This is an action brought pursuant to G.L. c.240, §14A and G.L. c.40A, §17. The plaintiffs, John J. Clorite and John J. Clorite, Jr. ("the Clorites"), applied for a building permit to construct a steel communications tower to support a two-way radio system antenna and an ancillary building to house associated transmitting equipment (hereinafter "the communications tower"). The Building Inspector of the City of Fall River issued the Clorites a building permit for the communications tower, but subsequently revoked the building permit and ordered the plaintiffs to cease and desist from any further construction on the communications tower. The Clorites appealed that decision to the Board of Appeals of the City of Fall River ("the Board"). The Board denied the appeal and upheld the Building Inspector's revocation of the Clorites' building permit. The plaintiffs then appealed to this Court.
The plaintiffs filed a motion for summary judgment and the motion was argued by counsel. After reviewing all matters entitled to consideration on a motion for summary judgment, I rule that the following material facts are not in dispute and that consequently, the case is appropriate for summary judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976):
1. The plaintiffs, John J. Clorite and John J. Clorite, Jr., are the owners as tenants in common of a parcel of land ("the locus") located on President Avenue in Fall River. The locus is situated in a Local Business District under the Fall River Zoning Ordinance. The locus is developed as a shopping center and is operated by the Clorites under the name of Clorite & Clorite.
2. The plaintiff, New York Cellular Graphic Service Area, Inc. (hereinafter "NYNEX"), is a subsidiary of NYNEX Mobile Communications Company and is in the business of providing cellular telephone service to the public. NYNEX is one of two companies which are licensed by the Federal Communications Commission to provide cellular telephone service in Bristol County, Massachusetts.
3. NYNEX provides cellular telephone service by transmitting electromagnetic signals to and from a network of "cell sites"
located at various locations throughout its service area, which consists of eastern Massachusetts, Rhode Island and a portion of southern New Hampshire. Each cell site consists of an antenna, typically located on top of a steel tower, together with radio transmitting equipment, power equipment and a computer processor. Each cell site services the mobile telephones that are located within its immediate area (a radius of approximately 7 miles) by transmitting and receiving electromagnetic signals to and from these mobile phones. Those signals are then transmitted to (or received from) other cell sites and ultimately to (or from) a central switching location that provides an interconnection to the telephone network by microwave signals. Each cell site is fully automated and, except for periodic maintenance and inspections, does not require any person to be present at the site.
4. NYNEX entered into a lease agreement with Clorite & Clorite dated August 21, 1989, pursuant to which NYNEX agreed to lease a portion of the locus to erect and use a cellular telephone tower and associated equipment.
5. On September 26, 1989, the Clorites applied to the City of Fall River for a building permit to construct a steel communications tower to support a two-way radio system antenna and an ancillary building to house associated transmitting equipment. The proposed communications tower was to be erected on a portion of the locus known as the rear of 1658 President Avenue and was to be used by NYNEX to provide cellular telephone service to the public.
6. On September 26, 1989, the Building Inspector issued building permit No. 896 to the Clorites for the construction of the communications tower. Following the issuance of building permit No. 896, construction of the communications tower was commenced.
7. On October 25, 1989, the Building Inspector issued an order revoking building permit No. 896 and ordering the plaintiffs to cease and desist from any further construction of the communications tower. [Note 1] The reason given for the revocation of the
building permit was that the communications tower was not an allowed use in a Local Business District.
8. On November 22, 1989, the plaintiffs appealed to the Board from the order of the Building Inspector revoking building permit No. 896 and ordering the plaintiffs to cease and desist from further construction. The Board held a hearing on the plaintiffs' appeal on January 9, 1990.
