EDWARD M. JUSKALIAN and KAREN M. WITTBRODT a/k/a KAREN M. JUSKALIAN v. WILLIAM FARNSWORTH, JULIA A. ADAM, JOHN CANTINO, JEFFREY YATES, and ROD STEWART, as they are members of and constitute the LITTLETON ZONING BOARD OF APPEALS and OMNIPOINT COMMUNICATIONS, INC.

In this action, brought pursuant to G. L. c. 40A, § 17, Plaintiffs appeal a decision of the Littleton Zoning Board of Appeals (Board) granting Omnipoint Communications, Inc. (Omnipoint) a variance in connection with a proposed development on a parcel of land located at 7 Estate Road, Littleton (Property). Omnipoint plans to construct a wireless communications facility, including a 120 foot tower (Tower), on the Property. On December 22, 2008, Plaintiffs commenced this action and on April 17, 2009, Omnipoint and the Board filed “Motion of Defendants Omnipoint and the Littleton Zoning Board of Appeals to Dismiss Plaintiffs’ Claims.” According to their brief, Defendants’ motion was brought pursuant to Mass. R. Civ. P. 12(b)(1). Defendants’ motion is supported by affidavits of Anita Harding, an Assessment Analyst for the Assessors Department of the Town of Littleton and Gerald Marquis, Regional Zoning Manager for Omnipoint. Plaintiffs opposed this motion through a written opposition filed on April 29, 2009, which was supported by the affidavit of William F. Curley, a certified general real estate appraiser. A hearing was held on May 5, 2009, at which all parties were heard. [Note 1]

Omnipoint is a Delaware corporation licensed by the Federal Communications Commission (FCC) to construct and operate wireless communications facilities. Omnipoint is currently designing and constructing a wireless communications network to provide “seamless” wireless coverage to all of Massachusetts. In connection with its project, Omnipoint conducted a study of radio frequency coverage, which showed gaps in coverage for the Town of Littleton (Town). Omnipoint determined that it could alleviate the gaps in the Town’s coverage by constructing a wireless facility, including the Tower, on the Property. [Note 2]

Sections 173-131(B)(4) and 173-131(B)(5) of the Town of Littleton Zoning Bylaw (Bylaw) govern the setback and height of wireless communications towers. Sections 173-131(B)(4) provides that “[t]he base of all towers shall be no closer than three hundred (300) feet to a dwelling in a residential district.” Sections 173-131(B)(5) provides that a wireless communications tower “shall not exceed 100 feet measured from the base of the tower to the highest point of the tower or its projection.”

On August 5, 2008, Omnipoint filed an application for a variance from Section 173-131(B)(5) to allow the Tower to exceed 100 feet (Height Variance) and on October 28, 2008, Omnipoint applied for a variance from 173-131(B)(4) of the Bylaw to allow the Tower to be closer than 300 feet to a dwelling located in a residential district (Setback Variance). On November 20, 2008, after a duly-noticed public hearing, the Board voted to approve both variance applications. Two separate written decisions were filed with the Town Clerk on December 8, 2008. The Setback Variance allows the Tower to be built no closer than 230 feet to a dwelling located on the adjacent residential property. [Note 3] Plaintiffs filed their appeal of the Setback Variance in this court on December 22, 2008, but did not appeal the Height Variance. [Note 4]

Defendants argue that Plaintiffs’ complaint should be dismissed because Plaintiffs have no standing to maintain this action as they have not articulated any harm that would be caused by the Tower being built seventy feet closer to their neighbors’ dwelling. Plaintiffs own and reside at 14 Uplands Road in Littleton. 14 Uplands Road does not abut the Property, nor does it abut the Hoole Property or any parcel that abuts the Property. As such, Plaintiffs are not parties-in-interest as defined by G. L. c. 40A, § 11, and are not entitled to any presumption of standing. [Note 5]

“Standing is an issue of subject matter jurisdiction.” Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998). Under G. L. c. 40A, only a “person aggrieved” may have standing to appeal the decision of a board of appeals or planning board. “To have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury.” Slama v. Attorney General, 384 Mass. 620 , 624 (1981). The injury alleged must be established “by direct facts and not by speculative personal opinion” and must be “special and different from the concerns of the rest of the community.” Barnevik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). Further, “the plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996).

