Opinion
No. 12–P–1475.
2013-07-26
Mary McKENNEY & others v. ZONING BOARD OF APPEALS OF WESTMINSTER & another.
Section 23 is not included as a ground for recission. Accordingly, Bartkus's actions, an alleged violation of § 23, could not be the basis for rescission of the board's decision. G.L. c. 268A, § 21( a ), as amended by St.2009, c. 28, § 80. Despite the inclusion of § 23, we are, by the plain language of the statute, powerless to order rescission for two reasons. First, a prerequisite for rescinding the action is a finding by the State Ethics Commission that Bartkus or the board violated § 23. The record contains no findings by the State Ethics Commission. Second, only the municipal agency that made the tainted decision has the authority to request avoidance, rescission, or cancellation. The board did not do so here. Therefore, even if we were to assume that Bartkus violated § 23, we could not grant the plaintiffs their desired relief.
By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a Superior Court judge's affirmance of the decision of the zoning board of appeals (board) of Westminster (town) to grant a variance to New Cingular Wireless, PCS, LLC (AT & T) for the construction of a cellular telephone (cell phone) tower. The plaintiffs argue that the noise variance should not have been granted, that the chairman of the board had a conflict of interest, and that there were numerous defects in the board's public meetings. We affirm.
Standing. Because standing under G.L. c. 40A, § 17, is a jurisdictional issue, we first must determine whether the plaintiffs have standing to challenge the board's decision.
The judge assumed standing: “In particular, the Court has considerable doubt as to whether Ciccolini and Nikitas have demonstrated ‘by direct facts and not by speculative personal opinion, that [their] injur[ies][are] special and different from the concerns of the rest of the community.’ Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 33 (2006). Only a very indulgent view of McKenney's concerns about audible noise from AT & T's HVAC equipment and increased traffic provides a basis for her standing.”
“ ‘Aggrieved person’ status is a jurisdictional prerequisite.... [A] court has jurisdiction to consider a zoning appeal only if it is taken by an aggrieved person. Although abutters and abutters to abutters enjoy a presumption of aggrieved person status, the presumption is rebuttable. Once a defendant in a § 17 appeal challenges the plaintiff's standing and offers evidence to support the challenge—as the defendants did here—the jurisdictional issue is to be decided on the basis of the evidence with no benefit to the plaintiff from the presumption. The plaintiff then has the burden of proof on the issue of standing. Satisfaction of that burden requires proof that the plaintiff is one of the limited class of individuals who are entitled to challenge a zoning board's exercise of discretion. “To qualify for that limited class, a 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. He must show that his legal rights have been, or likely will be, infringed or his property interests adversely affected. Subjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.”
Barvenik v. Board of Aldermen of Newton, 33 Mass.App.Ct. 129, 131–133 (1992) (footnotes omitted).
The plaintiffs argue that they have set forth credible evidence of aggrievement on three different bases: (1) that the scenic vistas from their properties will be adversely affected; (2) that noise generated from the tower will be audible, particularly from McKenney's property; and (3) that the tower will result in increased traffic on Mile Hill Road because the tower will reduce the number of parking spots available to Mount Wachusett skiers. The plaintiffs' first and second arguments fail. The visual impact of a structure is an aesthetic concern that does not confer standing. See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493 (1989). In addition, the evidence showed that noise from the tower was estimated to produce no more than twenty-four decibels of sound on McKenney's property line, well below the thirty-five decibel threshold set by the town's zoning by-law.
McKenney's property abuts the lot in dispute, so she is entitled to a rebuttable presumption that she is a person aggrieved. Ciccolini and Nikitas are not so entitled because, although their properties abut an abutting lot, their properties are not within 300 feet of the AT & T lot. See G.L. c. 41, § 11.
