DIANA GERTSCH & Others v. TOWERNORTH DEVELOPMENT, LLC, & Others (And a Consolidated Case).

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-277

DIANA GERTSCH & others 1

vs.

TOWERNORTH DEVELOPMENT, LLC, & others 2 (and a consolidated
case 3).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

These cases arise from decisions by the planning board of

Essex and the zoning board of appeals of Essex to grant a

special permit and four variances to TowerNorth Development, LLC

(TowerNorth). The plaintiffs challenged the grants under G. L.

c. 40A, in Superior Court actions that were consolidated.

TowerNorth then moved for summary judgment, citing lack of

standing. A judge allowed the motion, reasoning that the

presumption of aggrievement was overcome but the plaintiffs did

1 William L. Lahey and Brett Prince.

2 John E. Coughlin and the zoning board of appeals of Essex.

3Gertsch & others vs. TowerNorth Development, LLC, &
another.
not respond with evidence showing a triable issue whether they

would suffer legally cognizable harm -- an essential element of

their case. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of

Brookline, 461 Mass. 692, 700-703 (2012); Mass. R. Civ. P.

56 (c), as amended, 436 Mass. 1404 (2002). The plaintiffs

appealed from the judgments dismissing their amended complaints

and claim that the record reveals factual disputes. Reviewing

the judge's decision de novo, 81 Spooner Rd., LLC, supra at 699,

we affirm.

Background. The following material facts are undisputed.

John Coughlin owns land along Eastern Avenue in Essex (also

known as route 133) that is zoned commercial 4 and consists of two

parcels. One parcel has 3.04 acres and provides access to route

133, and the other parcel has 22.3 acres and contains a self-

storage facility but is otherwise heavily wooded. TowerNorth is

a developer of wireless infrastructure that proposes to build a

146-foot cell tower on about 2,647 square feet of ground space

in the back of Coughlin's woods.

Under the town's zoning bylaws, cell towers require a

special permit, see § 6-3.4.2(e), but "shall be permitted

subject to the . . . requirements" of § 6-3.4.5. TowerNorth's

4 While the plaintiffs dispute in their brief that the land
is zoned commercial, they responded, "Uncontroverted," to
TowerNorth's statement of undisputed fact that, "The proposed
location is . . . zoned commercial business."

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proposal meets most of the applicable requirements. "Only

freestanding monopole towers . . . shall be allowed," § 6-

3.4.5(b), which this would be. The tower would be in an

established wooded area, as § 6-3.4.5(j) requires "[w]here

feasible," and it would not "exceed one hundred fifty (150) feet

in height," as § 6-3.4.5(d) requires. There would be no

lighting other than covered safety lights at the base for

bimonthly visits from maintenance workers. See § 6-3.4.5(i)

("Lighting shall be limited to that needed for maintenance and

emergencies"). The base would be surrounded by a chain link

fence six feet high, topped with barbed wire and locked by a

gate twelve feet wide.

The tower would only be 1.7 miles from another tower,

however, where two miles are required by § 6-3.4.5(c). Also,

the nearest property line setback would be only 121 feet. Under

§ 6-3.4.5(e), "a distance equal to at least one hundred twenty-

five (125) percent of the height of the Tower" -- or 187.5 feet

for a 150-foot tower -- is required. In addition, the tower

would be 379 feet from the nearest residence, even though 500

feet are required by § 6-3.4.5(g), and it would have storage

cabinets at its base that would not be connected by a common

wall, which "accessory buildings" must be under § 6-3.4.5(h).

TowerNorth therefore sought four variances and supported

the application with (among other things) an environmental sound

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assessment showing that noise from the tower's equipment would

not exceed the level of "moderate rainfall on foliage"; a radio

frequency exposure report concluding that maximum exposure

levels from the tower would be less than two percent of Federal

limits; photographs of a balloon simulating the tower height

that were taken from fifteen locations around the proposed site;

and a real estate valuation report opining that the tower would

have no measurable impact on surrounding property values due to

proximity or visibility. A company called Isotrope Wireless

(Isotrope) also prepared a report on the application, in which

it expressed concern about the focal length of the camera used

to take the balloon test photos. Isotrope also reported that

the "typical appraiser's methods" of assessing the financial

impact of cell towers has not historically been helpful for lack

of objective data, but in "hundreds of cell tower proceedings,"

Isotrope had "not seen evidence of rampant property value

deflation."

The plaintiffs are abutting landowners who oppose the

tower. William L. Lahey's primary concern is the daytime

"visual impact" on his farm across route 133. Ancillary

concerns are lights on the tower, which Lahey assumes there are

but does not "know for sure," and traffic from construction and

maintenance workers, although Lahey does not know what

maintenance will be required or how many trips it will entail.

