This case was commenced on August 12, 2005 when Ron Wood (the Plaintiff) filed a complaint seeking to annul a decision of the Board of Appeals for the Town of Easton (the Board or Defendant) pursuant to G.L. c. 40A, § 17, whereby the Board granted a special permit and variances to the Town of Easton (the Town) and JHN Enterprises, LLC (JHN) to construct a communication tower and related facilities. Plaintiff owns a parcel of land located at 135 Sheridan Street, Easton, Massachusetts, upon which a single family home is constructed. Plaintiffs property is adjacent to land belonging to the Town, known as 48 Lothrop Street in Easton, where the communications tower at issue in this action is located (the Locus). The Locus is situated in a municipal or open space district as defined by the Towns Zoning By-Law (the Bylaw).
The Town and JHN entered into a written agreement on or about December 29, 1999, whereby JHN agreed to construct a wireless communications tower on the locus and to give the Town rights to locate certain emergency and other public safety equipment on the tower. The agreement also contained provisions whereby the town would receive a portion of the revenue derived from renting space on the tower to third parties.
After obtaining several building permits for its erection, the towers construction was completed in February, 2001. Following the towers completion, the Towns Building Inspector issued an enforcement letter citing the Town and JHN for several zoning violations in connection with the towers construction. Shortly thereafter, JHN submitted an application to the Board seeking a special permit and variance for the already-constructed tower in order to legitimize its existence in general, specifically as to its height and location. After holding a public hearing on the matter, the Board voted to grant the special permit and the requested variances. The Plaintiff timely appealed the Boards decision by commencing the instant action.
In his complaint, Plaintiff contends that the Board exceeded its authority in granting the special permit and variances to the Town and JHN, asserting that their decision was arbitrary and capricious and unsupported by findings of fact, and requesting that the court annul the Boards decision and enter an order requiring the Town and JHN to remove the communications tower. The Board, in its Amended Answer, raises the following six affirmative defenses, contending that the complaint should be dismissed because (1) the complaint fails to state a claim upon which relief may be granted, (2) Plaintiff lacks standing as an aggrieved party pursuant to G.L. c. 40A, § 17, (3) the Boards decision was based on substantial evidence (4) the Boards decision was not arbitrary and capricious, (5) the complaint fails to comply with procedural requirements pursuant to G.L. c. 40A, and (6) because the Towns operation of the tower is a municipal use as set forth in the Bylaw and is permitted as of right in the Municipal/Open Space District, thus not requiring the issuance of a special permit or a variance. The Board also asserts a counterclaim pursuant to G.L. c. 231, § 1, et seq., seeking a declaratory judgment that the tower is a municipal use within the meaning of the Bylaw, and thus does not require the issuance of a special permit or variances. The Board also seeks costs and interest.
After filing its initial Answer on September 1, 2005, Defendants filed an Amended Answer and Counterclaim on December 14, 2005. Defendants filed a Motion for Summary Judgment on November 8, 2007, along with a memorandum in support thereof, a statement of undisputed facts and an appendix to said statement of undisputed facts, which included an affidavit of Wendy Nightingale. Shortly thereafter, on November 30, 2007, Plaintiff filed a memorandum in opposition to Defendants Motion for Summary Judgment and a statement of undisputed facts.
The parties argued the motion before the court (Trombly, J.) on December 6, 2007, at which time the matter was taken under advisement. Based on the record before it, the court finds that the following facts are not in dispute and are established for the purpose of any trial or further proceedings which may become necessary in this matter. Mass. R. Civ. P. 56(d).
1. The Plaintiff, Ron Wood, is the owner of a parcel of land known as 135 Sheridan Street, Easton, Massachusetts.
2. The Town of Easton is the owner of property located at 48 Lothrop Street, Easton, upon which the subject wireless communications tower is situated (the Locus). The Locus is located within the Municipal or Open Space (M) zoning district in the Town of Easton and is adjacent to Plaintiffs property.
3. On March 2, 1999, the Town issued a document entitled The Town of Easton, Massachusetts Department of Public Works Request for Proposals for the Design, Furnishing and Installing a Radio Tower, with Equipment Shelter and Antennas (RFP) in an attempt to upgrade its public safety communications system.
