DUANE E. GALBI v. ZONING BOARD OF APPEALS OF WAYLAND & Another.

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.

13