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

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.

8