corridor of Union Station and therefore degrades the character of this important historically and architecturally significant gateway. . . .

ii. The proposed sign is not consistent with the City’s planning efforts related to the Washington Square area. . . .

iii. Maintaining a clear, uncluttered view corridor for Union Station is an important aspect of this gateway and fitting to its architectural and historic significance. . . .

The Decision was filed in the office of the Worcester City Clerk on January 26, 2010. On February 12, 2010, the Plaintiff filed a timely appeal of the Decision.

DISCUSSION

When a party appeals under G.L. c. 40A, § 17, the court “shall hear all evidence pertinent to the authority of the board… and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board… .” In this type of de novo review, the court “gives no evidentiary weight to the board’s findings.” Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999). The burden is on the party challenging the special permit denial, to persuade the court that the special permit should be granted, Knott v. Zoning Bd. of Appeals of Natick, 12 Mass. App. Ct. 1002 , 1004 (1981), and that denial “is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970).

To prove that the Decision here was based on a legally untenable ground, the Plaintiff was required to show that the Board based the Decision “on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). To prove that the Decision was arbitrary and capricious, the Plaintiff was required to show that “no rational view of the facts the court has found supports the board’s conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law.” Id. at 74.

It must be noted, moreover, that judicial review of the factual basis for a board’s decision is circumscribed, as there are “well-established principles regarding deference to local control of zoning matters.” Id. at 77. The court’s review is thus “highly deferential, and gives the board discretion to deny a permit application even if the facts found by the court would support its issuance.” Id. at 74 (internal citations omitted). If the court can find any rational basis for the board’s denial of a special permit, the court must uphold the board’s decision. Id. at 74-75.

As discussed below, I find that the Plaintiff in the instant case has failed to satisfy its burden to prove either that the Board’s Decision is based on legally untenable criteria, or that the Decision was arbitrary and capricious.

Degradation of the View Corridor

The Plaintiff contends that the Decision is legally untenable because it is based upon a criterion not mentioned in the Ordinance. More specifically, Plaintiff argues that since the term “view corridor” is not used or defined in the Ordinance, the Board could not lawfully deny Plaintiff’s special permit application on the grounds that the proposed billboard is “inconsistent with the purposes and intent of the Zoning Ordinance” because it “degrades the character of the view corridor of Union Station.” Plaintiff’s argument, however, completely ignores the Board’s statutory obligation as special permit granting authority to consider whether the proposed use is in harmony with the general purposes of the Ordinance. See G.L. c. 40A, § 9 (“Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law…”).

The argument also ignores the Board’s obligation under Article II, Section 6(A)(2) of the Ordinance [Note 6] to make a determination (“within the context of the characteristics of the site and its vicinity”) “that the adverse effects of the proposed use will not outweigh its beneficial impacts to the city or the neighborhood” [Note 7] before granting a special permit.

In addressing the impact of the proposed billboard on the City and the surrounding neighborhood, the Board concluded that the proposed billboard was not consistent with the purposes and intent of the Ordinance because the proposed sign “is within the view corridor of Union Station and therefore degrades the character of this important historically and architecturally significant gateway.” Contrary to the Plaintiff’s contentions, the Board was well within its authority to deny the billboard special permit on these grounds. The Board’s statement that the proposed billboard would block an important view corridor was an explanation of the type of negative visual impact which the billboard would cause “within the context of the characteristics of the site and its vicinity.” It is of no consequence that neither the specific term “view corridor,” nor the concept of blocked view corridors, is mentioned in the Ordinance, where the Ordinance does expressly provide that it is “designed to encourage the most appropriate use of land in a manner that… [p]rotects[s]… scenic and aesthetic qualities of the community.” Ordinance Article I, Section I [Emphasis added.] [Note 8]

At trial, the City’s Planning Director, Joel Fontaine, explained that in the professional planning context “view corridor” can be defined as “the area in which one… can see a particular object of interest.” As the Decision makes plain, the “object of interest” which was of concern to the Board is Union Station – an indisputably important building to the City, both historically and architecturally. This type of esthetic consideration is a proper basis upon which a board may evaluate a special permit application. See Britton, 59 Mass. App. Ct. at 75 (a local board may properly base a special permit decision on aesthetic considerations). In this instance, the Board presented sufficient, uncontroverted evidence at trial, to show that maintaining an unobstructed view of Union Station was a proper aesthetic consideration in the context of the Plaintiff’s special permit application.