4. The RFP, Supplementary Conditions and Specifications, Section 1.0 Introduction, states the following:
THE TOWN OF EASTON, MA (HEREINAFTER, the town) solicits proposals from qualified parties to design, furnish and install a radio tower, equipment shelter, antennas
The tower, shelter, antenna cable and lightning suppression equipment will be part of an overall plan to upgrade the towns existing public safety communications system. The Tower may also be used by the party submitting the proposal (emphasis added).
5. In a letter dated March 19, 1999, Nelson responded to the Towns issuance of the RFP by making a proposal regarding the Towns need for a wireless communications tower and enclosing a draft Licensing Agreement.
6. As a result, on December 29, 1999, the Easton Board of Selectmen entered into an agreement with JHN. Enterprise, L.L.C., a wholly owned subsidiary of Nelson Communication Services, Inc., (Nelson). Pursuant to the agreement, JHN agreed to design and install a wireless communications tower (the tower), in consideration for which the Town would lease space on the tower and JHN would also lease space to other wireless communications providers.
7. Section 7.1 of the agreement entered into by the Town and JHN states the following:
Upon completion of the Tower as aforesaid, Nelson shall, at its expense, install and mount on the Tower the Towns Fire Department, Police, Department and Department of Public Works wireless communications antennas and appurtenant equipment furnished by the Town on the uppermost portion of the Tower at locations mutually agreed to between the parties prior to the installation of any wireless communications service carriers and/or paging companys antennas on the Tower. Upon designation of the locations on the tower to be occupied by the Town, completion of the installation by Nelson and acceptance thereof by the Town, Nelson shall thereafter have the right of use of all other locations on the tower for the duration of this agreement and the town shall not expand its requirements for space on the tower without Nelsons agreement.
8. The Towns public safety communications system was installed at the uppermost portion of the Tower.
9. On April 1, 2003, the Inspector of Buildings Zoning Enforcement Officer for the Town issued an enforcement order to the Board, stating that the tower was erected without all required permits and variances.
Specifically, the order stated that a building permit should not have issued until the Zoning Board of Appeals granted a special permit in accordance with Section 5-3(H)(8) of the Bylaw and that appropriate variances should have been obtained because the tower does not meet the dimensional setback requirements from existing buildings and the setback requirements from residential property lines. The order further explains that the tower requires a variance from the Bylaws height requirements and that it also requires site plan approval.
10. Section V, 5-3(B)(14) of the Town of Easton Zoning Bylaw, entitled Use Regulations, states that [a]ll Town and municipal uses are allowed as of right in the M zoning district.
11. Section V, 5-3(H)(8) states that a special permit is required in order to construct a Communications Tower and Wireless Communications Facility in the M zoning district.
12. Section V, 5-3(I)(11) of the Bylaw states that Antenna Transmitter/Receiving Tower, Residential Use is allowed as of right in an M zoning district.
13. Pursuant to Section VI, 6-3(7) of the Bylaw, entitled Dimensional and Density Regulations, there are [n]o restrictions for buildings or structures located in the M zoning district except for minimum yard depth and minimum lot depth. According to this section of the Bylaw, buildings and structures in the M zoning district are subject to a 50 front yard setback, a 40 rear yard setback and a 25 side yard setback.
14. Section VII, 7-13 of the Bylaw, entitled Communications Tower and Wireless Communications Facility, (A), states that [t]he requirements of this By Law shall apply to all communications towers and wireless communications facilities that require a special permit in accordance with Section 12-7 of this By Law, excluding in-kind or smaller replacement of existing equipment. Section 12-7 governs special permits.
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Summary Judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 64344 (2002); Mass. R. Civ. P. 56(c). Whether a fact is material or not is determined by the substantive law, and [a]n adverse party may not manufacture disputes by conclusory factual assertions. Ng Bros., 436 Mass. at 648; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponents case, or by demonstrating that proof of that element is unlikely to be forthcoming at trial. Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). However, the party opposing summary judgment cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). Summary judgment may be granted to the non-moving party. Mass. R. Civ. P. 56(c).
