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
22-P-1130
DUANE E. GALBI
vs.
ZONING BOARD OF APPEALS OF WAYLAND & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On August 9, 2019, Duane Galbi, who lives on Meadowview
Road, filed a timely complaint with the Land Court seeking
review pursuant to G. L. c. 40A, § 17 of a decision by the
zoning board of appeals of Wayland, which granted a variance to
Cellco Partnership, doing business as Verizon Wireless (Cellco),
to construct a cell tower on its property on Meadowview Road.
Almost three years later, on June 27, 2022, Eshwan Ramudu and
Taylor Cadden (prospective interveners) filed separate motions
seeking to intervene in the Land Court action. Both prospective
interveners lived on Meadowview Road at the time of their
motions, but not when Galbi filed his complaint.
1 Cellco Partnership, doing business as Verizon Wireless. A judge of the Land Court (motion judge) denied these
motions, concluding that the motions, filed nearly three years
after Galbi filed his original complaint, were untimely. The
motion judge also found that Cellco would be significantly
prejudiced by any further delay because discovery, which had
been going on for a lengthy period of time, was about to be
closed and a trial date to be scheduled. She also found that
the interveners, who did not own property in the neighborhood at
the time that the variance was granted or at any point within
the twenty-day appeal period under G. L. c. 40A, § 17, lacked
standing at the time the complaint was filed.
Finally, and significantly, she concluded that the
prospective interveners would suffer little if any prejudice
from the denial of intervention. This was because, despite
Galbi's being self-represented, the prospective interveners had
not argued that Galbi's interests differed from theirs or that
he had any less incentive to pursue those interests. The
prospective interveners had indicated their willingness to adopt
Galbi's pleadings, a factor that, as this court concluded in an
earlier appeal in this same case, "is a good indication that
their positions and interests are the same." Galbi v. Cellco
Partnership, 101 Mass. App. Ct. 260, 266 (2022) (Galbi I).
2 The prospective interveners appealed the order denying
their motions to intervene. The case then proceeded to a two-
day trial and is currently still under advisement.
Discussion. Before us now is the prospective interveners'
appeal from the denial of their motions to intervene. See
Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. School Comm. of
Chelsea, 409 Mass. 203, 204-205 (1991) (denial of motion to
intervene as of right is appealable as final order).
Massachusetts Rule of Civil Procedure 24 (a), 365 Mass. 769
(1974), provides, in relevant part,
"(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
The putative intervener must demonstrate three things: (1) that
their motion is timely; (2) that they have an interest in the
subject of the action such that disposition of the action would
impede or impair their ability to protect that interest; and (3)
that their interest must not be adequately represented by the
existing parties to the litigation. See Galbi I, 101 Mass. App.
Ct. at 263. We affirm the denial of the motions to intervene,
not on the basis of untimeliness or standing but on the ground
that, as the judge effectively concluded in her discussion of
3 prejudice, the prospective interveners have not demonstrated
that Galbi's representation would be inadequate. See Gabbidon
v. King, 414 Mass. 685, 686 (1993) (appellate court may affirm
on "any ground apparent on the record," even if not argued to
trial court).
"A judge has discretion in determining whether an
intervening party has demonstrated facts that entitle him or her
to intervention as of right, and we accordingly review the
judge's factual findings for clear error." Galbi I, 101 Mass.
App. Ct. at 262, quoting Commonwealth v. Fremont Inv. & Loan,
459 Mass. 209, 217 (2011). The factual findings which underpin
the motion judge's analysis are uncontested. We accordingly
review whether the prospective interveners have met the
requirements for intervention de novo as it is a question of
law. See Beacon Residential Mgt., LP v. R.P., 477 Mass. 749,
753 (2017).
Focusing on the third requirement, we hold the prospective
interveners failed to meet their burden for intervention as of
right, namely they failed to demonstrate that the existing
plaintiff, Galbi, could not adequately represent the prospective
interveners' interests. "If [the prospective interveners'
interests are] identical to that of one of the present parties
. . . then a compelling showing should be required to
demonstrate why this representation is not adequate." Mayflower
4 Dev. Corp. v. Dennis, 11 Mass. App. Ct. 630, 637 (1981). We
hold that the interests of Galbi and the prospective interveners
are identical, and the prospective interveners did not make the
requisite showing demonstrating why Galbi's representation was
not adequate.
