Monks v. Zoning Bd. of Appeals of Plymouth

• Decision Date: 24 January 1995
• Docket Number: No. 93-P-1258,93-P-1258
• Citation: 37 Mass.App.Ct. 685,642 N.E.2d 314
• Court: Appeals Court of Massachusetts
• Parties: Roger W. MONKS & another 1 v. ZONING BOARD OF APPEALS OF PLYMOUTH & another. 2

Page 314

642 N.E.2d 314

37 Mass.App.Ct. 685

Roger W. MONKS & another ¹ v. ZONING BOARD OF APPEALS OF PLYMOUTH & another. ²

No. 93-P-1258.

Appeals Court of Massachusetts,

Plymouth.

Argued May 19, 1994.

Decided Nov. 28, 1994.

Further Appellate Review Denied Jan. 24, 1995.

John H. Wyman, for plaintiffs.

Sigmund J. Roos, for Southwestern Bell Mobile Systems, Inc.

Before DREBEN, JACOBS and PORADA, JJ.

JACOBS, Justice.

When the defendant board of appeals granted the defendant Cellular One a special permit to construct a tower measuring 190 feet in height, the plaintiffs brought a complaint in the Superior Court pursuant to G.L. c. 40A, § 17, seeking annulment of the permit. After its motion for summary judgment alleging that the plaintiffs lacked standing was denied, Cellular One sought reconsideration before another judge claiming that Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 597 N.E.2d 48 (1992), decided after the denial of the motion, required rejection of the plaintiffs' claim of standing. This appeal ensued when the second judge allowed the motion for reconsideration and ordered summary judgment dismissing the plaintiffs' complaint.

The parties' submissions under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), establish that the plaintiffs own a home on the westerly shore of Bloody Pond in Plymouth approximately 1,500 feet ³ to the west of the proposed tower site and separated from it by the pond, a conservation forest area, and a highway (Route 3). Both the tower site and home are located within the same "rural residential" zone as defined by the town of Plymouth zoning by-laws. An affidavit filed in behalf of the plaintiffs asserts that all commercial uses are prohibited in that zone and that the minimum permitted lot size is 60,000 square feet.

The special permit was granted under the following zoning by-law:

"300.09 HEIGHT

NO STRUCTURE SHALL BE BUILT, CONSTRUCTED, ERECTED, OR ADDED TO ABOVE A HEIGHT OF THIRTY-FIVE (35) FEET; EXCEPT UTILITY POLES, WHICH SHALL NOT BE MORE THAN FORTY-ONE (41) FEET; WITHOUT A SPECIAL PERMIT FROM THE BOARD OF APPEALS, AFTER A FINDING BY THE BOARD THAT THERE IS NO FEASIBLE ALTERNATIVE TO THE PROPOSED HEIGHT, THAT IT IS THE MINIMUM NECESSARY, THAT THERE IS A CLEAR AND SPECIFIC PUBLIC BENEFIT WHICH MAY BE REALIZED ONLY BY EXCEEDING 35' IN HEIGHT, AND THAT THE PROPOSED STRUCTURE WILL NOT IN ANY WAY DETRACT FROM THE VISUAL CHARACTER OR QUALITY OF THE ADJACENT BUILDINGS, THE NEIGHBORHOOD OR THE TOWN AS A WHOLE."

In their rule 56 submissions the plaintiffs claim that they constructed and situated their home "to take maximum advantage of the rural beauty, not only of the pond, but of the surrounding rolling topography." They express a concern that the tower would be "clearly visible from almost every window" of their home and would defeat their expectation of being "insulated from any commercial activity" by the rural residential zoning designation. They further contend that they are aggrieved by the decision to permit construction of the tower in that it would (1) "significantly impact the visual character and quality of [their] neighborhood," (2) would "diminish[ ] the value of [their] home," and (3) would cause microwave emissions harmful to their health.

Under G.L. c. 40A, § 17, aggrieved person status is the jurisdictional prerequisite to judicial review of a decision by a board of appeals or other special permit granting body. See Barvenik v. Aldermen of Newton, supra, 33 Mass.App.Ct. at 130-131, 597 N.E.2d 48; Cohen v. Zoning Board of Appeals of Plymouth, 35 Mass.App.Ct. 619, 620, 624 N.E.2d 119 (1993). The plaintiffs concede that they are not entitled to the presumptive standing accorded to "parties in interest" as that term is defined in G.L. c. 40A, § 11. Barvenik v. Aldermen of Newton, supra, 33 Mass.App.Ct. at 131 & n. 7, 597 N.E.2d 48. However, in their opposition to the motion for summary judgment, they claim that the special permit issued to Cellular One violates specific property rights and interests of theirs which are within the scope of concern and protection of the by-law in issue. We agree.

The unsubstantiated representations of the plaintiffs relative to diminution of property value and harmful emissions likely constitute speculative personal opinions which are factually inadequate to establish aggrieved status, even for purposes of withstanding a motion for summary judgment. Cohen v. Zoning Bd. of Appeals of Plymouth, supra, 35 Mass.App.Ct. at 622-623, 624 N.E.2d 119. Marashlian v. Zoning Bd. of Appeals of Newburyport, 37 Mass.App.Ct. 931, 641 N.E.2d 125 (1994). See Lujan v. Defenders of Wildlife, 504 U.S. 555, ---- - ----, ----, 112 S.Ct. 2130, 2136-2137, 2139, 119 L.Ed.2d 351 (1992) ("Standing ... requires, at the summary judgment stage, a factual showing of perceptible harm.")

Similarly, the plaintiffs' expressed concern with visual impact might be dismissed as aesthetic sensitivity insufficient to impart standing, see Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493, 540 N.E.2d 182 (1989), were it not for the specific provisions of the Plymouth zoning by-law. By conditioning the grant of a special permit under § 300.09 of that by-law on a finding, as was here made, that "[t]he proposed structure will not in any way detract from the visual character or quality of the neighborhood," the town of Plymouth...