SANROSE REALTY ASSOCIATES, LLP v. KEITH HUTCHINGS, CATHERINE MERKLE, KENT RICHARDS, THOMAS SMITH and SANDRA VARRIEUR, as they are members of the ZONING BOARD OF APPEALS of the CITY OF ATTLEBORO.

Sanrose Realty Associates, LLP (Sanrose) owns a site in Attleboro directly abutting Route 95. Its principals own and operate a Cardi’s furniture store at the site. Sanrose has a large, two-sided sign on the property that advertises Cardi’s to motorists traveling Route 95 in either direction. This case is an appeal from the City of Attleboro Zoning Board of Appeals’ (ZBA) denial of Sanrose’s application for a special permit to convert the Cardi’s sign to a billboard that advertises off-site businesses. Because the ZBA’s interpretation that the City of Attleboro’s zoning ordinance does not permit billboards is rational and supported by the evidence, its denial of Sanrose’s special permit application is affirmed.

Procedural Background

Sanrose filed its complaint on December 3, 2012. The case management conference was held on January 11, 2013. The pre-trial conference was held on May 7, 2013. The trial was held on June 28, 2013. Exhibits 1 through 13 were admitted, and testimony was heard from Christopher Cockeril and Douglas Semple, Building Commissioner of the City of Attleboro. The Plaintiff’s Post-Trial Brief and the Defendants’ Post-Trial Brief were both filed on September 9, 2014. The plaintiff’s closing argument was heard on September 18, 2013; the defendants’ closing argument was waived. The matter was taken under advisement. This Decision follows.

Findings of Fact

1. Sanrose is a Massachusetts limited liability partnership with a principal place of business at 1 Furniture Way, Swansea, Massachusetts. Exh. 1.

2. Keith Hutchings, Catherine Merkle, Kent Richards, Thomas Smith, and Sandra Varrieur are duly appointed members of and constitute the ZBA. Exh. 1.

3. Sanrose owns property on Newport Avenue, Attleboro, Massachusetts and has constructed a three-story commercial building on the site. The commercial building is occupied by Cardi’s Furniture, a furniture retailer that has a regional presence in Rhode Island and southeastern Massachusetts. The partners of Sanrose are also the principals of Cardi’s Furniture. Exhs. 1, 2, 4.

4. The City of Attleboro has adopted a Zoning Ordinance and Zoning Map pursuant to G.L. c. 40A (zoning ordinance). Exhs. 1, 13. Sanrose’s property is located in the Planned Highway Business Zoning District. Exh. 1.

5. After construction of the commercial building, Sanrose obtained a permit for a sign as an accessory use to advertise the business located on the property, and constructed a large, freestanding sign on the property. Exh. 5; Tr. 28:15-29:11. The sign is 65 feet high and has a 14-by-48-foot two-face display, with one face directed to traffic on Route 95 heading south and the other face directed to traffic on Route 95 heading north. The sign has been used exclusively for the advertising of Cardi’s Furniture. Exh. 5; Tr. 19:1-3, 20:19-24.

6. Currently, there are only three billboards in Attleboro that display advertisements for off-site businesses. Tr. 33:24-34:18. There is a billboard at the State Line Scrap site, situated in the Industrial Zone District, which has been in place and used to advertise off-premises businesses for more than twenty years. Exhs. 1, 7; Tr. 30:5-15, 31:9-14. On Roddy Avenue, a sign company, Barlo Signs, advertises off-premises businesses on its billboard situated in the Industrial Zone District. Exhs. 1, 8; Tr. 30:8-31:8, 31:19-32:10. On March 16, 2000, the ZBA granted a special permit for Barlo Signs’ use of the billboard, determining that it was an accessory to the property’s principal use as a sign company. Exh. 10; Tr. 32:3-10. In the Industrial District, at the Vachon site, situated along Mendon Road, there is a billboard that advertises off-premises business. Exhs. 1, 6; Tr. 29:12-30:4. On December 8, 2011, the ZBA granted Vachon a special permit for relocation of its billboard as a pre-existing non-conforming use. Exh. 11; Tr. 32:11-21.

