Plaintiff 92 Montvale, LLC (Plaintiff) filed its unverified Complaint on December 19, 2014, pursuant to G. L. c. 40A, § 17, appealing a decision (the ZBA Decision) of Defendant Town of Stoneham Zoning Board of Appeals (the ZBA), which affirmed the denial (the Denial) by the Stoneham Building Inspector (the Building Inspector) of Plaintiffs request for a building permit to erect an LED monument sign (the LED Sign) on Plaintiffs property located at 92 Montvale Avenue, Stoneham, MA (the Property). Plaintiff also sought a writ of certiorari pursuant to G. L. c. 249, § 4, challenging the legality of the ZBA Decision and seeking a correction of an error of law committed by the ZBA in affirming the Denial. Defendants ZBA and the Town of Stoneham (the Town) (together, Defendants) filed their Answer on January 23, 2015. A case management conference was held on February 24, 2015.
Plaintiff filed its Motion for Summary Judgment on March 1, 2016, together with supporting memorandum, Statement of Material Facts, and Appendix containing the Affidavit of Dennis A. Clarke (manager of Plaintiff). On April 5, 2016, Defendants filed their Opposition to Plaintiffs Motion, together with supporting memorandum and Appendix containing Affidavits of Erin Wortman (Stoneham Town Planner), David Lizotte (Stoneham Operations Engineer), Joseph Ponzo (Stoneham Police Department Safety Officer), Maria Sagarino (Stoneham Town Clerk), Cheryl Noble (Stoneham Building Inspector), and Bryan J. Katz (sign expert for the Town). At the same time, Defendants filed their Cross-Motion for Summary Judgment, together with supporting memorandum and Statement of Material Facts. On April 19, 2016, Plaintiff filed its Reply to Defendants Opposition, Opposition to Defendants Cross-Motion, and Affidavit of Philip M. Garvey (sign expert for Plaintiff). A hearing was held on both motions on April 21, 2016, and both motions were taken under advisement.
On May 13, 2016, Plaintiff filed a Notice of Amendment of Applicable Zoning By-law (the Notice). Defendants sent an email to the court on May 23, 2016, stating that the Notice was not filed with a motion seeking a hearing or the right to file such Notice. Defendants asked this court for the opportunity to respond to the filing if it were to be accepted by the court. The court has determined that the new legislation, taken at a Special Town Meeting on May 2, 2016, was not applicable to the issues in this case since it was enacted after the filing of the Application (defined, infra) and also after all briefing and hearings on the summary judgment motions. As a result, I DENY the filing of the Notice.
I find that the following material facts are not in dispute:
1. Plaintiff is the record owner of the Property. [Note 1] The Property contains a single multi-tenant commercial building containing approximately thirty-six tenant firms and has approximately 120,000 leasable square feet and an attached parking garage. Pursuant to the Stoneham Zoning Bylaw (the Bylaw), the Property is located in the Commercial I zoning district. [Note 2]
2. On June 17, 2014, Plaintiff filed with the Building Inspector an Application for Building Permit to Erect a Sign (the Application). The Application was for the construction of a two-sided monument sign containing a light-emitting diode panel (the LED Sign) to replace an existing monument sign in the same location. [Note 3] The dimensions of the LED Sign were 126 inches wide by ninety-nine inches tall, with the LED panel comprising thirty-six square feet. The LED Sign conformed to all area, dimensional, and setback requirements of the Bylaw.
3. The LED Sign is an on-premise sign [Note 4], meaning that it identifies or advertises information relative to uses on the Property. [Note 5] The messages on the LED Sign would change at intervals of once every eight seconds. [Note 6]
4. On July 1, 2014, the Building Inspector issued the Denial. The Denial stated:
1. The proposed sign will feature LED technology and the ability to change messages, which are proposed to change at intervals of not less than once every 8 seconds. Each time the sign changes falls under the category of a flashing sign.
Flashing signs are prohibited from town. [Note 7]
2. These signs also have the ability to have animation and scrolling messages which are also prohibited.
5. Plaintiff appealed the Denial to the ZBA on July 22, 2014. The ZBA held a hearing on August 21, 2014 and voted 3-2 not to overturn the Denial. On August 22, 2014, Plaintiff filed a request for reconsideration of the Denial with the ZBA. At a hearing on the request for reconsideration on October 23, 2014, the ZBA voted 3-2 not to reconsider. The ZBA issued the ZBA Decision on December 11, 2014. The ZBA Decision stated:
what constitutes a flashing sign in Stoneham must be interpreted within the limited context of Stoneham. Here, there is no dispute that the sign is illuminated. There is no dispute that the sign changes every eight seconds, thus changing the character of the light emanating from the sign. Having considered the petitioners arguments in full, the Board voted against the petition by a 3-2 vote.
