Kramer v. Zoning Bd. of Appeals Somerville, 04-P-293.

Citation837 N.E.2d 1147,65 Mass. App. Ct. 186
Decision Date29 November 2005
Docket NumberNo. 04-P-293.,04-P-293.
CourtUnited States State Supreme Judicial Court of Massachusetts

Manuel Kramer, pro se.

Steven E. Grill, Manchester, New Hampshire, for Nextel Communications & another.

Matthew J. Buckley, Assistant City Solicitor (John G. Gannon, City Solicitor, with him) for Zoning Board of Appeals of Somerville & another.

A. Neil Hartzell, Boston, for Greenman & Pedersen, Inc.



Manuel Kramer alleges that a wireless antenna facility (also referred to as the structure), constructed on a building adjacent to his, obstructed his skyline view and diminished his property value. Appearing pro se below and on appeal, he asserts that he received no notice from the zoning board of appeals of Somerville (board) of a public hearing at which he might have opposed the planned structure. The Superior Court judge dismissed Kramer's complaint for damages, as well as equitable and declaratory relief, on the ground that it was filed outside the statutory appeal period. We reverse the dismissal of Kramer's claims against the board and the city of Somerville (city) insofar as he seeks a hearing and attendant relief pursuant to G.L. c. 40A, § 17, and remand for further proceedings consistent with this opinion. We also reverse the judge's dismissal of the claims against the private defendants and remand for further consideration of those claims by the judge.

Background. When reviewing the dismissal of a complaint, we accept as true the allegations in the complaint, and draw all inferences in the plaintiff's favor. Fairneny v. Savogran Co., 422 Mass. 469, 470, 664 N.E.2d 5 (1996).

On October 11, 2001, the board approved a special permit allowing Nextel Communications (Nextel) to construct a wireless antenna facility on the roof of an apartment building located at 88 Beacon Street in Somerville. The permit decision was filed on the same day in the office of the Somerville city clerk. The plaintiff's building, at 94 Beacon Street, abuts 88 Beacon Street. As alleged in the complaint, no notice of the board's public hearing on Nextel's application for a special permit was given to the sixty-four residents of the 94 Beacon Street condominium (including Kramer), the condominium trustees, the building superintendent, or the condominium management company. We construe the complaint to assert that no form of notice of the hearing was ever given, whether by mail, publication or posting. Such notice was required under G.L. c. 40A, § 11.2

Kramer, the owner and occupant of a top-floor condominium unit at 94 Beacon Street, arose on May 4, 2003, to find roughly one-third of the view from his living room picture window blocked by the construction of the structure, about forty feet from his window, on the roof of the adjacent building, 88 Beacon Street.3 The structure, a brick box, about twelve-feet by twelve-feet square and about ten-feet high, blocked Kramer's direct view of the Somerville-Cambridge-Boston skyline.

Sixteen days after first seeing the Nextel structure, Kramer filed a pro se complaint in Superior Court against the board and the city. He alleged that neither he nor anyone else in his building had received notice of the public hearing the board conducted on Nextel's application for a special permit for construction of the structure as required by G.L. c. 40A, § 11. He also claimed a violation of his Federal due process rights, and requested a declaratory judgment to that effect. The Superior Court judge allowed Kramer to amend his complaint to include several additional defendants: Nextel, the permitee and owner of the structure; Philip Privitera, the controller of 88 Beacon Street, along with 88 Beacon Street Realty, Inc.; and Greenman & Pedersen, Inc., the contractor that built the structure (collectively referred to as the private defendants). Kramer alleged that the private defendants misrepresented various details of the project in order to secure the permit from the board, and that they timed construction so as to avoid any challenge from abutting property owners. As relief, Kramer sought an order directing that Nextel remove the structure, or in the alternative, compensatory damages for the injury he suffered, or "[a]ny other appropriate judgment of declaratory relief in equity to make the plaintiff whole again."

Following the amendment of the complaint, Kramer served several of the defendants with interrogatories and requests for admissions. In response, the defendants filed motions to dismiss and requests for protective orders. Kramer opposed the motions for protective orders, and also filed a motion to "Determine Sufficiency of Objections to Request For Admission." The judge denied Kramer's motion and allowed the motions for protective orders, staying discovery until after a hearing on the motions to dismiss.

