BARBARA GRAD-ALLEN, PETER F. ALLEN, ANNE C. HURSTON, JUDITH H. IDE, NETILIA MCARTHUR, and STEWART J. SMITH vs. NEW CINGULAR WIRELESS PCS, LLC, formerly known as AT&T WIRELESS PCS, LLC; HORIZON TOWERS, LLC; TOWN OF WAYLAND; JAMES E. GRUMBACH, ERIC B. GOLDBERG, STEVEN J. FUGARAZZO, LAWRENCE K. GLICK, SUSAN K. KOFFMAN, SHAUNT H. SARIAN, AIDA A. GENNIS, LINDA L. SEGAL, MICHAEL THOMAS and JERRY L. BOOS, as they are members of the TOWN OF WAYLAND ZONING BOARD OF APPEALS; DOUGLAS J. LEARD, JOSEPH F. NOLAN, ALAN J. REISS, MICHAEL J. TICHNOR, WILLIAM D. WHITNEY, and BRIAN T. HERLIHY, as they are members of the TOWN OF WAYLAND BOARD OF SELECTMEN; JUDITH L. ST. COX, as TOWN CLERK OF WAYLAND; and DANIEL F. BENNETT, as BUILDING COMMISSIONER FOR THE TOWN OF WAYLAND

On May 10, 2006, Plaintiffs filed their unverified Complaint (With Jury Demand) with the Middlesex Superior Court (Civil Action No. MICV2006-06-1659), alleging that a settlement between Defendants New Cingular Wireless PCS, LLC (“Cingular”) and Horizon Towers, LLC (“Horizon”) and Defendants Wayland Board of Selectmen (“Selectmen”) and Wayland Zoning Boards of Appeals (“ZBA”) (together with Defendants Town of Wayland (“Town”), Wayland Town Clerk, and Wayland Building Commissioner, the “Town Parties”) (Cingular, Horizon and the Town Parties, collectively “Defendants”) resulted in illegal spot zoning for the non-residential commercial use of a residentially zoned parcel of land on Reeves Hill in Wayland (Locus”). [Note 1] Cingular and Horizon filed their Answer on June 20, 2006, and the Town Parties filed their Answer on July 10, 2006. Pursuant to the provisions of G. L. c. 212, § 26A, the case was transferred to this court on August 11, 2006, as Miscellaneous Case No. 327749.

At a status conference on March 20, 2007, which both parties attended, this court established a schedule for filing of briefs and a hearing on summary judgment. Defendants filed their Motion for Summary Judgment on April 30, 2007, together with supporting memorandum, Statement of Material Undisputed Facts, and Affidavits of Larry Rosenfeld, Edward T. Moore and Lois M. Toombs. Plaintiffs did not file an opposition. A hearing was held on the summary judgment motion on September 10, 2007, at which Plaintiffs did not appear and did not contact this court relative to their absence, and the matter was taken under advisement. [Note 2] On September 17, 2007, Defendants filed an Affidavit of Frederic E. Turkington, Jr. (“Turkington Affidavit”).

This court finds the following facts are not in dispute:

1. AT&T Wireless PCS (now Cingular) and Eastern Towers LLC (now Horizon) (Cingular and Horizon together, the “Private Parties”) applied to the ZBA for use and dimensional variances to site a telecommunications tower (the “Tower”) at 137 Boston Post Road in Wayland. The ZBA denied the application on July 30, 2004.

2. The Private Parties appealed this decision to the United States District Court for the District of Massachusetts. This suit was settled (the “Settlement”), with the Town allowing the Private Parties, with conditions, to locate the Tower at Locus, and rezoning Locus as a Planned Wireless Communications Services Zoning Overlay District (the “Overlay District”) on November 1, 2005. [Note 3] As a result of the Settlement, the Town and Horizon entered into a lease of Locus dated November 7, 2005 (the “Lease”). Horizon has constructed an approximately 180 foot high monopole-type wireless communications tower with flush mounted antennas on Locus.

3. Plaintiffs appealed the Settlement to Middlesex Superior Court on May 10, 2006.

4. Locus is also known as 139 Old Connecticut Path and 0 Old Connecticut Path and contains approximately 4,000 square feet. Locus is shown as “N/F Town of Wayland 34-027” on the plan attached to the Lease.

5. Only Plaintiff Judith H. Ide (“Ide”) is a party in interest as defined by G. L. c. 40A, § 11 because she is an abutter to an abutter within 300 feet of Locus. Plaintiffs Barbara Grad-Allen and Peter F. Allen are abutters to an abutter within 300 feet of the Overlay District. Plaintiff Netilia McArthur’s property is located across the street from the Overlay District.

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Plaintiffs allege that they have standing to challenge the Settlement because they are abutters to Locus. [Note 4] Defendants argue that Plaintiffs do not have standing.

“Only a ‘person aggrieved’ may challenge a decision of a zoning board of appeals.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G. L. c. 40A, § 17. A plaintiff is presumed to be a “person aggrieved” if it is a “party in interest” pursuant to G. L. c. 40A, § 11. [Note 5] Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). A presumption of standing is rebuttable. See Watros v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995). In order to rebut the presumption of standing, a defendant must offer evidence “warranting a finding contrary to the presumed fact.” Id.

