Opinion
21-P-421
04-06-2022
Dana STRAYTON & another v. MARTHA'S VINEYARD COMMISSION & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from a judgment of the Superior Court, dismissing their complaint challenging the decision of the defendant Martha's Vineyard Commission (MVC) approving a "development of regional impact," which authorized the Edgartown Planning Board to issue a special permit for construction of a telecommunications tower (cell tower) on land owned by the defendant Robert Fynbo. Following a jury-waived trial, and after taking a view, the trial judge issued a thorough and detailed written memorandum of decision, in which he concluded that the plaintiffs failed to establish standing to maintain their complaint, but that even if they could establish standing, they had demonstrated no grounds to overturn the MVC's decision. We affirm the judgment, addressing the plaintiffs’ claims in turn.
We note that the record appendix, though voluminous, does not include a copy of the complaint. We draw our description of its purpose from the descriptions contained in the parties’ briefs, as well as the docket of the Superior Court case.
1. Standing. On appeal, the plaintiffs raise two claims of error in the trial judge's conclusion that they failed to establish standing. First, they claim the judge erred in excluding evidence of adverse impacts from radiofrequency emissions from the proposed cell tower on certain medical equipment used by plaintiff Robert Strayton. Second, they contend that the judge incorrectly found that potential adverse effects on views from the plaintiffs’ property were inadequate to support standing.
As a threshold matter, we note that the parties appear to have tried the case on the premise that the plaintiffs, as abutters to abutters within 300 feet of the Fynbo property, held a rebuttable presumption of standing, consistent with the framework employed to assess standing under G. L. c. 40A, § 17. However, as the Supreme Judicial Court observed in Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 33 (2006), the rebuttable presumption of standing for abutters recognized under G. L. c. 40A and G. L. c. 40B derives from the reasoning "that those entitled to notice of the proceedings are presumed to have the requisite interest." Id. There has been no showing, however, that under St. 1977, c. 831 (the MVC Act), in contrast to G. L. c. 40A and G. L. c. 40B, abutters are entitled to specific notice of public hearings on applications for development permits. See St. 1977, c. 831, § 14, and G. L. c. 30A, § 2. The question is immaterial in the present case, however, since the trial judge found, and the plaintiffs do not contest, that the evidence presented by the defendants to challenge the plaintiffs’ standing was sufficient to rebut any presumption the plaintiffs might have claimed.
There is serious question whether a claim of impacts from radiofrequency emissions from a cell tower may be used to support standing for a plaintiff challenging a permit for the tower, so long as the facility complies with Federal Communication Commission regulations concerning such emissions. In order to support standing as a "party aggrieved," a plaintiff must identify an injury to a legally cognizable interest. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 26 (2006). Within the land use context, to be a legally cognizable interest the interest must fall within the scope of interests the regulatory scheme is designed to protect. Id. at 27-28. However, as the trial judge recognized, Section 704 of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iv) [FTA], prohibits local authorities from regulating cell tower siting based directly or indirectly on environmental impacts of radiofrequency emissions that comply with applicable Federal regulations. See 47 U.S.C. § 332(c)(7)(B)(iv).
But we need not decide whether § 332(c)(7)(B)(iv) erects a categorical bar against consideration of potential adverse effects of radiofrequency emissions on medical equipment for purposes of evaluating a plaintiff's standing in a challenge to a permit for a cell tower, because the record in the present case includes no evidence to support the plaintiffs’ contention that they would suffer such effects. The motion judge excluded such evidence before trial on the defendants’ motion in limine, and the plaintiffs made no offer of proof, either in opposition to the motion in limine, at trial, or otherwise, indicating what their proposed evidence would be (other than broad descriptive but otherwise unsubstantiated assertions). Consequently, in the absence of an offer of proof we are without any basis to determine whether the plaintiffs could have established the requisite injury to support standing on the basis of their claim of adverse effects of radiofrequency emissions, and cannot determine whether the plaintiffs suffered any resulting prejudice, even if such a claim is permissible despite § 332(c)(7)(B)(iv). See Abramian v. President & Fellows of Harvard University, 432 Mass 107, 123 (2000).
As for the plaintiffs’ contention that adverse effects on their views conferred standing, the trial judge found as a matter of fact that any effects from the proposed tower were not " ‘substantial enough to constitute actual aggrievement.’ " Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 122 (2011). As in Kenner, id. at 123, the "judge had the benefit of a view, which put him in a better position than we to evaluate the potential impact of the increased height of" the new cell tower. Again, as in Kenner, id., "[b]ased on our review of the record ... we cannot conclude that the judge's ultimate finding that the [plaintiffs] were not aggrieved persons such that they had standing to challenge [the MVC decision] ... was clearly erroneous."
To the extent that the plaintiffs complain that the judge erred in disregarding view impacts from the back deck of their home, we note that the judge commented in his memorandum of decision that he was not asked to visit that deck during the view. We likewise discern no clear error in the judge's rejection (as speculative) of potential impacts resulting from the plaintiffs’ own removal of trees, particularly in the absence of any imminent plans by the plaintiffs to do so.
We note as well that, as the trial judge observed, the MVC Act does not specifically mention protection of views, in contrast to the zoning by-laws held to support impacts on views as a basis for standing in such cases as Martin v. Corporation of Presiding Bishop of Church of Latter-Day Saints, 434 Mass. 141, 146 (2001), and Monks v. Zoning Bd. Of Appeals of Plymouth, 37 Mass. App. Ct. 685, 688 (1994).
2. Merits. Though our conclusion that the plaintiffs are without standing to challenge the MVC decision leaves us without jurisdiction to consider the merits of the plaintiffs’ appeal, we discern no error in the judge's conclusion that the facts he found, based on the evidence at trial, provide no basis to overturn the MVC decision for substantially the reasons explained by the trial judge in his thorough and detailed written memorandum of decision.
Judgment affirmed.