9. In a decision dated January 23, 1990 and filed with the City Clerk, the Board denied the plaintiffs' appeal and upheld the order of the Building Inspector. The Board found that the proposed communications tower was not a permitted use in a Local Business District under section 21-126 of the Fall River Zoning Ordinance ("Section 21-126"), which provides:
(a) In a local business district no building or structure or part thereof shall be constructed, altered, enlarged, reconstructed or used, and no premises shall be used for any purpose except one (1) or more of the following specified uses:
(5) Service establishment providing service to the general public, including but not limited to the place of business of a barber, decorator, dressmaker, druggist, florist, hairdresser, optician, shoe repairer, tailor, telephone exchange, upholsterer, or fix-it shop.
In its decision, the Board stated that "the tower is a tower and not a service establishment providing service to the general public."
10. On Jauary 26, 1990, the plaintiffs filed the present action in this Court.
The plaintiffs make much of the fact that the Board, in upholding the revocation of the plaintiffs' building permit, concluded that "a tower is a tower" and that "a tower is not a permitted use in a Local Business District". The plaintiffs maintain that the Board impermissibly upheld the revocation of their building permit because it determined the tower to be an impermissible structure. However, it is not whether a tower is a permitted structure in the Local Business District which is relevant, but whether the use to which the tower is put is a permitted use within Section 21-126.
Therefore, the issue before this Court is whether the communications tower which the plaintiffs seek to build will be put to a use which is permitted under Section 21-126. The plaintiffs contend that their proposed use of the communications tower is permitted in a Local Business District by section 21-126 because the tower is both a "service establishment providing service to the general public" and a "telephone exchange." Consequently, this case rests on the interpretation of the phrases "service
establishment providing service to the general public" and "telephone exchange", neither phrase being specifically defined in the City's by-law. [Note 2]
If a zoning by-law does not provide an express definition of a word or phrase used in the by-law, the meaning of the word or phrase used is to be determined by the ordinary principles of statutory construction. Framingham Clinic. Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283 , 290 (1981). The Court must interpret the words used in a zoning by-law using the "common and approved usages of the language...without enlargement or restriction." Commonwealth v. S. S. Kresge Co., 267 Mass. 145 , 148 (1929). The common and approved meaning of words are to be derived from "sources presumably known to the [by-law's] enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977).
Section 21-126 lists (in pertinent part) as a permitted use a "service establishment providing service to the general public, including but not limited to the place of business of a...telephone exchange." Because a "telephone exchange" is one of the enumerated types of service establishments permitted in a Local Business District, the meaning given the phrase "telephone exchange" must be consistent with the meaning of the phrase "service establishment providing service to the general public" as used in Section 21-126. Accordingly, the meaning of the latter phrase must first be determined.
Massachusetts case law provides some help in determining what constitutes an "establishment". In Town of Foxborough v. Bay State Harness Horse Racing and Breeding Ass'n. Inc., 5 Mass. App. Ct. 613 , 617 (1977), the Massachusetts Court of Appeals held that "establishment" means a distinct physical place of business, citing with approval the definitions contained in Webster's Third New International Dictionary 778 (1971) ("a more or less fixed and usually sizeable place of business...together with all the things that are an essential part of it [as grounds, furniture, fixtures...].") and in Black's Law Dictionary (rev. 4th ed. 1968) ("place of business and fixtures"). In Ford Motor Co. v. Director of the Division of Employment Security, 326 Mass. 757 , 762 (1951), the Massachusetts Supreme Judicial Court also determined that the word "establishment" meant a distinct physical place of business and stated:
We think that 'establishment' is meant to embrace premises, not aptly described as a factory, where labor is performed - and without attempting to name them all - such as stores, banks, theatres and other places of amusement, laundries, garages, hotels, restaurants, office buildings, shipyards, newspaper and printing offices, insurance buildings, express and transportation buildings, repair shops, telephone and telegraph offices, and barber and hairdressing shops.
