NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-686
ROBERT H. STRAYTON & another1
vs.
PLANNING BOARD OF EDGARTOWN & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from a Land Court decision granting
summary judgment to the defendants, ruling that the suit was
barred by the doctrine of collateral estoppel. On appeal, the
plaintiffs maintain that the doctrine does not bar the case
because the issues in this case are not identical to the issues
already litigated in the previous Superior Court case. We
affirm.
Background. "We summarize the findings set forth in the
order on the [defendants'] . . . motion[] for summary judgment,
1 Dana G. Strayton.
2 New Cingular Wireless PCS, LLC and Robert M. Fynbo. supplemented by other uncontroverted facts in the summary
judgment record." Williams v. Board of Appeals of Norwell, 490
Mass. 684, 685 (2022). The plaintiffs, abutters to abutters
within 300 feet of the property at issue, challenged a special
permit granted by defendant Edgartown's planning board (the
planning board) to defendant New Cingular Wireless PCS, LLC
(AT&T) to construct a cell tower on a property owned by
defendant Robert Fynbo's company, MVWIFI, on Chappaquiddick
Island. The plaintiffs appealed the planning board decision to
the Land Court under G. L. c. 40A, § 17, alleging that it
violated the Edgartown zoning bylaw.
The plaintiffs purchased their property in 2015. At the
time, an eighty-four foot tower owned and operated by Fynbo on
the MVWIFI property provided wireless high speed internet to the
island's residents. In 2017, AT&T, Fynbo, and MVWIFI applied to
the planning board for a special permit to replace the existing
tower with a 115 foot tower, which would also provide cell phone
service to the island's residents. The planning board referred
the application to the Martha's Vineyard Commission (MVC), which
approved the application in December 2017 pursuant to the MVC's
enabling statute, the Martha's Vineyard Commission Act (MVC
Act). After the MVC approved the application with conditions,
the planning board then reviewed and approved the application
and granted the special permit for the project in September
2 2018. The new tower's construction was completed by May 2019
and it has been operational since then.
The plaintiffs appealed the MVC decision in the Superior
Court in February 2018 and the planning board decision in the
Land Court in October 2018; in each case, the bases for the
plaintiffs' aggrievement were the same: (1) visual impact,
(2) an increase in traffic, (3) safety concerns due to
radiofrequency emissions and potential collapse or falling
objects, and (4) diminution in property value.
In October and December 2020, a judge of the Superior Court
heard a four day, jury-waived trial on the appeal of the MVC
decision. The judge took a view of the property, and the
parties vigorously litigated the issue of whether the plaintiffs
had suffered an injury that would give rise to standing to
appeal. In March 2021, the judge dismissed the plaintiffs' case
for lack of standing, while also rejecting the claims on the
merits. The Superior Court judge acknowledged that the language
in the MVC Act about standing to appeal was not identical to the
language in c. 40A, but determined that, because the MVC Act
does not define "party aggrieved," it was appropriate to apply
the c. 40A test for standing. See Tisbury Fuel Serv., Inc. v.
Martha's Vineyard Comm'n, 68 Mass. App. Ct. 773, 774 (2007). A
different panel of this court upheld the Superior Court judge's
decision in 2022 and the plaintiffs did not seek further
3 appellate review. See Strayton v. Martha's Vineyard Comm'n, 100
Mass. App. Ct. 1132 (2022), slip op. at 6.
Following the conclusion of the Superior Court litigation,
the defendants moved for summary judgment in this case. After a
hearing, the Land Court judge granted the motion, concluding
that the plaintiffs were "barred by the doctrine of issue
preclusion from relitigating the issue [of standing] here" and
dismissed the case for lack of subject matter jurisdiction.
Discussion. "The allowance of a motion for summary
judgment is appropriate where there are no genuine issues of
material fact in dispute and the moving party is entitled to
judgment as a matter of law" (quotation omitted). Williams, 490
Mass. at 689. "[A] party moving for summary judgment in a case
in which the opposing party will have the burden of proof at
trial is entitled to summary judgment if [they] demonstrate[]
. . . that the party opposing the motion has no reasonable
expectation of proving an essential element of that party's
case." Kourouvacilis v. General Motors Corp., 410 Mass. 706,
716 (1991). "We review a decision on a motion for summary
judgment de novo" (quotation omitted). Williams, 490 Mass. at
689.
Collateral estoppel, or issue preclusion, bars a subsequent
claim if:
4 "(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current adjudication; and (4) the issue decided in the prior adjudication was essential to the earlier judgment."
Green v. Brookline, 53 Mass. App. Ct. 120, 123 (2001). The
plaintiffs claim that (1) the issues in this case are not
identical to those in the Superior Court case, and (2) the
different issue in this case (standing based on view impacts
under either the Edgartown zoning bylaw or G. L. c. 40A) was not
essential to the judgment in the previous case.
