MILTON LEGION POST NO. 114 and MILTON LEGION POST NO. 114 BUILDING CORPORATION v. EMANUEL ALVES, SARA HARNISH and VIRGINIA DONAHUE KING, as they constitute the Board of Appeals of the Town of Milton, and SBA TOWERS, LLC

INTRODUCTION

In this case, Plaintiffs Milton Legion Post No. 114 Building Corporation and Milton Legion Post No. 114 (collectively, “Milton Legion” or the “Plaintiff”) appeal from the April 8, 2010 decision of the Milton Board of Appeals (the “Board”) purporting to renew a special permit for a telecommunication facility originally issued in 2003 to Milton Legion and Tower Ventures II, LLC. Milton Legion seeks to have the Board’s 2010 decision invalidated on the grounds that the Board lacked authority under the Milton Zoning By-laws to renew a special permit, where the application for renewal was not filed until after the original special permit had already expired.

On October 5, 2010, Milton Legion filed a Motion for Summary Judgment and For Costs Pursuant to G.L. c. 40A, § 17. In its summary judgment motion, the Plaintiff contends that the Board had no authority to renew a special permit which had expired nine months before the application for renewal was filed. The Plaintiff further argues that the successor in interest to Tower Ventures II, LLC, Defendant SBA Towers, LLC (“SBA”), lacked standing to seek renewal because it did not have a “right to possession and/or control of the premises” as required by the Zoning By-laws. Finally, the Plaintiff seeks an award of its costs and attorneys fees on the grounds that the Board and SBA acted negligently and in bad faith by persisting in the renewal application process well after Milton Legion had raised the untimeliness issue.

SBA and the Board each filed an Opposition and Cross-motion for Summary Judgment. In its Opposition and Cross-motion, SBA contends that the enactment of the so-called Permit Extension Act, St. 240, c. 173, on August 5, 2010 (the “Special Act”) renders moot the question of whether the Board had authority to renew the 2003 special permit, since the 2010 legislation retroactively extended that special permit for an additional two years beyond the original expiration date. SBA argues that, by reason of the legislative extension, the original special permit must be treated as having still been in effect when SBA applied to the Board for a renewal. SBA further contends that its standing to seek the renewal is based on its leasehold interests in the subject premises. Finally, SBA argues that there is no evidence that either Defendant acted in bad faith, with malice or with gross negligence.

The Board, in its Opposition and Cross-Motion, likewise contends that SBA had sufficient standing to seek renewal of the original special permit, and that there is no evidence to support Milton Legion’s allegations that the Board acted in bad faith, with malice, or with gross negligence in granting SBA’s request for renewal. Although the Board does not argue that the 2003 special permit was still in effect when SBA applied for renewal, the Board does argue that its decision to renew the special permit was within its authority under the Zoning By-laws, notwithstanding SBA’s post-expiration application for renewal.

The Plaintiff filed a Motion to Strike all references to the Special Act, and all references to the lease between the Plaintiff and SBA. The Plaintiff’s reasoning for said Motion is that neither the Act nor the lease was a matter before the Board when it issued its decision on April 8, 2010. In opposing the Motion to Strike, the Defendants assert that both matters are properly before the Court because its review of the Board’s special permit decision is de novo.

A hearing on the parties’ cross motions was conducted on February 16, 2011. For the reasons explained more fully below, I find that the Plaintiff is entitled to Summary Judgment in its favor, annulling the April 8, 2010 decision as in excess of the Board’s authority. Although the Special Act ultimately had the effect of reinstating and extending the 2003 special permit, that Act was not in effect on the date of SBA’s renewal application or on the date of the Board’s decision. I further find that the Defendants are entitled to summary judgment in their favor, however, dismissing the Plaintiff’s claims for fees and costs under G.L. c. 40A, § 17. UNDISPUTED MATERIAL FACTS

The following material facts in this case are undisputed:

1. Milton Legion owns the property at 123 Granite Avenue in Milton, Massachusetts (the “Property”).

2. On February 27, 2003, “American Legion Post 114 of Milton, Massachusetts” executed a lease with Tower Ventures II, LLC, to allow a telecommunications tower to be located on 3600 square feet of the Property. The Property is described in Exhibit A-1 to the lease, and the leased portion is described in Exhibit A to the lease.