First, the record is clear that, as presented to the motion
judge, the interests of the prospective interveners and Galbi
were substantially the same or identical. The prospective
interveners agreed to "adopt the Plaintiff's final amended
Complaint as [their] Complaint in intervention." 2 We can see no
way to interpret this other than to understand that the
prospective interveners' complaints were the same as Galbi's,
specifically that, as nearby residents, they would be subjected
to the view of the cell tower. The prospective interveners'
general statements in their motions that "[t]he Movant does not
desire to have his property value and health subject to any
effects of the Tower" does not void their agreement in those
same motions to adopt the plaintiff's "final amended Complaint"
as their own and not add any other claims specific to the
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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
22-P-1130
DUANE E. GALBI
vs.
ZONING BOARD OF APPEALS OF WAYLAND & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On August 9, 2019, Duane Galbi, who lives on Meadowview
Road, filed a timely complaint with the Land Court seeking
review pursuant to G. L. c. 40A, § 17 of a decision by the
zoning board of appeals of Wayland, which granted a variance to
Cellco Partnership, doing business as Verizon Wireless (Cellco),
to construct a cell tower on its property on Meadowview Road.
Almost three years later, on June 27, 2022, Eshwan Ramudu and
Taylor Cadden (prospective interveners) filed separate motions
seeking to intervene in the Land Court action. Both prospective
interveners lived on Meadowview Road at the time of their
motions, but not when Galbi filed his complaint.
1 Cellco Partnership, doing business as Verizon Wireless. A judge of the Land Court (motion judge) denied these
motions, concluding that the motions, filed nearly three years
after Galbi filed his original complaint, were untimely. The
motion judge also found that Cellco would be significantly
prejudiced by any further delay because discovery, which had
been going on for a lengthy period of time, was about to be
closed and a trial date to be scheduled. She also found that
the interveners, who did not own property in the neighborhood at
the time that the variance was granted or at any point within
the twenty-day appeal period under G. L. c. 40A, § 17, lacked
standing at the time the complaint was filed.
Finally, and significantly, she concluded that the
prospective interveners would suffer little if any prejudice
from the denial of intervention. This was because, despite
Galbi's being self-represented, the prospective interveners had
not argued that Galbi's interests differed from theirs or that
he had any less incentive to pursue those interests. The
prospective interveners had indicated their willingness to adopt
Galbi's pleadings, a factor that, as this court concluded in an
earlier appeal in this same case, "is a good indication that
their positions and interests are the same." Galbi v. Cellco
Partnership, 101 Mass. App. Ct. 260, 266 (2022) (Galbi I).
2 The prospective interveners appealed the order denying
their motions to intervene. The case then proceeded to a two-
day trial and is currently still under advisement.
Discussion. Before us now is the prospective interveners'
appeal from the denial of their motions to intervene. See
Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. School Comm. of
Chelsea, 409 Mass. 203, 204-205 (1991) (denial of motion to
intervene as of right is appealable as final order).
Massachusetts Rule of Civil Procedure 24 (a), 365 Mass. 769
(1974), provides, in relevant part,
"(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
The putative intervener must demonstrate three things: (1) that
their motion is timely; (2) that they have an interest in the
subject of the action such that disposition of the action would
impede or impair their ability to protect that interest; and (3)
that their interest must not be adequately represented by the
existing parties to the litigation. See Galbi I, 101 Mass. App.
Ct. at 263. We affirm the denial of the motions to intervene,
not on the basis of untimeliness or standing but on the ground
that, as the judge effectively concluded in her discussion of
3 prejudice, the prospective interveners have not demonstrated
that Galbi's representation would be inadequate. See Gabbidon
v. King, 414 Mass. 685, 686 (1993) (appellate court may affirm
on "any ground apparent on the record," even if not argued to
trial court).
"A judge has discretion in determining whether an
intervening party has demonstrated facts that entitle him or her
to intervention as of right, and we accordingly review the
judge's factual findings for clear error." Galbi I, 101 Mass.
App. Ct. at 262, quoting Commonwealth v. Fremont Inv. & Loan,
459 Mass. 209, 217 (2011). The factual findings which underpin
the motion judge's analysis are uncontested. We accordingly
review whether the prospective interveners have met the
requirements for intervention de novo as it is a question of
law. See Beacon Residential Mgt., LP v. R.P., 477 Mass. 749,
753 (2017).
