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

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.