ALEXANDER S. BRUCE, as TRUSTEE OF THE OLD FARM REALTY TRUST and MANSFIELD OUTDOOR ADVERTISING, LLC, v. JEFFREY SCORNAVACCA, Chairman, BRIAN SALISBURY, Vice Chairman, ARTURO G. PATURZO, JAMER R. DUNLEA, BRIAN WRIGHT, and JAMES JESCHKE, as they are Members of the BELLINGHAM ZONING BOARD OF APPEALS.

INTRODUCTION

Plaintiffs – Alexander S. Bruce, as Trustee of Old Farm Realty Trust and Mansfield Outdoor Advertising, LLC [Note 1] – filed their three-count complaint pursuant to G.L. c. 40A, § 17, on April 6, 2015. They seek to erect two electronic, alternate screen billboards on their currently-vacant property abutting the eastern side of Interstate 495 in the Town of Bellingham's industrial district. In July 2014, application was made to the Bellingham Zoning Board of Appeals (the "Board") for a lot frontage variance and two special permits: one to exceed the industrial district's 45 foot height limitation, and one to erect two, "non-accessory directional signs and billboards." On March 23, 2015, the Board issued a single "Decision on Application for Variance and Special Permit," denying all relief requested in Plaintiffs' application (the "Decision"). Plaintiffs timely appealed under G.L. c. 40A, § 17.

Count I of Plaintiffs' three-count Complaint appeals the denial of the frontage variance. Count II appeals the denial of the height exception special permit. And Count III appeals the denial of the non-accessory sign special permit. Plaintiffs waived their Count I claim prior to trial.

A de novo trial was held on April 13, 2016 with respect to the remaining Counts II and III. Four witnesses testified for Plaintiffs: Bill Halsing, a surveyor with Land Planning, Inc.; William A. Bruce, the sole beneficiary of the Old Farm Realty Trust; Rodney Glen Wiebe, an applications engineer with Daktronics, Inc.; and Stuart LeClaire, the Bellingham Building Commissioner from 1996 to 2016. One witness testified for the Board: James Kupfer, the current Bellingham Town Planner & Zoning Enforcement Officer. The Parties stipulated to seventeen (17) facts and agreed to thirteen (13) exhibits. Nine (9) additional exhibits were admitted into evidence in the course of the trial. Also, Exhibit 1, which originally included only excerpts from the Bellingham Zoning By-law, was supplemented on April 29, 2016 at the request of the court with a certified copy of the whole Bylaw. Following receipt of the trial transcripts and the Parties' respective proposed findings of fact and rulings of law, the court held closing arguments on September 14, 2016 and took the matter under advisement.

As discussed below, I now find and rule that the Board acted within its authority when it denied Plaintiffs' application for zoning relief. Accordingly, judgment shall enter for Defendants, dismissing Plaintiffs' appeal.

FINDINGS OF FACT

Based on the pleadings, the parties' statement of agreed facts, the admitted exhibits, and the trial testimony, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues.

The Application

Alexander S. Bruce, as the Trustee of Old Farm Realty Trust (the "Trust"), [Note 2] owns approximately 19.494 acres of land located on Old Farm Street in Bellingham, Massachusetts, abutting the eastern (northbound) side of Interstate Route 495, (the "Property"). The Property is located in the Town's Industrial District. On July 7, 2014, [Note 3] the Trust, along with co-petitioner Total Outdoor Corporation, [Note 4] applied to the Bellingham Zoning Board of Appeals (the "Board") for various forms of zoning relief in connection with their proposal to erect two, two-sided, LED lit, alternate screen billboards on the Property, as a principal use (indeed, the only use) of their then-vacant Property (the "Application").

The billboard structures were each proposed to be approximately fourteen (14') feet x forty eight feet (48') in area, and one hundred feet (100') high, and each would be located ten feet (10') from the western boundary of the Property adjacent to Interstate Route 495. The Application included a request for a special permit under the Bellingham Zoning Bylaw (the "Bylaw") § 240-41 to exceed the Industrial District's maximum height limit of forty-five feet (45') by an additional fifty-five feet (55'); a special permit under Bylaw § 240-43C to allow two billboards; a special permit under § 240-37 to allow more than one principal structure on a lot; a special permit under § 240-46 for a sign larger than one-hundred (100) square feet in area; and a special permit under § 240-114 for earth removal.

