RICHARD W. HOOLE and SUSAN R. HOOLE v. WILLIAM FARNSWORTH, JULIA ADAM, JOHN CANTINO, JEFFREY YATES, and ROD STEWART, as they are the members of and constitute the LITTLETON BOARD OF APPEALS and OMNIPOINT COMMUNICATIONS, INC.

In these actions, Plaintiffs seek to annul decisions by the Littleton Board of Appeals (Zoning Board) and the Little Planning Board (Planning Board) which would allow Omnipoint Communications, Inc., to construct a cellular tower on cemetery property owned by the Town. In December of 2008, the Zoning Board granted a variance to Omnipoint, which would allow a cellular tower to be constructed within 300 feet of a residence (Setback Variance). On February 9, 2009, the Planning Board granted Omnipoint a special permit to construct the wireless facility, including the cellular tower. Plaintiffs have appealed from both decisions and the cases were consolidated for trial. A view was taken by the court in the presence of the parties and counsel on January 26, 2010.

A two-day trial was held on January 26 and 27, 2010. At trial this court heard the testimony of Savos Danos, General Manager of Littleton Electric, Light and Water Departments, who manages requests for siting cell towers on Town land; Plaintiffs Richard and Susan Hoole; Gerald Marquis, Regional Zoning Manager for Omnipoint; Scott N. Adams and Marc Chretien, professional engineers with Advanced Engineering Group, P.C.; and Scott Heffernan, radio frequency engineer at Omnipoint. Eighteen exhibits were entered in evidence.

Based on all the evidence and reasonable inferences drawn therefrom, as well as observations from the view, this court finds the following material facts:

1. Omnipoint is a Delaware corporation licensed by the Federal Communications Commission (FCC) to construct and operate wireless communications facilities.

2. Omnipoint is currently designing and constructing a wireless communications network to provide “seamless” wireless coverage to all of Massachusetts. In 2005, in connection with this project, Omnipoint conducted a study of radio frequency coverage, which showed gaps in coverage for the Town of Littleton along Route 495, near the intersection with Routes 2 and 100. Under the Littleton Zoning Bylaw (Bylaw), Section 173-26 (Use Regulation Schedule) the use of land for a “Wireless telecommunications tower and facilities” is not allowed in the residence or business districts except by special permit for municipally owned or controlled land or within an existing church steeple.

3. Omnipoint determined that it could alleviate this gap by installing and maintaining a wireless communications facility (Facility), including a proposed 120’ tower (Tower), antennas, coaxial cables, and radio communications equipment, on property located within Westlawn Cemetery. Westlawn Cemetery is owned by the Town, and in the control of the Cemetery Commissioners (Commissioners). Omnipoint approached the cemetery’s superintendent, who then contacted Mr. Savos Danos, to handle the Town’s involvement in the process of making a site within the cemetery property available as a site for a Facility.

4. Plaintiffs Richard and Susan Hoole own and reside at 7 Uplands Road in Littleton (Plaintiffs’ Property). Plaintiffs’ Property abuts a wooded section of the cemetery.

5. At a September 2006 meeting, the Commissioners voted to designate a 40’ x 40’ portion of the cemetery (Proposed Site) as surplus, which would make it available to the Town for the placement of the Facility, if the Town so chose to enter into a lease with a wireless carrier. The Commissioners used a not-to-scale plan as a reference for the location and dimensions of the Proposed Site (2005 Site Plan).

6. On November 14, 2006, at a duly-noticed Special Town Meeting, the Town voted to transfer the Proposed Site to the Town for designation as general municipal land and voted to authorize the Board of Selectmen to lease that same parcel to the winner of a competitive bid, selected pursuant to G. L. c. 30B, for use as a wireless telecommunications facility. The Special Town Meeting article was accompanied by the 2005 Site Plan, as an exhibit. The Article provided that the transfer of the Proposed Site would become effective in the event the Town entered into a lease of at least ten years duration.