Moreover, based upon the facts adduced at trial, I cannot say that the Board’s finding that the proposed billboard sign would block the view corridor for Union Station was arbitrary and capricious. Rather, the evidence at trial supports the Board’s conclusions that the proposed billboard would block the view of Union Station (at least for those persons travelling southbound on portions of I-290), and that the view of historic Union Station is an important aspect of what is regarded as a significant gateway to the City. Indeed, Plaintiff offered no evidence countervailing Mr. McGourthy’s description of Union Station as “a centerpiece” of the Washington Square area, and “a symbol for the city… to showcase where Worcester is headed.”

The photographs introduced into evidence by both parties show that even the mesh rectangle (albeit not entirely opaque, and only a small fraction of the proposed billboard size) partially interfered with the view of Union Station from the southbound lanes of I-290. Plaintiff’s President, Joseph T. Murray, admitted as much during cross-examination. Furthermore, Plaintiff’s own expert witness conceded that a driver’s view of Union Station when traveling in a southbound lane of I-290 would be blocked by the proposed billboard for a distance of approximately 700 feet.

Although the Plaintiff argues that any interference with the view from a vehicle travelling on the highway would be minimal, it was unable to demonstrate that the Board’s findings had no rational basis. In the end, even evidence of a slight interference with the view is sufficient to uphold the Board’s concerns, since it is the local board’s determination of the seriousness of the problem, and not the court’s, which controls. Wendy's Old Fashioned Hamburgers of N.Y., Inc, v. Bd. of Appeal of Billerica, 454 Mass. 374 , 382 (2009), citing, Subaru of New England, Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 488 (1979); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).

Accordingly, for the reasons discussed, I find that the Plaintiff has failed to demonstrate that the Board’s denial of the special permit on the basis of the obstruction of the Union Station view corridor was either legally untenable or arbitrary or capricious.

Inconsistency with Long-Range Planning

The Plaintiff’s second argument fairs no better. In challenging the Board’s authority to deny the off-premise sign special permit on the grounds that a billboard on the Locus is inconsistent with the City’s long-range plans for the Union Station URA, Plaintiff relies on a single statement in Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601 (1962) that “[l]ong range considerations alone . . . cannot reasonably lead to complete denial of [a] permit” to argue that the Board improperly denied the special permit on the grounds that the proposed sign is not consistent with the City’s Washington Square plan. The Mahoney case is inapposite, however. Here, unlike the situation addressed in Mahoney, inconsistency with long-range plans was not the only reason given for the denial of Plaintiff’s special permit application. Also, the Appeals Court plainly qualified its decision in Mahoney as applying only to the limited circumstances of that particular case. Id. at 603 (noting it was only in the “unusual circumstances” of that case that the Court found the unconditional denial of a permit “to have been arbitrary”).

Further, the Plaintiff has failed to show that the Board’s determination that the use of the Locus for the proposed billboard was inconsistent with the City’s long-range plans for the area was arbitrary and capricious, particularly in light of the Washington Square redevelopment strategy proposed in the Report for the Washington Square area. The Report not only recommends that the “type and characteristics (size, placement, massing and scale) of the uses proposed for each site” must be of the “appropriate scale and quality… not detracting from Union Station, the major architectural element,” but it also recommends that the Locus be used for hotel/restaurant use of no more than four stories, designed so that the “building placement and massing… complements the Washington Square Area and does not detract from Union Station.” Based upon these recommendations in the Report, the Board could reasonably conclude, as it did, that the “proposed sign is not consistent with the City’s planning efforts… [which] call for new development that is of the appropriate scale and quality to enhance this key gateway.”

