MARTHEA FOURNIER & others v. PLANNING BOARD OF NORTH ANDOVER (Commonwealth Of Massachusetts Appeals Court, February 7, 2011.)
MetroPCS of Massachusetts LLC (MetroPCS) applied for a special permit to install a cell site in a North Andover church's steeple in order to fill a "hole" in the cellular coverage in the area. The facility was to be totally contained within the steeple and would not be visible from the outside. Several North Andover residents, whose property is located near the church, contested the installation of the facility. The Town's planning board granted the special permit for the installation over the plaintiffs' various objections. The zoning board of appeals (ZBA) determined that the special permit was proper in that the installation posed no public safety issues and that the setback limits required by a zoning by-law did not apply within the existing structure of the church steeple.
When the neighbors brought the lawsuit, MetroPCS challenged the plaintiffs' standing in the trial court and also pursued the standing challenge in the plaintiff's appeal to the appellate court. The appellate Court held that under Massachusetts law, only a "person aggrieved" has standing to challenge a decision of a zoning board. Although the plaintiffs were either direct abutters or secondary abutters to the church property, the plaintiffs' submissions in the summary judgment record were not sufficient to meet the burden of proof to establish standing. The plaintiffs acknowledged to the Court that they were not defending on the basis of health concerns, aesthetics or decreased property values. Rather, the sole basis asserted for the plaintiffs' purported standing was that the town by-law should be deemed to apply to all wireless facilities, and that, rather than the special permit granted, the by-law required that a variance be sought.
The Court held that the plaintiffs failed to prove that their injury was special and different from the concerns of the rest of the community, and therefore there was an insufficient basis to confer standing on the plaintiffs as aggrieved parties.
In a footnote, the appellate Court noted that trial judge bypassed the issue of standing and proceeded to the merits, rejecting the plaintiffs' assertion that a variance was required under the applicable by-law. The appellate Court noted, however (as apparently did the trial judge), that even if one were to construe the applicable by-law as requiring a variance, the defendants ultimately would still be entitled to install the wireless facility under the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B). Apparently, the plaintiffs did not mount any serious challenge to that conclusion, and the appellate Court, citing an earlier Massachusetts decision, stated that a purpose of the Telecommunications Act is to accelerate private sector deployment of telecommunications technologies, that judges may be relied on to act accordingly, as the motion judge did in the case, and that Massachusetts judges are not subject to the whims of community pressures that Congress anticipated might be brought to bear on local zoning authorities.
MetroPCS and the other defendants (including the town officials and the church) sought an award of their appellate attorney's fees and costs, contending that the appeals were frivolous. The requests were denied.
For a copy of this decision, contact Anthony Dorland at dorlanda@moss-barnett.com.