In the instant case, Defendants have submitted a Mass. R. Civ. P. 12(b)(1) motion accompanied by the Town of Littleton assessors’ map showing Plaintiffs’ parcel in relation to the Property as well as an affidavit of Anita Harding stating that Plaintiffs are not abutters or otherwise parties-in-interest. “[A] rule 12(b)(1) motion supported by affidavits places the burden on the plaintiff to prove jurisdictional facts.” Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 709-10 (2004) (quoting Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 516 n.13 (2002)). “Under this factual challenge to the jurisdiction, the plaintiff’s jurisdictional averments in the complaint are entitled to no presumptive weight and the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties.” Hiles, 437 Mass. at 516 (quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001) (internal quotations omitted)). Since Plaintiffs do not enjoy any presumption of standing, they must submit evidence “that is both quantitatively and qualitatively sufficient” to establish their standing. Michaels v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 451 (2008).

Together with their opposition to Defendants’ motion, Plaintiffs submitted an affidavit of William F. Curley, a certified general real estate appraiser. However, this affidavit is not the kind of credible evidence necessary to establish Plaintiffs’ standing to pursue an appeal under G. L. c. 40A, § 17. Credible evidence has both a quantitative and a qualitative element. “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) (emphasis added) (citing Marashlian, 421 Mass. at 724; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994)). Mr. Curley’s affidavit is, at best, conclusory with no supporting factual basis. Michaels, 71 Mass. App. Ct. at 452. [Note 6]

While Mr. Curley states that Plaintiffs’ home would diminish in value if the Tower is built, he does not provide any factual support. His affidavit references the theory of “economic obsolescence,” which is defined as “[i]mpairment of desirability or useful life arising from factors external to the property such as economic forces or environmental challenges which affect supply/demand relationships in the market.” From that definition, he concludes simply:

“Since [cell towers] require a 300’ buffer in the zoning district, the typical neighborhood homeowner would anticipate a certain quality of life and reasonable freedom from offensive views, noise impacts, and from risks and inconvenience created by the introduction of potentially hazardous materials generated by [the Tower]. Upon the grant of the [Setback Variance], it is my opinion that Mr. Juskalian’s home will be stigmatized by uncertainty about the project’s scope and long term impact.”

Mr. Curley appears to base his assessment of harm to Plaintiffs on an appraisal not yet conducted. In recognition of the fact that he has not done any specific analysis of Plaintiffs’ property and the possible effect of the Tower, or, importantly, the location of the Tower as a result of the grant of the Setback Variance, he states: “[i]n appraising [Plaintiffs’ property], I would be required by the Uniform Standards of Professional Appraisal Practice to consider the adverse impact of the proposed [Tower] in my estimate of value.” It appears that Mr. Curley has concluded that should Plaintiffs desire to sell their house before the Tower is built, they will now have to disclose to any potential buyer the location of the Tower. Based on that, he has concluded that Plaintiffs have been harmed because “such disclosure will result in diminished appeal of the property to the typical residential purchaser.” Mr. Curley does not explain how Plaintiffs’ alleged harm is caused by the Setback Variance as opposed to the mere existence of the Tower on the Property, which is a permitted use.

Further, Mr. Curley’s affidavit fails to show that any harm suffered by Plaintiffs will have a different, or more substantial, impact on them versus the community at large. Accordingly, this court finds that Plaintiffs have failed to allege sufficient harm as a basis for standing to bring this action. Therefore, Plaintiffs’ complaint must be dismissed.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: May 26, 2009