The Supreme Judicial Court's definition of an establishment in Ford Motor Co. v. Director of the Division of Employment Security as a place where labor is performed implies the necessity of a human presence in the establishment to perform the labor because the types of establishments listed in that case are all places where people are an integral part of the work performed. In addition, the phrase "service establishment" is defined in Black's Law Dictionary 1228 (5th ed. 1979) as "an establishment the principal activity of which is to furnish to the consuming public, and includes barber shops, beauty shops, shoe shining parlors, clothes pressing clubs, laundries and automobile repair shops." The types of service establishments which are listed a permitted uses in Section 21-126 are similarly places of business where people are necessary to render the service being offered by the
establishment. Therefore, these definitions and the context of the language as used in Section 21-126 lead towards the conclusion
that, at least within the purview of Section 21-126, a service establishment is a place where labor is performed and I so rule.
The plaintiffs contend that their proposed communications tower is a permitted use under Section 21-126, even if the court finds that the tower is not a service establishment, because the section lists the place of business of a "telephone exchange" as a specified use. The plaintiffs maintain that a telephone exchange is merely a piece of switching equipment which does not require any human interaction and that the proposed tower is the functional equivalent of a telephone exchange, similarly not requiring any human interaction. Therefore, their argument continues, the proposed communications tower is specifically permitted by the language of Section 21-126.
This assertion is belied by both the ordinary dictionary meaning of the phrase "telephone exchange" and its use within the context of Section 21-126. Webster's Third New International Dictionary 2350 (1968) defines "telephone exchange" as "a central office in which the wires of telephones may be connected to permit conversation." The use of the word office in this definition implies a place of human interaction. In addition, a telephone exchange is included in Section 21-126 as a type of service establishment permitted in a Local Business District and not as a category of permitted use apart from a service establishment.
Therefore, the phrase "telephone exchange" within the context of Section 21-126 means a type of service establishment where people perform labor as part of the service rendered.
The plaintiffs also maintain that because NYNEX is in the business of providing a service to the public through the use of
electronic equipment, its place of business does not require the presence of human beings. Even if it could be said that in some
cases that a place of business need not require a human presence, the language of Section 21-126 clearly contemplates the types of places of business which do require human services. Counsel for the defendant advanced the notion that if a free standing communications tower such as the plaintiffs seek to construct is a service establishment providing service to the general public, then it can be cogently argued that every telephone pole or electric light pole in the City would also be a service establishment providing service to the general public. I do not think that even the plaintiffs would espouse this view. While it may be true that the plaintiffs' proposed communications tower will provide a benefit to the general public, it cannot be rightly said that a communications tower which transmits electromagnetic signals is performing labor. I therefore rule that the plaintiffs' proposed communications tower is not a service establishment within the meaning of the phrase as used in Section 21-126, nor is it a telephone exchange as used in Section 21-126, and therefore said tower is not a permitted use in a Local Business District in the City of Fall River. Consequently, I rule that the plaintiffs' motion for summary judgment is hereby denied and that summary judgment is to be granted in favor of the defendants.
Judgment accordingly.
that, in the past, other communications towers have been erected throughout the City in other zoning districts. The existing towers
have been erected under varying circumstances: some towers have been erected without variances first being obtained (including two towers which are in zoning districts which were unrestricted at the time the tower was constructed) and at least one tower was erected for which a variance had been obtained. In addition, some of the towers are located on top of, or adjacent to, buildings. Others are free standing. The existence of these towers, however, does not raise any issues of material fact because I conclude that the language of Section 21-126 is unambiguous and therefore, the interpretation of the language in that section is a question of law for the Court to decide under ordinary principles of statutory construction.
JOHN J. CLORITE and JOHN J. CLORITE, JR., d/b/a CLORITE & CLORITE, and NEW YORK CELLULAR GEOGRAPHIC SERVICE AREA, INC. vs. RAYMOND B. ARRUDA, ROBERT P. ALVES, VICTOR J. ST. DENIS, GREGORY A. BRILHANTE, MERCIAS RAPOSA and JAMES TAVARES as they are members of the Board of Appeals of the City of Fall River and the CITY OF FALL RIVER.