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Diana Gertsch has property next to Coughlin's woods and a

"personal interest in the aesthetics of how this would look on

the landscape, the actual wildlife and environmental impact this

would have, how this may affect our property value and even

potential health and wellness of being so close to a cell

tower." Gertsch's concerns about potential health risks are

based on her experiences as a nurse, while her views on

environmental and property value impacts are based on personal

feeling and belief. From his land on the other side of

Coughlin's woods, Brett Prince also has concerns about health

effects, based on unspecified "data" from "the scientific

community." Just like Lahey, Prince worries about traffic but

does not know what tower maintenance will entail; just like

Gertsch, he is concerned about property values and "the

aesthetics of having a cell tower that close to our house" but

has no numbers to substantiate the concerns.

The plaintiffs offered their own balloon test photos in

opposition to the motion for summary judgment, along with the

affidavit of expert real estate appraiser Morgan Fennell.

Fennell (1) visited "the properties that are the subject of this

report," though no report is attached to the affidavit;

(2) identified a "similar" housing market somewhere "on the

Milton-Quincy border near an 80 foot monopole"; and (3) examined

an unknown number of "transactions in proximity to th[at]

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tower," of a nature not described. Fennell then applied three

analytical models to figures not set forth in the affidavit and

found that "[u]nder . . . decreasing market conditions, all

three of the appraisal analyses resulted in a significant,

discernible negative impact on the Plaintiffs' properties from

the proposed tower."

Discussion. In resolving this appeal, we assume without

deciding that the zoning bylaws explicitly protect the

plaintiffs' interests in light and aesthetics (lighting for

emergencies and maintenance only; towers should be in

established woods where feasible), and that they implicitly

protect against the following harms asserted by the plaintiffs:

"diminished property value[s], health effects on young

children, . . . noise, and traffic. See Standerwick v. Zoning

Bd. of Appeals of Andover, 447 Mass. 20, 31-32 (2006).

Nevertheless, on this record, we agree with the judge that the

plaintiffs failed to adduce direct facts supporting an inference

that any infringement on those interests would be more than de

minimis and would be "special and different from the concerns of

the rest of the community." Murchison v. Zoning Bd. of Appeals

of Sherborn, 485 Mass. 209, 215 (2020), quoting 81 Spooner Rd.,

LLC, 461 Mass. at 701. See Standerwick, supra at 33.

To begin, the plaintiffs did not describe in detail what

the visual impact of a tower in a wooded area would be or say

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how it would be different from that felt by others, unlike the

parties in cases on which the plaintiffs rely. See Martin v.

Corporation of the Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints, 434 Mass. 141, 146-147 (2001)

(plaintiff testified that towering steeple would be visible day

and night, when lit, from most if not all of her property);

Aiello v. Planning Bd. of Braintree, 91 Mass. App. Ct. 354, 365

(2017) ("Aiello will be able to see the many pieces of equipment

stored and oversized vehicles parked outside from many points on

his property"); Monks v. Zoning Bd. of Appeals of Plymouth, 37

Mass. App. Ct. 685, 688 (1994) ("tower would be 'clearly visible

from almost every window' of their home").

In addition, the plaintiffs all spoke in generalities. See

Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570,

575 (2016) (plaintiff's "opinion that a building would block

access to the pond" was conjecture where "unsupported by any

specific construction plans or other evidence"). And, the gaps

were not filled by the Isotrope report, the plaintiffs' balloon

photos, or Fennell's affidavi, as none of those contain

underlying data or indeed any figures at all notwithstanding

that Fennell found a "discernible" impact. Simply put, the

plaintiffs' materials "constitute speculative personal opinions

which are factually inadequate to establish aggrieved status,

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even for purposes of withstanding a motion for summary

judgment." Monks, supra.

The plaintiffs rely heavily on the fact that the tower

would violate § 6-3.4.5's setback requirements, and they point

to other cases where dimensional variances gave rise to

standing, but those cases all involved more than de minimis

harm. See Aiello, 91 Mass. App. Ct. at 362-366; Sheppard v.

Zoning Bd. of Appeals of Boston, 74 Mass. App. Ct. 8, 11-13

(2009); Schiffenhaus v. Kline, 79 Mass. App. Ct. 600, 602

(2011). See also Marhefka v. Zoning Bd. of Appeals of Sutton,

79 Mass. App. Ct. 515, 521 (2011) (genuine issues of material

fact whether harm was de minimis). Accordingly, the cases are

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inapposite, and we agree with the judge's conclusion to enter

summary judgment for lack of standing. 5

Judgments affirmed.

By the Court (Desmond,
Ditkoff & Englander, JJ. 6),

Clerk

Entered: July 16, 2025.

5 Given our conclusion, to the extent the parties raise any
other arguments about the underlying decisions, we need not
address those arguments.

6 The panelists are listed in order of seniority.

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