6. Section 6.7.5 of the Bylaw (entitled Prohibited signs) states:
The following are prohibited.
(a) Animated, moving, flashing and revolving signs, beacons, searchlights, pennants, portable signs, and balloons . . .
(f) Any sign not specifically permitted in this bylaw is prohibited.
7. Section 6.7.6 of the Bylaw (entitled Permitted signs) [Note 8] states:
(a) Table 2- Permitted Signs by Zoning District . . .
(e) Off-Premise and billboard signs are permitted by Special Permit in the Commercial I Zoning District, subject to the procedures and requirements in Section 6.7.8.
8. Section 6.7.8 of the Bylaw (entitled Off-Premise and billboard signs) [Note 9] states:
220.127.116.11 Applications: Off-Premise and billboard signs . . . shall be permitted in the Commercial I Zoning District only by grant of a Special Permit issued by the Planning Board . . .
18.104.22.168 Dimensional Restrictions and Design Guidelines: All signs shall be in compliance with the following requirements: . . .
6. The following types of signs are prohibited:
(i) Animated, projected, moving or giving the illusion of movement (including any moving parts), scrolling, flashing, revolving, blinking, and intermittently illuminated signs, beacons (or any light directed at any location other than the sign itself), searchlights, pennants, and inflatable signs, including balloons; . . .
(iii) Changeable copy or message signs that change at intervals of more than once every eight (8) seconds. Changes of image shall be instantaneous as seen to the human eye and shall not use fading, rolling, window shading, dissolving or similar effects . . .
9. Plaintiff has not applied for a variance for the LED Sign.
Plaintiff argues that the LED Sign meets all the requirements of the Bylaw, that Section
22.214.171.124 of the Bylaw [Note 10] is unenforceable on its face and as applied, and that the ZBA Decision and the Denial were arbitrary, capricious, unreasonable, and not in compliance with the Bylaw. [Note 11] Defendants argue that the LED Sign violates the provisions of the Bylaw, which is enforceable, and that the Building Inspector and the ZBA acted within their discretion in denying the Application. In support of this claim, Defendants focus on the difference between an on-premise sign and an off-premise sign, whereas Plaintiff ignores this distinction and argues that any digital sign should be allowed some form of intermittent or flashing component, so long as such changes occur not less than eight seconds apart.
As discussed above, Section 6.7.6 (entitled Permitted signs), which applies to all zoning districts and all uses, allows, in the Commercial I zoning district, monument signs meeting certain dimensional requirements (which the LED Sign meets) by building permit. It also allows off-premise and billboard signs, but only by special permit, and subject to the conditions enumerated in Section 6.7.8. Section 6.7.8 adds an additional requirement that an off-premise or billboard sign, if allowed by special permit, not change images more than once every eight seconds. Section 6.7.8 applies exclusivelyto off-premise and billboard signs. Section 6.7.5 (entitled Prohibited signs), which applies to all zoning districts and uses, states the general rule that any flashing sign is prohibited, [Note 12] with no distinction given to length of intermittent change (i.e., flashing) in the sign; the provision in Section 6.7.8 related to signs changing messages at intervals of more than once every eight seconds does not apply to any part of Section 6.7.5. Section 6.7.5 also states that any sign not specifically permitted is prohibited.
Both parties agree that the LED Sign has intermittent digital changes. Plaintiff argues that the length of the intermittent change is critical. There is no dispute between the parties that the LED Sign is a monument, on-premise sign. Without the flashing component, the LED Sign, since it meets all dimensional requirements, would be allowed by right in the Commercial I zone. However, the flashing component puts it in a different category since all flashing signs, except certain off-premise or billboard signs allowed by special permit and other conditions, are prohibited by the Bylaw. As a result, the LED Sign has no benefit of the Bylaw provisions relating to length of an intermittent change and is not allowed.
