NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

17-P-1609 Appeals Court

CLEAR CHANNEL OUTDOOR, INC., & another1 vs. ZONING BOARD OF 

APPEALS OF SALISBURY & others.2

No. 17-P-1609.

Essex. September 10, 2018. - December 18, 2018.

Present: Wolohojian, Massing, & Lemire, JJ.

Billboard. Zoning, Billboards, Special permit, Person 

aggrieved, Board of appeals: decision. Practice, Civil, 

Zoning appeal, Standing, Entry of judgment, Judicial 

discretion.

Civil action commenced in the Superior Court Department on 

July 17, 2014. 

The case was heard by Joshua I. Wall, J.

Jason R. Scopa for the plaintiffs.

David J. Gallagher for Northvision, LLC.

Jackie Cowin for zoning board of appeals of Salisbury.

 

1 Checkpoint Charlie, LLC, trustee of the Checkpoint Charlie 

Nominee Trust.

2 Northvision, LLC; and Herman Fortin, trustee of the 

Countryside Realty Trust.
2

WOLOHOJIAN, J. At issue here are two abutters' 

(Northvision, LLC [Northvision] and Clear Channel Outdoor, Inc. 

[Clear Channel]3) competing efforts to erect digital billboards 

in the town of Salisbury. Only one such application could 

succeed because no two digital billboards may be erected within 

1,000 feet of each other. 700 Code Mass. Regs. § 3.17(5)(g) and 

(h) (2012). The ultimate decision as to whether a digital 

billboard (and which one, in the case of competing proposals) is 

approved rests with the Department of Transportation Office of 

Outdoor Advertising (OOA). However, an applicant must first 

receive local zoning board approval before applying to the OOA. 

See 700 Code Mass. Regs. § 3.06(1)(i) (2012).

Unhappy with this two-step regulatory framework, two 

members of the Salisbury zoning board of appeals (board) decided 

to defeat it by approving only one of the two competing 

applications for a special permit that were simultaneously 

before the board for decision. For purposes of this litigation, 

all parties have accepted that both applications met the 

 

3 The two properties are located at 74 and 75 Main Street, 

Salisbury.

Clear Channel Outdoor, Inc. is the permit applicant for 74 

Main Street, and Checkpoint Charlie Nominee Trust is the 

property owner. We refer to them collectively as Clear Channel, 

except where otherwise necessary.

The property at 75 Main Street is owned by Countryside 

Realty Trust, and the permit applicant is Northvision, LLC; we 

refer to them collectively as Northvision.
3

criteria necessary for a special permit.4 The two board members 

who nonetheless voted to deny Clear Channel's application 

admittedly did so on impermissible grounds. Acting ultra vires 

in this way, they ensured that only Northvision's application 

could (and did) proceed to the OOA. The OOA was thus deprived 

of its opportunity to consider the competing Clear Channel 

application (which the parties agree met the requirements for 

zoning approval), and its ability to decide which of the two 

 

4 Chapter 214 of the Salisbury bylaw is entitled "Signs" and 

§ 214-12 is entitled "Appeals." Section 214-12.B provides: 

"The applicant of the appeal for the relaxation of these 

bylaws and the issuance of a special permit must be able to 

prove to the satisfaction of the Board: (1) There is a 

hardship of the condition of the land or preexisting 

building location which necessitates the granting of the 

special permit. (2) The granting of the special permit 

will not have a negative effect on surrounding property 

values. (3) Sign scale is appropriate in relation to 

development scale, viewer distance and travel speed and 

sign sizes on adjacent properties. (4) Sign materials, 

colors, lettering style and form are compatible with 

building design and use. (5) The issuance of the special 

permit is not contrary to the purpose of this bylaw."

Both Northvision's and Clear Channel's applications required 

relief from certain sections of the bylaw. For example, § 214-

8.E prohibits "electronic message boards," and § 214-8.B limits 

sign heights to twenty feet above grade at the entrance to the 

property. Northvision's sign was to be eighty-nine feet high 

and Clear Channel's sign was to be fifty-five feet high. The 

parties and the judge assume that the board had the authority to 

waive those provisions under the "Appeals" section of the bylaw. 