Fear of increased traffic, on the other hand, is legitimately within the scope of zoning laws and has been held to be a valid basis for upholding standing. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 722 (1996) (upholding standing on businesses across from proposed hotel based on increased traffic and decreased parking); Bedford v. Trustees of Boston Univ ., 25 Mass.App.Ct. 372, 376–377 (1988) (upholding standing where university's expansion of building would exacerbate existing parking and traffic problems). The fear of increased traffic, however, must be an injury particular to the plaintiff herself and not merely to the community at large. See Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass.App.Ct. 680, 682 (2002) (denying standing where plaintiff lived a mile from site and would merely be inconvenienced by increased traffic, not unlike other members of public). On balance, this case is more similar to Marashlian and Bedford than to Nickerson. McKenney testified that on busy ski days, there are too few parking spaces in the lot to accommodate all those wishing to park there. When the parking attendant turns skiers away, they turn around on Mile Hill Road, which creates a bottleneck effect that makes it difficult for McKenney to access her property. According to her testimony, the displacement of parking spaces by the cell phone tower will exacerbate the already-frustrating bottleneck problem. While McKenney's testimony is partially based on speculation surrounding the loss of parking spots, it is sufficiently grounded in credible fact for standing purposes. See Marashlian, supra at 721 (“A review of standing ... does not require that the factfinder ultimately find a plaintiff's allegations meritorious. To do so would be to deny standing”). Moreover, McKenney has shown that the fear of increased traffic is particularized. Unlike other members of the town, the plaintiffs must drive by the parking lot on Mile Hill Road to access their properties on Bolton Road. Therefore, because the injury is grounded in credible fact and particular to the plaintiffs, at least McKenney has standing to challenge the board's conclusion.
Standard of review. “Massachusetts is one of several States that provide for de novo review of local zoning authority decisions. On appeal to the Superior Court or Land Court, a judge determines the legal validity of a zoning board decision on the facts found by him; he gives no evidentiary weight to the board's findings. Judicial review is nevertheless circumscribed: the decision of the board ‘cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’ “ Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 485–486 (1999) (citations omitted), quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970).
Discussion. 1. Noise variance. The town zoning by-law sets a thirty-five decibel limit for noise at the site's perimeter. The board approved a variance to allow up to thirty-seven decibels. The plaintiffs contend that the grant of a noise variance should be annulled because the Superior Court judge did not find all the prerequisites of G.L. c. 40A, § 10. The plaintiffs point to two specific errors. First, they claim that the judge did not make a finding that the need for a variance was causally connected to “the soil conditions, shape, or topography of such land.” See G.L. c. 40A, § 10. Second, they argue that AT & T could have complied with the by-law without a variance.
As for the plaintiffs' concern that the judge did not find that AT & T made a full effort to evaluate other site alternatives, we agree with AT & T that the plaintiffs waived that issue in the joint stipulation.
Because this noise variance is for a cell phone tower, we must also consider the Federal Telecommunications Act, 47 U.S.C. § 151 et seq. (2006) (Act) The Act neither eliminates local authority over tower placement nor preempts de novo judicial review of zoning board decisions. See Roberts, supra at 485–489. The Act does require, however, that the strictly applied prerequisites of G.L. c. 40A, § 10, be substantially relaxed when, as here, there exists a significant gap in wireless coverage.
See Nextel Communications of the Mid–Atlantic, Inc. v. Wayland, 231 F.Supp.2d 396, 406–407 (D.Mass.2002) (“[T]he Board cannot deny the variance if in so doing it would have the effect of prohibiting wireless services”). See also 47 U.S.C. § 332(c)(7)(B)(i)(II) (2006). In other words, when there is a significant gap, local boards are severely constrained in their discretion to deny a variance for a cell phone tower. It is in this context that we must view the plaintiffs' specific arguments.
The parties stipulated, and the judge found, that there was a significant gap in wireless coverage in the Mount Wachusett area.
First, the plaintiffs claim that the judge did not explicitly find that the noise variance was connected to the “the soil conditions, shape, or topography of such land.” See G.L. c. 40A, § 10. Although the causal connection could have been explained more clearly, we think that the judge found a sufficient causal connection between the variance and the topography of the land. The judge concluded that because of the unique mountain topography of the region, the flat lot provided an excellent site for AT & T's cell phone tower. Viewed in conjunction with the Act, we cannot say that the decision was based on legally untenable grounds or that it was arbitrary or capricious.
Second, the plaintiffs argue that because AT & T could have complied with the by-law without a variance, the variance was granted in violation of G.L. c. 40A, § 10.
See Rose v. Board of Appeals of Wrentham, 352 Mass. 301, 303 (1967), quoting from Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 161–162 (1962) (“No person has a legal right to a variance”). The judge found that the literal requirements of the zoning by-law would create a substantial hardship on AT & T. This finding is not legally untenable, nor is it arbitrary and capricious. To hold otherwise would be to ignore several relevant facts and circumstances. First, believing that the eastern site would be more neighborhood friendly, the board urged AT & T to move back to the eastern portion of the lot.