Plaintiff, however, argues that the duration of the intermittent change is critical, contending that every sign (except a traditional non-digital sign) has a change in message whenever the sign goes blank, even if it is only when the sign is turned off at night, so that the key factor in interpreting whether a sign is flashing, and thus in violation of the Bylaw, is the duration of one message on the digital sign before there is a change in the message. As a result, without a distinction in the duration of a change in message on a digital sign, Plaintiff argues, there would be absolute discretion by the ZBA in its interpretation of the validity of a digital sign and, thus, the ZBA Decision would violate the uniformity provisions of G. L. c. 40A. See G. L. c. 40A, § 4; SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 108 (1984). Plaintiff, however, does not distinguish between off-premise and on-premise signs, and focuses instead on the validity of off-premise signs in the district that change at intervals of more than once every eight seconds (without a corresponding provision relative to on-premise signs). Defendants counter, arguing that the only signs that change message once every eight seconds that are allowed are billboards and off-premise signs (even if they are located in the same zoning district as on-premise signs) because the Bylaw treats these kinds of signs differently from on-premise signs - namely, by requiring for off-premise signs and billboards a special permit and a series of criteria for approval. Defendants also claim that the provision related to eight second intervals does not apply to on-premise signs or Section 6.7.5.
I agree with Defendants. It is clear on the face of the Bylaw that no type of flashing sign, except off-premise or billboard signs (allowed by special permit under § 6.78, with a flash occurring no more than eight seconds apart) is permitted by the Bylaw. The eight second exception from Section 6.7.8 does not apply to on-premise signs. As a result, I find that the LED Sign, because it would be a flashing, on-premise sign, is not permitted under the Bylaw.
Plaintiff also argues that the ZBA has been inconsistent in its interpretation of the Bylaw and that the Building Inspector and the ZBA have a roving and virtually unlimited power to discriminate between landowners similarly situated, in violation of G. L. c. 40A, § 4, because the ZBA has granted permits to a number of flashing signs that have intervals of greater than eight seconds. It appears, however, that every approved flashing sign cited by Plaintiff is either an off-premise or billboard sign, or, if an on-premise sign, the applicant for such sign was either granted a variance or the signs message changed only once per day (i.e., overnight). As a result, it appears that the ZBA has been reasonably consistent in holding that any on-premise digital sign with a changing message of any duration (except overnight) is not a valid sign under § 6.7.5 of the Bylaw. [Note 13] In adhering to this reasonable interpretation of the Bylaw and setting specific and uniform criteria for off-premise signs or billboards, the ZBA and the Building Inspector have been consistent in their interpretation and application of the Bylaw, and do not seem to have discriminated between similarly situated landowners.
In addition, local zoning boards have discretion in interpreting their own zoning bylaws, and courts give deference to these interpretations. See Shirley Wayside Ltd. Pship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 470 (2012); Wendys Old Fashioned Hamburgers of N.Y. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 383 (2009); Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558 (1954); Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871 , 876 (2015); Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 361-62 (2001). Since both the Building Inspector and the ZBA followed a reasonable interpretation of the Bylaw in denying Plaintiffs Application, I find that the ZBA Decision and the Denial were not arbitrary, capricious, or unreasonable, and were in compliance with the Bylaw. [Note 14] I reject all other arguments raised by the parties. [Note 15] [Note 16] [Note 17] [Note 18]
Based on the foregoing discussion, my review of the undisputed facts, and my consideration of the parties arguments, I DENY Plaintiffs Motion for Summary Judgment and ALLOW Defendants Cross-Motion for Summary Judgment.
Judgment to enter accordingly.
[Note 1] The summary judgment record does not contain a copy of the deed, but this fact is not disputed.
[Note 2] Section 4.8.1 of the Bylaw states, in part, that: [t]he purpose of the Commercial District I is to provide areas for light manufacture, assembly, research, industrial parks, office parks, high technology and similar uses.
[Note 3] A monument sign is defined in the Bylaw in Section 126.96.36.199 as [a]n outside sign identifying a development, business(es), service(s), or home(s), the bottom of which is attached directly and permanently to the ground and physically separated from any other structure.
[Note 4] An on-premise sign is defined in the Bylaw in Section 188.8.131.52 as [a] sign that pertains to the use of the premises on which it is located or maintained.
[Note 5] The on-premise nature of the LED Sign is implicit in the fact that it is a monument sign, which, by definition, is a free-standing sign identifying a business. See footnote 3, supra. The Katz Affidavit states that the sign is depicted to provide messages, including tenant information, of which there are currently 36 tenants on the property.
[Note 6] Plaintiff stated that the Application would be changed to provide for lighting intervals of once every ten seconds, but the Application was never so amended.