Discussion
In its motion for summary judgment, Defendants argue that the tower is a town and municipal use within the meaning of Section V of the Bylaw because the Towns public safety communications equipment is located on the tower, and that it is therefore exempt from the provisions of Section XII of the Bylaw which requires the issuance of a special permit. They aver that the fact that the town leases space on the tower does not detract from its municipal purpose because the tower was constructed for the primary purpose of serving the towns public safety communications needs, despite the fact that JHN also benefits financially. Plaintiff, on the other hand, points out that the Bylaw recognizes the difference between a tower and the antennae placed upon the tower because an antennae is allowed as a matter of right under Section V, 5-3(I)(11), whereas the construction of a tower requires the issuance of a special permit under Section V, 5-3(H)(8) even where the land at issue is located in an area zoned for municipal use.
The court finds that the instant matter is ripe for summary judgment because there are no genuine issues of material fact. The central issue before the court, then, is whether or not the tower is a [t]own or municipal use under Section V of the Towns Bylaw and is therefore allowed as of right. The Town itself initiated the submission of proposals for a wireless communications tower through the issuance of its RFP on March 2, 1999, which states that the town solicits proposals from qualified parties to design, furnish and install a radio tower, equipment shelter, antennas
The tower, shelter antenna cable and lightning suppression equipment will be part of an overall plan to upgrade the towns existing public safety communications system. In addition, the agreement entered into between the Town and JHN specifies in Section 7.1 that upon the towers completion, the first piece of equipment to be installed is the Towns Fire Department, Police Department and Department of Public Works wireless communications antennas and appurtenant equipment furnished by the Town on the uppermost portion of the Tower
Plaintiff argues that the Towns municipal use is reflected in the antennae that will be placed on the tower to serve its public safety needs, and not in the tower itself, which should not be considered a municipal use. He contends, therefore, that the antennae is allowed as of right pursuant to Section V, 5-3(I)(11) of the Bylaw, but that the construction of the tower requires the issuance of a special permit and a variance pursuant to Section V, 5-3(H)(8), which states that a Communications Tower and Wireless Communications Facility requires a special permit in an M zoning district. In support of his argument, he cites the language in the agreement between JHN and the Town, wherein JHN is responsible for obtaining the necessary permits and approvals for the construction of the tower, while the Town is responsible for obtaining such approvals for its antennae. He argues, therefore, that the antennae, and not the tower itself, serves a municipal purpose and that proper approvals should have been obtained before the towers construction. This court respectfully disagrees.
The language used in both the RFP and the subsequent agreement indicates to the court that while the tower was constructed through a public and private partnership between the Town and JHN, the primary purpose for its installation was the Towns desire to upgrade its public safety communications system, as evidenced by its issuance of an RFP in the first place. Unlike a hypothetical situation wherein JHN approached the Town regarding the construction of a communications tower, in this instance the Town itself proposed the idea based on their own public safety needs. That JHN and other providers leasing space on the tower will ultimately profit from its construction does not detract from the fact that the tower was built, first and foremost, to serve the Town.
A use, as defined by the Bylaw, is [t]he purpose for which a structure or lot is arranged, designed, or intended to be used, occupied or maintained. The court is guided by the term purpose in determining whether the construction of the tower falls into the category of a town and municipal use. While the court is mindful of the fact that the tower is being used, at least in part, to benefit private entities, its central purpose in being constructed was to benefit the Town and its desire to update its public safety communications system, and also to obtain additional revenue by sharing in the rents paid by other providers leasing space on the tower. Based on the courts careful review of the relevant sections of the Bylaw and all pertinent documentation concerning the agreement between JHN and the Town, the court concludes that the tower is a town and municipal use pursuant to Section V, 5-3(B)(14) of the Bylaw and therefore was properly constructed as of right in the M zoning district.
Judgment to issue accordingly.
SO ORDERED.
Charles W. Trombly, Jr.
Justice
Dated: July 24, 2008
RON WOOD v. WALTER MIRRIONE, JOHN TUPPER, STEVEN JOHNSON, AUGUST J. GANGI, and FREDERICK W. CLARK, JR., as they are members of the ZONING BOARD OF APPEALS of the Town of Easton, the TOWN OF EASTON and JHN ENTERPRISES, LLC