HomeMy WebLinkAboutLawsuits & Settlements
,:,_,
~
u
(..;)
.....
~
STATE OF INDIANA ) IN THE HAMILTON CIRCUIT COURT
) SS:
COUNTY OF HAMILTON ) CAUSE NO. 29C01-0112-CP-1202
v.
)
)
)
)
)
)
)
)
)
)-
)
)
t~
g ~
~ '...,.. r-.)
.:; p ;0
~.'~ I
-l '.
.;~ 1~
~ -".; \
," ~(-~
:<
:: ~J ,
~ ~+
.~ tJ'
(I)
~ .:., ~~/'P~;r..
SPRINT SPECTRUM L.P.
a Delaware Limited Partnership,
Petitioner,
~~ ";,~;;r.it~j;;
THE BOARD OF ZONING APPEALS
FOR THE CITY OF CARMEL AND
CLAY TOWNSHIP,
~ ":fc~tl;
€"
;~
;11
Respondent.
RETURN TO THE WRIT OF CERTIORARI
Pursuant to the Court's order dated March 20, 2002, Respondent Board of Zoning
Appeals for the City of Carmel and Clay Township (the "BZA"), by counsel, hereby files
the following as its Return to the Writ. For purposes of this Return, the BZA incorporates
by reference all the Exhibits (Exhibits A through K) that were attached to the Verified
Petition for Writ of Certiorari (the ''Petition'') by the Petitioner herein ("Sprint").
In answer to the allegations made by Sprint in the Petition, the BZA states as
follows:
1. The BZA admits the allegations contained in rhetorical paragraph 1 of the
Petition. However, the Petition's use of the word "illegal" to describe the BZA's decision
1
o
o
0:'"
.
to grant Richard Deer's motion asserts a legal conclusion that does not require an
admission or denial, but to the extent that one is required, the BZA denies the allegation
that such decision was "illegal".
2. The BZA lacks knowledge and infonnation sufficient to admit or deny the
allegations contained in rhetorical paragraph 2 of the Petition.
3. The BZA admits the allegations contained in rhetorical paragraph 3 of the
Petition.
4. The BZA admits the allegations contained in rhetorical paragraph 4 of the
Petition. However, the Petition's use of the word "illegal" to describe the BZA's decision
to grant Richard Deer's motion asserts a legal conclusion that does not require an
admission or denial, but to the extent that one is required, the BZA denies the allegation
that such decision was "illegal".
5. The BZA admits the allegations contained in rhetorical paragraph 5 of the
Petition.
6. The BZA lacks knowledge and infonnation sufficient to admit or deny the
allegations contained in rhetorical paragraph 6 of the Petition.
7. The BZA lacks knowledge and information sufficient to admit or deny the
allegations contained in rhetorical paragraph 7 of the Petition.
8. The BZA lacks knowledge and information sufficient to admit or deny the
allegations contained in rhetorical paragraph 8 of the Petition.
9. The BZA lacks knowledge and infonnation sufficient to admit or deny the
allegations contained in rhetorical paragraph 9 of the Petition.
2
w
o
10. The BZA lacks knowledge and information sufficient to admit or deny the
allegations contained in rhetorical paragraph 10 of the Petition.
11. The BZA lacks knowledge and information sufficient to admit or deny the
allegations contained in rhetorical paragraph 11 of the Petition.
12. The BZA admits the allegations contained in rhetorical paragraph 12 of the
Petition.
13. The BZA admits the allegations contained in rhetorical paragraph 13 of the
Petition, except as follows-with respect to the allegation that the Shelter meets all
applicable zoning requirements, the BZA has not heard or ruled on the merits of Sprint's
appeal of the revocation of the Building Permit for such shelter, and therefore the BZA
lacks knowledge and information sufficient to admit or deny such allegation.
14. The BZA admits the allegations contained in rhetorical paragraph 14 of the
Petition.
15. The BZA admits the allegations contained in rhetorical paragraph 15 of the
Petition.
16. The BZA admits the allegations contained in rhetorical paragraph 16 of the
Petition.
17. The BZA admits the allegations contained in rhetorical paragraph 17 of the
Petition.
18. The BZA admits the allegations contained in rhetorical paragraph 18 of the
Petition.
19. The BZA admits the allegations contained in rhetorical paragraph 19 of the
Petition.
3
w
u
20. The BZA admits the allegations contained in rhetorical paragraph 20 of the
Petition, except as follows-with respect to the allegation that Sprint had not "been
informed of any alleged need for plat approval by the Plan Commission", the BZA states
affirmatively that as an owner or lessee of real estate in Clay Township, Sprint is on
constructive notice of the contents of all applicable zoning and subdivision control
ordinances of the City of Carmel and Clay Township, and therefore Sprint was not entitled
to any special notice of such alleged need.
21. The BZA admits the allegations contained in rhetorical paragraph 21 of the
Petition. However, the BZA states affirmatively that the City's policy has been to grant
building permits to cellular telephone service providers for such shelter installations only in
two types of situations, namely: (a) when such building permits have been sought for such
shelters located on properties located in commercial or industrial zoning districts, as
opposed to residential zoning districts, or (b) after the BZA has reviewed and approved
such antennae/equipment shelter installations either as special uses or special exceptions in
accordance with the Carmel Clay zoning ordinance, and that no such approval had been
obtained by Sprint in this case.
22. The BZA lacks knowledge and information sufficient to admit or deny the
allegations contained in rhetorical paragraph 22 of the Petition.
23. The BZA lacks knowledge and information sufficient to admit or deny the
allegations contained in rhetorical paragraph 23 of the Petition.
24. With respect to the allegations contained in rhetorical paragraph 24 of the
Petition, the BZA admits that Sprint filed an appeal of the revocation of its Building
Permit with the BZA on Monday, September 24,2001. However, the Petition's use of the
4
u
w
phrase "pursuant to Section 30.1 of the Carmel City Code" to describe Sprint's filing of
the appeal asserts a legal conclusion that does not require an admission or denial, but to
the extent that one is required, the BZA denies the allegation that such appeal was filed
pursuant to Section 30.1 of the Carmel City Code. The BZA further states affirmatively
that nothing in said Section 30.1 incorporates by reference the provisions of Trial Rule
6(A); therefore, the BZA states that, in order for such appeal to be deemed filed "pursuant
to Section 30.1 of the Carmel City Code", the Petitioner would have had to file it on or
before Saturday, September 22,2001.
