HomeMy WebLinkAbout2011-08-02 Planning Board Supplemental Materials (22) URBELIS &FIELDSTEEL,LLP
155 FEDERAL STREET
BOSTON,MASSACHUSETTS 02110-1727
THo\IASJ.URBELIS Telephone 978-475-4552
e-mail tju@uf-law.com - Telephone 617-338-2200
Telecopier 617-338-0122
July 29, 2011
North Andover Planning Board
Town of North Andover
1600 Osgood Street
North Andover, MA 01845
RE: DAVID P.KEATING, ET AL. V.NORTH ANDOVER PLANNING BOARD
CIVIL ACTION No. 10-998B
Dear Members:
Enclosed please find a copy of the Court's Memorandum of Decision and Order on
Defendants' Motions for Summary Judgment.
With regard to the Economic Development Reorganization Act this decision is
inconsistent with the Superior Court decision (Judge Murtaugh) in Tryder v. New Cin tg lar
Wireless in which the Court dismissed the complaint.
Please call if you have any questions.
Very truly yours,
Tho ?bAclijs
TJU/saf
Enclosure
cc: Board of Selectmen (w/enc.)
w.\np51\norA\n-andore&eainglplannirg bovdhrda
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 10-00948-B
DAVID P. IDEATING & others' .
VS.
T-MOBILE NORTHEAST,LLC& others'
r
MEMORANDUM OF DECISION AND ORDER ON DEFL''NDANTS' MOTIONS FOR
SUMMARY JUDGMENT
Plaintiffs,David Keating,Karen Lauro,and Michael Dyer(collectively,"the plaintiffs"),filed
this action pursuant to G. L. c. 40A, § 17 against the defendants, T-Mobile Northeast, LLC ("T- .
Mobile"), and North Andover Planning Board ("Planning Board"), seeking judicial review.of the
Planning Board's decision to approve T-Mobile's Application for Renewal of Special Permit
("Application for Renewal") to operate a wireless service facility originally issued to T-Mobile's .
predecessor in interest Omnipoint Communications hic.("Omnipoint")in July 2006.Plaintiffs allege
the Planning Board lacked,authority to renew T-Mobile's special permit because the Application for
Renewal was not submitted before the special permit expired.Before the Court is T-Mobile's motion
for summary judgment and the Planning Board's motion for summary judgment.For-the following
reasons,T-Mobile Northeast,LLC's motion for summary judgment is DENIED and North Andover
Planning Board's motion for summary judgment is also DENIED. Tt.is fiuther.ORDERFD that .
North Andover Planning Board's approval of T-Mobile Northeast,LLC's Application for Renewal
'Karen Lauro and Michael Dyer
'John Simons,Richard Rowers,Timothy Siebert,Courtney LaVolpicelo,and Michael Colantoni in their
capacities as members of the North Andover Planning Board.
of Special Permit is VACATED.
ACKGRouND
The undisputed material facts as revealed by the summary judgment record are as follows.
On July 26,2006,T-Mobile's predecessor in interest, Omnipoint,received a special permit
allowing it to operate a wireless service facility at 586 Massachusetts Avenue, North Andover,
Massachusetts ("the Property").' The First Calvary Baptist Church is located on the property.
Pursuant to the terms ofthe special permit,Omnipoint was allowed to place three panel antennas in
the church's spire. The special permit issued to Omnipoint included the following language:
A Special Permit issued for any wireless service facility shall be valid for three(3)years.The
special permit may be renewed under the same criteria_as the original special .permit,
provided that the application for renewal of the special permit is made prior to the expiration
date of the original or any renewed special permit. Additional measures governing the
administration of the special permit are found in Section 10.3 of this Zoning Bylaw
(1998136).
The terms of a special permit for a wireless service facility are governed by section 8.9.12 of the
North Andover Zoning Bylaw, which provides in pertinent part:
A special Permit issued for any wireless service facility shall be valid for three(3)years.The
special permit may be renewed under the same criteria as the original special permit,
provided that the application for renewal of the special permit is made prior to the expiration
date of the original or any renewed special permit. Additional measures governing the
administration of the special permit are found in Section 10.3 of this Zoning Bylaw
(1998/36) (emphasis in original).
Neither Omnipoint nor T-Mobile submitted an application to renew the special permit prior
to its expiration on July 26, 2009. On January 28, 2010, T-Mobile submitted its Application for
Renewal. On March 2, 2010, April 6, 2010, and April 20, 2010 the Planning Board held public .
3In the Complaint the plaintiffs identify July 26,2006 as the date the Planning Board approved the special
permit.The Planning Board's Notice of Decision,however,provides that the special permit was approved on July
21,2006.This discrepancy does not effect the Court's decision.
2
hearings regarding T-Mobile's Application for Renewal. On April 20, 20I0, the Planning Board
unanimously approved T-Mobile's Application for Renewal.Statement of Material Facts par.29,On
April 21,2010, the Planning Board filed its Notice of Decision approving T-Mobile's Application
for Renewal. Statement of Material Facts par. 30. On May 10, 2010, the plaintiffs filed this
Complaint.
On August 5,2010,Section 173 of Chapter 240 ofthe Acts of 2010,entitled An Act Relative
i -to Economic Development Reorganization(the"Act"),was approved by the Legislature and enacted .
by Governor Patrick The Act applies to any permit issued by a municipal entity that"concern[s]the
use or development of real property . . . made under. . .any local by-law or ordinance." St. 2010,
c. 240, § 173(a). Pursuant to the Act, an approval of a permit in effect during the tolling
period—August 15,2008 through August 15,2010—"shall be extended for a period of 2 years, in
addition to the lawful tenor of the.approval." St. 2010, c.240, § 173(a)-(b)(1). . .
