Digital Billboard Use Variance: Controversy over offered funding; Opposition speaking out; ZBA Hearing postponed to Dec 14

by beth on November 29, 2016

Two weeks ago, public hearings were scheduled on variances sought to allow installation of a large digital billboard on Route 9 in Southborough. The Zoning Board of Appeals hearing had to be postponed due to a glitch in posting of the required public notice.*

The hearing is rescheduled for Wednesday, December 14. The applicant also postponed the related Planning Board hearing to again take place two days before that board’s report must be submitted to the ZBA. That is scheduled for December 12th.

In the meantime – Some opponents are questioning the ethics of the project proponent’s offer to help fund Town organizations through the billboard. The proponent reached out to me to defend his integrity. And the attorney for one opponent is questioning whether the application even fits the definition of Use Variance.

The applicant, Lamar Outdoor Central, is seeking a use variance, height variance and other zoning relief against Town zoning laws that prohibit billboards and illuminated signs. Town Meeting voters stripped the ZBA of Use Variance granting rights this fall. But not before the applicant, Lamar Central Outdoor, filed its application.

In September, resident Dominic Serra (a partner on the project) and his attorney Bill Pezzoni attended a Recreation Commission meeting. They explained that the billboard would help advertise recreation programs. They also offered to provide a revenue stream for Town Recreation. Serra asked the Commission to support the project.

Sam Stivers brought the offer to the attention of selectmen at their November 15th meeting. He believed the board should look into the ethics of the offer.

Selectmen were unfamiliar with the situation and unclear on details. Reacting to the minutes Sam Stivers shared**, they were skeptical that the offer would have been outright graft. Selectman Paul Cimino indicated it was likely a grey area, similar to mitigation funds for developments. Resident Karen Shimkus rebutted, “one man’s mitigation is another man’s bribe.”

That same evening, on the other side of town, the Recreation Commission unanimously voted not to take a position on the project.***

Serra spoke to me today about his offer. He clarified that it was not contingent on the Recreation Commission’s support of the project. As a resident, he and his family are heavily involved in Town Rec and sports programs. Serra said that he wants to support Town Rec. He claims the support will be a substantial flat fee and also go to other specific programs in Southborough he sees as worthy of support. (Rather than a Town fund “that no one ever sees”.) 

The project partner also emphasized that he selected the location he believed best for the community rather than the one best for his project. His preferred location from a business perspective had residences nearby. Instead he chose a commercial area by the Framingham line. (The billboard would be located on the eastbound side at 255 Turnpike Road, with advertising visible to cars in both directions.)

Serra informed me today that the payments would be a flat annual payment for the life of the billboard – not a percentage of ad revenue which could fluctuate. He claimed the amount would be substantial.

Last week, an attorney for a resident opposing the application submitted a letter to the ZBA. The letter points out that the application seems to be “seeking to circumvent zoning altogether”:

Frankly, I always thought that a [use] “variance” meant that an owner was asking for permission to make a use of his property that was permitted in one zoning district, but not in the zoning district in which his property is located. Case law under C. 40A §10 involves situations such as a multi-family building in a district zoned for single family houses, or a convenience store in a residential district. . .

It seems to me that Lamar is not asking to vary the uses allowed in a zoning district, but is asking the ZBA to create a use that Southborough specifically prohibited.

The letter also claims that the applicant’s request doesn’t meet other requirements for a Use Variance. You can read a redacted version of the letter by clicking on these links: page 1, page 2.

The Use Variance hearing will be one of several items on the ZBA’s agenda December 14th. That includes an appeal by Park Central developer Capital Group properties. So, it’s sure to be a long, busy night.

*The public notice glitch behind the ZBA’s postponed hearing, doesn’t appear to be the Town’s fault. A Town employee submitted the public notice to the Metrowest Daily News. Somehow, it wasn’t published in their printed edition, a requirement of public meeting laws. Chair Andrew Dennington learned the news two days before the meeting. The applicant agreed to postpone the hearing until December 14th.

**The excerpt from draft minutes that was shared:

William Pezzoni informed the Commission Mr Dominic Serra was attempting to bring a digital billboard to Southborough on Rt 9 near the Framingham line. Some benefits include the ability to efficiently relay information to the community (AMBER alerts, recreation programs, town meetings, etc). Mr. Serra would like the Recreation Commission’s support of the project through the application process with the Town. A portion of the proceeds from billboard ad sales would go towards recreation projects. The Commission will take the request under advisement.

[Note: As mentioned above, Serra says it would actually be a flat annual donation for the life of the billboard, not a portion of sales.]