25. With respect to the allegations contained in rhetorical paragraph 25 of the
Petition, the BZA admits that Section 30.1 of the Carmel City Code states that "all appeals
shall be filed with the Director within 30 days of the action to be appealed". The remaining
provisions of said paragraph assert a legal conclusion that does not require an admission
or denial, namely the conclusion that Trial Rule 6(A) governs appeals filed with the BZA,
but to the extent that an admission or denial is required, the BZA denies the remaining
allegations contained in said paragraph. The BZA further states affirmatively that by its
own terms, Trial Rule 6(A) governs how time is to be computed only in three situations,
namely-(i) "In computing any period of time prescribed or allowed by these rules", (ii)
"In computing any period oftime prescribed or allowed... by order o/the court', or (iii)
"In computing any period of time prescribed or allowed ... by any applicable statute"
[emphasis added]. The period of time-that is, 30, not 32, days-in this matter was
prescribed or allowed by a Carmel City ordinance, not by the Rules of Trial Procedure, not
by order of this Court, and not by any statute.
5
w
Q
26. The BZA admits the allegations contained in rhetorical paragraph 26 of the
Petition.
27. The BZA admits the allegations contained in rhetorical paragraph 27 of the
Petition.
28. The BZA admits the allegations contained in rhetorical paragraph 28 of the
Petition.
29. The BZA admits the allegations contained in rhetorical paragraph 29 of the
Petition.
30. The BZA admits the allegations contained in rhetorical paragraph 30 of the
Petition.
31. TheBZA admits the allegations contained in rhetorical paragraph 31 of the
Petition.
32. The BZA admits the allegations contained in rhetorical paragraph 32 of the
Petition.
33. The BZA re-alleges and incorporates by reference its responses and
allegations in paragraphs 1 through 32.
34. Rhetorical paragraph 34 of the Petition asserts a legal conclusion that does
not require an admission or denial, but to the extent that one is required, the BZA denies
the allegations contained in said paragraph.
35. Rhetorical paragraph 35 of the Petition asserts a legal conclusion that does
not require an admission or denial, but to the extent that one is required, the BZA denies
the allegations contained in said paragraph.
6
,
i 0
u
u
36. Rhetorical paragraph 36 of the Petition asserts a legal conclusion that does
not require an admission or denial, but to the extent that one is required, the BZA denies
the allegations contained in said paragraph.
ADDmONAL DEFENSES
For its Additional Defenses to the Petition, the BZA states as follows:
1. The Petition fails to state a claim upon which relief may be granted and
should be dismissed.
2. Sprint's claims are barred by the doctrines of waiver, estoppel, laches, and
''unclean hands."
3. The Petition is frivolous and vexatious and should be dismissed, and the
BZA should be awarded recovery of costs and fees pursuant to Ie 34-52-1-1.
4. The BZA reserves the right to add any additional defenses which may
become available as Sprint's legal theories or facts are revealed by discovery.
CLAIM FOR RELIEF
1. Motion for Judgment on the Pleadings. There is no genuine issue of
material fact in dispute between Sprint and the BZA, and therefore, pursuant to Trial Rule
12(C), the BZA moves the Court for judgment on the pleadings.
2. Motion for Partial Summary Judgment. Alternatively, the BZA
requests, pursuant to Trial Rule 56(C), that the Court conduct a hearing on the issue of
whether Trial Rule 6(A) governs appeals filed with the BZA. The BZA hereby designates
rhetorical paragraphs 24 through 32 of Sprint's Petition (including Exhibits G, H, I, J,
7
il'
u
u
and K attached thereto), the BZA's responses to such paragraphs contained herein, and
I.e. ~~36-7-4-901 et seq. as the provisions on which the BZA is relying for purposes of
this motion. In the BZA's response to rhetorical paragraph 30 of the Petition, the BZA has
admitted that it dismissed Sprint's appeal of the revocation of the Building Permit as
untimely, and the BZA further admits that it has never heard or ruled on the merits of
Sprint's appeal of the revocation of the Building Permit. Therefore, ifupon hearing the
Trial Rule 6(A) issue, the Court should determine that TrialRule 6(A) does indeed govern
appeals filed with the BZA, then the BZA prays that the Court remand this matter to the
BZA for a public hearing and determination of the merits of Sprint's appeal of the
revocation of the Building Permit, pursuant to I.e. ~36-7-4-918.1.
~
Attorney No. 9313-49
Attorney for Respondent
8
u
w
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Answer has been
duly served, this 1 st day of April, 2002, upon the following Attorneys:
Thomas F. Bedsole
LOCKE REYNOLDS LLP
201 North lllinois Street
Suite 1000
Indianapolis, IN 46244
Richard S. Ntkchevich
W. Scott Porterfield
Steven 1. Yatvin
BARACK FERRAZZANO KIRSCHBAUM
PERLMAN & NAGELBERG LLC
333 West Wacker Drive
Suite 2700
Chicago, IL 60606
(Attorneys for Petitioner)
~~
John R Molitor
John R. Molitor
MOLITOR, GRISHAM & HESTER, P.A.
11711 N. Meridian St., Suite 200
Cannel, IN 46032
Telephone: (317) 843-5511
Fax: (317) 843-1543
9
Sent by: BFKPN
3129543220;
03/22/02 4:55PM;~#64; Page 1
w
Q
j)
j BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG LLC
333 WEST WACJC1iIl DRIVE. SIDTE noo
CHlCAOO.IWNOIS 6Oli06
T'ElEPHONE: (312) 984-3100
FAX: (312) 984-322.0
FACSIMILE COVER SHEET
TO:
John Molitor
~
(317) 843-1
FROM: Richard S. NikclJevich 10 .
CLIENT CODE: FIRM.ooo ;&: ;V~ c p_ It. t
LV ? "l{lt;"
DATE: March 22, 2002 ~.11 "f{
~ CifC cr
THIS TELECOPY CONSISTS OF THIS COVER SHEET AND --LL PAGE(S).
D CONFIRM (Confi17lllllion Upon Reqwn Only): Phone #:
rClick here T\1)e Confirmation Number]
D RETURN IMMEDIA TEL Y CONFIRMED 0
nus MESSAGE IS INTENDED ONLY FOIl'I'HE USE OF THE INDIVIDUAl. TO WHOM IT IS ADDRESSED AND MAY COIll'fAtN
INFORMATION THAT ~ PRJVU.EGED. CONPlDENTIAL AND EXEMPT FROM DJSCLOSUllE UNDEk AfPUCABl.S LAW. If
THE llEADEIl OF THIS MESSAGE IS NOT TIlE INTENDED 1lECIl'JENl' OR. THE EMPLOYEE OR AGENT RESPONSmLE fOR
DELlVWNG THE MESSAGE TO THE INI'ENDED aEOPIENT. yOU AIUi liEllEBY NOTO'IED THAT ANY DISSEMINATION.
DJST1U8UTK>N' OR COPYING OF THIS COMMUNICATION IS STRlCTLV PROHIBITED. IF YOU HAVE RECEIVED nus
CO~MUNICATION IN ERROR. PLEASE NOTIFY us IaCMEDIATELY BV ~ONE.<\NO Af;TUIlN l'HE ORIGINAL MESSAGE
TO US AT THE ABOVE ADDRESS VIA UNITED ~A TES POSTAL SERVICE. THANK YOU.
If you experience any problems with this tra.nsmission, please caU (312) 984-3173.
