Bldg. Comm'r Franklin v. Dispatch Communications, P-0309

• Decision Date: 09 March 2000
• Docket Number: P-0309,P-0375,98-P-0310
• Citation: 725 N.E.2d 1059,48 Mass. App. Ct. 709
• Court: Appeals Court of Massachusetts
• Parties: (Mass.App.Ct. 2000) BUILDING COMMISSIONER OF FRANKLIN vs. DISPATCH COMMUNICATIONS OF NEW ENGLAND, INC. (and three companion cases <A HREF="#fr1-1" name="fn1-1">1 ). No.: 98-, & 98-

Page 1059

725 N.E.2d 1059 (Mass.App.Ct. 2000)

BUILDING COMMISSIONER OF FRANKLIN vs. DISPATCH COMMUNICATIONS OF NEW ENGLAND, INC. (and three companion cases¹).

No.: 98-P-0309, 98-P-0310, & 98-P-0375.

MASSACHUSETTS COURT OF APPEALS Norfolk, County

Argued December 3, 1998.

Decided March 9, 2000.

Laurence, Lenk, & Beck, JJ.

Zoning, By-law, Public utilities, Height restriction, Communications tower, Building permit, Board of appeals: decision. Practice, Civil, Summary judgment, Relief from judgment, Report. Constitutional Law, Public utilities, Equal protection of laws. Federal Telecommunications Act. Words, "Monopoly."

Civil actions commenced in the Superior Court Department on December 30, 1996, and January 10, 1997, respectively, and in the Land Court Department on January 6, 1997.

After the cases were consolidated in the Superior Court Department, motions for summary judgment were heard by Paul A. Chernoff, J.; entry of separate and final judgment was ordered by Mitchell J. Sikora, Jr., J.; and a motion for relief from judgment was heard by Nonnie S. Burnes, J.

Complaint received and sworn to in the Wrentham Division of the District Court Department on February 12, 1997.

Questions of law were reported by Daniel B. Winslow, J [Copyrighted Material Omitted] Mark W. Corner for Dispatch Communications of New England, Inc.

Mark A. Berthiaume for building commissioner of Franklin & another.

BECK, J.

Between October, 1995, and May, 1996, Dispatch Communications of New England, Inc., doing business as Nextel Communications, Inc. (Nextel), constructed a telecommunications tower on privately owned property in a rural residential district in the town of Franklin. The four cases consolidated in this appeal are the result of the town's efforts to have the tower removed.

Procedural and factual background. We take the facts from the findings of the Superior Court judge and the undisputed summary judgment materials before him, as well as from the stipulated facts in the District Court criminal case. In October, 1995, Nextel applied to the Franklin building commissioner, Allan B. Fraser, for a building permit to construct a communications tower on privately owned property located at 765 Lincoln Street, in a rural residential I (RRI) zoning district. Two weeks later, the commissioner issued the permit. The Lincoln Street tower, which is 120 feet high, was completed in May, 1996. Fraser had issued a similar permit to Nextel a year before. Pursuant to that permit, Nextel had constructed a 100 foot tower in the Forge Hill Road area, an industrial zoning district where two other mobile service providers, Cellular One and Bell Atlantic/Nynex Mobile, also have communication towers.

Nextel is a multi-billion dollar corporation in the commercial mobile radio services industry. See 47 U.S.C. § 332(c)(7)(C)(i); Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 641-642 (2d Cir. 1999). Its services include digital cellular telephone service, text and numeric paging voice mail, and other features. "Digital . . . technology provide[s] numerous advantages to consumers: 'better quality, fewer dropped calls and better security than [analog] cellular phones.'" Note, Wireless Service Providers v. Zoning Commissions: Preservation of State and Local Zoning Authority Under the Telecommunications Act of 1996, 32 Ga. L. Rev. 965, 980 (1998). For a more detailed discussion of the industry and the technology, see Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 479-480 (1999). See also Sprint Spectrum, L.P. v. Willoth, supra at 634-635.; Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457, 1460 (N.D. Ala. 1997). See generally Note, Wading Through the Rhetoric of the Telecommunications Act of 1996: Uncertainty of Local Zoning Authority Over Wireless Telecommunications Tower Siting, 22 Vt. L. Rev. 461, 467-472 (1997).

On August 14, 1996, three months after the Lincoln Street tower was completed, the building commissioner sent Nextel a letter ordering it to remove both towers by September 15, 1996. He took this action at the behest of the Franklin town council, the town's legislative body. In the letter, the building commissioner claimed that the towers violated the height and use restrictions in the Franklin zoning by-law. The letter also mentioned an unrelated proceeding involving Nextel at the Department of Public Utilities (now the Department of Telecommunications and Energy, see St. 1997, c. 164, § 28), which we shall discuss further in due course.