Focusing on the third requirement, we hold the prospective
interveners failed to meet their burden for intervention as of
right, namely they failed to demonstrate that the existing
plaintiff, Galbi, could not adequately represent the prospective
interveners' interests. "If [the prospective interveners'
interests are] identical to that of one of the present parties
. . . then a compelling showing should be required to
demonstrate why this representation is not adequate." Mayflower
4 Dev. Corp. v. Dennis, 11 Mass. App. Ct. 630, 637 (1981). We
hold that the interests of Galbi and the prospective interveners
are identical, and the prospective interveners did not make the
requisite showing demonstrating why Galbi's representation was
not adequate.
First, the record is clear that, as presented to the motion
judge, the interests of the prospective interveners and Galbi
were substantially the same or identical. The prospective
interveners agreed to "adopt the Plaintiff's final amended
Complaint as [their] Complaint in intervention." 2 We can see no
way to interpret this other than to understand that the
prospective interveners' complaints were the same as Galbi's,
specifically that, as nearby residents, they would be subjected
to the view of the cell tower. The prospective interveners'
general statements in their motions that "[t]he Movant does not
desire to have his property value and health subject to any
effects of the Tower" does not void their agreement in those
same motions to adopt the plaintiff's "final amended Complaint"
as their own and not add any other claims specific to the
2 Although the prospective interveners argued during oral arguments that they had planned to pursue claims that Galbi did not pursue, such as diminution of property value, their motions do not support this assertion.
5 prospective interveners. 3 Further indicating the alignment of
interests, at the motion hearing, the prospective interveners
offered to forgo any discovery. Accordingly, we hold that the
prospective interveners' interests and Galbi's interests as of
the time of the motion to intervene were substantially the same
or identical.
Second, the prospective interveners have not made a
sufficiently "compelling showing" that Galbi's representation
was not going to be adequate. Mayflower Dev. Corp., 11 Mass.
App. Ct. at 637. Despite being pro se themselves during the
appeal, the prospective interveners argued that Galbi, also a
pro se litigant, would not be sophisticated or skilled enough to
represent their interests. Put plainly, this is not enough.
Earlier in this same litigation, a different party attempted to
intervene, and in that instance, we required that prospective
intervener to specifically state how Galbi's pro se status has
3 Although Galbi's amended complaint filed in September 2019 mentioned issues related to health and property values, no document entitled "final amended Complaint" appears on the Land Court docket or in the record appendix on appeal. The most recent statement of Galbi's claims appears to be his "[a]mended [s]tatement of [c]laims" filed in September 2020, which made no mention of property value or health concerns. Moreover, in a summary judgment order dated February 4, 2021, the judge ruled that Galbi could not rely on claimed adverse effects on health or property value as grounds to establish standing. Thus, at the time the prospective interveners moved to intervene in June 2022, no live claims concerning health or property value impacts remained in the case.
6 or would prejudice them. Galbi I, 101 Mass. App. Ct. at 266
("Martin offers no specifics as to how Galbi's pro se status has
affected Galbi's ability to protect his interest in opposing the
proposed tower."). Here again, the prospective interveners have
not stated what approach or tactic would be unavailable due to
Galbi's pro se status or how, specifically, the manner in which
Galbi was conducting himself or the litigation caused them
prejudice. Without an alleged or predicted specific harm
suffered to the prospective interveners due to Galbi's pro se
status, they have not made a sufficiently "compelling showing"
that Galbi's representation is not adequate. Mayflower Dev.
Corp., supra at 637. We also note that the prospective
interveners argue that, with the benefit of hindsight now that
the case has been tried, Galbi could have performed better
during trial. We cannot analyze Galbi's trial performance after
the fact and must consider only the evidence which was before
the motion judge at the time she determined whether to allow or
deny the motion to intervene. See Bank of N.Y. v. Bailey, 460
Mass. 327, 329 n.4 (2011). Galbi's handling of the trial is
accordingly not part of our consideration.
Because the prospective interveners' intertest are
substantially similar to Galbi's and they had not shown that
Galbi's representation was going to be inadequate, we hold that
7 the prospective interveners failed to meet an essential
requirement for intervention. Accordingly, we affirm.
Order denying motions to intervene affirmed.
By the Court (Sacks, Singh & Walsh, JJ. 4),
Assistant Clerk
Entered: April 10, 2024.
4 The panelists are listed in order of seniority.