7. Douglas Semple is the Building Commissioner of the City of Attleboro. In his role as Building Commissioner, he is responsible for interpreting the building code and the zoning ordinance. Tr. 25:14-26:2. Mr. Semple testified, and I credit his testimony, that accessory signs are allowed under the zoning ordinance as accessory structures. Section 17-4.5(A) of the zoning ordinance defines “accessory structure” as “a detached structure, the use of which is customarily incidental and subordinate to that of the principal structure, and which is located on the same lot as that occupied by the principal structure.” Mr. Semple further testified, and I credit his testimony, that under the ordinance, accessory signs are required to be on the same lot that they advertise, and that billboards are not allowed anywhere in the City of Attleboro as a principal use. Tr. 27:11-20. Finally, Commissioner Semple testified, and I credit his testimony, that large signs such as the existing sign present particular safety risks, especially in severe weather conditions, and that if Cardi’s were razed or the building converted to another use which did not require a billboard, the sign, as an accessory use, would have to come down. Tr. 35:11- 38:8.

8. On June 21, 2012, Sanrose applied to the ZBA for a special permit to use the sign as a principal use as a billboard containing digital displays advertising off-premises businesses. Exh. 2. In compliance with the notice requirements set forth in G.L. c. 40A, § 11, the ZBA caused notice of public hearing to be advertised and mailed to various interested parties, including Sanrose, and pursuant to said notice, the ZBA held hearings on the application, beginning on September 13, 2012. On November 8, 2012, the ZBA issued its decision denying Sanrose’s application. Exhs. 1, 3.

9. In its decision, the ZBA found that while a sign advertising an onsite business is an accessory use, a billboard advertising offsite businesses is not listed as a permitted use in any district. If further found “that the requested use, a billboard sign, is not consistent with the general purpose and range of permitted uses in any district.” Exh. 3.

10. The ZBA’s decision was filed with the Attleboro City Clerk on November 21, 2012. Sanrose timely filed its appeal with the Land Court, pursuant to G.L. c. 40A, § 17, on December 3, 2012. Exh. 3.

Conclusions of Law

Sanrose’s appeal of the ZBA’s decision comes before the Land Court under G.L. c. 40A, § 17. [Note 1] “Judicial review of a local zoning board’s denial of a special permit involves a combination of de novo and deferential analyses.” Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474 (2012), citing Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), and Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). “The trial judge makes his own findings of facts and need not give weight to those the board has found,” Shirley Wayside, 461 Mass. at 475, “determines the content and meaning of statutes and by-laws and . . . decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73–74 (2003) (citations omitted). While the court accords deference to a local board’s reasonable interpretation of its own zoning bylaw, Shirley, 461 Mass. at 475, citing Wendy’s, 454 Mass. at 381, and Manning v. Boston Redev. Auth., 400 Mass. 444 , 453 (1987), an “incorrect interpretation of a statute . . . is not entitled to deference.” Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1 , 6 (2003), quoting Massachusetts Hosp. Ass'n v. Department of Med. Sec., 412 Mass. 340 , 345–346 (1992).

“After determining the facts and clarifying the appropriate legal standards, the judge determines whether the board has applied those standards in an ‘unreasonable, whimsical, capricious or arbitrary’” manner. Shirley Wayside, 461 Mass. at 475, quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487 (1999). “This stage of judicial review ‘involves a highly deferential bow to local control over community planning.’” Id., quoting Wendy’s, 454 Mass. at 38; Britton, 59 Mass. App. Ct. at 73. The board is entitled to deny a permit even “if the facts found by the court would support its issuance.” Shirley Wayside, 461 Mass. at 475; see Wendy’s, 454 Mass. at 383; Britton, 59 Mass. App. Ct. at 74. But the judge “should overturn a board’s decision when ‘no rational view of the facts the court has found supports the board’s conclusion.’” Shirley Wayside, 454 Mass. at 475, quoting Wendy’s, 454 Mass. at 383; Britton, 59 Mass. App. Ct. at 74–75, and “the reasons given by the board lacked ‘substantial basis in fact’ and were in reality ‘mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.’” Shirley Wayside, 454 Mass. at 475, quoting Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973).

Based on my findings of fact and interpretation of the zoning ordinance, and according appropriate deference to the interpretations of the ZBA, I find that in denying Sanrose’s special permit application, the ZBA has not applied the zoning ordinance in an unreasonable, whimsical, capricious or arbitrary manner. The zoning ordinance includes a Table of Use Regulations which lists permitted principal uses. Exh. 13 at § 17-3.4. Signs or billboards do not appear anywhere on the list. Id. Section 17-3.1 of the ordinance provides that any use not specified in § 17-3.4’s table of uses “shall be deemed to be not permitted, provided however that such uses found by the Board of Appeals to be consistent with the general purpose and range of permitted uses in any district may be allowed therein by special permit.” Exh. 13 at § 17-3.1. Sanrose’s sign and proposed billboard is located in the Planned Highway Business (PHB) zoning district. Tr. 28:21-23. Section 17-2.1.2(C) of the zoning ordinance describes the purpose of the PHB district as “to accommodate large scale business activities, such as shopping centers, which draw business primarily from the interstate highway.” Exh. 13 at § 17-2.1.2(C).