3. On December 23, 2003, the Board issued a Special Permit to Milton Legion and Tower Ventures II, LLC, pursuant to Section III.G of the Zoning By-laws, authorizing the construction, installation, and use of a wireless telecommunications facility on the leased portion of the Property (the “2003 Special Permit”).

4. The 2003 Special Permit provided, in relevant part, that pursuant to the terms of Section III.G of the Zoning By-laws, “this Special Permit shall expire automatically upon the expiration of five (5) years from the date of its issuance.” (Emphasis added.)

5. Section III.G.4(f), of the Zoning By-laws, entitled “Duration of Special Permit,” states in relevant part, that

[u]nless an earlier expiration date is specified by the Board in a special permit, all special permits issued under this bylaw shall expire automatically upon the expiration of five years from the date of issuance. Prior to expiration the applicant may apply for renewal of the special permit for another five–year period, said application to comply with all the provisions of Section 3 and 4 of this bylaw.

6. SBA is the successor in interest to Tower Ventures II, LLC.

7. On September 29, 2009, SBA filed an application with the Board for renewal of the 2003 Special Permit. Said application listed Milton Legion Post No. 114 as the applicant and owner of the Property.

8. A public hearing on the September 29, 2009 application opened on October 14, 2009, and was continued to November 4, 2009. At the November 4, 2009 hearing, Milton Legion argued that the 2003 Special Permit could not be extended or renewed after its automatic expiration on December 23, 2008, and urged the Board to deny SBA’s application.

9. In December 2009, the Legion served a document on SBA, dated December 2, 2009, entitled “Notice of Termination of Lease.”

10. On December 17, 2009, SBA submitted a second application for renewal of the 2003 Special Permit, in which only SBA was listed as applicant. The Board considered both applications together.

11. By decision dated April 8, 2010, the Board allowed SBA’s application to renew the 2003 Special Permit (the “Decision”). Said Decision recites, in relevant part, that

[t]he Board notes that SBA did not file for a renewal of the December 23, 2003 Special Permit before it expired. However, it is the sense of the Board that this procedural failing should not be deemed fatal to SBA’s renewal request, in light of the substantial public interest at issue… and that the requested relief may be properly granted without derogating from the intent or purpose of the By-laws.

12. Section 173 of Chapter 240 of the Acts of 2010, the so-called Permit Extension Act, was approved on August 5, 2010 (the “Special Act”). Said Act applies to “… any permit … from any municipal … entity … concerning the use … of real property … made under … any local by-law or ordinance.” Under the Special Act, an approval of a permit in effect during the tolling period of August 15, 2008 through August 15, 2010 is retroactively extended for an additional two years beyond its original lawful term. The Special Act was not enacted until nearly four months after the Decision.

DISCUSSION

Summary judgment is appropriate when there are no genuine issues of material fact, and judgment may be entered as a matter of law. Mass. R. Civ. P. 56(c); Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). On the undisputed facts in this case, Milton Legion is entitled to summary judgment, as a matter of law, annulling the Decision as being in excess of the Board’s authority. Although considerable deference is ordinarily owed to local boards making special permit decisions, a special permit decision based on an erroneous interpretation or application of law is legally untenable and cannot stand. See e.g., Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726 , 736-737 (2007) (board’s decision annulled where based on misapplication of nonconforming lot provisions of local by-law); Dwyer v. Zoning Bd. of Appeals of Walpole, 73 Mass. App. Ct. 292 , 298 (2008) (no legal justification for special permit where based on relief unavailable under the zoning by-law).

Here, it is undisputed that, under the express provisions of Section III.G.4(f) of the Zoning By-laws, and under the express terms of the 2003 Special Permit, said Permit was to expire automatically five years from the date of its issuance unless application was made for renewal prior to the automatic expiration date. It is undisputed, as well, that no application for renewal of the 2003 Special Permit was made prior to expiration of its original five year term on December 23, 2008. Indeed, no application for renewal was made until nine months later. Notwithstanding SBA’s belated application for renewal, the Board granted a conditional renewal of the 2003 Special Permit for an additional five year period. In doing so, the Board found that SBA’s failure to request renewal before the 2003 Special Permit expired “should not be deemed fatal to SBA’s request, in light of the substantial public interest at issue….” The Decision recited a further finding that “there are no structures or technology that would allow for the continued provision of functionally equivalent wireless service in a less intrusive manner.”

