Posted by: Patricia Salkin | October 9, 2019

Fed Dist Court of MA Holds Rule 11 Sanctions Would Be Imposed Against Attorney Representing Himself as Trustee of Trust that Owned Land Intended for Location of a Proposed Cell Site

This post was authored by Matthew Loeser, Esq.

Plaintiff Keith L. Miller, an attorney, was the trustee of the MRFS Living Trust, which owned real property located in Gloucester, Massachusetts that was the intended location for a proposed cell tower site. In this case, Miller alleged that Defendants SBA Towers V, LLC and New Cingular Wireless PCS, LLC and the City of Gloucester intentionally deprived him of statutorily required notice of the Zoning Board of Appeals proceedings concerning a variance needed to build the cell tower.

Miller first alleged that the failure to receive notice was a violation of his right to procedural due process under the Constitution and 42 U.S.C. § 1983. The court found that even if Miller were legally entitled to statutory notice as a “party in interest,” he failed to allege a cognizable due process violation as he only claimed he failed to receive notice without also alleging a deprivation of property. Moreover, Miller’s due process claim was barred because he had actual notice of the ZBA hearings and notice that the ZBA was planning to render a decision. The record indicated that Miller stated that after receiving an email from the City: “I called my friend and I said, ‘Do I have a notice in the mailbox?’ No notice. Okay, I guess I’m not an abutter because maybe there are two deeded parcels.’” Thus, the court held Miller could not now claim to be deprived of any opportunity to be heard or to appeal the decision when he admitted he voluntarily chose not to go to any of the meetings and did not make an effort to read the final, publicly docketed decision.

Miller next claimed that the Wireless Defendants engaged in unfair and deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 and 9. This claim was dismissed under Federal Rule of Civil Procedure 12(b)(6) as chapter 93A only applies to conduct that occurs in the course of trade or commerce. Additionally, the court allowed the Wireless Defendants’ special motion to dismiss under Massachusetts’s anti-SLAPP statute as the claim was based exclusively on the Wireless Defendants’ protected petitioning activities. While Miller contended that the petition was a sham not grounded in law because the Wireless Defendants provided an incomplete list of “parties in interest”, the City’s tax assessor provided the list of abutters, and there was no plausible allegation that the Wireless Defendants knew that the list was incorrect.

As a final matter, an examination of the record reflected that Miller was copied on numerous emails between October 6, 2014 and December 11, 2014, in which opponents of the proposed tower discussed, in detail, the ZBA hearing schedule for the proposed tower. The emails demonstrated that Miller had actual notice that the ZBA was holding hearings on the Wireless Defendants’ application and that it would likely be issuing an opinion to transfer the ultimate decision to the City Council. Therefore, Miller’s allegations that he lacked actual notice and was therefore deprived of the opportunity to be heard were unsupported by the evidence. Accordingly, the court allows Defendants’ motion to impose sanctions on Attorney Keith L. Miller for these false statements made in the First Amended Verified Complaint and subsequent affidavit.

Miller v. SBA Towers V, LLC, 391 F.Supp.3d 123 (DMA 2019)

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