AT & T initially sought a special permit for the eastern portion of the lot, but then filed an amended application for the western portion of the lot. The parties agree, and the board and judge found, that a noise variance would not be needed on the western portion of the lot. Nevertheless, AT & T subsequently filed a second amended application that moved the site back to the eastern portion of lot and sought a noise variance.
Second, the variance allowed AT & T to exceed the by-law noise limit (thirty-five decibels) by just two decibels, which, according to expert testimony in the record, is a difference imperceptible to the human ear. Third, the same expert concluded that the noise level at McKenney's property line would not exceed twenty-four decibels, and that the topography and vegetation would likely further dampen the noise.
The closest property line at the eastern site is undeveloped land owned by the Fitchburg water department.
2. Chairman's conflicts. The plaintiffs next argue that the judge erred in upholding the board's decision because the chairman, Paul Bartkus, Jr., had an undisclosed business relationship with Wachusett Mountain Associates (WMA), the owner of the site. The alleged conflicts include the following: (1) Bartkus worked as an executive chef for several weeks in 2007 or 2008 at the Wachusett Village Inn (inn), a WMA-related entity; (2) Bartkus also worked for one day as an executive chef at the inn in February, 2009, a few weeks after AT & T filed its application;
(3) Bartkus's parents own a minority stake in the Woods of Westminster golf course, which occasionally engaged in “stay and play” promotions with the inn; (4) Bartkus worked for twelve years at the golf course and stood to inherit substantial money from his parents; and (5) Bartkus personally guaranteed a $2.6 million note in connection with the golf course.
The judge found that Bartkus, an executive chef by trade, undertook both these jobs at the request of a family friend. For payment, he received only ten dollars an hour (and a ski pass), well below the $80,000 to $100,000 salary for an average executive chef. Additionally, Bartkus asked town counsel whether he was required to disclose the relationship at board meetings. Town counsel determined that the minimal employment was not substantial enough to give rise to an ethical conflict and that no disclosure was required.
At the final board meeting, Bartkus stated that he had no financial interest in the golf course, but he did not disclose his prior employment with the course or the $2.6 million note.
According to the plaintiff, Bartkus's failure to disclose the above or to recuse himself from the vote was a violation of G.L. c. 268A, § 23( b ).
The defendants counter that even if the above allegations were a violation of § 23( b ), there still would be no basis to rescind or vacate the board's decision. We agree with the defendants. General Laws c. 268A, § 21( a ), authorizes rescission or cancellation of a tainted board decision based on conflicts. It was revised by St.2009, c. 28, § 80, which took effect September 29, 2009, after the AT & T meetings had started but before they had concluded. We need not decide which version of § 21( a ) controls, however, because the result is the same under both, albeit for different reasons.
.Section 23( b ) of G.L. c. 268A, as amended through St.2009, c. 28, § 82, provides in relevant part: “No current officer ... of a ... municipal agency shall knowingly, or with reason to know: ... (3) act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.”
The prior version of G.L. c. 268A, § 21( a ), as amended by St.1982, c. 612, § 13, provides that
“any violation of sections two, three, eight, or sections fifteen to twenty, inclusive, which has substantially influenced the action taken by any municipal agency in any particular matter shall be grounds for avoiding, rescinding or cancelling the action on such terms as the interest of the municipality and innocent third persons require.”
Section 23 is not included as a ground for recission. Accordingly, Bartkus's actions, an alleged violation of § 23, could not be the basis for rescission of the board's decision.
The revised version of G.L. c. 268A, § 21( a ), adds a § 23 violation as ground for rescission, but still offers no recourse for the plaintiffs:
“[A] finding by the commission pursuant to an adjudicatory proceeding that there has been any violation of sections 2, 3, 8, 17 to 20, inclusive, or section 23, which has substantially influenced the action taken by any municipal agency in any particular matter, shall be grounds for avoiding, rescinding or canceling the action of said municipal agency upon request by said municipal agency on such terms as the interests of the municipality and innocent third persons require.”