The Board opened the public hearings on the Application in August, 2014, and ultimately closed the hearings on March 5, 2015. During the hearings, the petitioners waived all requests listed in the Application other than the requests for a frontage variance, a special permit for height, and a special permit for non-accessory billboards. Also during the hearing process, Total Outdoor Corp. withdrew as a petitioner and Mansfield Outdoor Advertising, LLC was substituted as the Trust's co-petitioner.

The Board's Decision

On March 23, 2015, the Board issued a decision, filed the same day with the Bellingham Town Clerk, denying both of the requested special permits and the requested variance. The Board treated the request for a § 240-43C special permit for non-accessory billboards as a request for a special permit under § 240-45C. The Board denied the special permit after finding that the "petitioner did not prove that the non-accessory sign/billboard falls under the category of directional sign as set forth in 240-43c; and . . . that the size, location and design would be detrimental to the neighborhood."

The Board denied the special permit requested under § 240-41 to exceed the Industrial District's forty-five foot (45') height limit, after finding "that the proposed height of the sign is not functionally necessary for the use, and that the structure and its use are not visually compatible with the surroundings." The Board also determined that the predominant land uses in the area are residential and that the sign would be "visually intrusive to these uses." [Note 5]

The Bylaw – Sign Use Regulations

Pursuant to § 240-29 of the Bylaw, "[n]o building or structure shall be erected or used and no premises shall be used except as set forth in the Use Regulations Schedule. . . ." [Note 6] The Use Regulations Schedule does not list any type of sign as a permitted or permissible principal use in any zoning district of the Town. The Use Regulations Schedule lists "Signs (see Article VI)" as a permitted accessory use only. See Bylaw § 240-31. Article VI is the "Definitions" section of the Bylaw. The term "Accessory use" is defined therein as:

An activity incidental to and located on the same premises as a principal use conducted by the same person or his agent. No use shall be considered "accessory" unless functionally dependent on and occupying less land area than the principal use to which it is related and occupying less than one quarter as much habitable floor area as that principal use. [Emphasis added.]

Article VI also includes definitions of the terms "Sign" and "Sign, Accessory." "Sign" is defined in pertinent part as:

Any device designed to inform or attract attention of person not on the premises on which the sign is located. [Note 7]

Consistent with the definition of "Accessory Use," the term "Sign, Accessory" is defined as:

Any sign whose subject matter relates to the premises on which it is located, or to products, accommodations, services or activities on the premises. [Emphasis added.]

For those signs which are permitted as accessory uses, Article VIII of the Bylaw, entitled "Sign Regulations" specifies six "General sign prohibitions," including prohibitions against signs that move, flash or are animated; illuminated signs that cast a glare on residences or onto a public way so as to create a traffic hazard; and signs located so as to create an obstruction to motorist vision. See Bylaw § 240-43. Of particular significance to the Application's request for a special permit under § 240-43C, that paragraph does not authorize the grant of a special permit for billboards or other signs. It provides only that "[n]o nonaccessory sign or billboard shall be erected except as allowed under § 240-45C." [Emphasis added.] In turn, § 240-45C provides that:

A non-accessory directional sign, designating the route to an establishment not on a state highway, may be erected and maintained in any district on special permit from the Board of Appeals, subject to their finding that such sign will promote the public interest, will not endanger the public safety, and will be of such size, location and design as will not be detrimental to the neighborhood. [Emphasis added.]

The Bylaw – Height Regulations

The maximum height of buildings and other structures in the Industrial District in which the Property is located is forty five (45') feet. [Note 8] However, a special permit may be obtained under Bylaw § 240-41, to exceed the applicable height limit with "[a] structure or projection not used for human habitation . . . upon determination by the Board that the proposed height is functionally important for the use, and that the structure or projection and its use will not result in threats to health, safety or visual compatibility with the surroundings . . . ."

DISCUSSION

On the basis of the evidence before me, I conclude that the Board's Decision denying the special permits requested under § 240-41 and § 240-43C is not based upon a legally untenable ground, and is neither arbitrary nor capricious. The primary reason for this conclusion is that billboard signs are not permitted, or permissible by special permit, as a principal use of property anywhere in the Town of Bellingham, whereas the Application concerned a proposal to erect two billboard signs as the sole (and therefore, principal) use of the Property. Because the Bylaw does not authorize the Board to grant a special permit for billboards as a principal use of property, the Board's Decision did not exceed its authority.

