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 (the 2003 Special Permit). Milton Legion seeks to have the Boards 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 2003 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 2003 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 Legions allegations that the Board acted in bad faith, with malice, or with gross negligence in granting SBAs 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 SBAs post-expiration application for renewal.
A hearing on the parties cross motions was conducted on February 16, 2011. For the reasons stated in the Decision issued by the Court (Cutler, J.) on June 6, 2011, the Plaintiff is entitled to Summary Judgment in its favor, annulling the Boards April 8, 2010 decision as in excess of the Boards 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 SBAs renewal application or on the date of the Boards decision. Further, the Defendants are entitled to summary judgment in their favor, however, dismissing the Plaintiffs claims for fees and costs under G.L. c. 40A, § 17.
SO ORDERED.
By the court (Cutler, J.)
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