MESSAGE:
John:
Per our discussion today with Scott Porrerfield. attaChed is a copy of the PatterSon case. Please
call us after you have bad a chance to review the attached.
Regards,
Rich
(312) 629-7344
o Oriainal wUI aoe follow
o Oriaimal wlU folio". viii: 0 \" c~ Moil CJ O\/.:mighlCollTicr 0 Mc&5Cnger
/
Sent by: BFKPN 3129543220;
_,GCt a Docum~t - by Citation. 122 QPP_ 2d 222
03/22/02 4:56PM;J~#64; Page 2/12
w
Page 1 of 11
SelVice: LEXSEEGP
Citation: 122 F.Supp2d 222
t(b
~~
122 F. Supp. 2d 222, *; 2000 U.S. Dist. LEXIS 17869, ** .. t,L~
'" .
RANDALL PATIERSON, et al., Plaintiffs, v. OMNIPOINT COMMUNICATIONS, INC., et aI., -'.....1 A.
Defendants. and RANDAll PATTERSON, et al., Plaintiffs, v. ZONING BOARD OF APPEALS OF f-"
THE TOWN OF SCITUATE, et al., Defendants.
..
Civil Action No. 99-CV-12336-JlT, Civil Action No. OO-CV-10561-JlT
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETIS
122 F. Supp. 2d 222; 2000 U.S. Dist. LEXIS 17869
November 21, 2000, Decided
DISPOSITION: [**1] Plaintiffs' Motion for Leave to File Opposition to Motion to Dismiss in
Excess of Twenty Pages AUOWEDi Municipal Defendants' Motion to Strike Portions of
Plaintiffs' OpPosition to Defendants' Motion to Dismiss DENIED; Corporate Defendants' Motion
to Dismiss ALLOWED and Munidpal Defendants' Motion to Dismiss ALlOWED.
CASE SUMMARY
PRoceDURAL POSTURE: Defendants moved to dismiss plaintiffs' claims alleging
procedural violations ofthe Massachusetts Zoning Act, Mass. Gen. Laws ch. 40A, !i9 1-
17, and violation of 4.2. U.S.C.S. ~ 1983 ariSing out of the issuance of a special permit to
build a relay tower.
OVERVIEW: Plaintiff citizens sued defendants, planning and zoning board members,
building inspector, and' corporations, alleging defendant planning board exceeded its
legal authority by settling the underlying dispute and issuing a special permit for
construction of a relay tower without following procedural requirements. Defendants
moved to dismiss all claims on the ground that the Telecommunications Act of 1996
(TCA), 47 U.S.C.S. 9 151 et seq., preempted the Massachusetts Zoning Act (Zoning Act),
Mass, Gen. Laws ch. 40A, ~g 1-17, procedural requirements. The court held federal
preemption of the zoning procedures was proper because Congress enacted the TCA
pursuant to its power to regulate interstate-commerce, and provided for judicial review
as an expeditious means to remedy violations. Moreover, case law supported Injunctive
relief in the form of an order to issue a special permit. Plaintiffs due process claim lacked
merit because plaintiff could not claim that an aesthetically pleasing \flew constituted an
individual entitlement, grounded in s~te law that could not be removed except for cause.
OUTCOME: Defendants' motions to dismiss plaintiffs' daims allowed because federal
preemption of the zoning procedures was proper and plaintiffs federal and state
constitutional claims lacked merit.
CORE TERMS: tower, spec;ial permit, Zoning Act, municipal, issuance, state law, zoning, local
zoning, building permit, wireless, residents, relay, zoning board, federal statute, substantial
evidence, telecommunication, providers, exceeded, Zoning Act's, publiC hearing,
Telecommunications Act, Tenth Amendment, injunctive reller, cause of action, frustrate,
issuing, settlement, preempt, congressional intent, adversely affected
CORE CONCEPTS - · tiisie '9r:lcep~
~ Civil Procedure: Pleading & Practice: Defenses. Objections &. Demurrers: Motions to
...IrclIicve? _ m=53a2c48faal7dbO \ t366d25f4a89lbdc& jmlSlI'~FULL&docnum"l & _ standoc.l & _sWlchk"l &wcbp-'?13/0 1
Sent by: BFKPN
3129543220;
03/22/02 4:56PM;~#64; Page 3112
, ~e[ a Document. by Citation. 122 OP. 2et 212
Q
Page 2 of 11
.',
Dismiss
!:.When deciding a defendant's motion to dismiss, a court assumes as true the plaintiffs
well. pleaded factual averments and favors the plaintiff with every reasonable Inference.
A court, however, need not accept the plaintiff's "bald assertions" or "unsupportable
conclusions." If it clearly appears that a plaintiff could not recover on any viable theory,
dismissal Is proper.
~ Constitutional Law : SIJDr~macy Clause
!:.An act of Congress rooted in a constitutionally enumerated power preempts conflicting
state laws or regulations. Preemption is triggered by congressional intent or when a
state law "actually conflicts" with a federal statute. Courts may infer congressional
intent where, inter alia, it is implicit in the act, where the act involves a dominant
federal interest, or where the application of state policies provides a result inconsistent
with the objective of the federal statute. A state law "actually conflicts" with a federal
statute where compliance with both is a physical impossibility, or when the state law
stands as an obstacle to the accomplishmen[ of the full purposes and obJectives" of the
federal statute.
I;J Constitutional Law : Supremacy Clijuse
.!.The Telecommunications Act of 1996 (TCA), 47 U.S.C.S. ~ 151 et seq., preempts state
and local laws when the application of those laws effectively violates one of the TeA's
enumerated limitations on state zoning authority. The appropriate remedy for a
violation of the TCA is a mandatory injunction ordering the issuance of a special permit.
~ Civil Procedure: PleadinCl & Practice: Defenses Objec~ions & Oemurrers : Motions to
Dismiss
~It 1$ not enough merely to mention a possible argument in the most skeletal way, and
leave the court to do counsel's wotk.
I Governmen~ : State & Territorial Governments : Rel~tlons With Governments
~ See U.S. Canst. amend. X.
~ Government!i ; ~t8re &. Territorial GovernlJl.,ents ; Relations With Governments
.t.The Supreme Court has interpreted U.S. Const. amend. X to mean that the states
unquestionably do retain a significant measure of sovereign authority to the extent that
the Constitution has not divested them of their original powers and transferred those
powers to the federal government. Where Congress acts pursuant to its Commerce
Clause powers, however, the resulting law becomes the supreme Law of the land. U.S.
Const. art. VI, cI. 2.
[g) G~vernments ; State & Territorial Governments: Relations With ~overnments
ACongress enacted the Telecommunications Act of 1996 (TCA), 47 U.S.C.S. ~ 151 et
seq., pursuant to its power to regulate interstata commerce, 47 U.S.C.S. ~ 151. and
made its intent to preempt certain areas of local zoning control clear and manifest in
the TCA's specific limitations on state zoning powers. 47 U.S.C.S. ~ ~~~(C)(7)(B).
