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<br />Page 8 - Special Issue <br /> <br />ZB. (. <br />. . <br /> <br />Abutter never receives notice of planned telecommunications tower <br />Lower court finds it's too late to challenge decision <br />Citation: Kramer v. Zoning Board of Appeals of Somerville, Appeals Court of <br />Massachusetts, No. 04-P-293 <br /> <br />MASSACHUSETTS - The Zoning Board of Appeals of Somerville approved <br />a special permit allowing NextelCommunications to construct a wireless an- <br />tenna facility on the roof of an apartment building. <br />However, no notice of the board's public hearing on Nextel's application <br />was given to the 64 residents of an abutting condominium complex, either by <br />mail, publication, or posting. <br />Kramer, who lived in a top floor unit, awoke one morning to find roughly <br />one-third of the view from his living room picture window blocked by the <br />construction of the structure, about 40 feet from his window. The structure, a <br />brick box about lO-feet high, blocked Kramer's direct view of the city skyline. <br />Kramer sued, and the court ruled in favor of the board. It found Kramer's <br />lawsuit fell outside the 90-day limitation on appeals of zoning decisions under <br />state law. <br />Kramer appealed, arguing that he was entitled to notice regarding the an- <br />tenna project and could not possibly have complied with the90-day limitation <br />because the project physically began after the 90-day limitation had expired. <br />D~CISION: Reversed. <br />, Where there was a complete failure of notice of a public hearing in advance <br />of the granting of a special permit, the 90-day limitation could not be deemed to <br />run until the abutter had notice of the project. <br />Kramer received. no notice that either permitted him to appear at the hearing <br />or to appeal within the 90-day window. hi fact, he appealed almost as soon as he <br />became aware of the structure, almost a year and a half later. In cases where the <br />lack of notice was not fatal, the parties had the chance to appeal within the <br />necessary deadline. Here, it would have be~n impossible for Kramer to comply. <br />Any other decision in this matter effectively would nullify the requirement <br />to notify abutters of public hearings. A failure to comply would entail no conse- <br />quences, as long as the abutters remained unaware of the issuance of the <br />permit until the expiration of the appeal period. <br />see also: Rinaldi v. State Building Code Appeals Board, 779 N.E.2d 688 (2002). <br /> <br /> <br />@ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. <br /> <br />54 <br /> <br />....... <br />i.. . <br />\::-.:' <br />