[Note 7] A Flashing sign is defined in the Bylaw in Section 184.108.40.206 as [a] sign that contains an intermittent or sequential flashing light source. Intermittent is not defined in the Bylaw but is defined in the American Heritage Dictionary as stopping or starting at intervals. Am. Heritage Dictionary of the English Language (5th Ed. 2015). Flashing is not defined in the Bylaw but is defined in the American Heritage Dictionary as [t]o give off light or be lighted in sudden or intermittent bursts. Id. The Town may want to consider amending the Bylaw to make it clear that an overnight change in a digital sign is acceptable.
[Note 8] In the Commercial I zoning district, a Monument sign as defined in Section 220.127.116.11 of the Bylaw is allowed by building permit, provided that the sign meets the dimensional requirements stated therein (Section 6.7.6).
[Note 9] Off-premise sign is defined in the Bylaw in Section 18.104.22.168 as [a] sign that pertains to a use which is not located or maintained on the premises . . . A Billboard is defined in the Bylaw in Section 22.214.171.124 as [a] sign which does not advertise a business or profession conducted, a service offered or a commodity sold upon the premises where such sign is located.
[Note 10] In its Motion for Summary Judgment, Plaintiff requested that the court determine that § 126.96.36.199 of the Bylaw is invalid on its face and as applied. However, as § 188.8.131.52 of the Bylaw is purely definitional, this court assumes, for the purposes of this Decision, that Plaintiff intended to request a declaration that § 184.108.40.206 as applied to § 6.7.5, which prohibits flashing signs in the district, among other things, is invalid.
[Note 11] In its Complaint, Plaintiff argued that the ZBA Decision was arbitrary, capricious, unreasonable, and not in compliance with the law under both G. L. c. 40A, § 17 and G. L. c. 249, § 4. However, neither party discussed or argued the issues under G. L. c. 249, § 4 in their summary judgment briefs or at oral argument. Further, G. L. c. 249, § 9 applies only to proceedings that are not otherwise reviewable on appeal; Plaintiff could and did appeal the ZBA Decision with this court under G. L. c. 40A, § 17. Thus, this court will consider these issues only in regards to G. L. c. 40A, § 17 and will deem the issues under G. L. c. 249, § 4 to be waived.
[Note 12] Again, the American Heritage Dictionary defines flashing as [t]o give off light or be lighted in sudden or intermittent bursts. Am. Heritage Dictionary of the English Language (5th Ed. 2015).
[Note 13] The Denial, however, seems somewhat ambiguous because it declares that [f]lashing signs are prohibited from town. In reality, flashing signs of a certain duration are not prohibited for off-site or billboard signs.
[Note 14] Though not necessary my finding in this case, the Affidavits submitted by both sides suggest a rationale for distinguishing between off-premise and on-premise signs. The Affidavit of Philip M. Garvey, Plaintiffs sign expert, states that [t]he proposed LED sign creates no transportation or human safety issues and will not obstruct, impair, obscure, interfere, or otherwise have any adverse effect on vehicular or pedestrian traffic, abutting roadways, other persons or properties, and/or any traffic control signal(s). The Affidavit of Bryan J. Katz, Defendants sign expert, states that [t]he LED sign will likely interfere with vehicular traffic . . . the LED sign with multiple messages will cause increased driver distraction. The Katz Affidavit gives a detailed analysis of the reasons that the LED Sign will be a safety concern, whereas the Garvey Affidavit merely states Garveys opinion without any factual foundation for such opinion.
[Note 15] The Denial also stated, as a basis for the determination of the Building Inspector, that the LED Sign had the ability to have animation and scrolling messages which are also prohibited [emphasis supplied]. I see no basis for denying an otherwise valid sign that might have the ability to violate the Bylaw if the proposal does not include such prohibited activity and the approval makes it clear that such activity is proscribed.
[Note 16] Defendants also argue that the LED Sign is animated, and Plaintiff does not argue this issue. Since this court has found that the LED Sign is flashing and thus a violation of the Bylaw, there is no need to address the issue of an animated sign.
[Note 17] Plaintiff points out that the Defendants incorrectly labeled Plaintiffs request a variance in several of their documents (including legal notices, revised agendas, etc.), when in reality Plaintiff was claiming the LED Sign was in compliance with the Bylaw and did not require a variance. Since this distinction was corrected, and has no effect on the outcome of the case regardless, this court will not address the alleged inconsistencies.
[Note 18] Plaintiffs Complaint also includes an argument that because, in its view, the ZBA singles out property for treatment more onerous than other parcels in the same zoning district, it constitutes unlawful reverse spot zoning. As the court has already determined that the Defendants are consistent in their interpretation and application of the Bylaw, there is no need for the court to address this issue.