United States District Court, D. Massachusetts
KEITH L. MILLER, Trustee of the MRFS Living Trust, Plaintiff,
SBA TOWERS V, LLC, NEW CINGULAR WIRELESS PCS, LLC, and THE CITY OF GLOUCESTER, Defendants.
MEMORANDUM AND ORDER
PATTI B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE
case arises from the Gloucester City Council's decision
to issue a special permit to construct a cell tower on the
property located at 250 Concord Street in Gloucester,
Massachusetts. Plaintiff Keith L. Miller, an attorney, is the
trustee of the MRFS Living Trust, which owns land near the
proposed cell tower site. He alleges that Defendants SBA
Towers V, LLC and New Cingular Wireless PCS, LLC (the
“Wireless Defendants”) and the City of Gloucester
intentionally deprived him of statutorily required notice of
the Zoning Board of Appeals proceedings concerning a variance
needed to build the cell tower.
alleges that all three Defendants violated 42 U.S.C. §
1983 (Count I) and that the Wireless Defendants violated
Mass. Gen. Laws ch. 93A (Count II) (Docket No. 39).
Defendants move to dismiss both counts under Federal Rule of
Civil Procedure 12(b)(6) (Docket Nos. 44 and 48). The
Wireless Defendants also move to dismiss the 93A claim based
on Massachusetts's anti-SLAPP statute (Docket No. 48).
Defendants move for Rule 11 sanctions against Miller for
statements made in his verified complaint (Docket No. 51).
After hearing, the Court ALLOWS the motions
to dismiss (Docket Nos. 44 and 48) and
ALLOWS Defendants' motion for sanctions
(Docket No. 51).
following background comes from the First Amended Verified
Complaint (“FAC”) (Docket No. 39). See Foley
v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir.
2014). The Court also considers other documents not in
dispute, including emails submitted by Defendants. See
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
Plaintiff has not objected to the consideration of these
is the trustee of the MRFS Living Trust, which owns real
property located in Gloucester, Massachusetts (the
Petition for a Variance
Zoning Ordinance 5.13 (the “Ordinance”) governs
the construction of cell towers in the City. The Ordinance
establishes certain height restrictions depending on whether
the proposed cell tower location is within an overlay
district as designated on the City's zoning map. Under
the Ordinance, and pursuant to Mass. Gen. Laws ch. 40A,
§ 10, the Gloucester Zoning Board of Appeals
(“ZBA”) has jurisdiction to hear and vote on
petitions for variances from the requirements of the
September 5, 2014, the Wireless Defendants filed a petition
with the ZBA seeking a variance to construct a 150-foot cell
tower at 250 Concord Street in Gloucester. The real property
at 240/250 Concord Street is owned by the Donald L. Fryklund
Living Trust (the “Fryklund Property”). The
petition included a list of abutters to 250 Concord Street
who were entitled to notice of any hearing and any decision
of the ZBA as “parties in interest” under Mass.
Gen. Laws ch. 40A, § 11. The abutters report, which was
prepared by the City's Assessors Office for the purpose
of notifying abutters as required, does not list the Miller
Property as abutting 250 Concord Street.Miller did not
receive notice as an abutter.
October 2014 through December 2014, Miller received emails
from his neighbors in Gloucester concerning the Wireless
Defendants' petition for a variance to build the cell
tower. On November 15, 2014, Sue Klem emailed a group of
neighbors, including Miller, the following:
For those of you who did not attend the ZBA hearing on
November 13 on the Fryklund cell tower:
The ZBA said they do not have experience with cell towers and
seemed to feel that it was not their role/jurisdiction to
make decisions on such potentially controversial projects as
the Fryklund's cell tower height . . . . They would like
the City Council to handle this.
The ZBA will take up the Fryklund cell tower at their next
meeting on Thursday, December 11 at 7pm. It sounds like this
meeting will deal with technicalities of moving the decision
to the City Council.
Docket No. 51-2 at 67. Miller responded to Klem via email
that same evening: “Thanks. I was away on thursday
[sic], but will plan on coming to next meeting.”
Id. at 66.
December 8, 2014, Miller received another email from Klem
The Zoning Board of Appeals hearing has been moved to
Thursday, December 18 at Gloucester Town Hall in the second
floor auditorium. The Fryklund cell tower will be discussed
at 7pm, at the beginning of the meeting. The ZBA and the City
Council seem to want the request by [the Wireless Defendants]
for variances to the city cell phone tower ordinance to be
taken up by the City Council, most likely starting in
January. So the December 18 ZBA meeting will likely be more
of formality [sic].
Id. at 48.
December 18, 2014, the ZBA issued an opinion denying the
Wireless Defendants' request for a use-variance to build
the tower but granting their request for a procedural
variance to appear before the Gloucester City Council and
request a cell tower special permit, pursuant to Ordinance
Section 220.127.116.11(c). In its opinion on the petition, the ZBA
expressly stated that the “decision granting the
petitioners zoning relief is made solely for the purpose of
allowing them to appear before City Council, which is the
proper and exclusive forum for determining whether a special
permit should be granted for the Cell Tower.” Docket
No. 39-5 at 7. Miller received no notice of the ZBA's
decision granting the variance and asserts he had no
“actual knowledge that the ZBA had rendered a decision
with legal significance.” FAC ¶¶ 17-18.
Petition for Special Permit
March 4, 2015, relying on the variance from the ZBA, the
Wireless Defendants filed an application with the City
Council seeking a special permit to build a 150-foot cell
tower. The City Council and the its Planning and Development
Committee held several public hearings related to the
application in 2015. FAC On June 23, 2015, the City Council
conducted a public hearing to vote on the application, which
Miller attended and spoke at.
August 11, 2015 the City Council issued a written opinion
granting the Wireless Defendants a special permit to
construct a 130-foot cell tower on the Fryklund Property. The
decision was filed with the City Clerk on August 13, 2015.
challenged the City Council's decision to grant the
special permit in both Massachusetts Superior Court and
Massachusetts Land Court. In superior court, Miller asserted
two counts against the City and Wireless Defendants. On
January 15, 2016, the superior court granted the Wireless
Defendants' motion to dismiss Count I, which sought
declaratory relief pursuant to Mass. Gen. Laws ch. 231A,
§ 1, holding: “To the extent that Miller seeks to
use Count I to challenge the ZBA's December Decision,
which he did not appeal, the claim must be dismissed.”
Docket No. 39-6 at 4. On January 11, 2018, the superior court
also allowed the Defendants' motion to dismiss Count II
for lack of standing. The ...