Plaintiff 92 Montvale, LLC (Plaintiff) filed its unverified Complaint on December 19, 2014, pursuant to G. L. c. 40A, § 17, by which Plaintiff appealed 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 (the Application) to erect an LED monument sign (the LED Sign) on Plaintiffs property located at 92 Montvale Avenue, Stoneham, MA. 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 Sangarino (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 the Town). 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 was accepted by the court.
The court has issued a decision (the Decision) as of todays date. In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that since the new legislation, taken at a Special Town Meeting on May 2, 2016, was not applicable to the issues in this case as it was enacted after Plaintiffs filing of the (LED Sign) Application and also after all briefing and hearings on the summary judgment motions, the filing of the Notice is DENIED; and
ORDERED and ADJUDGED that the LED Sign is a flashing, [Note 1] on-premise sign [Note 2] that is not permitted under the Stoneham Zoning Bylaw (the Bylaw); and
ORDERED and ADJUDGED that, since both the Building Inspector and the ZBA followed a reasonable interpretation of the Bylaw in denying Plaintiffs Application, the ZBA Decision and the Denial were not arbitrary, capricious, or unreasonable and were in compliance with the Bylaw; and
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is hereby DENIED and Defendants Cross-Motion for Summary Judgment is hereby ALLOWED.
[Note 1] Section 126.96.36.199 of the Bylaw defines a Flashing sign as [a] sign that contains an intermittent or sequential flashing light source.
[Note 2] 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.