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
24-P-1001
DUANE E. GALBI
vs.
ZONING BOARD OF APPEALS OF WAYLAND & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal stems from the decision of the zoning board of
appeals of Wayland (board) to grant a variance allowing Cellco
Partnership, doing business as Verizon Wireless (Cellco), to
construct a communications cell tower in the town of Wayland.
The plaintiff, who lives in Wayland within the residential
zoning district in which Cellco intends to erect the proposed
cell tower, sought judicial review of the board's decision in
the Land Court. See G. L. c. 40A, § 17, as amended through
1Cellco Partnership, doing business as Verizon Wireless. The zoning board of appeals of Wayland did not file a brief or otherwise participate in this appeal. St. 2002, c. 393, § 2.2 The parties litigated the matter
exhaustively. For the purposes of this appeal, it is enough to
say that in 2020, Cellco and the plaintiff cross-moved for
summary judgment. After conducting a hearing in January 2021
and considering the parties' robust briefing, the motion judge
ruled that (1) the plaintiff lacked presumptive standing under
G. L. c. 40A, § 11, and (2) the plaintiff failed to demonstrate
his aggrievement based on loss of property value or negative
health impacts occasioned by the project but (3) there remained
a genuine issue of material fact as to the plaintiff's
aggrievement based on the project's impact on the views from the
plaintiff's property.3 Accordingly, the judge granted partial
summary judgment in favor of Cellco.
In 2023, the case was tried before the same judge. After
trial, the judge issued a thoughtful and detailed memorandum of
decision in which she found that the plaintiff had failed to
establish standing based on the project's impact on his view and
2 We cite to the version of the statute in effect at the time the plaintiff filed the complaint.
3 The judge took a view of the plaintiff's property and the site of the proposed project in December 2022, in conjunction with a "crane test" conducted to represent the height of the proposed tower. She took a second view in February 2023 without a crane test.
2 affirmed the board's grant of a variance.4 Judgment entered for
the defendants and this appeal followed. We affirm.
Discussion. 1. Standing under G. L. c. 40A, § 17.
Standing to challenge a local zoning board's decision is limited
to "person[s] aggrieved" by the decision. G. L. c. 40A, § 17.
See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421
Mass. 719, 721 (1996), quoting G. L. c. 40A, § 17. "A 'person
aggrieved' is one who 'suffers some infringement of his legal
rights.'" Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass.
115, 117 (2011), quoting Marashlian, supra. "The aggrievement
must be more than 'minimal or slightly appreciable' . . . ."
Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209,
213 (2020), quoting Kenner, supra at 120-121. Additionally, the
plaintiff must "establish -- by direct facts and not by
speculative personal opinion -- that [the plaintiff's] injury is
special and different from the concerns of the rest of the
community." Standerwick v. Zoning Bd. of Appeals of Andover,
4 Although she noted that her ruling on standing was dispositive of the plaintiff's claims, the judge issued findings and conclusions on the merits of the plaintiff's arguments. Because we affirm the judge's determinations that the plaintiff failed to prove his standing to challenge the board's grant of the variance, we need not and do not reach the merits of the plaintiff's challenge, including claims alleging procedural errors in the board's decision and Cellco's application.
3 447 Mass. 20, 33 (2006), quoting Barvenik v. Aldermen of Newton,
33 Mass. App. Ct. 129, 132 (1992).
In addition to the requirement that the plaintiff
demonstrate particularized harm to establish standing, the harm
must be related to the "peculiar legal rights" that "were
intended to be given to the plaintiff by the statute permitting
an appeal" of the zoning decision (protected interests). Circle
Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass.
427, 431 (1949). However, the existence of a protected interest
cannot confer standing without evidence of harm particular to
the plaintiff. Sweenie v. A.L. Prime Energy Consultants, 451
Mass. 539, 545 (2008). A bylaw may define a protected interest,
but "[t]he language of a bylaw cannot be sufficient in itself to
confer standing: the creation of a protected interest (by
statute, ordinance, bylaw, or otherwise) cannot be conflated
with the additional, individualized requirements that establish
standing." Sweenie, supra. See Denneny v. Zoning Bd. of
Appeals of Seekonk, 59 Mass. App. Ct. 208, 211 (2003) ("The
claimed injury or loss must be personal to the plaintiff, not
merely reflective of the concerns of the community").
