Appeals court hears challenge to ZBA approval for cell tower; standing and procedural objections central

The panel considered challenges to a Wayland Zoning Board of Appeals decision approving a cell-tower proposal. Appellant Dwayne Galbi (pro se) argued he had standing because the variance allowed a use prohibited in his residential neighborhood and because he supplied evidence (a certified plot plan and expert testimony from the applicant's own witness) showing the tower site lay within protected proximity and would extend at least 10 feet above the tree canopy.

Galbi told the court he relied on case lines holding that when zoning prohibits a use in a residential area, a grant of a use variance in the immediate neighborhood can convey particularized harm and standing. He also pointed to the plot plan on the ZBA record that, he said, shows the tower site within 900 feet of his property and an expert's testimony establishing the tower would exceed the tree canopy.

Verizon's counsel, Adam Hammel, urged affirmance of the land court's ruling that Galbi failed to demonstrate particularized harm and that the land court was correct to find the factual record did not establish the claimed 900-foot proximity or the tree-line exceedance. Hammel also argued that procedural objections raised under chapter 39's 23D provision (that one ZBA member voted without affirming that he reviewed the materials) did not produce reversible error and that remand would be futile given federal telecommunications law and prior federal findings of coverage gaps.

The justices questioned whether a procedural defect at a public hearing (for example, a member voting after missing a meeting or failing to certify a review) could create an "aggrieved person" status for a challengor who otherwise lacks a particularized interest. Galbi emphasized he had been present, presented evidence, and identified multiple legal grounds for standing (use-variance proximity, site-plan distances, and tree-line height).

Verizon argued the land court correctly exercised factfinding authority and that the trial judge's credibility and evidentiary rulings (including about the admissibility and sufficiency of the plot plan and height calculations) were not clearly erroneous. Verizon's counsel also urged that, even if local approvals were vacated, federal law and the documented coverage gap would require approval of a telecommunications facility under the federal regime, making remand futile.

The panel stopped Galbi's oral argument when his allotted time expired and noted the court would consider the written briefing in full. No decision was announced at argument.