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Miller v. SBA Towers V, LLC

United States District Court, D. Massachusetts

July 8, 2019

KEITH L. MILLER, Trustee of the MRFS Living Trust, Plaintiff,




         This 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.

         Plaintiff 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).


         The 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 emails.

         Miller is the trustee of the MRFS Living Trust, which owns real property located in Gloucester, Massachusetts (the “Miller Property”).[1]

         A. Petition for a Variance

         Gloucester 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 ordinance.

         On 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.[2]Miller did not receive notice as an abutter.

         B. Neighborhood Emails

         From 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.

         On December 8, 2014, Miller received another email from Klem stating:

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.

         On 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 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.

         C. Petition for Special Permit

         On 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.

         On 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.

         D. Prior Litigation

         Miller 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 ...

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