G.L. c. 268A, § 21( a ), as amended by St.2009, c. 28, § 80. Despite the inclusion of § 23, we are, by the plain language of the statute, powerless to order rescission for two reasons. First, a prerequisite for rescinding the action is a finding by the State Ethics Commission that Bartkus or the board violated § 23. The record contains no findings by the State Ethics Commission. Second, only the municipal agency that made the tainted decision has the authority to request avoidance, rescission, or cancellation. The board did not do so here. Therefore, even if we were to assume that Bartkus violated § 23, we could not grant the plaintiffs their desired relief.
3. Other procedural defects. Finally, the plaintiffs challenge three procedural defects in the hearings. First, the plaintiffs argue that Donald Frigoletto, a board member, was absent from one of the meetings but still voted for the special permit, and so the decision must be vacated pursuant to Mullin v. Planning Bd. of Brewster, 17 Mass.App.Ct. 139, 143 (1983). Whether Frigoletto was present at the June 24, 2009, meeting was the subject of disputed testimony.
The plaintiffs testified that he was not there. Frigoletto testified that he was forty-five minutes late to that day's meeting because he had participated in a league golf game that lasted longer than expected. Bartkus could not recall at which meeting this occurred, but he remembered Frigoletto arriving late to one meeting and the board consequently delaying the start of the meeting until Frigoletto's arrival. The judge credited the testimony of Bartkus and Frigoletto, and accordingly found that Frigoletto was present, albeit late, and that the board did not conduct any business until he arrived. This question is one of credibility, and nothing in the record suggests that the judge's findings are clearly erroneous. See Barboza v. McLeod, 447 Mass. 468, 469 (2006) (“In nonjury cases, findings of fact shall not be set aside unless clearly erroneous”).
The board did not take minutes of this, or any, meeting. The open meeting law is discussed infra.
Second, the plaintiffs argue that because the open meeting law was violated for failing to record the minutes, the decision should be vacated.
It is undisputed that the board did not record minutes for any of these meetings, which is a clear violation of G.L. c. 39, § 23B. In fact, the plaintiffs filed a complaint with the Worcester County district attorney's office, which notified the board that it was in violation of the open meeting law. The district attorney concluded, however, that the violation was significantly cured because the board's hearing decisions set forth the date, time, place, members present, and action taken at each hearing.
The former open meeting law, G.L. c. 39, §§ 23A–23C, was repealed and replaced effective July 1, 2010, and is now catalogued at G.L. c. 30A, §§ 18–25. See St.2009, c. 28, §§ 18, 20, 106. The board held its final hearing and issued its decision on March 23, 2010, before the new open meeting law took effect. Accordingly, we decide this issue under the prior version of the statute.
The “[p]ower to set aside public action because of violations of [G.L. c. 39,] § 23B[,] is discretionary in nature.” Tebo v. Board of Appeals of Shrewsbury, 22 Mass.App.Ct. 618, 623 (1986). The judge, like the district attorney's office, found that the violation of the open meeting law was substantially cured. He also found that all interested parties, including the plaintiffs, “had a full and fair opportunity to be heard, and there is no indication that the Board conducted any meetings in secret.” Based on the judge's findings, we conclude that he did not abuse his discretion in declining to vacate the board's decision.
Third, the board held a meeting on January 19, 2010, the date of the Massachusetts special election for United States Senate, in violation of a portion G.L. c. 40A, § 11.
The plaintiffs thus argue that a meeting on election day is akin to holding an illegal secret meeting under the open meeting laws. The parties do not cite, and we cannot find, a case interpreting this portion of the statute. Regardless, holding a hearing on election day is clearly a procedural defect and, as such, is subject to the general rule that a party must show that she is prejudiced by the procedural defect. See Burwick v. Zoning Bd. of Appeals of Worcester, 1 Mass.App.Ct. 739, 744–745 (1974). The judge specifically found that the plaintiffs were not prejudiced by the election-day meeting because they failed to object to holding the meeting on that day and, more importantly, because they actually attended the meeting on January 19. Accordingly, there was no abuse of discretion.
.Section 11 provides in relevant part: “No such hearing shall be held on any day on which a state or municipal election, caucus or primary is held in such city or town.”
None of these defects, either individually or cumulatively, require us to reverse the decision of the judge.
We deny AT & T's request for appellate fees and costs.
Judgment affirmed.