7. Following the Town Meeting vote, Mr. Danos prepared a Request for Proposal (RFP) under G. L. c. 30B, including a proposed lease agreement, with the 2005 Site Plan attached as “Exhibit A,” to indicate the approximate location of the Proposed Site. The lease agreement further provided that the lessee would have “the right to survey the property” after which the surveyed plan would become “Exhibit B” to the lease agreement, replacing the 2005 Site Plan.

8. Omnipoint was the sole bidder to the RFP process and entered into a lease agreement with the Town, with the 2005 Site Plan attached. In accordance with the lease terms, Omnipoint then prepared a survey plan, depicting more accurately the exact site of the Proposed Site, with the Facility shown within it. The more detailed plan was submitted by Omnipoint together with its applications for the Setback Variance and the Special Permit.

9. Prior to filing its applications for permitting at the Proposed Site, Omnipoint had identified a parcel of land located at 169 King Street (Route 2A) in Littleton (King Street Site) as a potential site which also would address the coverage gap within Littleton. In November of 2005, Omnipoint filed an application for a use variance to construct the Facility at the King Street Site, followed by an application for a special permit filed in January of 2006. By decision dated June 1, 2006, the Zoning Board denied Omnipoint’s application for a use variance for the King Street Site and by decision dated June 20, 2006, the Planning Board denied the application for a special permit for the King Street Site.

10. Omnipoint challenged both denials by filing an action in the United States District Court for the District of Massachusetts alleging that the boards’ denials for the King Street Site violated the Federal Telecommunications Act of 1996. [Note 1] Omnipoint also filed an action with the Land Court, see 06 MISC 325883 (CWT), challenging the denial of the special permit. [Note 2] Both cases were stayed as Omnipoint and the Town proceeded to determine whether the Proposed Site could be made available for the Facility.

11. The Bylaw requires a special permit for the construction of wireless facilities. Among the requirements for the special permit are the following:

a. Section 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.”

b. Section 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.”

c. Section 173-131(B)(11) provides that the “tower shall minimize, to the extent feasible, adverse visual effect on the environment. The Planning Board may impose reasonable conditions to ensure this result, including painting, lighting standards and screening.”

d. Section 173-7(C) provides that “Special permits shall only be granted if it appears to the special permit granting authority that no significant nuisance, hazard or congestion will be created and that there will be no substantial harm to the neighborhood or derogation from the intent of this chapter.”

12. On August 6, 2008, Omnipoint filed an application for a variance from Section 173-131(B)(5) to allow the Tower to exceed 100 feet in height, and on October 28, 2008, it applied for the Setback Variance from Section 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.

13. On November 20, 2008, after a duly-noticed public hearing, the Zoning Board voted to approve both variance applications. Two separate written decisions were filed with the Town Clerk on December 8, 2008. [Note 3]

14. The Setback Variance allows the Tower to be built 230 feet from Plaintiffs’ Property, a variance of seventy feet from the provisions of Section 173-131(B)(4) of the Bylaw.

15. On August 6, 2008, Omnipoint filed an application with the Planning Board for a special permit to construct the Facility (Special Permit). On February 9, 2009, after several sessions of a duly-noticed public hearing, the Planning Board approved the Special Permit. In the Special Permit decision, the Planning Board made a finding that the Facility did not comply with the Section 173-131(B)(4) set-back requirement, but made a further finding that Omnipoint had obtained a variance from that requirement. The Planning Board also reduced the height of the tower to 100 feet, obviating the need for a height variance.

16. The Special Permit was subject to twenty-one conditions, intended to minimize the adverse visual effects of the Facility. These conditions include: (1) that the Tower will not exceed 100’, except for the finial; (2) the monopole will be brown-grey in color at tree height to match trees in the area and light blue above the canopy level; (3) that the equipment within the fenced compound will be painted brown-grey; (4) the footprint of the fenced area will be reduced to keep it as far away as possible from residential properties; (5) grey-green slats will be installed in the chain link fence so that no equipment will be visible through the fencing; (6) trees of at least six to eight feet tall will be planted along the sides of the fence, 4 feet on center; (7) no signs are permitted at the site except for announcement signs, no trespassing signs, and an emergency contact sign; and (8) no lights will be placed on the Tower or at the site.)