Standard of Review

In a G.L. c. 40A, § 17 appeal, 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." The court finds the facts de novo, giving "'no evidentiary weight' to the board's factual findings." Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381-82 (2009) (quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487 (1999)). But, the court's review is nonetheless circumscribed: "[T]he decision of a board 'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found . . . ." Id.

A board's decision is legally untenable if it is based upon a standard, criterion or consideration not permitted by the applicable statutes or by-laws. Britton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). While some deference is given to the local board's interpretation of it zoning by-law, it is the court that determines the content and meaning of that by-law, "and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the . . . special permit application." Id. A board's decision is arbitrary or capricious if, no rational view of the facts found by the judge supports the board's conclusion. Id. at 74-75. It is the local board's evaluation of the seriousness of the problem which controls. Id. at 76.

In evaluating the propriety of a special permit denial, the court is also guided by the general principle that no one has an absolute right to a special permit. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 638 (1970). Thus, even if no particularized reasons are given for a board's denial, the decision will be upheld "if a rational basis for the denial exists which is supported by the record." Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001). "So long as 'any reason on which the board can fairly be said to have relied has a basis in the [findings of fact] . . . the board's action must be sustained regardless of other reasons which the board may have advanced." Id. (quoting S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976)).

Billboards are Not Permitted as a Principal Use of Property in Bellingham

Turning to the merits of Plaintiffs' appeal, I find that Plaintiffs are not entitled to either of the special permits they requested. Plaintiffs propose to erect two electronic, alternate screen billboards as a principal use – indeed the only use – of their Property. The Board argues, and I agree, that the Bylaw does not permit billboard signs, or indeed signs of any type, as a principal use of property anywhere in the Town. Instead, pursuant to Bylaw §§ 240-29 and 240-31, signs are permitted only as accessory uses. More specifically, pursuant to § 240-29, no building or structure or premises may be used except as set forth in in the § 240-31 Use Regulations Schedule (unless exempted as lawfully preexisting, or by statute). The Use Regulations Schedule, however, does not list "signs" as a permitted use or activity, or one allowed by special permit, in any district of the Town except under the category of "Accessory Uses" as "Signs (see Article VI)." Pursuant to § 240-29C, "[u]ses listed nowhere in § 240-31 are prohibited, except that such use may be allowed on special permit if the Board of Appeals determines that it closely resembles in its neighborhood impacts a use allowed or allowed on special permit in that district. Plaintiffs did not seek a special permit in reliance on § 240-29C. Nor have the Plaintiffs argued or demonstrated that billboard signs of the size and type they proposes would closely resemble in its neighborhood impacts an accessory sign use otherwise allowed in the Industrial District.

Further, the Bylaw does not contain a provision that expressly authorizes the Board to grant a special permit to allow a billboard or other sign as a principal use of property. And, contrary to Plaintiffs' argument, Bylaw §§ 240-43C and 240-45C do not authorize a special permit for billboards as a principal use.

By-laws, like statutes, should be construed, if practical, as a consistent and harmonious whole, and therefore no provision of a by-law should be interpreted in isolation from the other provisions of the by-law. Livoli v. Zoning Board of Appeals of Southborough, 42 Mass. App. Ct. 921 -22 (1997). In light of the exclusion from the Use Regulations Schedule of billboards or any other signs as a permitted or permissible principal use, §§ 240-43C and 240-45C cannot, as Plaintiffs would have it, reasonably be construed to authorize special permits for billboards or any other signs to be erected as a principal use of property.

Since no signs are permitted as a principal use, the Article VIII Sign Regulations, including Bylaw § 240-43C's express prohibition of all non-accessory signs and billboards except as may be allowed by special permit under §240-45C, logically applies only to signs that are accessory uses. I do not accept Plaintiffs' contention that the term "non-accessory" is synonymous with the term "principal." Rather, I interpret the term "non-accessory signs and billboards" as being signs or billboards that do not fit the § 240-32 definition of "Sign, Accessory" because the subject matter does not necessarily "relate to the premises on which [the sign] is located, or to products, accommodations, services, or activities on the premises."

Thus, an accessory sign designating a route to the establishment on the same premises as the sign would not, by definition, be a "non-accessory sign" necessitating a special permit under § 240-45C. I interpret § 240-45C as authorizing special permits only for signs that are not "relate[d] to the premises on which it is located, or to products, accommodations, services or activities on the premises," as per the Bylaw's definition of "Sign, Accessory," but which are nevertheless "incidental to and located on the same premises as a principal use" of the property, as per the Bylaw's definition of "Accessory Use." [Note 9] It cannot stand independently, as a principal use.