While we have some skepticism as to the board's authority, the 

issue is not briefed and the parties have stipulated that both 

Northvision's and Clear Channel's applications met the criteria 

for a special permit.
4

competing proposals should be approved within this particular

1,000 foot stretch in Salisbury.

For the reasons set out below, we conclude that the board's 

decisions must be set aside because they rest on legally 

impermissible grounds.

Background. Clear Channel commenced this action pursuant 

to G. L. c. 40A, § 17, seeking to overturn the board's decision 

granting Northvision's special permit application and denying 

its own application.5,6 Clear Channel claimed that (a) two of 

 

5 Northvision's application proceeded as follows. Herman 

Fortin, as trustee of Countryside Realty Trust, submitted an 

application for an electronic billboard at 75 Main Street dated 

April 8, 2014. On April 10, 2014, the building inspector 

informed Fortin that due "to the size and type of the proposed 

signage" the request was denied, but advised that Fortin had the 

option of applying to the board within thirty days to seek a 

special permit pursuant to § 214-12 of the Salisbury bylaw. 

Northvision, on behalf of Countryside Realty Trust, submitted a 

special permit application on May 8, 2014. After a hearing, the 

board approved the special permit. The OOA granted Northvision 

a license to erect an electronic billboard on July 30, 2014. 

6 Clear Channel's application proceeded as follows. Clear 

Channel submitted to the building inspector a building permit 

application for the placement of a freestanding sign at 74 Main 

Street. Although the date of Clear Channel's application is not 

clear from the record, the parties agree that it was submitted a 

week or more after Northvision's application. On May 20, 2014, 

the building inspector informed Clear Channel that its building 

permit application was denied due to the size and shape of the 

proposed sign. The building inspector also informed Clear 

Channel that it had the option of appealing to the board for a 

special permit. On May 21, 2014, Clear Channel filed an 

application for a special permit with the board. The board 

conducted a hearing on the special permit application on the 

same date it heard Northvision's application. The board denied 

Clear Channel's application.
5

the four board members had clear conflicts of interest that 

rendered them ineligible to vote on Northvision's application,

and (b) Clear Channel's proposal was superior to Northvision's.7 

As to the first claim, Clear Channel pointed to the fact that 

Kevin Henderson and Edwin Hunt, Sr., the two board members who 

voted to approve Northvision's application and deny Clear 

Channel's application had connections to Northvision.8

After Northvision's motions to dismiss and for summary 

judgment were denied, and after the parties submitted their 

first joint pretrial memorandum, the board took the unusual step 

of filing a "motion for entry of judgment," admitting that the 

board had no proper basis to deny Clear Channel's application

for a special permit and urging that judgment be entered against 

itself.9 The board conceded that Hunt and Henderson, the two 

 

7 Deciding as we do, we need not reach this second issue.

8 More specifically, Clear Channel asserted that (1) 

Henderson is employed by a company also owned by the owner of 

Northvision, Wayne Capolupo; and (2) Hunt is a first cousin once 

removed of Herman Fortin, trustee of the owner of the property 

on which Northvision's proposed billboard was to be erected. 

Henderson disclosed to the town manager, who we assume is the 

appointing authority, that he was "an officer, director, 

trustee, partner, or employee of a business organization [that] 

has a financial interest in the matter"; the town manager 

nonetheless authorized him to vote on the matter.

9 The motion was not made pursuant to any rule of civil 

procedure and, in fact, the motion does not appear to be 

governed or expressly permitted by any rule. Nor have we found 

any precedent identifying the standard to be applied in ruling 
6

board members who had voted to deny Clear Channel's special 

permit application, had considered factors that were irrelevant 

to the zoning scheme and that "would not withstand judicial 

scrutiny." In its motion, the board acknowledged that "[t]he 

proposals at issue here call for the two billboards to be 

located within 1,000 feet of each other; thus only one can be 

approved by the State. The two [b]oard members who voted to 

deny Clear Channel's application testified at deposition that 

they were aware of the State Regulation, they believed the 

determination as to which billboard should be built should be up 

to local authorities, and they approved Northvision's 

application over Clear Channel's because [Northvision's] was 

filed first."