!l Governments : State & Territorial Governments; Relations With Governments
.!.A district court'S order crafted to bring a state back Into compliance with a preemptive
federal statute does not violate U.S. Const. amend. X.
l!I Constitutional Law : Proc;edurClI Que pwcess : S<;9g~ of Protection
.t.Plaintiffs cannot claim that an aesthetically pleasing view constitutes an individual
entitlement, grounded in state law that cannot be removed except for cause.
~ Environmental Law : ZoninQ & Land Use : Constitutional Limits
...Ir~rrieve? _m;;::53a2e48faa17dbOl f366d2St4a89tbdc&_ ftntstt=FULl&docnum= 1 & _sCUtdoc=l &_sW'tc.bk-Utwchp 7/3/01
Sent by: BFKPN 3129543220;
. Gel a Document - by Citation. 12VuPP, 2d 222
03/22/02 4:57PM;~#64; Page 4/12
Q
Page 3 of 11
'"
~Zoning disputes do not give rise to a cause of action under i~ .1J.S,C.S, ~ 1983. absent
a specific allegation of a violation of a federal or constitutional right.
COUNseL: For RANDALL PATTERSON, THOMAS DALEY, HELEN DALEY, JEAN PATIERSON,
JAMES RICHARDSON, MARYKAY RICHARDSON, DAVID SMITH, ANNETTE SMITH, TORIN
SWEENEY1 REBECCA STUTZMAN, Plaintiffs (99-CV-12336): Edward J. Collins, Cambridge, MA.
For OMNIPOINT COMMUNICATIONS, INC., OMNIPOINT COMMUNICATIONS MB OPERATIONS,
LLC, KING K. CORP., Defendants (99-CV-12336): Kenneth I. Spigle, Rosenberg, freedman &
Goldstein, Newton, MA.
For PlANNING 80AR.D OF THE TOWN OF SCITUATE, FRANK UM6ACHER, JANE O'SUlliVAN,
DAVID NEI..\.lS, KATHLEEN BRANDOW, EUNOR. FOLEY, JONATHAN WAR.NER, Defendants (99~
CV-12336): Barbara J. Saint Andre, Kopelman and Paige, P.C., Town Counsel, Boston, MA.
For RANDAll PATTERSON, Plaintiffs (OO-CV-l0S61): Edward ]. Collins, Cambridge, MA.
For ZONING BOARD Of APPEALS, TOWN OF SCITUATE, C. WALlACE ARCAND, EDWARD C.
UBBElTS, STEPHEN F. CORSARO, NEll DUGGAN, Oefendants [.11'2) (OO-CV-10561):
Thomas C. Federico. Philip M. Hirshberg, Morrison, Mahoney &. Miller, B~ston, MA.
For OMNIPOINT COMMUNICATIONS MB OPERATIONS, LLC, TOWER VENTURES, INC., KING K.
CORP, Defendants (OO-CV-10S61): Kenneth Ira Spigle. Rosenberg Freedman & Goldstein,
Newton, MA.
JUDGES: Joseph L. Tauro, United States District Judge.
OPINION8Yi Joseph l. Tauro
OPINION: [11'2.24]
MEMORANDUM
November 21, 2000
TAURO, ).,
I. Inuoduction
This Memorandum concerns two related actions filed by the same Plaintiffs, ten residents from
the neighboring towns of Sctituate and Cohasset. The permitting and construction of a wireless
communications relay tower ("relay [ower") In Scituate, near that town's border with Cohasset,
provides the backdrop to both cases. The issue presented is whether a local zoning board must
follow state and local procedures for issuing a special permit when granting that permit
pursuant to a federal court order. Federal question jurisdiction rests on the.
Telecommunications Act of 1996 ("TCA"), 47 U.S.C. ~~ 151 et seq. n1
. - . - - - - - - - - - - - - - - -Footnotes- - - - - - - . . - - . - - - - - -
n1 See 47 U.S.C. ~ 332(c)(7)(B)(v) ("Any person adversely affected by any nnal action. . .
[of] a State or local government. . . that is inconsistent with this subparagraph may. . .
commence an action in any court of competent jurisdiction. "). Hen~, federal jurisdiction is
proper even though Plaintiffs assert violations of state, not federal law. See City of Chicago v.
Int" C:olleo"" ofS,...rn.'on.. o;~2 us 156 164 1~Q L Ed 2d '525 '118!,;: C't: O:;;2"l (1~~"'} (-even
though state law creates [a party's) cause of action, its case might stili 'arise under' the laws
. .Jrerrieve? _ r:tr'S3a2e48faa 17dbO 1 f366d25f4a.89ibdc&_ musa--"'FULL&doc:num.-! &_ startdoca 1 & _ Sratfchk'"1 &wchp 713/01
Sent by: BFKPN 3129543220;
Oct a Document - by Cimtion - 122 'V. 2d 222
03/22/02 4:57PM;~#64; Page 5112
Q
Page 4 of 11
..
of the United States if a well pleaded complaint established that right to relief under state law
requires resolution of a substantial ~uestion of federal law. q) (citations omitted). The court
assumes, arguendo, that Plaintiffs have standing as "person(s] adversely affected," though
they do not allege that Defendants' acts were "inconsistent" with 47 U.S.c. 9 332(c)(7)(B).
- - - - - - - - - - - - - - . - -End Footnotes- - . - - - - - - - - - - - - - - [..3]
J
In the first action ("Patterson 1-), Plaintiffs sued six members of the Scituate Planning Board
and four corporate Defendants, alleging procedural violations of the Massachusetts Zoning Act
("Zoning Act"), Mass. Gen. Laws ch. 40A, ~9 1-11. The corporate Defendants are Omnipoint
Communications Inc. Clnd its successor-in-interest, Omnipoint Communications Ma, OPS, LLC
(collectively, "Omnipoint" n2), the wireless communication providers; and King K. Corporation,
which owns the land where Defendant Tower Ventures ("Tower") built the relay tower for
Omnipoint. Plaintiffs brought the second action ("Patterson 2") against three members of
Scituate's Zoning Board of Appeals, the Building Inspector, and the same corporate
Defendants. Alleging the same Zoning Act violations as in Patterson 1, they added a 28 .u.S.C.
9 19~~ daim against the Board of Appeals and the Bulldll'lglnspector, and a Mass. Gen. Laws
ch. 93A claim against an unspecified defendant.
- - - - - - - - - - - - - - . - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Plaintiffs argue that the companies' distinct legal identities gave rise to procedural
anomalies in the application. None of these alleged anomalies, however, rise to the level of an
actionable defect. See Roberts v. Southwestem Bell, 429 Mass. 478, 709 N.E.2d 798, 808
(Mass. 1999) {"Not every failure to precisely follow the procedural requirements of [The
Zoning Act] is a jurisdictional defect. "] (citations omitted). Nor do Plaintiffs supply speCific
factual assertions that the two companies engaged in any corporate shell game. For practical
purposes, the two companies are effectively one and the court will treat them as such.