At the hearing on the motions to dismiss, and in their motions, the defendants collectively articulated three primary grounds for dismissal. First, the defendants contended that Kramer filed his case far too late to preserve a claim under c. 40A, since G.L. c. 40A, § 17, inserted by St.1975, c. 808, § 3, requires challenges to decisions of a zoning board based upon defects in procedure or notice to be "commenced within ninety days after the decision has been filed in the office of the city or town clerk." Kramer commenced his action on May 20, 2003, more than a year and a half after the board's decision was filed in the Somerville city clerk's office. Second, they argued that no declaratory judgment should issue regarding Kramer's due process rights because the Fourteenth Amendment to the United States Constitution has "never been read to grant a constitutional right to be heard with respect to the uses of land that might be authorized on someone else's property." Third, the defendants claimed that, in any event, Kramer had no standing under G.L. c. 40A, and that the Telecommunications Act of 1996, 47 U.S.C. §§ 151 et seq. (TCA), prevented the board from denying Nextel's permit based solely upon Kramer's concerns, and thus he could show no prejudice. Finally, Greenman & Pederson, Inc., argued that the allegations in Kramer's complaint failed to state claims of conspiracy or misrepresentation. The judge ruled that the court had no jurisdiction to consider a claim under § 17 after the ninety-day statutory appeals period, and that Kramer had no standing under the Fourteenth Amendment because he had not established a protected property interest. The judge dismissed the complaint against all defendants.

Discussion. 1. Jurisdiction. The central question in this appeal is whether the Superior Court was without jurisdiction to hear Kramer's appeal solely because he failed to appeal within the statutory ninety-day period — even though, accepting as true the allegations in the complaint, the board failed to provide any notice of the hearing as required by G.L. c. 40A, § 11, and Kramer had no practical way of knowing of the hearing, or of the filing of the special permit. The defendants urge us to uphold the judge's determination that Kramer is without recourse under the statute because he failed to file his claim within the statutorily prescribed ninety-day period.

We begin with some observations about the statutory zoning scheme. That scheme provides that upon application for a special permit filed with the special permit granting authority (such as the board), the authority "shall hold a public hearing, for which notice has been given as provided in section eleven." G.L. c. 40A, § 9, inserted by St.1987, c. 498, § 1. The public hearing provides an "opportunity for interested persons to appear and express their views pro and con." Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 114-115, 436 N.E.2d 1236 (1982) (internal citation omitted). Section 11 requires that "[i]n all cases where notice of a public hearing is required notice shall be given by publication in a newspaper ... and by posting such notice in a conspicuous place in the city or town hall .... [and] by mail, postage prepaid" to parties in interest, including abutters. G.L. c. 40A, § 11, inserted by St.1975, c. 808, § 3. This notice must be provided by the board or its agent, and the task of providing it cannot be delegated to the interested petitioner. See Kane v. Board of Appeals of Medford, 273 Mass. 97, 102-103, 173 N.E. 1 (1930); Planning Bd. of Peabody v. Board of Appeals of Peabody, 358 Mass. 81, 83, 260 N.E.2d 738 (1970) (notice mailed by petitioner's legal counsel invalid). After a decision is reached, the granting authority is required to file a copy of the decision with the city or town clerk, G.L. c. 40A, § 9, and to provide notice of the decision to parties in interest, such as abutters. Ibid.; G.L. c. 40A, § 11.

The mechanism for appeal and judicial review of a special permit is set forth in G.L. c. 40A, § 17, the statute which is at the heart of this dispute. In relevant part, that statute provides:

"Any person aggrieved by a decision of the board of appeals or any special permit granting authority ... may appeal to... the superior court ... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.


"The foregoing remedy shall be exclusive, notwithstanding any defect of procedure or of notice other than notice by publication, mailing or posting as required by this chapter, and the validity of any action shall not be questioned for matters relating to defects in procedure or of notice in any other proceedings except with respect to such publication, mailing or posting and then only by a proceeding commenced within ninety days after the decision has been filed in the office of the city or town clerk, but the parties shall have all...

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