The board's motion for entry of judgment was opposed by 

Clear Channel and Northvision. Clear Channel's opposition 

expressed a desire not to limit the issues at trial and to 

 

upon a party's motion for entry of judgment against itself. But 

where, as here, such a motion is made over opposition, it is 

incumbent upon the motion judge to ensure that allowing the 

motion will not have unfair or unintended consequences for the 

nonmoving party, especially if those consequences affect the 

remaining parts of the case. For example, here, the allowance 

of the board's motion for entry of judgment on the Clear Channel 

permit was subsequently used by Northvision (and the trial 

judge) as the basis for excluding evidence that was otherwise 

relevant and admissible in the portion of the case relating to 

Northvision's permit. The collateral consequences of allowing 

such a motion should be thoroughly considered before ruling on 

it.
7

litigate both decisions to ensure that the finder of fact hear 

the entire story and overturn both decisions. The board's 

motion was allowed by the motion judge and, on July 26, 2016, 

judgment was entered against the board, ordering it to issue a 

special permit to Clear Channel. Both Clear Channel and 

Northvision filed timely notices of appeal.

On August 22, 2016, Clear Channel filed a motion for entry 

of judgment requesting the rescission of the grant of special 

permit to Northvision, arguing that -- given the board's 

admission in its motion for entry of judgment -- Northvision's 

special permit could not withstand judicial scrutiny. The 

motion was denied.

What remained for trial, therefore, was only Clear 

Channel's claim that the board improperly granted Northvision's 

special permit application. However, the trial judge allowed 

Northvision's two motions in limine, one seeking to bar evidence 

regarding Hunt's and Henderson's conflicts of interest and the 

"mental processes" of all board members in granting 

Northvision's special permit, and the second seeking to "exclude

any evidence of the [board's] denial of" Clear Channel's 

application for a special permit. Thus limited to the narrow 

issue of whether Northvision's special permit application 

complied with the local bylaw and regulations, which Clear 

Channel had already conceded, the trial was short. After first 
8

deciding Clear Channel lacked standing, the trial judge also 

rejected Clear Channel's claims on the merits and determined 

that Clear Channel had not proved "that the [b]oard acted 

unreasonably, whimsically, or arbitrarily in granting the 

Northvision Special Permit." Clear Channel appealed from the 

ensuing judgment entered on December 7, 2017.

Discussion. Standing. Keeping in mind that both Clear 

Channel Outdoor, Inc. and the property's owner, Checkpoint 

Charlie Nominee Trust (Checkpoint Charlie), were the plaintiffs 

below and the appellants on appeal, we first consider whether in 

the circumstances of this case, they have standing to challenge 

the special permit granted to Northvision. Only one of the 

plaintiffs must be an "aggrieved person" under G. L. c. 40A to 

establish standing. See 81 Spooner Rd., LLC v. Zoning Bd. of 

Appeals of Brookline, 461 Mass. 692, 697 n.10 (2012), and cases 

cited. The trial judge concluded that Clear Channel Outdoor, 

Inc. lacks standing because its harms arise from impaired 

business competition and are purely economic, which are not

interests sought to be protected by the zoning code. We agree 

that it is well-settled that the purpose of zoning regulations 

is not to protect businesses from competition. Circle Lounge & 

Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 429-

430 (1949). Thus, a person alleging injury from a zoning 

decision due to an increase in competition is not a "person 
9

aggrieved" for purposes of an appeal under G. L. c. 40A, § 17. 

See id.

However, more is at issue here than business competition. 

As an abutting owner, Checkpoint Charlie enjoys a presumption of 

standing. 81 Spooner Rd., LLC, 461 Mass. at 700. Moreover, 

under the interdependent local and State license requirements at 

issue here, the decision granting a special permit to 

Northvision for construction of an electronic billboard within 

1,000 feet of Checkpoint Charlie's property directly affects 

what is allowed to be built on Checkpoint Charlie's property. 

