ࡱ> LNK7  bjbjUU Q7|7|ld   4 J  & & & - - - []]]=^"$  #F- @- - - F& & [- & & [- [V[&  8   C [q0O ##[  COMMONWEALTH OF MASSACHUSETTS TRIAL COURT FRANKLIN, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION No. RICHARD CHEDESTER, Plaintiff v. TOWN OF WHATELY; ROGER P. LIPTON, DEBRA CARNEY, AND ROBERT SMITH in Their Capacities as Members of the ZONING BOARD OF APPEALS OF THE TOWN OF WHATELY; FRED BARDWELL, PETER DEGREGORIO, ANITA HUSTED, NICOLAS JONES AND JOHN TORCIA in Their Capacities as Members of the WHATELY PLANNING BOARD; AND EDWARD H. BERMAN AND JULIA C. BERMAN, Defendants  COMPLAINT FOR DECLARATORY RELIEF AND IN ACCORDANCE WITH M.G.L. c. 40A, ' 17  INTRODUCTION This is an appeal from the decision of the Zoning Board of Appeals of the Town of Whately (AZBA@) in which the ZBA ordered the revocation of a building permit issued to the plaintiff for the construction of an amateur radio tower and supporting structure. A true copy of the decision of the ZBA is attached as Exhibit A. The plaintiff submits that the ZBA decision violated the Areasonable accommodation@ requirements of Federal law and the Aminimum practical regulation@ requirement of both Federal and state law. PARTIES The plaintiff, Richard Chedester, is, and at all relevant times has been, a natural person residing at 260 Haydenville Road, Whately, Massachusetts (Athe locus@) The defendant, Town of Whately, is, and at all relevant times has been, a municipal corporation existing under the laws of the Commonwealth of Massachusetts, located in Franklin County, Massachusetts. The defendants, ROGER P. LIPTON, 9 Laurel Mountain Road, DEBRA CARNEY, Laurel Mountain Road, AND ROBERT SMITH, are natural persons who, for the purposes of this action, constitute the ZONING BOARD OF APPEALS OF THE TOWN OF WHATELY. The addresses set forth above are all located in Whately, Massachusetts. The ZBA members are named herein solely in their official capacities. The defendants, FRED BARDWELL, PETER DEGREGORIO, ANITA HUSTED, NICOLAS JONES AND JOHN TORCIA are natural persons who, for the purposes of this action, constitute the PLANNING BOARD OF THE TOWN OF WHATELY (APlanning Board@). The addresses set forth above are all located in Whately, Massachusetts. The Planning Board members are named herein solely in their official capacities. The defendants, EDWARD H. BERMAN AND JULIA C. BERMAN (Athe Bermans@), are natural persons residing at 60 Masterson Road, Whately, Massachusetts. JURISDICTION This Court has jurisdiction over the claims set forth herein pursuant to M.G.L. c. 231A and M.G.L. c. 40A, ' 17. STATEMENT OF FACTS The plaintiff holds record title to the locus jointly with his wife, Jacqueline Kennedy. The plaintiff is a licensed amateur radio operator and private, noncommercial amateur (also known as Aham@) radio station owner, holding an amateur radio operator license and the amateur radio station license with the call letters KB1IPR, both issued by the FCC. A true copy of the plaintiff=s Amateur Radio License is attached hereto as Exhibit B. On or about August 14, 2002, the plaintiff applied for a building permit from the Whately Inspector of Buildings for the construction of an amateur radio tower on the locus. A true copy of the building permit application is attached hereto as Exhibit C. On or about August 21, 2002, the Whately Inspector of Buildings issued the building permit for the proposed tower. A true copy of the building permit is attached hereto as Exhibit D. The locus is approximately * acres in area. The proposed tower was to be located approximately 350 feet from Haydenville Road. The nearest residential neighbor is located approximately 600 feet from the proposed tower location. The tower was to be 140 feet in height. On or about October 28, 2002, the Bermans purported to appeal the issuance of the building permit to the ZBA. A true copy of the Berman=s purported appeal is attached hereto as Exhibit E. On or about October 28, 2002, the Planning Board purported to appeal the issuance of the building permit to the ZBA. A true copy of the Planning Board=s purported appeal is attached hereto as Exhibit F. On or about November 21 and December 5, 2002, the ZBA held a consolidated hearing on the purported appeals filed by the Bermans and the Planning Board. After hearing, the ZBA voted to rescind the building permit. The basis for the decision to revoke the building permit was that the support structure for the antenna exceeded the 35 foot height limitation contained in ' 171-9 (C) of the Whately Zoning Bylaw (Athe bylaw@). A true copy of ' 171-9 (C) of the bylaw is attached hereto as Exhibit G. The bylaw, on its face and as applied by the ZBA, limits the heights of private amateur radio antennas which may be erected and maintained within Whately to 35 feet. The decision of the ZBA failed to reasonably accommodate the amateur radio tower and it did not apply the minimum practical regulation to accomplish the Town=s legitimate purposes in regulating the height of structures in the Town. The height limitation contained in the bylaw and its application by the ZBA are unreasonable and arbitrary in that they so restrict plaintiff's ability to receive and transmit radio communications within the terms of his federally granted amateur radio licenses as to constitute a denial thereof. COUNT I B DECLARATORY JUDGMENT Plaintiff repeats and realleges the allegations contained in the preceding paragraphs of this Complaint and incorporates them as though fully set forth herein. A real and justiciable conflict divides the parties as to the applicability of the Communications Act of 1934, as amended, 47 U.S.C. 151 et seq., and the regulations promulgated thereunder, 47 CFR 97.15. WHEREFORE, the plaintiff, RICHARD CHEDESTER, prays for the following: A judgment declaring that ' 171-9 (C) of the Whately Zoning Bylaw, on its face and as applied by the ZBA, is in conflict with and preempted by the Communications Act of 1934, as amended, 47 U.S.C. Sections 151 et seq., and the regulations promulgated thereunder, 47 CFR 97.15. B. A judgment declaring that ' 171-9 (C) of the Whately Zoning Bylaw, on its face and as applied by the ZBA, violates the provisions of M.G.L. c. 40A, ' 3 and, therefore, must be annulled. C. A judgment declaring that the application of ' 171-9 (C) of the Whately Zoning Bylaw by the ZBA in this case was in error inasmuch as the height limitation, by its terms, does not apply to antennas. Such further relief as this Court deems just and reasonable. COUNT II B ZONING APPEAL PURSUANT TO M.G.L. c. 40A, ' 17 23. Plaintiff repeats and realleges the allegations contained in the preceding paragraphs of this Complaint and incorporates them as though fully set forth herein. 24. The decision of the ZBA was arbitrary, capricious and based upon a legally untenable ground. WHEREFORE, the plaintiff, RICHARD CHEDESTER, prays that the decision of the ZBA rescinding the building permit issued to the defendant be annulled and, thereby, the building permit be reinstated. THE PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES SO TRIABLE Plaintiff, RICHARD CHEDESTER, by His Attorneys, Alan Seewald BBO No. 546790 SEEWALD, JANKOWSKI & SPENCER, P.C. 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