- - - - - - - - - - - - - - - - -End Footnotes- - . . - . - - .,- - - . - - - - [..4]
II. Background
On February 22, 1999. Omnipoint and Tower applied to the Planning Board for a special permit
to build a relay tower. In accordance with the Zoning Act's procedural requirements, the
Planning Board gave notice to Scituate and Cohasset .parties in interest," n3 developed factual
findings, and held pub.IC hearings. See Mass. Ge[\. Laws ch. 40A, 999, 11, 16. On June 11,
1999, the Planning Board officially denied the application. n4 In a case heard by this court,
Omnipoint and Tower then sued (.225] the Planning Board, alleging that the denial violated
the TCA. nS See Tower Ventures v. Warner, No. 99-CV.U422-JLT (0. Mass. Sep. 28, 1999).
. - - - - - - - - - - - - - - - . -Footnotes. - - - - - - . . - - - - - - - . .
03 "Parties in interest" are the petitioner, and property owners of land within 300 feet of the
locus. See Mass. Gen. Laws ch. 40A, 9 11.
04 The Planning Board voted 3-1 to approve, Dut the Zoning Act requires at least four votes in
a six-member Planning Board. See Mass. Gen. Laws ch. 40A, 9 9.
n5 Counts 1-1U alleged that the denial "lack.ed substantial evidence," "unreasonably
diScriminated" against the Plaintiffs, and had the effect of "prohibiting wireless service,- in
violation of 47 U.S.C. ~ 3~2(C)(i)(b}(i)-(iii). Count IV alleged violations of due process rights
under 28 U.S.C. ~ 1983. and Count V charged an abuse of discretion under Mass. Gen. laws,
ch. 40A, ~ 17. (Compl. PP 30-47.)
- - - - - - - - - - - - - - - - -End Footnotes- . - - - - - - - - - - - - - - - (* * S]
.. jrclrieve? _m=53a2c48faa17dbO J f366d25 f4a89fbdc& _Dncsa-fULL&doc;Ullm= 1 & _ srandoc= 1 &_5WlCbk= 1 &:wchp 7/3/01
Sent by: BFKPN 3129543220;
. Get II Documc::nt - by Citation - 122 FOp. 2d 222
03/22/02 4:59PMjJ~#64j Page 7/12
Q
PageS of 11
..
On September 28, 1999, pursuant to an Agreement for Judgment between the Parties and its
own factual findings, the court entered judgment for Omnipoint and Tower on Count I, finding
that the denial "lacked substantial evidence," in violation of the TCA. See Tower Ventures, slip
op. at 1-2. n6 The court ordered the Planning Board to issue the special permit and ordered
the appropriate municipal agent to issue a building permit, in accordance with the conditions
set forth in the initial application. See id. On October 15, 1999, the Planning Board issued the
special permit to Omnipolnt and Tower, but did not require a new application, provide a new
round of notice, develop findings of fact, or hold- another public hearing, as required by the
Zoning Act. See Mass. Gen. Laws ch. 40A, ~ 16.
- - - - - - - - - - - - - - - - - -Footnotes. - - - - - - - - - - - - - - - - -
n6 The court dismissed without prejudice Counts II and III, and dismissed Counts IV and V
with prejudice.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Plaintiffs filed the Patterson 1 suit on November a, 1999. After the Building Inspector issued
the building [**6] permit In December 1999, some of the Plaintiffs appealed to the Zoning
Board of Appeals. The Board of Appeals held a publiC hearing 00 February 24, 2000, and voted
to uphold the issuance of the permits on March 3, 2000. Omnipolnt and Tower then built the
relay tower within the 20-day window of appeal prescribed by Mass. Gen. Laws ch. 40A, ~ 11.
On March 23, 2000, Plaintiffs filed the Patterson :2 suit.
In Patterson 1, Plaintiffs allege that the Planning Board exceeded its legal authority by
entering into the Agreement for Judgment and by issuing the special permit, without fOllowing
the Zoning Act's procedural requirements for reversing a previous denial of a spedal permit.
See Mass. Gen. Laws 01. 40A, ~9 9, 11, 16. In Patterson 2, Plaintiffs allege that the Building
Inspector exceeded his authority because he Issued the building permit based on a
procedurally-defective special permit, and did so while the issuance of that permit remained In
litigation (Patterson 1). See id. Plaintiffs further allege that tne corporate Defendants violated
the Zoning Act by building the tower within the twenty-day appeal period following the Board
of Appeal's March 3, 2000 decision. [**7] See Mass. Gen. Laws ch. 40A, 9 11. Finally,
Plaintiffs allege that the Board of Appeals violated 28 u.$,c..9 l~aJ by upholding the special
permit in reckless disregard of the Plaintiffs' due process rights.
In Patterson 1, Plaintiffs request this court to annul and vacate the issuance ot the speCial
permit and the building permit. In Patterson 2, Plaintiffs seek an injunction ordering the
dismantling of the tower, and the full extent of dj!lmages, costs and fees allowed by 28 u.S.C.
& 1983 and Mass. Gen. Laws ch. 93A.
60th the corporate and municipal Defendants moved to dismiss all claims from Patterson 1
and Patterson 2. Plaintiffs opposed the Motions to Dismiss Patterson 1, but did not oppose
municipal Defendants' Motion to Dismiss the i 1983 claim or the corporate Defenclants' Motion
to Dismiss the Mass. Gen. Laws. ch. 93A Claim from Patterson 2. In the interest of judicial
economy, and as agreed to by all parties at the October 19, 2000 hearing, the court
consolidated Defendants' Motions to Dismiss from Patterson 1 and Patterson 2. n7
- - - - - - - - - . - - - - - - - -Footnotes- - - - - - . - - - - - - - - - - -
n7 The court declined to consolidate the motions from th~ related case of Chief Justice Cushing
Hwy v. Limbacher, No. 00-CV~10174-JLT (D. Mass. filed lan. 10, 2000). There, an Immediate
abutter to the relay tower brought: suit pursuant to the ZonIng Act, alleging diminution of
vatue -- a claim not raised by the Plaintiffs In Patterson 1 or Patterson 2. In addition, the Chief
Justice Cushing Hwv Plaintiff did not attcmd the Oc-tober 19, 2000 hearing. and, therefore, did
not consent to consolidation.