In the Superior Court appeal, the judge decided that the
MVC Act did not protect views but nonetheless assumed that view
impacts could support standing and, as part of the standing
analysis, incorporated and evaluated the plaintiff's claims
regarding view impacts from the tower. The plaintiffs maintain
that the Superior Court judge addressed standing only under the
MVC Act, not c. 40A. The plaintiffs reason that, because the
Edgartown zoning bylaw protects views and this appeal to the
Land Court was brought under G. L. c. 40A, § 17, rather than the
MVC Act, the issues in this case are not identical to the issues
in the previous Superior Court appeal. Further, the plaintiffs
maintain that, because the Superior Court judge determined that
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-686
ROBERT H. STRAYTON & another1
vs.
PLANNING BOARD OF EDGARTOWN & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from a Land Court decision granting
summary judgment to the defendants, ruling that the suit was
barred by the doctrine of collateral estoppel. On appeal, the
plaintiffs maintain that the doctrine does not bar the case
because the issues in this case are not identical to the issues
already litigated in the previous Superior Court case. We
affirm.
Background. "We summarize the findings set forth in the
order on the [defendants'] . . . motion[] for summary judgment,
1 Dana G. Strayton.
2 New Cingular Wireless PCS, LLC and Robert M. Fynbo. supplemented by other uncontroverted facts in the summary
judgment record." Williams v. Board of Appeals of Norwell, 490
Mass. 684, 685 (2022). The plaintiffs, abutters to abutters
within 300 feet of the property at issue, challenged a special
permit granted by defendant Edgartown's planning board (the
planning board) to defendant New Cingular Wireless PCS, LLC
(AT&T) to construct a cell tower on a property owned by
defendant Robert Fynbo's company, MVWIFI, on Chappaquiddick
Island. The plaintiffs appealed the planning board decision to
the Land Court under G. L. c. 40A, § 17, alleging that it
violated the Edgartown zoning bylaw.
The plaintiffs purchased their property in 2015. At the
time, an eighty-four foot tower owned and operated by Fynbo on
the MVWIFI property provided wireless high speed internet to the
island's residents. In 2017, AT&T, Fynbo, and MVWIFI applied to
the planning board for a special permit to replace the existing
tower with a 115 foot tower, which would also provide cell phone
service to the island's residents. The planning board referred
the application to the Martha's Vineyard Commission (MVC), which
approved the application in December 2017 pursuant to the MVC's
enabling statute, the Martha's Vineyard Commission Act (MVC
Act). After the MVC approved the application with conditions,
the planning board then reviewed and approved the application
and granted the special permit for the project in September
2 2018. The new tower's construction was completed by May 2019
and it has been operational since then.
The plaintiffs appealed the MVC decision in the Superior
Court in February 2018 and the planning board decision in the
Land Court in October 2018; in each case, the bases for the
plaintiffs' aggrievement were the same: (1) visual impact,
(2) an increase in traffic, (3) safety concerns due to
radiofrequency emissions and potential collapse or falling
objects, and (4) diminution in property value.
In October and December 2020, a judge of the Superior Court
heard a four day, jury-waived trial on the appeal of the MVC
decision. The judge took a view of the property, and the
parties vigorously litigated the issue of whether the plaintiffs
had suffered an injury that would give rise to standing to
appeal. In March 2021, the judge dismissed the plaintiffs' case
for lack of standing, while also rejecting the claims on the
merits. The Superior Court judge acknowledged that the language
in the MVC Act about standing to appeal was not identical to the
language in c. 40A, but determined that, because the MVC Act
does not define "party aggrieved," it was appropriate to apply
the c. 40A test for standing. See Tisbury Fuel Serv., Inc. v.
Martha's Vineyard Comm'n, 68 Mass. App. Ct. 773, 774 (2007). A
different panel of this court upheld the Superior Court judge's
decision in 2022 and the plaintiffs did not seek further
3 appellate review. See Strayton v. Martha's Vineyard Comm'n, 100
Mass. App. Ct. 1132 (2022), slip op. at 6.
Following the conclusion of the Superior Court litigation,
the defendants moved for summary judgment in this case. After a
hearing, the Land Court judge granted the motion, concluding
that the plaintiffs were "barred by the doctrine of issue
preclusion from relitigating the issue [of standing] here" and
dismissed the case for lack of subject matter jurisdiction.
Discussion. "The allowance of a motion for summary
judgment is appropriate where there are no genuine issues of
material fact in dispute and the moving party is entitled to
judgment as a matter of law" (quotation omitted). Williams, 490
Mass. at 689. "[A] party moving for summary judgment in a case
in which the opposing party will have the burden of proof at
trial is entitled to summary judgment if [they] demonstrate[]
. . . that the party opposing the motion has no reasonable
expectation of proving an essential element of that party's
case." Kourouvacilis v. General Motors Corp., 410 Mass. 706,
716 (1991). "We review a decision on a motion for summary
judgment de novo" (quotation omitted). Williams, 490 Mass. at
689.