2. Summary judgment ruling on standing. We first consider
the plaintiff's challenges to the judge's treatment of his
4 arguments on summary judgment.5 These include one argument that
the judge appears to have rejected without comment --
aggrievement based solely on the board's issuance of a use
variance permitting an otherwise-prohibited use in the
residential zone where the plaintiff lives6 -- and another that
the judge denied after providing a more detailed explanation --
aggrievement based on the alleged negative effects of the
project on property values in the plaintiff's neighborhood.
In analyzing the plaintiff's challenge to the rulings on
the parties' cross motions for summary judgment, we view the
record in the light most favorable to the plaintiff, as the
5 The plaintiff does not argue in his brief that the judge erred in concluding that he lacked presumptive standing under G. L. c. 40A, § 11, to challenge the board's decision, or that he failed to demonstrate aggrievement based on alleged negative health effects caused by the project. Accordingly, those challenges are waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629-1630 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
6 The plaintiff's argument on this point was not fully developed in his memorandum in opposition to Cellco's motion for summary judgment or in his motion for summary judgment on standing, which the judge deferred hearing due to the then- upcoming trial.
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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
24-P-1001
DUANE E. GALBI
vs.
ZONING BOARD OF APPEALS OF WAYLAND & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal stems from the decision of the zoning board of
appeals of Wayland (board) to grant a variance allowing Cellco
Partnership, doing business as Verizon Wireless (Cellco), to
construct a communications cell tower in the town of Wayland.
The plaintiff, who lives in Wayland within the residential
zoning district in which Cellco intends to erect the proposed
cell tower, sought judicial review of the board's decision in
the Land Court. See G. L. c. 40A, § 17, as amended through
1Cellco Partnership, doing business as Verizon Wireless. The zoning board of appeals of Wayland did not file a brief or otherwise participate in this appeal. St. 2002, c. 393, § 2.2 The parties litigated the matter
exhaustively. For the purposes of this appeal, it is enough to
say that in 2020, Cellco and the plaintiff cross-moved for
summary judgment. After conducting a hearing in January 2021
and considering the parties' robust briefing, the motion judge
ruled that (1) the plaintiff lacked presumptive standing under
G. L. c. 40A, § 11, and (2) the plaintiff failed to demonstrate
his aggrievement based on loss of property value or negative
health impacts occasioned by the project but (3) there remained
a genuine issue of material fact as to the plaintiff's
aggrievement based on the project's impact on the views from the
plaintiff's property.3 Accordingly, the judge granted partial
summary judgment in favor of Cellco.
In 2023, the case was tried before the same judge. After
trial, the judge issued a thoughtful and detailed memorandum of
decision in which she found that the plaintiff had failed to
establish standing based on the project's impact on his view and
2 We cite to the version of the statute in effect at the time the plaintiff filed the complaint.
3 The judge took a view of the plaintiff's property and the site of the proposed project in December 2022, in conjunction with a "crane test" conducted to represent the height of the proposed tower. She took a second view in February 2023 without a crane test.
2 affirmed the board's grant of a variance.4 Judgment entered for
the defendants and this appeal followed. We affirm.
Discussion. 1. Standing under G. L. c. 40A, § 17.
Standing to challenge a local zoning board's decision is limited
to "person[s] aggrieved" by the decision. G. L. c. 40A, § 17.
See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421
Mass. 719, 721 (1996), quoting G. L. c. 40A, § 17. "A 'person
aggrieved' is one who 'suffers some infringement of his legal
rights.'" Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass.
115, 117 (2011), quoting Marashlian, supra. "The aggrievement
must be more than 'minimal or slightly appreciable' . . . ."
Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209,
213 (2020), quoting Kenner, supra at 120-121. Additionally, the
plaintiff must "establish -- by direct facts and not by
speculative personal opinion -- that [the plaintiff's] injury is
special and different from the concerns of the rest of the
community." Standerwick v. Zoning Bd. of Appeals of Andover,
4 Although she noted that her ruling on standing was dispositive of the plaintiff's claims, the judge issued findings and conclusions on the merits of the plaintiff's arguments. Because we affirm the judge's determinations that the plaintiff failed to prove his standing to challenge the board's grant of the variance, we need not and do not reach the merits of the plaintiff's challenge, including claims alleging procedural errors in the board's decision and Cellco's application.
3 447 Mass. 20, 33 (2006), quoting Barvenik v. Aldermen of Newton,
33 Mass. App. Ct. 129, 132 (1992).
In addition to the requirement that the plaintiff
demonstrate particularized harm to establish standing, the harm
must be related to the "peculiar legal rights" that "were
intended to be given to the plaintiff by the statute permitting
an appeal" of the zoning decision (protected interests). Circle
Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass.
427, 431 (1949). However, the existence of a protected interest
cannot confer standing without evidence of harm particular to
the plaintiff. Sweenie v. A.L. Prime Energy Consultants, 451
Mass. 539, 545 (2008). A bylaw may define a protected interest,
but "[t]he language of a bylaw cannot be sufficient in itself to
confer standing: the creation of a protected interest (by
statute, ordinance, bylaw, or otherwise) cannot be conflated
with the additional, individualized requirements that establish
standing." Sweenie, supra. See Denneny v. Zoning Bd. of
Appeals of Seekonk, 59 Mass. App. Ct. 208, 211 (2003) ("The
claimed injury or loss must be personal to the plaintiff, not
merely reflective of the concerns of the community").
2. Summary judgment ruling on standing. We first consider
the plaintiff's challenges to the judge's treatment of his
4 arguments on summary judgment.5 These include one argument that
the judge appears to have rejected without comment --
aggrievement based solely on the board's issuance of a use
variance permitting an otherwise-prohibited use in the
residential zone where the plaintiff lives6 -- and another that
the judge denied after providing a more detailed explanation --
aggrievement based on the alleged negative effects of the
project on property values in the plaintiff's neighborhood.
In analyzing the plaintiff's challenge to the rulings on
the parties' cross motions for summary judgment, we view the
record in the light most favorable to the plaintiff, as the
5 The plaintiff does not argue in his brief that the judge erred in concluding that he lacked presumptive standing under G. L. c. 40A, § 11, to challenge the board's decision, or that he failed to demonstrate aggrievement based on alleged negative health effects caused by the project. Accordingly, those challenges are waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629-1630 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
6 The plaintiff's argument on this point was not fully developed in his memorandum in opposition to Cellco's motion for summary judgment or in his motion for summary judgment on standing, which the judge deferred hearing due to the then- upcoming trial. Without a transcript of the 2021 summary judgment hearing, we do not know whether the argument was made to the motion judge, but we presume that the judge considered and rejected it. Regardless, we are in as good a position as the motion judge to assess the merits of the plaintiff's summary judgment arguments under our de novo standard of review. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 699 (2012).
5 party against whom summary judgment entered, to determine
whether there exists any genuine issue of material fact
precluding the entry of judgment as a matter of law. See
Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct.
515, 516 (2011); Albahari v. Zoning Bd. of Appeals of Brewster,
76 Mass. App. Ct. 245, 248-249 (2010).
"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under [Mass. R. Civ. P. 36, 365 Mass. 795 (1974)], together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
Having reviewed the parties' arguments de novo, see 81 Spooner
Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692,
699 (2012), we conclude that the plaintiff failed to demonstrate
his standing based on the board's issuance of a use variance for
a location "in the immediate vicinity" of his home or
alternatively, on the loss of property value likely to result
from the project.
a. "Use variance" theory of aggrievement. To the extent
that the plaintiff made and preserved the arguments he raises on
appeal that the standard for determining a party's standing to
challenge a "use" variance differs from that applicable to the
assessment of a party's standing to challenge a "dimensional"
variance or special permit, see note 6, supra, we are not
6 persuaded. A plaintiff seeking review of any decision of a
zoning board of appeals under G. L. c. 40A, § 17, must
demonstrate standing according to the principles we have
outlined above. See Stone v. Zoning Bd. of Appeals of
Northborough, 496 Mass. 366, 373 (2025) (analyzing plaintiff's
standing under G. L. c. 40A, § 17, to challenge use variance);
Denneny, 59 Mass. App. Ct. at 211 (analyzing plaintiff's
standing under G. L. c. 40A, § 17, to challenge special permit
and setback variances).