...Irctrieve? _ znc:S3a2e48faa 17dbO 1 f366d25f4aS9fbdc& Jmrsa= .fULL&:docnum'=' 1 &. _ startdoc= t & _ sWlchk=l &wchp 713/01
Sent by: BFKPN 3129543220;
. Get a I>ocwnel11. by Citation - 122 V' 2d 222
03/22/02 4:58PM;~#64; Page 6/12
w
Page 6 of 11
.',
- . - - - - - - - - - - - . . - -End Footnotes. - - . . - - - - - - - - - - ~ - [.*8] [*226]
In, Analysis
A. Standard of Review
.When deciding a defendant's motion to dismiss, a court assumes as true the plaintiffs "well-
pleaded factualllverments" and favors the plaintiff with "every reasonable inference. It Correa-
Mar:t;jnez v. Arrillaga-Belendez, 903 F.2d 4~. ~2 (1st 'ir. 199.01. A court, however, need not
accept the plaintiff's "bald assertions" or "unsupportable conclusions." Beddall v. State Street
Bank and Trust '0.. 137 F.3d 12. 17 (1st Or. 1998). If it clearly appears that a plaintiff could
not recover on any viable theory, dismissal is proper. Conley v. Gibson, 355 U.S. 41. 45. 48.
7S S. Ct. 99. 2 1".. Ed. 2d 80 (1957).
e. Zoning Act Violations and Federal Preemption
Plaintiffs allege that the Planning Board, the Building Inspector and the Board of Appeals
exceeded their authority by Issuing and ~ffirming the special permit and the building permit
without following the Zoning Act's procedural requirements. Defendants move to dismiss on
claim preClusion grounds, and because both suits amount to impermissible collateral attacks
on a valid and final judgment from the Tower Ventures action, Le., the court order requiring
[*.9] the issuance of the spedal permit and the building permit. The court agrees that
Plaintiffs' suits represent impermissible collateral attacks, n8 and finds that the TCA preempts
the Zoning Act's procedural requirements as applied here.
. - - . . . . . . - - - - - - - - .Footnotes- - . - . - - - . . . - - - . - - -
n8 The court declines to dismiss on claim preclusion grounds because insuffident identicality
exists between the cause of action In Tower Ventures and that of the present cases. In Tower
Ventures, the present corporate Defendants challenged the municipal Defendants' denial of the
permit. Here, however, Plaintiffs challenge Defendants' actions after the Tower Ventures order.
See Moore's Federal Practice, P 131.22[1] (3rd ed. 1999) ("Claim preclusion does not apply
when new facts establish independent grounds for a claim, even if the new claims utilize the
same legal theories or seek the same damages. ft).
. . - - . - - - - - - - - - . . -End Footnotes. . - - - . . - - - - - - - - - -
1. The Telecommunications Act of 1996
Congress enacted the TCA "in order to provIde. . . [a] framework designed to accelerate
rapidly private sector deployment [..10) of advanced telecommu.nications . . . services to
all Americans." Omniooint Communications MB Operations. LL.C v. Town of li(lcoln. 107 F.
Supp. 2d 108, 114 (0. Mass. 2000) (quoting paging, Inc. v. ad. of Zonincl Appeal for the
County of Montgomery. 957 F. SUDD. 80S. 807 (W.O. Va. 1997): See also H.R. Conf. Rep. No.
104-458, l04th Congress; 2d Sess. at 206 (1996). n9 It represents "a deliberate compromise
between two competing aims -- to facilitate nationally the growth of wireless telephone service
and to maintain substantial local control of Siting of towers." Town of Amherst, New Hampshire
v. Omnipoint. 173 F.3d ~" J.~ O$t Qr. 1999}.. Nonetheless, the TCA "significantly limits the
ability of state and local authorities to apply zoning regulations to wireless
telecommunications." Telecorp Realty. L1...C V rOllYQ Of EdQartown. 81 F. Supp. 2d 257. 259 (D.
Mass. 2000) (citing H,R. Conf. Rep. No. 104-458 at 207-08). The TCA limits state and local
zoning control In three pertinent ways: 1) states shall not "prohibit or have the effect of
prohibiting" services; 2) states shall act upon applications "within a reasonable period
(**11] of time" and support all denials R'n writing. . . by substantial evidence;" and 3) a
court of competent jurisdic:tion shall expeditiously r-eview and decide upon state or local
actions inconSistent with the above [*227] limitations. 47 U.S.C. ~ 332{c)(7)(BJ(i)-(iii),(v),
.. lretrieve? _m""S3a2e48faa 17dbO 1 066d25f4a89tbdc& jPlESu=FUll.&dOCllUIn-'" 1 &: _ slaItdoc'" 1 &_slanchk= 1 &:wchp 713/0 I
Sent by: BFKPN 3129543220;
. Gee a Documene - by Cication - ] 2Ql.lpp, 2d 222
03/22/02 4:59PM;~#64; Page 8/12
u
Page 7 of 11
- - - - - - - - - - - - - - . - . .Footnotes- - - - - - - - - - - - - - - - - -
n9 "[Congress enacted the TCA] to provide for a pro-competitive, de-regulatory national policy
framework designed to accelerate rapidly private sector deployment of advanced
telecommunications and inPormation technologies and services. . . ." H.R. Conf. Rep. No. 104-
458 at 206.
- - - - - - - - - - - - - - - - - End Foottlotes- - - - - - - - - - - - - - - - .
2. Preemption
.An act of Congress rooted in a constitutionally enumerated power preempts conflicting state
laws or regulations. See Strahan v. Coxe, 121 F.3d 155, l67-68 (1st Cir. 1991). Preemption is
triggered by congressional intent or when a state law "actualJy conflicts" with a federal statute.
See Hillsborol,lgp County v. Automated Medic.al Lab , 471lJ.S 707. 712-13. 85 L. Ed. 2d 1l~1.
105 S. Ct. 2371 (1985). Courts [**12] may infer congressional intent where, inter alia, it Is
implicit in the act, where the act involves a dominant federal interest, or where the application
of state policies provides a result inconsistent with the objective of the federal statute. See kL.
at 713. A state law "actually conflicts" with a federal statute where compliance with both Is a
physical impossibility, or when the state law .stands as an obstacle to the accomplishment of
the full purposes and objectives" of the federal statute. Id. (Citation omitted).
3. Applying the Telecommunications Act
.Developing case law holds that the TCA preempts state and local laws when the applicatlon of
those laws effectively violates one of the TCA's enumerated limitations on state lonlng
authority. See Amherst, 173 F.3d at \6-17 eating H.R. Conf. Rep. No. 104-458 at 207-08);
Sprint Spe(;l;rum L.P. v. Town of Easton, 982 F. ~upp. 47. 50 (.0. Mass. 1997). Courts from this
and other circuits have held that the appropriate remedy for a violation of the TCA is a
mandatory Injunction ordering the issuance of a special permit. See Omnipoin~
Communications MB Operations. LlC. 107 F. Supp. 2d at 120-21: [**13] Cellular Tel. Co. v.