Pointing to the Market Analysis appendix to the Report, the Plaintiff contends that the Board misinterpreted the City’s long-range plan, by ignoring the fact that the Market Analysis recognizes that there may be merit to other use options for the Washington Square area. On the basis of the single statement in the appendix to the Report: “[m]ost of the parcels have some sort of exposure to I-290 and using a site or a portion of one for a billboard sign would also seem logical,” the Plaintiff argues that the proposed billboard is, in fact, consistent with the City’s long-range plan for the area, and that the Board’s denial was thus arbitrary and capricious.

While the Market Analysis identification of a billboard as a possible option for an unidentified site in the Washington Square area certainly supports an argument that reasonable minds might differ on the appropriateness of locating a billboard on the Locus, it is insufficient to demonstrate that the Board’s conclusions to the contrary were arbitrary. The Market Analysis is included as an appendix to the Report, but the billboard option was not, in fact, included in the main Report recommendations. Rather, the Report’s overall emphasis was on commercial building options with low-visual impact, whereas the proposed billboard was shown to have a substantial visual impact on Union Station. In any event, the question here is not whether the Board could have reached a different conclusion, but whether on the facts “any rational board” could have reached the same conclusion. Britton, 59 Mass. App. Ct. at 73. A board’s decision may not be disturbed unless no rational view of the facts supports the board’s conclusion. Id. at 74-75. Moreover, it is the Board’s evaluation of the seriousness of the problem which is controlling. Id. at 76. Here, the facts adduced at trial are sufficient to show that the Board had a rational basis for denying the billboard special permit on the grounds that it was inconsistent with the City’s long-range plan for the Washington Square area.

As-of-Right Use

Finally, the Plaintiff argues the Board’s decision to deny the special permit on the grounds that the billboard will negatively impact the view corridor and be inconsistent with the long-range plan for the area must be arbitrary and capricious considering the size and scale of an office building which could be built on the Locus without a special permit. There was uncontroverted testimony that a twelve-story office building could theoretically be built “as-of-right” under the applicable BG-6.0 zoning regulations. If built, such a building would undoubtedly obstruct more of the view corridor from I-290 towards Union Station than would the Plaintiff’s proposed billboard. The Plaintiff contends, therefore, that the Board may not reject the special permit application on the grounds that blocking the view corridor would adversely impact the neighborhood.

Plaintiff’s contention, however, ignores a crucial distinction between as-of-right uses and special permit uses — i.e., the City’s legislative body has already expressly determined that the benefits of an as-of-right office building in the BG-6.0 district outweigh its detriments, while leaving the Board to make the benefit/detriment analysis in the case of designated special permit uses, such as non-accessory signs.

An argument similar to Plaintiff’s was raised and rejected in S. Volpe & Co. Inc., v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 (1976). In that case, the Appeals Court upheld a decision denying a special permit for the construction of a for-profit golf course on the grounds that it would be environmentally damaging to the salt marsh, even though a non-profit golf course could have been built on the subject land as-of-right. Id. at 360. The Appeals Court recognized that the town, in hypothetically allowing the same destruction of the salt marsh by an as-of-right golf-course use while simultaneously giving the special permit granting authority the power to deny a very similar use, had “expressed the judgment that on balance the [as-of-right use] was advantageous to the town…” Id. at 361. The Court thus found that when “the board chose to retain a salt marsh rather than permit a commercial golf course… its action was consistent with the standard of the by-law and [was] not arbitrary.” Id. at 362.

So too, the City of Worcester, by allowing office buildings to be built in the Business General District by right, has made the judgment that the benefits of such a use in the City outweigh its detriments. Conversely, the City has delegated to the Board the power to determine whether the “adverse effects of the proposed [billboard] will not outweigh its beneficial impacts to the city.” Ordinance Article II, Section 6(A)(2). Therefore, I conclude that it was well within the discretionary power of the Board to find that the billboard’s detrimental impacts outweighed any other possible benefits to the City, notwithstanding the potential for as-of-right construction on the Locus of a large building.

CONCLUSION

For the reasons set forth above, the Decision denying the Plaintiff a special permit for a billboard on the Locus was within the Board’s authority. Accordingly, Judgment shall enter dismissing Plaintiff Murray Marketing’s appeal.