In mid-September, 1996, Nextel appealed the building commissioner's removal order to Franklin's zoning board of appeals (board). See G. L. c. 40A, §§ 8 & 15. Nextel argued that its towers complied in all respects with the Franklin zoning by-law and that the removal order violated section 704 of the Federal Telecommunications Act of 1996, which the President had signed into law on February 8, 1996. Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. §§ 151 et seq., as amended). The board held a public hearing on October 31 and November 14, 1996, and, on December 12, 1996, issued its findings and decision sustaining the building commissioner's order to remove the towers.

The parties then proceeded to the courts of the Commonwealth. On December 30, 1996, the building commissioner filed suit in Superior Court pursuant to G. L. c. 40A, § 7, third par., seeking a declaratory judgment and injunctive relief to compel compliance with his removal order. One week later, on January 6, 1997, Nextel countered by filing an appeal from the decision of the board in the Land Court. Four days after that, on January 10, 1997, Nextel filed its own action in Superior Court for declaratory and injunctive relief under the Federal Telecommunications Act. In February, 1997, pursuant to a December 18, 1996, application of the building commissioner under § 185-44(H)(1) of the Franklin zoning by-law, the Wrentham District Court issued two criminal complaints against Nextel for continuing violations of the by-law. In April, 1997, the Land Court case was consolidated in Superior Court with the two Superior Court cases.

In July, 1997, the town moved for summary judgment in each of the consolidated civil cases. On September 19, 1997, after hearing, a Superior Court judge denied the town's motions for summary judgment as to the Forge Hill Road tower and granted the motion as to the Lincoln Street tower. However, noting that "Nextel has argued that it must have both communication towers in order to provide full service to its clientele . . . [and] [a]ssuming, but not deciding, that removal of one tower would seriously impede Nextel's operation," the judge stayed his order to remove the Lincoln Street tower for four months, to give Nextel time to explore alternative sites for its tower. Final judgments in the consolidated civil cases entered on December 26, 1997, and January 5, 1998, more than three months later. Later in January, 1998, a different judge of the Superior Court stayed the order requiring removal of the Lincoln Street tower pending appeal, and subsequently denied a rule 60(b) motion for relief from judgment. See Mass.R.Civ.P. 60(b), 365 Mass. 828-829 (1974). Meanwhile, on December 12, 1997, pursuant to an agreed statement of facts, the criminal case in the Wrentham District Court was reported to this court on questions of law. See G. L. c. 218, § 27A(d); Mass.R.Crim.P. 34, 378 Mass. 905-906 (1979); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). Nextel appeals from the judgments in favor of the town concerning the Lincoln Street tower and from the denial of its motions for relief under rule 60(b). Nextel is also the appellant in the criminal case that has been consolidated with the civil cases now before us. See Mass.R.A.P. 5.

Discussion. The core issues in this appeal concern interpretations of the Franklin zoning by-law. Stripped to its essentials, Nextel's argument is that the Lincoln Street tower complies with the by-law and that the town's claim to the contrary would lead to a result which violates the Federal Telecommunications Act. Specifically, Nextel claims that it is a public utility under § 185-3 of the Franklin zoning by-law and may therefore construct its tower in a residential district as a matter of right. It also claims that the tower comes within the height exemption of the by-law, § 185-13. According to Nextel, the removal order constitutes unreasonable discrimination under the Federal Telecommunications Act, violates the equal protection guarantees of the Federal and Massachusetts Constitutions, and in effect prohibits the provision of personal wireless services in violation of the Federal Telecommunications Act. On the other hand, the town argues that Nextel is not a public utility because it is not a monopoly and that it is not in compliance with the height requirements in a RRI district. The town denies its action either discriminates against Nextel or prohibits the provision of personal wireless services.

According to Nextel, the dispute about the meaning of Franklin's zoning by-law as applied to the Lincoln Street communications tower "gives rise to a genuine issue of material fact." However, the meaning of a phrase in a zoning by-law is a question of law, not a question of fact. See Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 112 (1960). See also Sprint Spectrum L.P. v. Easton, 982 F. Supp. 47, 50 & n.1 (D. Mass. 1997) (Differences in opinion as to the inferences to be drawn in determining proper interpretation of by-law is an "interpretation of the legal standards involved and not the material facts").

1. Applicable legal standards. A zoning board of appeals is entitled to "all rational presumptions in favor of its interpretation of its own by-law, [provided] there [is] a rational relation between its decision and the purpose of the regulations it is charged with enforcing." Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct....