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, theref ore, 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

23

- P

- 1045

DAVID GOLD & an other 1

vs .
ZONING BOARD OF APPEALS OF RUTLAND & others

. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, David Gold and Carolyn Streeter, ap peal

from a Superior Court judgment dismissing their challenge to the

decision of the z oning b oard of a ppeal s of Rutland (ZBA) to

issue a special permit for defendants Blue Sky Towers III, LLC , doing business as BSTMA III , LLC (Blue Sky) ; and New Cingular

Wireless PCS , LLC , doing business as AT&T (AT&T) , to build a
monopole cell tower

. The plaintiffs argue that the proposed

cell tower would violate the requirements for a special permit
pursuant to § 51 of the town 's z oning b y l aw s . We affirm.

1 Carolyn Streeter

.

2 Jean E. Bigelow ; Blue Sky Towers III, LLC, doing business
as BSTMA III, LLC ; and New Cingular Wireless PCS, LLC , doing business as AT&T

.2

Background

. Pursuant to §§ 15(B) and 53 of the zoning
bylaws, d efendants Blue Sky and AT&T applied to the ZBA for a
height variance for the cell tower to be built on a parcel of
residential property owned by defendant Jean E. Bigelow

.

Pursuant to § 51 of the zoning b ylaws , Blue Sky and AT&T
simultaneously applied to the ZBA for a special permit to
construct and operate that cell tower

. The ZBA conducted
hearings on both the height variance and the special permit.
On June 29, 2022 , the ZBA granted the application for a
height variance. The plaintiffs , individuals who own property

either abutting or in the immediate vicinity of the cell tower

site , did not appeal from or otherwise challenge the grant of

the variance

. On August 3, 2022 , th e ZBA granted the
application for a s pecial p ermit. Pursuant to G. L. c. 40A,

§ 17, t he plaintiffs appealed to the Superior Court from the
issuance of the special permit

. A judge granted the defendants'
motion for judgment on the pleadings, dismissing the plaintiffs'
complaint and affirming the ZBA's issuance of the special
permit. The p laintiffs appealed.

Discussion

. We review the allowance of motions for
judgment on the pleadings de novo. See Boston v. Conservation

Comm'n of Quincy , 490 Mass. 342, 345 (2022).3

The plaintiffs argue that th e ZBA did not have authority

under § 51 of the zoning bylaws to issue the special permit to

construct the cell tower , because the tower did not satisfy the
height requirements in § 53 of the zoning bylaws

. Section 51

p rovides , "A personal wireless service facility involving construction of one or more ground or building (roof or side) mounts shall require a special permit. Such facilities may locate by special permit in all zoning districts within the Town, provided th at the proposed use complies with the height requirements of § 53

. . . ."
The plaintiffs claim that the ZBA was not authorized to issue
the special permit because the proposed cell tower did not
comply with the height requirements of § 53

. They argue that a

variance from the height requirement of § 53 does not satisfy
"compli[ance] with the height requirements of § 53" for the
purposes of this provision

. We are not persuaded.

V ariance s are "individual waivers of local legislation,"
providing relief from zoning requirements (footnote omitted )

.
Mendoza v. Licensing Bd. of Fall River , 444 Mass. 188, 207 &
n.23 (2005). The ZBA may grant a variance to excuse compliance
with a zoning bylaw. Se e G. L. c. 40A, § 10. See also Cornell

v. Michaud , 79 Mass. App. Ct. 607, 616 (2011) ("[A] landowner

can . . . seek an appropriate variance or permit so as to bring
the property into compliance with a zoning by

- law"). In this
case, the ZBA granted a variance to excuse compliance with the4

height requirements of § 53. In considering the special permit
application , t he ZBA noted that it had previously "voted to
grant a variance for relief from the height requirement in

Se ction 53 of the [ bylaw ] ." The ZBA's explicit reference to
this variance in its decision on the special permit demonstrates

that the variance from the height requirement s of § 53 also
provided relief from the same height requirements in § 51, the
special p ermit provision. Otherwise, granting the height

variance would have been meaningless.

The cases on which the plaintiffs rely are inapposite. In

Mendes v. Board of Appeals of Barnstable , 28 Mass. App. Ct. 527 ,
529

- 530 (1999), the c ourt held that a use variance was not a
nonconforming use within the meaning of G. L. c. 40A , § 6

. 3 And

in Seguin v. Planning Bd. of Upton , 33 Mass. App. Ct. 374 , 376
(1992), the court held that a variance from zoning bylaws did

not satisf y the requirements o f the s ubdivision c ontrol l aw ,
G. L. c. 41, §§ 81K

- 81GG

. Neither Mendes nor Seguin support s the proposition that a variance from one zoning bylaw cannot
satisfy the requirement s of other zoning bylaw s . The ZBA's
granting the height variance meant that the height of the cell

3 Plaintiffs cite Mendes for the proposition that a use variance "is not a 'conforming' use." This misstates the court's holding that a variance is not a non conforming use. See Mendes , 28 Mass. App. Ct. at 529

- 531.5

tower was no longer an impediment to the issuance of the special
permit.
Judgment affirm ed

. By the Court (Desmond, Hand & Grant, JJ. 4 ),

Assistant Clerk

Entered: May 17, 2024.

4 The panelists are listed in order of seniority.