Billboard Battle Brings More Legal Problems for Salisbury
By Angeljean Chiaramida
June 16, 2017
SALISBURY, MA - A national advertising company filed a lawsuit Wednesday against three town officials, claiming civil rights violations dating to June 2014 when the Zoning Board of Appeals granted a permit to a local company to erect a billboard facing Interstate 95.
The lawsuit in Essex Superior Court, filed by Clear Channel Outdoor Inc., is the second lawsuit filed in connection with the board's approval in 2014 of one billboard company's permit application over another.
Both billboards would face I-95. One was proposed by Clear Channel and local businessman David Pritchard on land at 74 Main St. The other was proposed by Northvision, run by Salisbury businessman Wayne Capolupo and his partner, Peter McClary, on land owned by Herman Fortin at 75 Main St.
The sites are literally across the street from each other.
The competition was magnified by a state law prohibiting two electronic billboards within 1,000 feet of each other, which these would be. Billboards require permits from state and local authorities.
The board heard both cases June 24, 2014. Although the board could have approved both and allowed the state Department on Outdoor Advertising to choose the winner, the members voted unanimously to give the permit to Northvision.
But the vote to deny Clear Channel's proposal was a split decision: Susan Pawlisheck and Derek DePetrillo voted to give Clear Channel and Pritchard a permit, but Ed Hunt and Kevin Henderson did not.
Complaints rose quickly because Hunt is Fortin's cousin and Henderson works for Capolupo in his heavy construction business, SPS New England. Through attorney Peter Flynn, Clear Channel and Pritchard appealed the decision to Superior Court within weeks, citing a conflict of interest.
Attorneys for Northvision filed a motion to dismiss, which the judge denied. A trial date of July 24 is scheduled.
On Wednesday, Flynn filed a civil rights lawsuit in Superior Court against Henderson, Hunt and Town Manager Neil Harrington.
The details in the lawsuit appear to have been gathered from comments made by Hunt and Henderson during their depositions from the initial court appeal of the zoning decision.
Clear Channel and Pritchard claim their state and federal constitutional rights were violated regarding their "rights to use and enjoy" their property. They also claim denial of due consideration for their zoning relief case before the board, denial of due process of law, and denial of equal protection under the law.
In the civil rights lawsuit, Flynn claims that neither Hunt nor Henderson objectively followed due process by considering the benefits of one billboard proposal over another as they related to height, proximity to residences or the highway.
Instead, the lawsuit claims, both men said they voted for Northvision and not Clear Channel because they felt the final decision "should be made locally and should not be left to state officials."
"An important factor in Mr. Hunt's votes was that he disagrees with the law of this jurisdiction holding that, in the event that a local municipality grants two special permits for electronic billboards within 1,000 feet of each other, the Commonwealth may then only approve one such applicant for a state permit," according to the lawsuit.
Additionally, the lawsuit claims that both men voted for Northvision for reasons other than those that were criteria for the decision in accordance with proper zoning board procedure.
The lawsuit claims both men should have recused themselves from voting because of their relationship with the parties involved with Northvision - Henderson because Capolopo was his boss, and Hunt because Fortin is a cousin who would benefit financially from the billboard.
Harrington is included in the lawsuit because he didn't stop Henderson - a zoning board member he appointed - from participating in the panel's deliberations on the grounds that Harrington knew Henderson was Capolupo's employee.
When contacted Thursday, Harrington said he was unaware of the lawsuit. Harrington said he could not comment on pending legal action.