We are thus unpersuaded that "owning and residing in
property within the neighborhood of [a] use related exception"
alone is sufficient to satisfy the requirement of particularized
harm, even where a bylaw establishes a complete prohibition on
certain uses in a zoning district -- as relevant here, a
prohibition on the "use of a structure as a communication tower"
in the residential district where the plaintiff owns property
and lives.7 The precedent on which the plaintiff relies in his
brief establishes that a protected interest may be "created and
defined" by the language of a bylaw, but it does not support the
view that the wording of a bylaw alone is a substitute for a
showing of particularized harm. Monks v. Zoning Bd. of Appeals
7 The plaintiff states this prohibition as a fact and Cellco has not disputed it. We accept the plaintiff's representation.
7 of Plymouth, 37 Mass. App. Ct. 685, 688 (1994) (plaintiffs
demonstrated standing "by establishing the direct visual effect
of the proposed tower" on their home and neighborhood). The
plaintiff asks us to expand the concept of presumptive standing
beyond its currently recognized boundaries. See G. L. c. 40A,
§ 11; 81 Spooner Rd., LLC, 461 Mass. at 700. We decline to do
so. The plaintiff cannot defeat summary judgment on standing
simply by showing that the board granted a variance permitting
an otherwise-prohibited use in the zoning district in which the
plaintiff lives. See Sweenie, 451 Mass. at 545.
b. Aggrievement based on effect of project on property
value. "A claim of diminution of property values must be
derivative of or related to cognizable interests protected by
the applicable zoning scheme." Standerwick, 447 Mass. at 31–32.
"Zoning legislation 'is not designed for the preservation of the
economic value of property, except in so far as that end is
served by making the community a safe and healthy place in which
to live.'" Kenner, 459 Mass. at 123, quoting Tranfaglia v.
Building Comm'r of Winchester, 306 Mass. 495, 503–504 (1940).
Assuming without deciding that the language of the bylaws
governing the two wireless communication overlay districts in
Wayland creates a protected interest in property value for all
8 Wayland property owners,8 the plaintiff has not proven
aggrievement based on an infringement of that right because he
has not demonstrated harm specific to his property.
We note at the outset that it is not clear whether the
judge had any admissible evidence about the effects of the cell
tower on the plaintiff's property value when she ruled on the
parties' cross motions for summary judgment. Although our
record includes the report of an appraiser, verified by the
appraiser's affidavit and opining on the generally negative
effect of the project on property values "in close proximity to,
or with views of" the project, the docket reflects that the copy
of the report submitted with the motion papers was accompanied
by the affidavit of someone other than the report's author and
8 Neither the plaintiff's property nor the proposed tower is within the boundaries of either overlay district. Applying the usual rules of statutory construction to the bylaws establishing the overlay districts, see Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012), we conclude that the use restrictions adopted for the overlay districts, as in effect during the relevant time, apply only to the areas comprising those districts. See §§ 198-1502 to 198- 1503, and 198-1551 of the Zoning Bylaw of the Town of Wayland. To the extent that the judge's thoughtful posttrial findings suggest that she might have concluded otherwise, that conclusion is not binding on us in light of our standard of review. See 81 Spooner Rd., LLC, 461 Mass. at 699.
Moreover, as we have discussed, even if the bylaws applicable to the overlay districts created a protected interest in property values or views applicable to properties outside the overlay district, the plaintiff was nonetheless required to demonstrate particularized harm. See Sweenie, 451 Mass. at 545.