Collateral estoppel, or issue preclusion, bars a subsequent
claim if:
4 "(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current adjudication; and (4) the issue decided in the prior adjudication was essential to the earlier judgment."
Green v. Brookline, 53 Mass. App. Ct. 120, 123 (2001). The
plaintiffs claim that (1) the issues in this case are not
identical to those in the Superior Court case, and (2) the
different issue in this case (standing based on view impacts
under either the Edgartown zoning bylaw or G. L. c. 40A) was not
essential to the judgment in the previous case.
In the Superior Court appeal, the judge decided that the
MVC Act did not protect views but nonetheless assumed that view
impacts could support standing and, as part of the standing
analysis, incorporated and evaluated the plaintiff's claims
regarding view impacts from the tower. The plaintiffs maintain
that the Superior Court judge addressed standing only under the
MVC Act, not c. 40A. The plaintiffs reason that, because the
Edgartown zoning bylaw protects views and this appeal to the
Land Court was brought under G. L. c. 40A, § 17, rather than the
MVC Act, the issues in this case are not identical to the issues
in the previous Superior Court appeal. Further, the plaintiffs
maintain that, because the Superior Court judge determined that
views were not protected under the MVC Act, the view analysis
5 could not have been essential to the judgment. We are not
persuaded.
The presented bases for the plaintiff's injury are the same
in both cases; the only difference is that the Edgartown zoning
bylaw explicitly contemplates view impacts from wireless service
facilities. See Edgartown Zoning Bylaw § 23.4 (2015). This
difference does not render the Superior Court judge's detailed
view impacts analysis superfluous. The Edgartown zoning bylaw
protects "public view" impacts, not view impacts on private
individuals. Id., §§ 11.6(a), 23.4(f). "A person aggrieved
under G. L. c. 40A must assert a plausible claim of a definite
violation of a private right" (quotation omitted), Kenner v.
Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011), not
a public right. A reading of the bylaw therefore suggests that
the plaintiffs have presented no basis for injury here that was
not already alleged in the previous Superior Court case -- in
other words, they are no more aggrieved under the bylaw than
under the MVC Act. Even if the plaintiffs' proffered
distinction held up to scrutiny, and the analyses were not the
same as each other, "if there is a lack of total identity
between the issues involved in two adjudications, the overlap
may be so substantial that preclusion is plainly appropriate."
Bigelow v. Reem Prop., LLC, 102 Mass. App. Ct. 590, 594 (2023),
6 quoting Commissioner of the Dep't of Employment & Training v.
Dugan, 428 Mass. 138, 143 (1998). Such is the case here.
We are equally unpersuaded by the plaintiffs' claim that
the Superior Court judge had not completed a c. 40A standing
analysis because the previous case was brought pursuant to the
MVC Act. The Superior Court judge analyzed the plaintiffs'
standing under c. 40A, which is proper in MVC Act cases. See
Tisbury Fuel Serv., Inc., 68 Mass. App. Ct. at 774. The
Superior Court judge included an analysis of view impacts
because it was one of the claimed bases of injury and found that
nothing in the factual record suggested that the plaintiffs had
suffered such an injury. The finding is no less essential
because the MVC Act does not protect views.
The Supreme Judicial Court has stated that issue preclusion
"encompass[es] certain findings not strictly essential to the
final judgment in the prior action." Home Owners Fed. Sav. &
Loan Assoc. v. Northwestern Fire & Marine Ins. Co., 354 Mass.
448, 455 (1968). "Such findings may be relied upon if it is
clear that the issues underlying them were treated as essential
to the prior case by the court and the party to be bound." Id.
It is apparent on the face of the decision that the Superior
Court judge treated view impacts as essential to that case by,
for example, "[a]ssuming for the moment that view impacts can
support standing" and holding that "[e]ven if view impacts could
7 support standing here, that would not change the result." We
conclude that the Superior Court judge's determination that the
plaintiffs had not been aggrieved by view impacts was essential
to his finding that the plaintiffs lacked standing and to the
final judgment dismissing that case.
Thus, there is identity of parties, a final judgment on the
merits in the Superior Court case, and an identity of issues
that were essential to the Superior Court judgment. See Green,
53 Mass. App. Ct. at 123. The Land Court judge properly granted
summary judgment on the basis of issue preclusion.3
Judgment affirmed.
By the Court (Henry, Hershfang & Smyth, JJ.4),
Clerk
Entered: September 26, 2024.
3 AT&T's request for an award of its appellate attorney's fees is denied.
4 The panelists are listed in order of seniority.