The evidence here demonstrates that Plaintiffs' proposed billboards would neither be incidental to, nor on the same premises as, any principal use of the Property. The proposed signs would be the only use located on the Property, and therefore, the principal use. Accordingly, the proposed billboards are neither a permitted use, nor permissible by special permit.

Because the proposed billboards are not permitted as a principal use, and because they are not an accessory use falling within the limited category of "non-accessory directional signs" which might qualify for a special permit under § 240-45C, the Board's denial of the Plaintiffs' special permit request under said Section was proper, and indeed, fully consistent with the Bylaw regulatory scheme applicable to signs. For this reason, I need not consider the merits of any the Board's additional reasons for denial. "So long as 'any reason on which the board can fairly be said to have relied has a basis in the [findings of fact]…the board's action must be sustained regardless of other reasons which the board may have advanced." Davis, 52 Mass. App. Ct. at 356.

I will, however, briefly dispose of Plaintiffs' argument that the Board's denial of their special permit request under § 240-45C is legally untenable because it is based upon a content-based regulation of speech which fails strict scrutiny. [Note 10] As an initial matter, Plaintiffs' Complaint purports to be only an appeal of the Decision under G.L. c. 40A, § 17. The Complaint asserts no separate declaratory judgment claim challenging the validity of the subject Bylaw provision under either G.L. c. 231A or G.L. c. 240, § 14A. [Note 11] And, indeed, only one paragraph of the Complaint (Paragraph 55 in Count III) challenges the enforceability of § 240- 45C as "unduly vague, ambiguous" without reference to any specific claim of unconstitutional invalidity. Moreover, the Complaint does not pray for any declaratory relief.

Although declaratory relief claims may be brought together with a G. L. c. 40A, § 17 appeal, here Plaintiffs did not do so. See Gamache, 14 Mass. App. Ct. at 224 ("[I]t is a simple enough matter to add to a complaint seeking review of a decision of a board of appeals allegations concerning the validity of the zoning regulation in question and a prayer for a declaration as to its validity."). Therefore, Plaintiffs are limited in this case to contending that the Decision denying the special permit for the billboards is legally untenable because § 240-45C of the Bylaw is unconstitutional as applied to their proposed signs. The principal problem with such an argument, however, is that, for the reasons discussed above, the Bylaw's non-accessory directional sign special permit provisions do not apply to billboard signs as a principal use. Thus, the Plaintiffs have no standing to assert a constitutional attack on the § 240-45C Bylaw provision "as applied" to their proposal to erect two billboards as the principal use of their Property. See, e.g., Blixt v. Blixt, 437 Mass. 649 , 661 (2002) ("[O]nly one whose rights are impaired by a statute can raise the question of its constitutionality, and he can object to the statute only as applied to him." (internal quotations omitted, emphasis in original)).

Accordingly, I decline to find that the Board's Decision was legally untenable on the constitutional grounds argued by Plaintiffs.

The § 240-41 Special Permit for Height

Having upheld the Board's denial of a special permit under § 240-45C to erect two billboards on the Property as legally tenable because the Bylaw does not authorize special permits for any signs to be erected or maintained as a principal use of property, I conclude that the denial of Plaintiffs' request for a height exception special permit for the two proposed billboards must similarly be upheld.

Pursuant to § 240-41, a special permit allowing a building or other structure to exceed the Bylaw's maximum height limits may be granted only if the Board makes certain determinations, including a determination that the requested height is "functionally important for the use." It is axiomatic that there can be no reasonable basis for determination that additional height is important for use not otherwise allowed under the zoning ordinance or by-law. Here, Plaintiffs' petition under § 240-41 sought a height exception special permit for billboard signs which are, in all events, prohibited as a principal use. Under this scenario, there can be no set of facts under which the Board could reasonably have determined that the requested height is "functionally important" for the proposed use. Therefore, the Board's decision to deny the requested § 240-41 special permit, based in part on a finding that the requested height exception is "not functionally necessary," is neither legally untenable nor arbitrary and capricious. Because the denial can be upheld on this ground alone, I need not examine the other reasons given for the Board's denial of the §240-41 height exception special permit in order to uphold the Board's decision. See Davis, 52 Mass. App. Ct. at 356.

CONCLUSION

The Plaintiffs have not met their burden to demonstrate that the Board's Decision exceeded its authority. Accordingly, judgment shall enter in favor of the Defendant Board, dismissing Plaintiffs' appeal.