Billboard war heats up

By Attorney Henry J. Lane of Lane & Hamer LLC

After almost eight  months of dormancy, the legal battle over the billboard along Route 395 on the Long Subaru property is suddenly heating up.  From the public record, it is not entirely clear whether the current activity is a result of the Town filing a Motion For Summary Judgment or a result of the billboard company starting their discovery process. In any event, at this point it appears that both parties have fully engaged and that there should be some indication of where this case is going or possibly even a final resolution by this Fall.

At this point, the Town has filed a Motion for Summary Judgment which is currently scheduled to be heard on September 20, 2012, at the Worcester Superior Court.  A motion for summary judgment is a procedural device by which the Town asserts that there are no real factual disputes so that a full blown trial is not required and that, after applying the law to the undisputed facts, the Court should rule in favor of the Town.

In response, the billboard company, represented by the Worcester law firm of Bowditch & Dewey, argues that the case is not nearly as straightforward as the Town suggests.  As an initial issue, the billboard company argues that it should have additional time to investigate the circumstances of the decision of the Zoning Board of Appeals that upheld the Building Commissioner's latest decision concerning the billboard. That decision determined that the billboard exceeded the Town's height requirement and therefore had to be removed.  The billboard company argues that, based on the meeting records and newspaper accounts regarding the resignation of members of the Zoning Board of Appeals and the appointment of replacements, there appear to be irregularities in the process that warrant further investigation.

In a somewhat unusual ruling, as part of the discovery process, the Superior Court Judge authorized the billboard company to take the deposition of members of the Zoning Board of Appeals and other Town officials as part of that investigation.  In the typical appeal of a decision of the Zoning Boards of Appeal, towns are successful in arguing that individual members of the Zoning Board of Appeals should not be subject to depositions because on appeal the court hears the case from scratch and the thoughts or impressions of the individual board members who made the decision are not relevant.  Although the Superior Court Judge did not explain why he allowed individual board members and town officials to be deposed in this case, apparently he was convinced that the suggestion of irregularity was well enough supported to justify further inquiry.

Almost lost in the procedural jousting is the more technical issue on which the case should ultimately turn.  From the proceedings, it seems fairly apparent that the current billboard does in fact exceed the somewhat ambiguous "four story" height restriction on structures constructed in the Town of Webster.  However, this case turns on the question of whether or not the Town still has the ability to enforce the height restriction in view of the fact that the issue was not addressed by the Building Inspector or the Zoning Board of Appeals when the billboard issue was initially brought before the Zoning Board of Appeals.   In that initial proceeding, the Zoning Board of Appeals determined that the location on the Long  Subaru property along Route 395 was appropriate and that the billboard met all the requirements of the zoning bylaw.  That proceeding only dealt with the bylaw provision that limits billboards to commercial areas.  The height question was not raised at that time and no one appealed from the Zoning Board's determination that the billboard complied with the by-law.   It was only later when a new Building Inspector was appointed, that a "final inspection" was made and it was determined that billboard exceeded the height restriction.  The billboard company now argues that since the Town did not appeal from the Zoning Board's  initial determination that the billboard was in compliance with the zoning bylaws, the Town is foreclosed from raising the issue or, colloquially, taking a second bite of the apple.  Unfortunately, it does not appear that this particular set of circumstances has occurred very often and there is very little case law to provide guidance on the matter, so it is difficult to predict an outcome.

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