A recent decision from the Appeals Court discusses the important topic of Massachusetts zoning decision making, regarding what a zoning or permitting board is allowed (and not allowed) to consider as part of its decisions. The case, Clear Channel Outdoor v. Zoning Board of Appeals of Salisbury, is included below.
This case concerned two businesses attempting to erect a digital billboard in Salisbury. For reasons that are not completely clear in the decision, these applicants needed final approval for a billboard from the state’s Department of Transportation Office of Outdoor Advertising. Prior to this step, the applicants firs needed approval from the Town of Salisbury’s Zoning Board of Appeals.
Per the towns’ local ordinance, a decision for approving these signs required a special permit.
What is a Special Permit?
A special permit is a form of land use decision making, which gives a permitting board authority to approve or deny a particular use of property. Compared to a variance, the requirements of a special permit are less stringent. The requirements for a special permit often include a detailed list of criteria that the permitting authority must consider in its decision.
Zoning Decision Making
In this case, the zoning board of appeals decided to grant a special permit to only one of the two applicants. The problem? Both applicants qualified for the special permit. Nonetheless, the board only gave approval to one of the signs. While not clear from the decision, the reason for this appears to be that, because the state could only pick one of the two applicants in the end, the zoning board of appeals could select between the two billboards, despite both qualifying for the special permit.
Not so fast, ruled the Appeals Court. The Court held that the board erred because it considered criteria outside the special permit requirements. Since both qualified for a special permit, the board was wrong to deny one of these applicants the special permit. Doing so made the board’s decision legally untenable.
This case is an important reminder that the scope of zoning decision making is not unlimited. While zoning authorities often have discretion in making these decisions, they do have to stick to the guidelines provided in their municipalities’s zoning ordinances and state law. Consideration of any other factors runs the risk of the zoning decision being defeated in court.
If you need assistance with a zoning or land use matter, contact me for a consultation.Clear Channel Outdoor v. Zoning Board of Appeals of Salisbury