***Learning there was controversy over the matter, the Recreation Commission forwarded the draft minutes from their November 15th meeting. It included:

The Commission discussed a previously made request by resident Dominic Serra and his attorney William Pezzoni to support a digital billboard project. Members and the Director expressed concern about the offering of a donation in exchange for support. [Member] Kristin LaVault did not feel this was a recreation project or consistent with the mission of the Commission.

1 SouthboroDave November 29, 2016 at 12:11 PM

Thanks for sharing. I was just looking for the answer the billboard decision. The opposing residents council was spot on with this statement:

“It seems to me that Lamar is not asking to vary the uses allowed in a zoning district, but is asking the ZBA to create a use that Southborough specifically prohibited.”

We have zone bylaws for a reason. If you want them changed bring it to town meeting. Don’t ask the ZBA to grant you an exception for something that is clearly prohibited.

Additionally, the ZBA should consider the fact the town just stripped their ability to grant these use variances. Granting this specific variance is asking for some serious backlash from the town. (If it were something more along the lines of a long-time family owned business continuing to operate in the same manner as the previous 50 years I think the town would gladly look the other way for one last variance. This is not such a case..)

2 Todd November 29, 2016 at 2:51 PM

It is unethical for the ZBA to even consider a use variance now that the town has voted to remove their ability to do so. No grey areas on this one. The town voiced their opinion very strongly. ZBA should deny.

3 anonymous November 29, 2016 at 3:15 PM

Digital content is the future and cleaner than the ripped up faded billboards. The town’s focus should be on creating and getting conditions of acceptable use policy in place if not present already. like content rating similar to the movie theaters. Last thing we need is explain Trojan advertising to our pre teen children and off color references as seen in some signage today. Will the owner agree to such terms for a variance. And a pently clause for non conformance.

4 Donna McDaniel November 30, 2016 at 12:01 AM

Question about whether ZBA has to deny because of TM action.
When does a new zoning change/amendment go into effect?
I do know that when the Town Meeting passes any bylaw/provision to do with zoning (and other categories, as well)… the change doesn’t actually take effect until approved by the Attorney General and that takes some time. All TM warrant articles are sent to the State AG for approval….not automatic and not always acted upon as quickly as we might like. Similarly, any funds approved at the TM don’t go into use until the next fiscal year.
Worth checking!
Donna

5 beth November 30, 2016 at 8:05 AM

The application was filed before the zoning change. Therefore, the ZBA apparently still has the ability to grant the variance.

6 Southborough Town Clerk November 30, 2016 at 9:04 PM

Hello,

I am writing to provide information relative to the review of articles passed at town meetings and when such articles go into effect.

“Whenever a town adopts or amends its general by-laws or zoning by-laws, within 30 days of adjournment of town meeting, the Town Clerk is required to submit them to the Attorney General for review and approval. The Attorney General then has 90 days in which to decide whether the proposed amendments are consistent with the constitution and the laws of the Commonwealth. If the Attorney General finds an inconsistency between the proposed amendments and state law, the amendments or portions thereof will be disapproved.”
http://www.mass.gov/ago/government-resources/municipal-law/about-the-municipal-law-unit.html

If the proposed amendments/adoptions are approved, they are effective the day that the Town Clerk posts notice of the the Attorney General’s approval along with a copy of the approved amendments/adoptions. However, approved amendments/adoptions that relate to Zoning Bylaws, are approved retroactive to the date of the Town Meeting where the items were acted upon.
“The effective date of the adoption or amendment of any zoning ordinance or by-law shall be the date on which such adoption or amendment was voted upon by a city council or town meeting…”
MGL Chapter 40A section 5

The bylaw changes passed at the May 2016 Town Meeting were approved by the Attorney General in July 2016.

The relevant bylaw changes passed at the October 8, 2016 Special Town Meeting have been submitted to the Attorney General and we are awaiting their decision.

If anyone has additional questions on this process, feel free to email, call me, or stop by the Town House.

Thank you.

Jim Hegarty
Southborough Town Clerk
jhegarty@southboroughma.com
(508) 485-0710 x 3007

7 Southborough Town Clerk December 8, 2016 at 1:12 PM

Hello,

On 12/8/16, the Attorney General’s Municipal Law Unit approved Article 6 which was adopted at the October 18, 2016 Special Town Meeting. The posting/publishing requirements of MGL Chapter 40, section 32 were met on 12/8/16.

Therefore, the Town Code will be updated to reflect that the provisions of Article 6 took effect on October 18, 2016.