17. The Proposed Site is in a wooded area of the cemetery. Access to it is over the cemetery property, on a primarily gravel way approximately 100 feet long. The Proposed Site is located at a ground elevation which affords the tower and antennae a “good line of sight” to the area that currently has a gap in coverage.

18. There are many large trees and brush, as well as a three foot high stone wall between Plaintiffs’ Property and the Proposed Site, which partially obstruct Plaintiffs’ view of the Facility. The trees on Plaintiffs’ Property range from 40 to 100 feet in height. Plaintiffs will be unable to view the top of the Tower from their residence.

* * * * * *

At the conclusion of Plaintiffs’ case-in-chief, Omnipoint submitted a motion to dismiss pursuant to Mass. R. Civ. P. 41(b)(2). In its motion, Omnipoint argues that Plaintiffs’ complaint should be dismissed because Plaintiffs do not have standing to maintain this action as they have not articulated any harm that would be caused by the Facility’s location seventy feet closer to Plaintiffs’ Property than it would have been located without the benefit of the Setback Variance. Plaintiffs argue that the Bylaw defines “view” as a protected zoning interest and assert that the Setback Variance decision should be overturned because the Zoning Board failed to consider the impact on Plaintiffs’ view. With respect to the Special Permit decision, Plaintiffs essentially argue that, in addition to the impact on their view, because the Special Permit specifically relies on the Setback Variance, the Special Permit must also be annulled.

In an action tried without a jury, after a plaintiff has presented its evidence, the defendant “may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” Mass. R. Civ. P. 41(b)(2). In considering a motion brought under Rule 41(b)(2), the court is not limited to the standard of proof required for a directed verdict. Delano Growers’ Cooperative Winery v. Supreme Wine Co., 393 Mass. 666 , 676 (1985). Rather the court is “entitled to weigh the evidence and resolve all questions of credibility, ambiguity, and contradiction in reaching a decision.” Id. (internal quotation omitted).

Plaintiffs’ Property abuts the Proposed Site and, as such, Plaintiffs are considered parties-in-interest as defined by G. L. c. 40A, § 11, and are entitled to a presumption of standing. Prior to the start of trial, the parties stipulated that Omnipoint had successfully rebutted Plaintiffs’ presumption of standing by providing to Plaintiffs a report prepared by a real estate appraiser asserting that the Facility would not diminish the value of Plaintiffs’ Property. Consequently, Plaintiffs had the burden at trial to submit evidence sufficient to prove their standing to maintain this action.

“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).

Generally, under G. L. c. 40A, § 17, “concerns about visual impact of a structure, do not suffice to confer standing.” Martin v. Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. App. Ct. 141 , 146-47 (2001); Barvenick, 33 Mass. App. Ct. at 133. Therefore, in order to derive standing from an adverse impact on view, the Bylaw must define view as a protected interest. See Martin, 434 Mass at 146-47; Monks v. Zoning Board of Appeal of Plymouth, 37 Mass. App. Ct. 685 , 689 (1994). As a preliminary matter, this court finds that the Bylaw does define view as a protected interest. Plaintiffs point to the language in the Bylaw which states, “the tower shall minimize, to the extent feasible, adverse visual effect on the environment. The Planning Board may impose reasonable conditions to ensure this result, including painting, lighting standards and screening. . . .” This court finds that the specific mention of minimizing visual impact is sufficient to allow view to serve as a basis for Plaintiffs’ standing. Given that Plaintiffs are residential abutters and that standing is to be construed broadly, this court finds that Plaintiffs have established their standing. Accordingly, Omnipoint’s motion to dismiss pursuant to Mass. R. Civ. P. 41(b)(2) hereby is DENIED.

Having found that Plaintiffs have standing to pursue the instant action, this court turns now to the merits of Plaintiffs’ claims. In accordance with the requirements of G. L. c. 40A, § 17, this court has conducted a trial de novo and made independent findings of fact without limiting itself to evidence introduced at the public hearings before the boards or affording evidentiary weight to the boards’ findings of fact. Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 114 (1985). This court may only disturb the boards’ decisiosn if they are “based on a legally untenable ground, or [are] unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-16 (1976); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-59 (1954). Plaintiffs assert that the Setback Variance must be overturned because Omnipoint has not met the statutory requirements for a variance.