If standing is properly challenged, the issue is then decided on “all the evidence with no benefit to the plaintiff from the presumption.” Marotta, 336 Mass. at 204. See also Marashlian, 421 Mass. at 721 (“A review of standing based on ‘all the evidence’ does not require that the factfinder ultimately find a plaintiff’s allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff”). Without the presumption, “individual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989).

To assert a plausible claim of standing, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721.

“Credible evidence” has both a quantitative and a qualitative component . . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action. Conjecture, personal opinion, and hypothesis are therefore insufficient.Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). Furthermore, it is not necessary for the judge to determine that all of the plaintiffs have standing. The fact that only one of the plaintiffs is an aggrieved person is sufficient to permit an appeal from the Board’s decision. See Save the Bay, Inc. v. Department of Public Utilities, 366 Mass. 667 , 674-675 (1975). Plaintiffs did not allege that they were abutters to Locus in their Complaint, but they did allege presumed standing (as abutters) in the joint case management memorandum and at the case management conference on October 27, 2006. [Note 6] At the oral argument on the summary judgment hearing, Cingular initially stated that it would not argue standing, but the Town did, in fact, argue standing and requested an opportunity to submit an affidavit related to standing. The Turkington Affidavit, submitted by the Town following oral argument, states that Ide’s residence abuts an abutting parcel within 300 feet of Locus. [Note 7] As such, pursuant to the provisions of G. L. c. 40A, § 11, Ide is a party in interest and presumed to be aggrieved. Accordingly, I find that Plaintiffs have presumed standing. [Note 8]

Pursuant to Standerwick, once Plaintiffs establish their presumed standing, the burden of production shifts to Defendants to properly challenge Plaintiffs’ standing. In a motion for summary judgment, however, Defendants are not required to present affirmative evidence. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006). “It is enough that the moving party ‘demonstrate[], by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving’ a legally cognizable injury.” Id. (citing Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991)). Ultimately, in order to overcome Plaintiffs’ presumed standing, Defendants must provide this court with evidence that “warrant[s] a finding contrary to the presumed fact.” Watros, 421 Mass. at 111.

Defendants first argue that Plaintiffs lack standing due to Plaintiffs’ failure to allege and prove their abutter status. Given the Turkington Affidavit, as discussed supra, this argument fails as the record shows that at least one Plaintiff enjoys the presumption of standing. Defendants next assert that Plaintiffs fail to allege any harms that would enable Defendants to challenge a presumption of standing.

Despite Defendants’ assertions, a review of the Plaintiffs’ Complaint and Defendants’ Answers reveals that Plaintiffs did in fact articulate several alleged harms, which were challenged by Defendants. [Note 9] Paragraph 65 of the Complaint states that the Overlay District (including Locus) is “to the detriment of residential landowners on Reeves Hill and in the surrounding single-family residential use zoning district who acquired their properties in reliance on the existing residential zoning.” Paragraph 66 of the Complaint states that Defendants “are receiving special zoning treatment in violation of the due process and other rights of the Reeves Hill residents and others similarly situated in the same single-family residential district.” Paragraph 43 of the Complaint states:

In general, the Board of Selectmen betrayed those citizens and the decision of the ZBA. The Agreement for Judgment deprived those citizens, who were members of that same residential zoning district as the 137 BPR site and who were interested, inter alia, in the integrity of that zoning district, of their due process rights under The Zoning Act and otherwise, to include various forms of notice, participation, and legal address.

A look at Defendants’ Answers reveals that in addition to specifically denying numbered paragraphs 43, 65, and 66 of the Complaint, Defendants assert that Plaintiffs lack standing to bring this action. The nature of Defendants’ Answers is sufficient to allow this court to review whether Defendants successfully challenged Plaintiffs’ presumed standing, as the evidence is adduced from material described in Mass. R. Civ. P. 56 (c) (the parties’ pleadings) and uncountered by Plaintiffs. The question remains whether this evidence demonstrates that Plaintiffs have “no reasonable expectation of proving a legally cognizable injury.” Standerwick, 447 Mass. at 35.

Case law is clear that a legally cognizable injury is one that is specific to the plaintiff and not to the community in general. See Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992) (“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.”); see also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (noting that the plaintiff’s injury flowing from the board’s decision must be “special and different from the injury the action will cause to the community at large”). The harms alleged by Plaintiffs apply to everyone in the same single-family zoning district and not just to Plaintiffs. It is true that, in some contexts, standing may be granted to abutters who possess a “a legitimate interest in preserving the integrity” of a zoning district. Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). However, as courts have interpreted this language narrowly, this theory does not allow Plaintiffs to hurdle their standing burden in the matter at hand. [Note 10]

It is incumbent upon Plaintiffs to show this court they are a “person aggrieved” within the context of G.L. c. 40A, § 17. I find that Defendants have shown, based on Plaintiffs’ articulated harms, that Plaintiffs have no reasonable expectation of proving a legally cognizable injury. As such, I find that Plaintiffs have not sustained their burden to show standing.

As a result of the foregoing, Defendants’ Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: October 31, 2008