Thank you.

Jim Hegarty
Southborough Town Clerk
jhegarty@southboroughma.com
(508) 485-0710 x 3007

8 Downtown Resident November 30, 2016 at 7:57 AM

Oh boy, let a fast food restaurant with a drive through go in on the edge of Framingham and now look at the can of worms! We don’t want drive throughs and we don’t want billboards.
Hello? Can we stick to the plan?

9 Southville December 8, 2016 at 8:34 PM

Just curious… I’ve seen a few posts over the years about how drive throughs are disliked by a lot of people. Anyone have a reason? I don’t have an opinion either way to be honest, I’m just curious why people are so opposed to them. I don’t see the difference to our town if we let a fast food place go in with a drive through versus one without one. I suppose for a concrete example, why would the Wendys on route 9 be better for us if the drive through wasn’t there?

10 Mark Ford December 9, 2016 at 12:57 PM

Southville,

I don’t know, but I’m guessing that if Wendy’s couldn’t have drive-through, they wouldn’t open in the first place. If I’m right, preventing drive throughs = preventing fast food chain restaurants.

11 beth December 9, 2016 at 1:48 PM

Actually, the one in Southborough has no drive through. There is another newer one just over the border in Framingham – I havent’ been, so don’t know if it has drive through.

12 Mark Ford December 9, 2016 at 1:56 PM

Wendy’s in Southborough has a drive-through, Beth. I speak from experience driving (my kids–I swear) through it!

13 Downtown Resident December 13, 2016 at 7:39 AM

Some people might not have lived here during the Wendy’s controversy and some might not remember (and then there are those who might choose to forget). “Controversy”??? More like a mini civil war! Truly, people were fiercely opposed to a fast food restaurant coming to S

14 Trixie December 13, 2016 at 8:00 AM

There was a big Town Meeting held at the old Woodward School on the fast food issue. The Wendy’s drive thru was allowed because it was approved before this meeting. As noted above, drive thru’s were voted down to discourage fast food restaurants in town. It seems to have worked.

15 Unknown December 17, 2016 at 9:25 AM

It just amazes me that we are in 2016 and people in southborough have an issue with a billboard along a major road. The town approved a marijuana facility within 600 feet of a school and they are concerned about this hurting our community. Maybe the residents of the town should be a little more educated on what this billboard would have provided for our community organizations. And for the person who is concerned about inappropriate advertising (a billboard is regulated on its content) a parent should be more concerned what is on television or on their children’s electronics or video games. And for the person concerned that it is distracting driving …..it is more distracting having a cell phone in the car or screaming children….come on!!!

16 D. McGee December 19, 2016 at 6:40 AM

How about it’s just hideous to look at and cheapens the look of the town? I think that every time I drive by the one in Westborough. And, “Unknown”, perhaps you’re the one who needs to be educated on the dangers of allowing effective bribes for zoning variances (even if the proceeds would benefit the town).

17 Donna McDaniel December 21, 2016 at 10:47 PM

The thing I remember most from the debate over Wendy’s drive-through was one woman’s prediction that it would be “the end of Southborough as we know it.” Hmmm.
—-
About the newer one near me at the Framingham line but only yards away from Southborough; it does have a drive-through. I recommend a quick trip through it
for their baked potato with cheese and/or sour cream. But I try to forget they have pretty tasty Frostys(ies?)

18 Another townie December 22, 2016 at 3:50 PM

“The end of Southborough as we know it” and the true “rural character of Southborough” came to an end decades ago when the farmlands and open space started to be sold off to pave over and build homes and later businesses all across the lovely open space, fields and forests of Southborough! Like it or not, we are now part of the Suburban sprawl and as much as we try to fight it, it is swallowing us up faster than the time it takes to place an order at Wendy’s drive up window!

19 Donna McDaniel December 21, 2016 at 11:01 PM

The reason to oppose the drive-through was, as I remember it, a lot of concern about customers who would then toss various remnants of their purchase–cups, straws, napkins, and all that –along the roadside, not an attractive prospect. I’m not sure how that’s worked out but I remember it every time I drive in that section of Flagg Road and don’t recall seeing trash… but residents will know better, of course.

20 beth December 9, 2016 at 2:04 PM

Interesting! I swore they didn’t when they opened. Now, I’m interested in hearing from readers whether it was added sometime after it was built or my memory is completely wrong!

21 Pat D December 9, 2016 at 2:52 PM

I believe it has always been there since built. Also I believe an allowance was made for them and noone else at the time.

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