To be entitled to a variance, Omnipoint must show that “owing to the conditions, shape, or topography of the [Proposed Site] and especially affecting the [Proposed Site] but not affecting generally the zoning district in which it is located, a literal enforcement of [the setback requirement] would involve substantial hardship, financial or otherwise, to [Omnipoint], and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of [the Bylaw].” G. L. c. 40A, § 10. Alternatively, Omnipoint could prove entitlement to the variance by showing that a denial would have had the effect of prohibiting the provision of wireless services in the Town in violation of the Telecommunications Act.

Omnipoint has argued that the unique nature of the Proposed Site is caused by a combination of the Telecommunications Act and the existing topography of the Proposed Site. It is undisputed that a coverage gap had been identified for Littleton, however Plaintiffs have argued that the Proposed Site was not properly marked on the ground and, as such, is not the site that was identified by the Commissioners and approved by Special Town Meeting. This court disagrees and finds that the Proposed Site was the site identified by the Commissioners and was, at the time of Omnipoint’s applications, the only site available. [Note 4] No other cemetery site was available to Omnipoint at the time the boards rendered their decisions. As noted by this court in the order on Omnipoint’s motion in limine, the Proposed Site was owned by the Town and controlled by the Commissioners, a governmental body as defined by G. L. c. 30B, § 1. Therefore, the process to make the cemetery parcel available for lease was lengthy and complex.. To make any other cemetery site available, this same process would have to begin anew.

Plaintiffs next assert that the Tower could be moved within the Proposed Site to a location at least 300 feet from Plaintiffs’ Property. Omnipoint has argued that moving the Tower would have been impossible due to (1) the topography of the Proposed Site and (2) the necessary placement of the Tower to ensure that the coverage gap would be eliminated. This court finds that Omnipoint has failed to carry its burden on this score. In order to justify its entitlement to the Setback Variance, Omnipoint needed to demonstrate that the Tower could not be moved 30’ further from Plaintiffs’ Property in any direction. Omnipoint could have supported this assertion by showing either that the topography of the Proposed Site made it impossible to move the Tower from its proposed location or that moving the Tower 30’ in any direction would have failed to correct the coverage gap. This court finds that neither of these assertions is supported by the trial record. Consequently, this court cannot find that “a literal enforcement of [the setback requirement] would involve substantial hardship, financial or otherwise, to [Omnipoint]” as is required by G. L. c. 40A, § 10. Therefore, the Zoning Board’s grant of the Setback Variance was in excess of its authority and must be annulled.

Plaintiffs finally argue that the Special Permit must be annulled as both the Tower and the Facility will be visible from Plaintiffs’ Property and, further argue that because the Special Permit specifically relies on the Setback Variance, it must be annulled. While the language in Section 173-131(B)(11) of the Bylaw is sufficient to establish view as a basis for standing, the language allows the board to grant a special permit where it decides that an applicant has minimized the adverse visual effect “to the extent feasible.”

This court finds that the conditions imposed by the Planning Board will sufficiently minimize the adverse visual impact of the Facility. In addition to painting the fencing, the Special Permit imposed several significant conditions on Omnipoint to ensure that the visual impact of the Facility was minimized in every possible way. [Note 5] This court finds that the conditions imposed on Omnipoint by the Planning Board are sufficient to comply with Section 173-131(B)(11) of the Bylaw by minimizing “to the extent feasible, adverse visual effect on the environment. . . .”

However, the Planning Board specifically relied on the issuance of the Setback Variance in its grant of the Special Permit. Absent the Setback Variance, Omnipoint cannot comply with Section 173-131(B)(4) of the Bylaw, which provides that “[t]he base of all towers shall be no closer than three hundred (300) feet to a dwelling in a residential district.” Therefore, as this court has annulled the Zoning Board’s issuance of the Setback Variance, this court now finds and rules that the grant of the Special Permit was in excess of the Planning Board’s authority and must be annulled.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: September 29, 2010