Neither the Zoning By-laws nor the terms of the 2003 Special Permit, however, allows the Board to waive the Section III.G.4(f) five year automatic expiration date, upon findings of substantial public interest or upon any other finding. Compare Woods v. City of Newton, 351 Mass. 98 , 103 (1966) (zoning ordinance expressly authorized extension of time for exercising rights under special permit after the expiration thereof). I therefore find that the Decision is based on a legally untenable ground, and is consequently invalid as a matter of law. Once the 2003 Special Permit was allowed to expire without prior application for renewal, it was no longer in effect and could not lawfully be extended. Cf. Cornell v. Bd. of Appeals of Dracut, 453 Mass. 888 , 891-892 (2009) (variance lapsed under G.L. c. 40A, § 10, as a matter of law, due to landowner’s failure to either exercise it within one year of its grant or seek an extension prior to the expiration of the one year period as required under the statute). Having made the determination that the Decision is invalid, there is no need to adjudicate the Plaintiff’s claim that SBA lacked standing to seek renewal of the 2003 Special Permit. [Note 1]

In making the determination that the Decision is invalid, I reject SBA’s argument that the timing of SBA’s request for an extension is made moot by the subsequent enactment of the Special Act. While the Special Act resulted in reinstating and extending the 2003 Special Permit for a further two years beyond its original expiration date, i.e., until December 23, 2010, the legislation was not approved until several months after the Decision. The Board did not find that the 2003 Special Permit had not expired. Instead, it improperly concluded that the expiration was not fatal to the renewal request. The retroactivity of the Special Act does not in itself cure a decision made on legally incorrect grounds at the time it was made. Nevertheless, I note that, as a result of the Special Act, SBA did receive the benefit of a two year extension of the 2003 Special Permit, notwithstanding the invalidity of the Decision. The two-year extension expired on December 23, 2010, while this action was still pending and prior to the motion for summary judgment. [Note 2]

Although the Plaintiff is entitled to summary judgment annulling the invalid Decision, it is not entitled to an award of costs and attorneys fees. Chapter 40A, § 17 provides, in relevant part that

Costs shall not be allowed against the board or special permit granting authority unless it shall appear to the court that the board … in making the decision appealed from acted with gross negligence, in bad faith or with malice.

Here, the Plaintiff failed to meet its burden of proof as moving party to demonstrate the undisputed material facts entitling it to judgment on this issue as a matter of law. Mere bald assertions that the Board deliberately ignored Milton Legions’ arguments and granted SBA’s application for renewal in contravention of law are insufficient to establish that either the Board’s actions or SBA’s actions were taken in bad faith, or with gross negligence or malice. Absent evidence of improper motives, the fact that a zoning decision is based upon a legally untenable basis is not grounds for a finding of bad faith, gross negligence or malice under Chapter 40A, § 17. See e.g., Young v. Planning Bd. of Chilmark, 402 Mass. 841 , 847 (1988) (improper basis for board decision is not the equivalent of action taken in bad faith); MacGibbon v. Bd. of Appeals of Duxbury, 369 Mass. 512 , 520 (1976) (reversal of board decision as based on legally untenable grounds, does not necessitate finding that the board “acted with gross negligence, in bad faith or with malice.”); see also LaPointe v. License Bd. of Worcester, 389 Mass. 454 , 459 (1983) (“There is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare.”). Accordingly, the Defendants are entitled to entry of summary judgment dismissing the Plaintiff’s claims for costs and fees under G.L. c. 40A, § 17. See Mass. R. Civ. P. 56(c) (“Summary judgment, when appropriate, may be rendered against the moving party.”)

Judgment to enter accordingly.

Judith C. Cutler, Justice

Dated: 6 June 2011