Town of Oyster ~ay. 166 F.3d 490, 497 (2nd Clf. 199~) (and cases cited therein). The
rationale sustaining this injunctive relief is to "stop local authorities from keeping wireless
providers tied up in the hearing process,. as that would frustrate the TCA's clear mandate to
expeditiously review and remedy TCA violations. Sprint Spectrum L.P., 982 F. Supp. at 50. 52
(quoting Westel-Milwaukee Co. v. walworth county Park and Planoiog Comm'n. 205 Wis. 2d
244.556 N.W.2d 107, 110 (~is. Ct. Apg. 1996)).
4. The Federal Telecommunication Act's Preemption of The Massachusetts Zoning ACE'S
Procedural Requirements as applied in Patterson 1 and Patterson 2
First, Plaintiffs contend that the Planning Board Should have held another publiC hearing prior
to settlement. This argument has no merit. laintiffs ha t . 0 ortuni to rovide In u[
<!.urinQ the three Dubllc hearings held in March, April and Mav of 1999. Plain do not allege
that the Planning Board failed to consider this input when it conceded that the initial denial
lackoild ehe s",~tQnCi.' c;:vi~C"l;. fGloInc:lc.ticm rc;:q"ir." ~y the Tc;A. Nor do they allcge thc.tt the:
special permit or building permit violated the conditions for the tower design set forth in the
Tower Ventures Judgment.
/
..Jrerrieve? _m=5 3a2e48iaa 1 7dbO 1 f366d25i4a89tbdc&_bntstr=FULLoldocnum=1 & _ startdoc= 1 &UlanchJc=: 1 &wchp 713/01
Sent by: BFKPN
3129543220;
03/22/02 5:00PM;~#64; Page 9112
. Gct a Docwntl1t - by Citation - 122 V. ld 222
u
Page 8 of 11
As a practical matter, allowing individual residents to sue their zoning board for settling a TCA Y
suit without nrst consulting those residents would effectively preclude [.228] settlement of r f'
TCA litigation as an option. If a zoning board recognizes that a reviewing court will likely find
its actions violative of the TCA, it behooves that board to settle with the plaintiff company on
tne most favorable terms possible; rather [**15] than spend more on litigation, with the
potential to receive less favorable terms from a judgment. The First Circuit recognized tnis
when it encouraged settlement between wireless providers and zoning boards. See Amherst,
173 F.3d at 16-17 ("It is in the common interest of [zoning boards] and [telecommunications
companies] to find ways to permit the siting of towers in a way most congenial to local
zoning.-). -
~ffs next argue that the Zoning Act required the Planning 80ard to convene a second
round of public hearings even after the court ordered the issuance of the spedal permit. But,
more hearings would helVe been futile. See Brehmer v. Wellneet, No. 99-CV-11169-RGS, slip
op. at 2 (D. Mass. Jan. 1, 2000) ("It: would be inappropriate and, in fact, a waste of time and
energy to order a Planning Board to reconvene a process when the appropriate remedy for a
violation of the TCA, in fact, is injunctive relief by way of a written order.").
A recent case out of the Southern District of New York c10selv resembles the cases here and
supports the decision in Brehmer. See Lucas v. Planning ~. of Town of Lagrange, 7 F. Supp.
2d 310 (S.D.N.V. 1998). [..16] In Lucas, the zoning board InitiiSlly denied a permit to build
a tower. The applicant then sued the zoning board for TCA violations. After the parties entered
into a consent judgment, the court ordered the issuance of the permit. The town residents
subsequently Challenged the validity of the permit. The court in Lucas recognized that allowing
the subsequent challenge to proceed "would return [the parties) to the hearing process so that
all could jump through the various costly and dilatory hoops. . . to frustrate the clear
mandates of the Telecommunications Act." {d. at 321-22.
Here, federal preemption of the zoning procedures is proper. Congress enacted the TCA
pursuant to its power to regulate interstate commerce, specified limits on local zoning boards,
and provided for judical review as an expeditious means to remedy violations. Moreover, case
law supports injunctive relief in the form of an order to issue a special permit. Forcing the
Planning Board to open up to public debate the issue Dr whether to obey a judicial order,
therefore, would "stand as an obstacle to the full accomplishment" of judicial remedy as an
expeditious response to is TCA violation. [..17] nl0
- - . . . . . - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - . .
nl0 As Defendants point out, dismissal would be proper even under state law. In their
Complaints, Plaintiffs neither assert status as abutters nor directly suffer from an infringement
of a legal right. Plaintiffs, therefore, do not have standing as "aggrieved persons," as required
under state law. See Mass. Gen. Laws ch. 40A, ~ 17; Valcourt v. Zoning Bdo 9' Appeals of
Swansea. 48 Mass. APt:>. Ct. 124. 718 N.E.2d 389,392 (Mass. ADD. Ct. 1999). Nor Ci!1O
Plaintiffs sustain a claim that the municipal Defendants "exceeded [their] authority.- See Mass.
Gen. Laws ch. 40, 9 17. The decision to ,amply with the Tower Ventures order was not
unreasonable, nor based on "legally untenable grounds." See Roberts. 709 N.E.2d at 804
(finding unreasonableness and legally untenable grounds as standard for exceeding authority).
Moreover, the Zoning Act enables courts to oreler the issuance of permits "as justice and equity
require: See Mass. Gen. Laws ch. 40, 9 17; Framlngham Clinic. Inc_ Vo 20"'00 Bd. of ApDeals
of Framingham. 382 Mass. 283,415 N.E.2d 840, 848-50 (Mass. 19a1)..". Finally, .where the
publiC right has been litigated and the publiC officials are bound. . . (its] citizens are also
bound." Moraanelli v. Bd9. I"SOedor of Canton. 1 Mass. ADp. Ct. 475f 388 N.E.2d 708. 715
(Mass. App. Ct. 1 ~79)-
- - - - - - - - - - . - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**18]
..Jreuieve? _m=S3a2e48faaI7dbO If366d2Sf4a89fbdc& jmtslFFUt.L&docnum= l&_swtdoc=l &:_stanchk'" 1 &:wchp 7/3/01
Sent by: BFKPN 3129543220;
. Gel a Documenl- by Cilarion - 122 Qpp. 2d 222
03/22/02 5:01PM;~#64; Page 10/12
u
Page 9 of 11
B. Constitutional claims
In Patterson 1, Plaintiffs assert a litany of federal and state constitutional and procedural
violations, among them violations of the Tenth and Fifth Amendments. n11 [*229) Plaintiffs,
however, provide neither enough well-pleaded Factual averments nor sufficient legal
argumentation for this court to analyze a discernable claim. This alone justifies dismissal. ~"It
is not enough merely to mention a possible argument in the most skeletal way, [and leave)
the court to do counsel's work. . . ." !Jni~~ S~ate~ 'to Zannino. 895 F.2d 1. 17 (1st Cir. 1990).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - .
n11 The Patterson 1 Complaint states: "The Planning Board's refusal and failure to hold a
public hearing. . . denied the dtizens . . . of their rights under the Zoning Act, the
Administrative Procedure Act, the Environmental Protection Act, the first, fifth and tenth
amendments to the Constitution of the United States, Article IV of the Declaration of Rights of
the Constitution of the Commonwealth of Massachusetts, and Articles xcvn and CVI of the
Articles of Amendment to the Constitution of the Commonwealth." (Compl. P 39.)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - . . - - - - - . - [**19]
Even if Plaintiffs stated cognizable Tenth and Fifth Amend.ment claims, both would lack merit.
