Wood on Wood Road, Inc. v. Karll
MISC 18-000388, MISC 18-000499, MISC 15-000575
| Massachusetts Land Court | Apr 30, 2021Background
- Property at 280–290 Wood Road (7.7 acres) owned by a nominee trust/LLC; two commercial buildings exist and the lot is nonconforming for building coverage, lot coverage, open space, and parking.
- Trust/LLC sought to build a 40-foot, V‑shaped, electronic billboard overlooking I‑93; OOA rules permit only one billboard within 1,000 feet, creating a direct interest for abutting owner Wood on Wood Road, Inc. (WWR).
- The Planning Board (per the BZOD overlay) granted a special permit conditioned on several requirements; the Zoning Board of Appeals (ZBA) later found under G.L. c. 40A, § 6 (and local §135‑403) that the proposed billboard would not be substantially more detrimental than existing nonconformities.
- WWR appealed both the Planning Board special permit and the ZBA § 6 finding; the cases were consolidated and tried in Land Court.
- The court concluded the billboard is a new structure on a nonconforming lot (not an alteration/extension of an existing nonconformity) and therefore required a variance rather than a § 6 §135‑403 finding or a BZOD special permit; it annulled both the ZBA and Planning Board decisions and dismissed the original 575 appeal as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to appeal | WWR, as abutter, is presumptively aggrieved and directly affected by OOA spacing and local rules | ZBA/Trust did not successfully rebut abutter presumption | WWR has standing as a person aggrieved; presumption unrebutted |
| Proper vehicle for approval: § 6 (pre‑existing nonconformity) vs. variance | Proposed billboard is a wholly new structure on a nonconforming lot and cannot be treated as an alteration; it therefore requires a variance under G.L. c. 40A, § 10 | ZBA/Trust treated billboard as an alteration/extension of lawful nonconforming conditions and sought a § 6 finding | Court held the billboard is a new nonconforming structure; ZBA’s § 6 finding was legally untenable and annulled |
| Validity of Planning Board special permit under BZOD | Special permit ineligible because underlying lot/building coverage and open‑space nonconformities make the site ineligible for a BZOD special permit | Planning Board found BZOD requirements met (with conditions), including conditioning execution of a development agreement | Special permit annulled because project failed underlying zoning requirements; court nonetheless found Planning Board reasonably applied several BZOD conditions (1–7) and that conditioning execution of the agreement (requirement 8) was reasonable if treated arguendo |
| Factual findings re: lot coverage / impervious surface (footing and parking) | ZBA’s findings that billboard causes no net increase in nonconformity were arbitrary: footing covers open space and relocated parking increases impervious area | ZBA relied on buried footing covered with shallow soil/plantings and removal of two sign piers and relocation of two spaces (per Revised Plan) to show no net increase | Court: ZBA’s treatment of the buried footing as not increasing open‑space nonconformity was reasonable; ZBA’s finding that relocating two parking spaces would not increase impervious surface was arbitrary/unreasonable (would likely increase impervious area) |
Key Cases Cited
- Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (abutter standing presumption as person aggrieved)
- Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 (standing principles for zoning appeals)
- 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 (abutter presumption of aggrievement)
- Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 (standing/abutter rules)
- Clear Channel Outdoor, Inc. v. Zoning Bd. of Appeals of Salisbury, 94 Mass. App. Ct. 594 (interplay of local permit and OOA licensing; impacts on nearby owners)
- Shirley Wayside Ltd. P'ship v. Board of Appeals of Shirley, 461 Mass. 469 (standard of review for board decisions: mix of de novo and deference)
- Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 (legally untenable grounds test for annulling board decisions)
- MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 (boards must avoid standards not permitted by statutes/bylaws)
- Wendy's Old Fashioned Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374 (deference to board’s reasonable construction of bylaws)
- Barron Chevrolet, Inc. v. Town of Danvers, 419 Mass. 404 (pre‑existing nonconforming status under G.L. c. 40A, § 6)
- Rockwood v. The Snow Inn Corp., 409 Mass. 361 (alteration of lawful nonconforming structure must comply with zoning; cannot be used to create new nonconformity)
- Furlong v. Zoning Bd. of Appeals of Salem, 90 Mass. App. Ct. 737 (variance requirements vs. § 6 relief)
- Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 (variance cannot be expanded by § 6 finding)