Impacts on use and enjoyment of one's own property are clearly 

interests protected by the zoning bylaw. We conclude, 

therefore, that Checkpoint Charlie has standing to appeal from 

the board's decision to grant a special permit to Northvision.10

Motions in limine. We agree with Clear Channel that in the 

circumstances of this case the trial judge abused his discretion 

in allowing Northvision's motions in limine to prohibit evidence 

of the board members' "mental processes" and the reasons the 

board members voted to deny Clear Channel's application and 

approve Northvision's application. See N.E. Physical Therapy 

Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013) 

 

10 Because only one party need have standing, we need not 

consider Clear Channel Outdoor, Inc.'s independent status as a 

person aggrieved.
10

("We review a trial judge's evidentiary decisions under an abuse 

of discretion standard"). Henderson and Hunt each testified at 

deposition that they believed that the choice between the two 

competing billboards should be up to the local authority, not 

the State entity. In order to accomplish this end, they voted

against Clear Channel, choosing Northvision because its 

application was filed first. The board conceded that, in 

casting their votes as they did, Henderson and Hunt considered 

factors that were irrelevant to the zoning scheme and that would 

not withstand judicial scrutiny. When a board "injects criteria 

not found in the enabling act," its decision is legally 

untenable. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 

148, 156 (1977). Given the admissions made by the board, Clear 

Channel should have been allowed to explore the board members'

reasons for granting Northvision's application in order to meet 

its burden to demonstrate that the board's decision was 

arbitrary, capricious, or legally untenable.

Northvision argues that examination of the mental processes 

of administrative decision makers is appropriate only "in 

extraordinary circumstances where there is a strong showing of 

improper behavior or bad faith on the part of the 

administrator." New England Med. Center, Inc. v. Rate Setting 

Comm'n, 384 Mass. 46, 56 (1981). Even if Northvision's position 

is generally correct even as to discretionary zoning decisions
11

such as special permits, which we need not decide, we find it 

difficult to conceive that there is any stronger showing of 

improper behavior than the board's admission that it issued its 

Clear Channel and Northvision decisions based on legally 

irrelevant grounds, which the board itself characterized as 

"unrelated to zoning interests" and unable to "withstand 

judicial scrutiny." The board's efforts on appeal to 

characterize its improper considerations as affecting only Clear 

Channel's application are unavailing in light of the admission 

in its motion for entry of judgment that the same considerations 

were taken into account when granting Northvision's special 

permit.

To the extent Northvision argues that it met all the 

special permit criteria and, therefore, the board's 

consideration of extraneous factors is irrelevant, Northvision 

ignores that a special permit has both a discretionary and 

objective component. "Even if the record reveals that a desired 

special permit could lawfully be granted by the board because 

the applicant's evidence satisfied the statutory and regulatory 

criteria, the board retains discretionary authority to deny the 

permit." Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of 

Lenox, 87 Mass. App. Ct. 871, 874 (2015), quoting Davis v. 

Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355 (2001). Thus, 

although the parties have accepted for purposes of this 
12

litigation that the board could approve Northvision's special 

permit application, it does not follow that the board was 

required to. Therefore, the board's reasons for granting 

Northvision's special permit are relevant. We cannot be certain 

on this record that the board's consideration of legally 

irrelevant factors did not infect its decision as to 

Northvision's application.

Conclusion. For the reasons set out above, the decisions

of the board must be set aside. The judgments of the Superior 

Court entered on July 26, 2016, and December 7, 2017, are

vacated. A new judgment is to be entered (a) annulling the 

decision of the board allowing Northvision's special permit

application, (b) annulling the decision of the board denying 

Clear Channel's special permit application, and (c) directing 

the board to hold such further proceedings as may be necessary 

on the two applications, conducted in such manner as not to 

defeat the two-step, municipal-State process contemplated by the 

Legislature.

So ordered.