The first issue is whether the ZBA should have approved Sanrose’s application to use its sign as a billboard advertising off-premises businesses because that use is consistent with the general purpose and range of permitted uses in the PHB district. The ZBA found, and argued here, that using the sign as a billboard to advertise off-premises businesses is not consistent with the general purpose of the PHB district because the proposed advertisements would not draw business from the highway to businesses in the PHB, but instead send business elsewhere to the advertised off-premises businesses. I accord deference to this reasonable interpretation Attleboro’s zoning ordinance.

The next issue is whether the ZBA should have compared the proposed use against the zoning ordinance’s table of accessory use regulations, § 17-3.5, in addition to its table of principal use regulations, § 17-3.4. In § 17-3.5 of the zoning ordinance, accessory signs are listed as an accessory use and are permitted in all zoning districts. Exh. 13 at § 17-3.5. Accessory signs are allowed under the zoning ordinance as accessory structures. Section 17- 4.5(A) of the ordinance defines “accessory structure” as “a detached structure, the use of which is customarily incidental and subordinate to that of the principal structure, and which is located on the same lot as that occupied by the principal structure.” Id. at § 17-4.5(A). Commissioner Semple testified that under his interpretation of the zoning ordinance, accessory signs are required to be on the same lot that they advertise, and that billboards are not allowed anywhere in the City of Attleboro as a principal use. Tr. 27:11-20. In its denial of Sanrose’s special permit application, the ZBA stated that “accessory uses are indeed different from principal uses and . . . a commercial sign advertising off-premises use has a separate primary purpose from the underlying premises and therefore constitutes a principal use.” Exh. 3. at 3. The ZBA reasoned that a billboard advertising off-premises businesses is, by definition, a principal use, not an accessory use. Sanrose’s proposal was for a billboard advertising off-premises businesses. It was reasonable for the ZBA to conclude that Sanrose’s proposed billboard was not an accessory sign permitted as an accessory use under § 17.3.5.

The third issue is whether Sanrose is entitled to a special permit because there are billboards in the City of Attleboro that advertise off-premises businesses. There are only three billboards in the City of Attleboro which are used to advertise off-premises businesses. The billboard advertising off-premises businesses located on the State Line Scrap site, in an Industrial Zone, is a preexisting non-conforming use. On March 6, 2000, in its Randall Bartlett decision, the ZBA granted a special permit for a billboard advertising off-premises businesses in an industrial district as an accessory sign supporting the principal use of the property as a sign business. On December 8, 2011, in its Vachon decision, the ZBA granted a special permit for a billboard advertising off-premises businesses located in the PHB district as a preexisting non- conforming use. In other words, of the three billboards in the city advertising off-premises businesses, two are preexisting non-conforming uses and the third was permitted as an accessory use apparently because it stands on property leased by a sign manufacturer. The existence of these two preexisting non-conforming uses and an anomalous special permit did not require the ZBA to grant Sanrose a special permit for its proposed billboard, and does not render the ZBA’s denial unreasonable, capricious, whimsical, or arbitrary.

The crux of the determination is whether the ZBA denied Sanrose’s application for a rational reason. Sanrose does not have an absolute right to a special permit. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 638 (1970). The ZBA had discretion to deny Sanrose’s special permit application, even if the facts demonstrated that it could have been lawfully issued, so long as it did not rely upon a legally untenable or arbitrary and capricious basis. Schiffone v. Zoning Bd. of Appeals of Walpole, 28 Mass. App. Ct. 981 , 984 (1990); see Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482 , 484 (1970); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). Both the plain language of the zoning ordinance and the reasonable interpretation of that ordinance by Commissioner Semple and the ZBA are that billboards with advertisements for off-premises businesses are not allowed anywhere in the City of Attleboro. Under their interpretation, the reason for the ban is to minimize the number of billboards in the City for public safety reasons, as it is only unused accessory signs that can be compelled to be removed. This is a rational interpretation of the ordinance. Based on the facts presented at trial, I find that it was within the ZBA’s discretion to deny Sanrose’s special permit application for a billboard advertising off-premises businesses as a principal use when such a use is not allowed under the ordinance.

Conclusion

For the foregoing reasons, the City of Attleboro Zoning Board of Appeals’ Decision Action to Deny Special Permit “Sanrose Realty Associates,” Case #5110, of November 8, 2012, is hereby AFFIRMED.

Judgment accordingly.