Maurice Callahan & Sons, Inc. v. Board of Appeals
Maurice Callahan & Sons, Inc. v. Board of Appeals
Opinion of the Court
Two of the plaintiff’s billboards have adorned the easterly side of conjoined Routes 7 and 20 in the town of Lenox since 1934. In 1987, their existence at that location was imperiled by the defendant board’s denial of the plaintiff’s application for a variance from a town by-law which prohibited billboards. A judgment of the Superior Court, in an action brought by the plaintiff pursuant to G. L. c. 40A, §17, left undisturbed the denial of the variance. We affirm.
The plaintiff sought judicial review of that denial in the Superior Court. - Summary judgment was entered for the OAB. This court affirmed that judgment in Maurice Callahan & Sons v. Outdoor Advertising Bd., 12 Mass. App. Ct. 536 (1981). After the plaintiff applied to the Supreme Judicial Court for further appellate review, the OAB proposed a settlement of the case. It suggested that it would not oppose an agreement between the plaintiff and the town of Lenox permitting the plaintiff to retain the two billboards on Routes 7 and 20 if the plaintiff would agree to remove two billboards in another part of the town and to withdraw its application for further appellate review. Shortly thereafter, the plaintiff filed a petition with the defendant seeking a variance which would permit it to retain the billboards on Routes 7 and 20. After hearings at which the settlement-favoring positions of the OAB and the plaintiff were reported and time limitations on the variance ranging from three years to twenty years were discussed, the defendant, in 1982, granted a variance permitting the retention of the billboards at their locations
The defendant’s written decision, in an attempt to address the statutory requirements of G. L. c. 40A, § 10, included specific findings that (1) the variance did not derogate from the by-laws of the town of Lenox, which were thought by several zoning board members to be unclear as to whether billboards were permitted, and (2) the size of the lot constituted a hardship because its area precluded it from being used for any purpose generally permitted by the zoning bylaw. No appeal was taken from this decision, and it was followed by the plaintiff’s removal of its other billboards in Lenox and withdrawal of its application for further appellate review.
Five years later, in 1987, the plaintiff filed another application for a variance from the zoning by-law which would permit it to keep in use the billboards at Routes 7 and 20. As of that time, no change in the zoning by-law, as related to billboards, had been made or formally contemplated. After a hearing at which the evidence presented was substantially the same as had been offered five years before, the defendant denied the petition, stating that the statutory criteria for a variance had not been met, “particularly the proof of hardship.” The plaintiff appealed to the Superior Court and, following a trial without jury, the judge found: “In this case it is quite clear that the 1982 variance was granted as part of a settlement designed to terminate the litigation.” He also concluded that the defendant’s 1982 findings were made “[i]n order to accomplish that settlement.”
The plaintiff argues that it should not have been required to make the same showing in 1987 as an applicant for a new variance. It claims that approval of the five-year variance in 1982 conferred a property right which could not be terminated without proof of change of circumstances. Given that such proof was not offered, the plaintiff contends that the de
The second paragraph of G. L. c. 40A, § 10, as appearing in St. 1975, c. 808, § 3, provides that “[t]he permit granting authority may impose conditions, safeguards and limitations both of time and of use” on variances.
Expedience and not proof of variant circumstances controlled the grant of the five-year variance. The plaintiff, in applying for a permanent variance, therefore, should not be heard to complain of being required to give current proof of meeting the criteria of G. L. c. 40A, § 10.
Accordingly, the denial of the plaintiffs application for a permanent variance must be reviewed under established principles which dictate that the denial is in excess of the defendant’s authority only if it is unreasonable, whimsical, capricious or arbitrary or based solely on legally untenable grounds. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559-560 (1954). DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 349 (1985). Given the plaintiffs failure to satisfy the statutory hardship requirement, the defendant’s denial was both reasonable and correct.
Judgment affirmed.
The judge did not differentiate between the plaintiff and the lessor, M. Callahan, Inc., for purposes of this action. No contention has been made that we should.
Under the zoning by-law of the town of Lenox “off-premises” billboards are distinct from signs which expressly relate to or describe the premises on which they are located.
Courts in other jurisdictions vary in their approach to the issue of renewal of time-limited variances. Some require the applicant to prove entitlement under current circumstances without giving weight to the prior variance; others hold that it is an abuse of discretion to deny renewal if changed circumstances are not shown. See 6 Rohan, Zoning & Land Use Controls § 43.03(6)(b), at 43.83 and 43.84 (1990); 3 Anderson, American Law of Zoning §§ 20.68-20.69, at 584-587 (3d ed. 1986 and supp. 1990). The issue is somewhat analogous to those decided in Lopes v. Board of Appeals of Fairhaven, 27 Mass. App. Ct. 754 (1989), and Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne, 14 Mass. App. Ct. 76 (1982). It should be noted, however, that those decisions dealt with lapsed variances and perhaps are more firmly grounded in the statutory language of G. L. c. 40A, § 10, than is the procedure for renewal of a time-limited variance.
A use variance granted after January 1, 1976, is authorized only if expressly permitted by local ordinances or by-laws. G. L. c. 40A, § 10. Our record does not indicate whether such a local enactment existed in 1982.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.