Dana Strayton & Another1 v. Martha’S Vineyard Comm'n &others
| Decision Date | 23 March 2021 |
| Docket Number | Docket: 2018-8 |
| Parties | DANA STRAYTON & ANOTHER1 v. MARTHA’S VINEYARD COMMISSION &OTHERS |
| Court | Superior Court of Massachusetts |
Dates: March 23, 2021
Present: Paul D. Wilson, Justice of the Superior Court
County: DUKES, ss.
Plaintiffs Dana and Robert Strayton own property on Chappaquiddick Island, in the Town of Edgartown. On the nearby property of Defendant Robert Fynbo, Defendant New Cingular Wireless PCS, LLC (“AT&T”)3 has constructed a cell phone tower (the “Tower”). As one step in its permitting process for the Tower, AT&T obtained a favorable decision from Defendant Martha’s Vineyard Commission (the “MVC”). This lawsuit is an appeal from that decision of the MVC.
The parties tried the case before me, without a jury, on October 26, 27 and 28 and December 14, 2020.4 We began the second day of the trial by taking a view of Plaintiffs’ property, Defendant Fynbo’s nearby property where the Tower is located, and two alternative sites that AT&T had considered.
Ten witnesses testified. Two of them were parties to this lawsuit: Plaintiff Dana Strayton and Defendant Robert Fynbo. Three of them were public officials: MVC Senior Planner Edward Veno, Edgartown Fire Chief Alex Shaeffer, and Edgartown Information Technology Director Adam Darack. Three others were AT&T consultants: site consultant Dan Bilezikian, structural engineer Marc Chretien, and radio frequency engineer Dan Goulet. Two others were expert witnesses: real estate appraiser George Valentine for AT&T, and radio telecommunications engineer David Maxson for Plaintiffs. The parties introduced 48 exhibits into evidence, many of them comprising several separate documents or photographs.
After the final witness completed her testimony in December 2020, the parties submitted post-trial briefs or proposed findings of fact and rulings of law. After I reviewed those filings, I heard closing arguments on January 20, 2021.
Based on all the credible evidence presented at trial, and all the reasonable inferences drawn from that evidence, I find the following facts.
Plaintiffs own a parcel of land at 307 Chappaquiddick Rd. in the Town of Edgartown, on the island of Chappaquiddick. Chappaquiddick Road is a paved public way. Plaintiffs’ parcel extends along Chappaquiddick Road from Enos Avenue to Sampson Avenue.
Defendant Fynbo owns a parcel of land at 14 Sampson Ave. Sampson Avenue is a narrow unpaved road that begins at Chappaquiddick Road and proceeds approximately northeast for a short distance. The Fynbo parcel is on Sampson Avenue, four lots away from Chappaquiddick Road, and on the opposite side of Sampson Avenue from Plaintiffs’ parcel. Plaintiffs’ parcel and the Fynbo parcel are not directly opposite each other on Sampson Avenue.
The physical relationship between the two properties can be seen on Exhibit PP,5 a property map prepared for the Edgartown Town Assessor. On this map, Plaintiffs’ parcel is labeled as Lot 196.1, while Defendant Fynbo’s parcel is labeled as Lot 197. Exhibit UU also shows the physical relationship between the two properties. That exhibit, which resembles an aerial photograph, is actually a “visual representation . . . prepared by the landscape architect to show the current conditions,” according to Plaintiffs’ counsel. Transcript (“TR”) 4-23. On that exhibit, the boundaries of Plaintiffs’ parcel are outlined in white. The boundaries of Defendant Fynbo’s parcel are not directly outlined, but his house and an antenna are shown in the middle of a circle outlined in red and labeled “140 ft Radius.” The boundaries of Defendant Fynbo’s parcel, and its relation to the Plaintiffs’ parcel, are shown clearly on a different tax assessor’s map found in a real estate appraiser’s report that AT&T submitted as part of its application. See Exhibit D at PB 00631.
Plaintiffs purchased their parcel in 2015. Plaintiffs also own a home in Natick. Plaintiff Dana Strayton owns a bakery in Bedford, where she works two or three days a week.
Plaintiffs’ parcel contains three structures. One is the main house, located close to Enos Avenue. In the middle of the parcel is a barn. Closer to Sampson Avenue is a cottage, which Plaintiffs occasionally rent out, on either a long-term or a short-term basis. Plaintiffs also sometimes allow friends to stay in the cottage. When I took a view of the property, two friends of Plaintiffs were staying there.
