Opinion
No. 11–P–1873.
2012-10-15
David P. KEATING & others v. T–MOBILE NORTHEAST, LLC, & others.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendants from a judgment vacating a special permit issued by the planning board of North Andover (board). We reverse.
Background. On July 26, 2006, the board granted a special permit (permit) to T–Mobile Northeast, LLC's (T–Mobile) predecessor in interest that allowed for the installation of a wireless telecommunications facility in the steeple of the First Calvary Baptist Church, located at 586 Massachusetts Avenue in North Andover. It is undisputed that the permit stated that it was valid for a period of three years, and that an application for renewal of the permit must be made prior to its expiration. It is also undisputed that § 8.9.12 of the North Andover zoning by-law (by-law) provides that a special permit for a wireless service facility is valid for three years, but that any renewal for such a special permit must be made before the expiration of the original permit. T–Mobile failed to seek renewal of the permit within three years, as required by the language of the permit and § 8.9.12 of the by-law. On January 28, 2010, approximately six months after the expiration of the three-year period in which a renewal could be sought, T–Mobile applied for a renewal of the permit that had been issued on July 26, 2006. On April 20, 2010, the board unanimously approved T–Mobile's application for renewal of the permit. On May 10, 2010, the plaintiffs brought an action in Superior Court seeking to annul the renewal of the permit. In their complaint the plaintiffs allege that they are “parties in interest with respect to the T–Mobile application,” that they are “aggrieved by the [board's] decision,” and that they are “parties in interest within the meaning of G.L. c. 40A, § 11, and are also aggrieved by the Decision of the [board].” On May 9, 2011, both defendants filed motions for summary judgment together with a statement of undisputed material facts. The defendants argued that the plaintiffs lacked standing under G.L. c. 40A, § 17, to contest the board's decision, that the board's decision was consistent with the by-law, that the board had to issue the permit in order to comply with the Telecommunications Act of 1996, 42 U.S.C. 332(c), and that the plaintiffs' claims were rendered moot by the Economic Development Reorganization Act. See St.2010, c. 240, § 173. The plaintiffs filed no opposition to the motions for summary judgment or the statement of undisputed facts. On July 21, 2011, the judge held a hearing on the motions for summary judgment. Counsel for the plaintiffs argued in their behalf. On July 28, 2011, the judge denied the defendants' motions for summary judgment, and on September 7, 2011, entered judgment vacating the board's renewal of the permit. The defendants filed timely notices of appeal.
Discussion. A “person aggrieved” under G.L. c. 40A has a rebuttable presumption of standing to challenge a decision by a zoning board of appeals. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012). The burden is on the defendant to offer evidence contrary to the presumed fact of aggrievement. Id. at 701. Once the presumption is rebutted, the plaintiff must “establish—by direct facts and not by speculative personal opinion—that his injury is special and different from the concerns of the rest of the community.” Ibid., quoting from Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 33 (2006).
As abutters, the plaintiffs qualify as “persons aggrieved” and are therefore entitled to a rebuttable presumption of standing. G.L. c. 40A, § 11. The gravamen of the plaintiffs' grievance is that the defendants have failed to comply with the by-law. Therefore, the burden placed on the defendants was to come forward with evidence to the contrary. Here, the defendants met that burden by submitting affidavits stating that they are in full compliance with Federal, State, and local regulations. It was then incumbent on the plaintiffs to “[put] forth credible evidence to substantiate [their] allegations.” 81 Spooner Rd., LLC, 461 Mass. at 701. The plaintiffs submitted no information to the judge to substantiate their allegations that the defendants are not in compliance with the by-law.
Further, we do not construe the term “grievance” narrowly and there are many ways in which a plaintiff may be aggrieved. Id. at 700. Here, the plaintiffs have alleged no specific or particular grievance. The burden is always on the plaintiff to prove his or her grievance in order that the defendant may respond accordingly. Id. at 701 (“The plaintiff always bears the burden of proving aggrievement necessary to confer standing; an abutter's presumption of standing simply places on the adverse party the initial burden of going forward with evidence”). Indeed, “a defendant is not required to present affirmative evidence that refutes a plaintiff's basis for standing.” Id. at 703, quoting from Standerwick, 447 Mass. at 35. Had the plaintiffs here alleged specific grievances, the burden would be on the defendants to offer evidence to the contrary. But, because the plaintiffs have alleged no such grievances, the defendants need not come forth with such speculative evidence. The presumption of standing has been successfully rebutted and the plaintiffs have offered no evidence that they are entitled to standing.
It was error for the judge to vacate the renewal of the special permit by the board.
Judgment reversed.
Karen Lauro and Michael Dyer.