by Henry Lane, Attorney
Lane & Hamer, Whitinsville, MA
The ongoing saga of the recently constructed billboard on the Long Subaru property along Route 395, has moved a step closer to resolution. On March 18, 2013, Judge Tucker of the Worcester Superior Court entered a judgment on the billboard company's appeal of the Building Inspector's determination that the billboard violated the height restriction in the Town's zoning bylaws. Although Judge Tucker determined that the billboard did in fact violate the height restriction, he did not order the sign demolished or reduced in height. Instead he ruled that the billboard could remain until it is damaged or destroyed by weather or accident or the ownership of the property on which it is located changes.
The case was heard on cross motions for summary judgment and without the necessity of a trial since both parties agreed that the facts were not really in dispute and that the Judge could decide the case without the necessity of live testimony. Both sides agreed that the billboard had been constructed pursuant to a building permit issued by Webster's Building Inspector and that the Webster Zoning Board of Appeals had previously decided that the sign was located in a zoning district in which billboards are permitted after an initial challenge to the construction of the billboard. It was also agreed that a third building inspector ultimately determined that although the sign is properly located, it was 85 feet high and exceeded the "four story" height limit in the zoning bylaws. That determination was appealed to the Zoning Board of Appeals which on a 3-1 vote failed to overturn the Building Inspector's determination because such decisions require a 4 vote majority of the Zoning Board of Appeals.
The primary issue before the Superior Court Judge was a question of whether or not the Building Inspector would be allowed to take a "second bite" at enforcing the bylaw after the first attempt was overturned by the Zoning Board of Appeals. The billboard company argued that, since the legality of the billboard had once been challenged, and that the Zoning Board of Appeals' decision denying that challenge was not appealed by anybody, its decision was final and that no further challenge should be allowed. The Town, on the other hand, argued that the initial challenge was limited to the question of whether or not the sign was located in an appropriate district and it did not deal with the height issue and, therefore, the Town should not be precluded from enforcing the height issue separately.
In a 14-page decision, Judge Tucker addressed all of the issues and concluded that the sign did exceed the "four story" height restriction in the zoning bylaws. He also decided that since the first enforcement action only dealt with the location of the sign and not its height, the Town was not precluded from bringing a separate enforcement action related to the height issue. However, the Judge also found that the billboard company had obtained a building permit for the sign and had constructed the sign in good faith. Furthermore, he noted that there was no challenge to the construction of the sign until it had been completed.
Under the circumstances, the Judge weighed the equities and determined that requiring the sign to be lowered would result in economic waste and a reduction in its usefulness. Accordingly, Judge Tucker determined that as an equitable matter, the sign should be allowed to remain until it was damaged or destroyed or ownership of the property changed. Despite Judge Tucker's efforts to resolve the case in a manner he judged to be fair to both sides, apparently neither side was satisfied and both parties have filed appeals from the decision. Assuming the trip to the Appeals Court follows the usual course, the billboard will remain for at least another year.