The Edgartown zoning bylaw sets the minimum lot size for parcels in this neighborhood at three acres. Neither Plaintiffs’ parcel nor the parcel of Defendant Fynbo meets this requirement. Plaintiff’s parcel is 40,000 ft.², which is just under an acre. See Exhibit NN. It is undisputed that Defendant Fynbo’s lot is .55 acre.
Defendant Fynbo has lived for decades in the house at 14 Sampson Ave. Since the late 1970s and continuing through the events at issue here, he operated a business at 14 Sampson Ave., individually and through Defendant MVWIFI, LLC. That business provided radio, TV, and local emergency services, and later provided high-speed wireless Internet, to Chappaquiddick residents who subscribed and paid for such services.
To provide those services, Defendant Fynbo erected various structures at 14 Sampson Ave. When Plaintiffs purchased their property in 2015, the structure in place at 14 Sampson Ave. was an 84-foot guyed lattice-style tower (the “84-foot Tower”)6 that Defendant Fynbo erected in 2010. The 84-foot Tower is shown in photographs found in Exhibits U and V. Shortly after purchasing their property, Plaintiffs became customers of Defendant Fynbo’s business for a brief time.
Since 2010 (and before, although the evidence at trial only briefly touched on earlier times), the Town of Edgartown has been anxious to provide reliable cell phone service on the island of Chappaquiddick. At that time, there was no cell phone tower on Chappaquiddick.
The Town sought reliable cell phone service not only for the residents of Chappaquiddick, but for the many residents and visitors to Martha’s Vineyard who used Chappaquiddick’s popular beaches during the summer. According to the credible testimony of Edgartown Fire Chief Alex Shaeffer, the Fire Department’s emergency medical services ambulances were regularly called to the beaches, and were always accompanied by the Edgartown Police Department to emergency calls. The lack of reliable cell phone service meant that people calling for help had to leave the beach to find a landline. Then the ambulance and police first responders had to communicate by landline with the caller who was no longer with the injured party, and with each other by using portable radios whose signals often did not reach across Chappaquiddick. Furthermore, once emergency medical technicians reached the scene of a medical emergency, either on the beach or at a home, the absence of cell phone coverage made it impossible for them to transmit medical information, such as electrocardiogram results, to physicians advising them from elsewhere on Martha’s Vineyard, or from the mainland.
In approximately 2012, the Town reached an agreement with a company called Grain Management LLP, in which Grain agreed to provide cell phone service on Chappaquiddick employing “distributed antenna system,” or DAS, technology. Rather than using a tower to communicate with cell phones, this technology uses many small antennas on existing telephone poles. To implement this contract, Grain needed to find a cell phone carrier that would install and operate such a DAS system. Grain was unable to do so.
Next, the Town put together a request for proposals (“RFP”) to provide telecommunication services on Chappaquiddick. The RFP did not specify the type of technology to be used, nor did it specify any particular sites. The Town’s idea was to let bidders in the telecommunications industry, who knew what was possible and what was desirable, submit proposals specifying a technology that bidders would actually implement if their bid was chosen.
Early in 2015, the Town’s information technology manager Adam Darack, the primary drafter of the RFP, reviewed the bids, along with another Town employee. They decided to recommend to the Board of Selectmen a new bid submitted by Grain, to build a 165-foot cell phone tower on Town-owned property on Litchfield Avenue. The Selectmen invited public comment on this proposal. The reaction was voluminous, and generally negative. Chief among the reasons cited by citizens who opposed the project were the height of the tower and the use of Town-owned land for this purpose.
The Selectmen decided not to accept the Grain bid (or any other bid). Instead, in June 2015 the Selectmen appointed a group of citizens to a Chappaquiddick Cell Committee. This Committee’s task was to find a workable solution for cell phone coverage on Chappaquiddick, and to locate a cell phone carrier willing to implement that solution. The Committee was particularly interested in finding a solution that would provide cell phone coverage in the neighborhood where Plaintiffs and Mr. Fynbo live, which is the most densely populated part of Chappaquiddick, although “densely populated” is a relative term on such a lightly populated island. Also important to the Committee was cell phone coverage on Chappaquiddick’s many beaches, some of them remote.
The Chappaquiddick Cell Committee consulted with Verizon about the use of DAS technology, but Verizon ultimately demurred. The Committee explored the interest of Defendant AT&T in a tower solution, and a team from AT&T looked at many properties in Chappaquiddick, including the Town-owned Litchfield...
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