9 that the judge therefore deemed it inadmissible. If so, the
judge did not err, see Mass. R. Civ. P. 56 (c), and there was no
admissible evidence to support this facet of the plaintiff's
argument. Even if the report were properly supported, as the
copy in our record appears to be, it would not be adequate to
defeat summary judgment here, because it does not include
evidence of the effects of the project on the value of the
plaintiff's property, specifically. See, e.g., Murchison, 485
Mass. at 214 ("Standing as an 'aggrieved' person requires
evidence of an injury particular to the plaintiffs, as opposed
to the neighborhood in general").
3. Trial on standing based on views. In her memorandum of
decision after trial on the plaintiff's remaining claim to
standing, the judge concluded that the protected interest in
"minimizing the view impacts of wireless communications
facilities," created by language in the bylaws establishing
Wayland's wireless communication overlay districts, "extended to
all Town districts" and was not limited to the area comprising
the two overlay districts, such that the interest could apply to
the plaintiff's property. However, the judge subsequently
determined that the effect of the project on the plaintiff's
views was both "de minimis" and not particular to the plaintiff.
See Kenner, 459 Mass. at 120-121 (plaintiff's burden to show
"particularized injury" as result of alleged zoning infraction;
10 "[a]ggrievement requires a showing of more than minimal or
slightly appreciable harm"). We review the judge's factual
findings on these questions for clear error and consider any
legal questions de novo. See Shirley Wayside Ltd. Partnership
v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012).
Having done so, we see no reason to disturb the judgment.
To the extent that the judge's finding that "[n]o
admissible evidence was introduced regarding the distance
between [the plaintiff's] property and the site of the proposed
Project" was clearly erroneous,9 we discern no resulting
prejudice. The judge's determination that the visual effects of
the proposed project were too minimal to confer standing rested
on observations the judge made in the course of the two views
she took of the area, the results of a "crane test" conducted
during one of those views, photo simulations, and additional
documentary and photographic evidence. See Kenner, 459 Mass. at
123; Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App.
Ct. 626, 629-630 & n.5 (2018). We are confident that nothing in
the judge's decision turned on the precise distance between the
proposed tower and the lot line for the plaintiff's property and
9 At trial, the plaintiff cross-examined an engineer for the project about a property plan introduced as exhibit 12, which depicted a 900-foot radius from the project site intersecting the plaintiff's property. The engineer expressed doubt that distances could be calculated using that exhibit.
11 that her determination that the visual impact of the project on
the plaintiff's property was "de minimis" was well supported.10
The plaintiff's challenge to the judge's finding that
"[t]he height at which the proposed cell tower would protrude
above the treetops is . . . unknown," is, at bottom, a
disagreement with the judge's assessment of the weight and
credibility of the trial evidence. The same is true for the
plaintiff's objections to the judge's reliance on the testimony
of an engineer who testified on behalf of the defendants. We
defer to the judge on those matters. See Johnston v. Johnston,
38 Mass. App. Ct. 531, 536 (1995).
Similarly, where the judge found that much of the proposed
tower would be screened by existing trees, we presume that she
was aware of the possibility that some or all of those trees
might fall or be removed in the future. We discern no clear
error in her assessment of the current state of the plaintiff's
views and consider any prospect of future change to be
speculative on this record. See Marashlian, 421 Mass. at 721
("injury must be more than speculative"). For the same reason,
10Additionally, as we have explained, because the mere fact of a bylaw violation does not establish standing, even if the judge had found that the project was within 900 feet of the plaintiff's lot line, the plaintiff's claim would still have failed based on the judge's finding that the project's effect would be de minimis. See Sweenie, 451 Mass. at 545.
12 we find the plaintiff's arguments about the potential for future
changes to the height of the proposed tower unpersuasive.
Conclusion. Partial summary judgment was properly granted
in favor of Cellco on the issue of the plaintiff's standing, and
the judge made no reversible error in her decision on the
plaintiff's remaining standing argument after trial.
Judgments affirmed.
By the Court (Hand, Hodgens & Tan, JJ.11),
Clerk
Entered: January 22, 2026.
11 The panelists are listed in order of seniority.