! AISCLISSIOIV
Summary judgment is appropriate where there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v.
Commissioner of Corr:, 390 Mass. 419, 422 (1983). The moving party bears the burden of
affirmatively demonstrating the absence of a triable issue and that the summary judgment record
entitles.it to judgment.as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17(1959). The
movingparty may satisfy this burden either by submitting affirmative evidence negating an essential
element of.the opposing party's case or by demonstrating that the opposing party has no reasonable
expectation ofproving anessential element of its case at trial.Flesner v.Technical Commc'ns Corp.,
410 Mass. 805, 809 (1.991). When deciding a motion for summary judgment, the court views the
3
evidence in the light most favorable to the nonmoving party, but does not weigh evidence,assess
credibility, or find facts. Attorne, Gen. v, a&e , 386 Mass, 367, 370-371 (1.982).
Plaintiffs contend that the Planning Board approved T-Mobile's Application for Renewal in
violation of both section 8.9.12 of the North Andover Zoning Bylaw and the terms of the special
permit because T-Mobile submitted its Application for Renewal six months after the special permit
expired. T-Mobile and the Planning Board argue that,because the Act extended the lawful term of
the permit until July 26, 2011, the special permit was still operative when the Planning Board
approved T-Mobile's Application for Renewal.'
According to the express terms of section 8.9.12 of the North Andover Zoning Bylaw and
the special permit, the special permit would automatically expire three years after it was issued
unless an application for renewal was submitted to the Planning Board prior to the expiration date.
When the special permit expired on July 26,2009, T-Mobile had not submitted its Application for
Renewal. In fact, T-Mobile did not file its Application for Renewal until January 28, 2010—six
months after the special permit expired. The Planning Board, however, approved T-Mobile's
Application for Renewal stating in part although T-Mobile filed the Application for Renewal after
the expiration of the special permit,it"has filed all of the necessary information for the issuance of
the special permit[.]"Notice of Decision(Attached to Complaint) par. 9. Neither the language of
'In support of its Application for Renewal,T-Mobile submitted a Town of North Andover Abutters Listing
("Abutters Listing')with respect to the property. Statement of Material Facts Ex.C.The Abutters Listing identifies
Karen Lauro of 591 Massachusetts Avenue,North Andover and Michael Dyer of 61 Cambridge Street,Lawrence, .
Massachusetts—the Complaint provides that Dyer resides at 12 Autran Avenue,North Andover—as abutters to the
property. Statement of Material Facts Ex.C.The Abutters Listing also identifies Laurie Keating of 23 Autran
Avenue,North Andover as an abutter to the property. Statement of Material Facts Ex.C.Although David Keating is
not identified as an abutter on.the Abutters Listing,he identifies his address in the Complaint as 23 Autran Avenue,
North Andover.As abutters to the property,the plaintiffs are presumed to"have standing[meaning they are
"person[s]aggrieved"within the meaning of G.L.c.40A,§ 17]until the defendant comes forward with evidence to
contradict that presumption f;]"Standerwick v.Zoning Bd.of Appeals of Andover,447 Mass.20,35(2006),which
the defendants have failed to do.
4
section 8.9.12 of the North Andover Zoning Bylaw nor the language of the special permit allow the
Planning Board to waive the automatic three year expiration date, Therefore, the Planning Board's
approval of T-Mobile's Application for Renewal was based on an error of law and is invalid as a
matter of law. See Milton Legion Post No. 114 v. Alves,2011 WL 2347631 at'r3-w4 (Mass. Land.
Ct., Cutler,J.) (Board of Appeals decision allowing an application to renew a special permit filed
after the special permit expired was invalid as a matter of law).
Furthermore, the Court finds untenable the defendants' argument that because the Act
retroactively extended the special permit's expiration date until July26,201 1, the specialpermit was
not expired when the PIanning Board approved T-Mobile's Application for Renewal on April 20,
2010. Because the Act was enacted on August 5,2010—three-and-a-half months after the Planning
•° Board issued its-decision—the Act retroactively extended T-Mobile's special permit for two years
beyond it original expiration date,i.e.,July 26,2011 rather than July 26,2009.At the time T-Mobile
submitted its Application for Renewal (January 28, 2010) and when the Planning Board actually
voted to approve T-Mobile's application(April 20, 2010), the special permit was expired because
the Act had not been passed.There simply is no way around the fact that when T-Mobile submitted
its Application for Renewal and when the Planning Board acted on T-Mobile's Application for
Renewal,the Act wasnotyet in effect and so the special permit's expiration date could nothave been
extended. See Milton Lection Post No. 114, 2011 WL 2347631 at *4 ("The retroactivity of the
Special Act [An Act Relative to Economic Development Reorganization) does not in itself cure a
decision made on legally incorrect grounds at the time it was made.").
5 .
ORDER
For the above-mentioned reasons,it is ORDERED that T-Mobile Northeast,LLC's motion
for summary judgment is DENIED and North Andover Planning Board's motion for summary
judgment is also DENIED.It is further ORDERED that North Andover Planning Board's approval
of T-Mobile Northeast, LLC's Application for Renewal of Special Permit is VACATED.
Elizabeth M. Fahey
Justice of the Superior Court
Date: July,4 2011
4
6