Plaintiffs appear to argue that vesting special permit-granting authority in a federal judge
impermissibly invades upon state and local zoning authority, and encourages judicially-
sanctioned deal-makIng between zoning boards and wireless communications providers that
deprives individual residents of their procedural due process rights.
.-rhe Tenth Amendment states that "powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people." U.S. Const. amend. X. nhe Supreme Court Interpreted the Tenth Amendment to
mean that "the States unquestionably do retain a significant measure of sovereign authority. .
. to the ectent that the Constitution has not divested them of their original powers and
transferred those powers to the Federal Government." Gl!4rdi!) v. San Ar,tonio Metro, Transit
Auth., 469 U.S. 528r 549.83 LEd. 2d 1016. 105 S. Ct. 1005 (1985). Where Congress acts
pursuant to its Commerce Clause powers, however, the ~sulting law becomes "the supreme
L.aw of the Land," U.S. Const. [..ZO) art. VI, cl. 2; See Strahan. 127 F.3d at 167.
~Congress enacted the TCA pursuant to its power to regulate In.terstate commerce, see ~
U.S.C. ~ 151. and made its intent to pr~mpt certain areas of local 20ning control dear and
manifest in the TCA's specific limitations on state zoning powers. See U.S.C. 47 ~ 332(c)(7)
(8). Moreover, the First Orcuit held that "a District Court~s order crafted to bring a state back
into compliance with a preemptive federal statute does not violate the Tenth Amendment. See
Strahan. 127 F.3d at 164, ~
In respect to a potential Fifth Amendment violation, Plaintiffs do not allege a state-protected
property interest upon which to attach a procedural due process claim. .Plalntlffs cannot claim
that an aesthetically pleasing view constitutes an "individual entitlement, grounded in state
law [that] cannot be removed except for cause." Logan v. Zimmerman Brush CO.~ 455 U.S.
422.430. 71 L. Ed. 2-d 265. 102 S, Ct. 1148 (1982).
C. 28 U.S.c. ~ 1983 and Mass. Gen. laws ch. 93A claims
In Patterson 2, Plaintiffs lodged claims under 28 I).S.C. ~ l~e;3 [..21] and Mass. Gen. laws
ch. 93A, but did not oppose Defendants' Motions to Dismiss these claims in pleadings or at the
hearing. For the reasol'\s set forth in Defendants' memoranda, these claims also lack merit.
The municipal Defendants correctly point out that 9Zoning disputes do not give rise to a cause
of action under ~ 1983, absent a specific allegation of a violation of a federal or constitutional
.../retrieve? _m"'S3 a2c48faa 17cibO 1 f366d2S f41189fbdc&jmlSlr-'FULL&ciocnum= 1 &. _ standoc=l&_ stanchk= lliwcbp 713/01
Sent by: BFKPN 3129543220;
.. Get a Document. by CitatioQ - 1220Pp. 2d 222
03/22/02 5:02PM;~#64; Page 11/12
u
Page 10 of 11
,;
right. See e.g., Creative Envts, In~. v. f:~~abr9ok. 680 F.2d 822. 833 (1st Cir. 1982) ("It is not
enough simply to give. . . constitutional labels such as 'due process' or 'equal protection' in
order to raise a substantial federal question under section 1983."). In Patterson 2, Plaintiffs
only specifically al/ege that the Board of Appeals and the Building Inspector acted in excess of
their authority under the Zoning Act. Plaintiffs, [-230] therefore, fail to state a claim under
28 U.S.C. ~ 1~$3, See Fed. R. Clv. P. 12(b)(6}.
With respect to Plaintiffs' ch. 93A claim in Patterson 2, the Complaint does not specify any
particular plaintiff or defendant. Furthermore, Plaintiffs do not allege particular material facts
that would sustain the two essential [..22] elements of a ch. 93A claim -- an unfair or
deceptive act by Defendant, and Plaintiffs' loss of money or property. See Arthur D. Little, IQe.
v, Dooyang Corp., 147 F.~d 47. 54-57 (1st Or. 1998), Plaintiffs' ch. 93A allegation, therefore,
also fails to state a claim. See Fed. R. Civ. P. 12(b)(6).
IV. Conclusion
For the foregoing reasons, corporate Defendants' and municipal Defendants' Motions to
Dismiss Plaintiffs' claims in Patterson 1 and Patterson 2 are ALLOWED. Two orders will issue,
one for each case.
Joseph L. Tauro
United States District Judge
ORDER
November 21, 2000
TAURO, J.,
The court hereby orders as follows;
(1) Plaintiffs' Motion for Leave to File Opposition to Motion to Dismiss In Excess of Twenty
Pages [7-1] is ALLOWED;
(2) The municipal Defendants' (Planning Board of the Town of Scituate, Frank Limbacher, Jane
O'Sullivan, David Nellis, Kathleen Brandow, Elinor Foley and Jonathan Warner) Motion to
Strike Portions of Plaintiffs' Opposition to Defendants' Motion to Dismiss [12-1] is DENIED;
(3) The corporate Defendants' (Omnipoint Communications MB Operations, Inc.; Omnipoint
Communications MB Operations, LLC; [..23} Tower Ventures, Inc.; and King K.
Corporation) Motion to Dismiss [6-1] is ALLOWeD; and
(4) The municipal Defendants' (Planning 60ard of the Town of Scituate, Frank Limbacher, Jane
O'Sullivan, David Nellis, Kathleen Brandow, Elinor Foley and Jonathan Warner) Motion to
Dismiss [10-1] is ALLOWeD.
IT IS SO ORDERED.
Joseph L. Tauro
United States District Judge
..In::trievc'~ _m=53 ale48faal'7dbO I f366d25f4a891bdc&_ fmrsu=FULL&docnum= 1 & _ stattdoc= 1 & _ scancbk= l&wchp 7/3/01
Sent by: BFKPN 3129543220;
. . Ger a Document - by Citation - 122 OPo 2d 222
03/22/02 5:02PM;~#64; Page 12/12
u
Page 11 of 11
l. . ..
Service: LEXS!9
Citation: 122 F.Supp2d 222
View: Full
Oatemme: Tuesday, July 3. 2001 - 3:37 PM EDT
About LexisNexis I Terms and ~dl!lOa1l
Cooyright @ 2001 LexisNexis. a divi5ion of Reed Elsevier Inc. All rfghls resetVed.
.. -'retrieve? _m""S3 112e48 faa 17 dbO lf366d2Sf4a89fbdc& _ fints~FULL&doCr1UID-'-l & _standoe"" 1 &: _s~hk=o 1 &wchp 713/01