Under Massachusetts Zoning Law, Abutter’s Presumptive Standing to Appeal Can Be Rebutted Even if Unchallenged by Defendant
There’s no shortage of case law on the issue of standing to maintain a zoning appeal. A case decided by the Appeals Court reminds us why the issue is still being discussed after all these years. In Talmo v. Zoning Board of Appeals of Framingham, 93 Mass. App. Ct. 626 (2018), the court addressed whether a trial judge could determine on his own (without the defendant pressing it) that a direct abutter’s presumptive standing was rebutted. The court concluded that the trial judge properly did so.
In 2009, Talmo sought zoning enforcement from Framingham’s building commissioner requesting that his neighbors, the Buckleys, be ordered to cease using a converted barn as a residence. The Buckleys had lived in the barn since the mid- to late-1980s and raised a family there. The barn was converted to a residence without any permits authorizing the renovation. A building permit was obtained in 2004 for an addition to the barn’s living space.
The building commissioner denied Talmo’s request for zoning relief, but the zoning board of appeals reversed the commissioner and ordered him to take all action necessary to enforce the zoning bylaw. The commissioner then informed the Buckleys that they would have to cease using the converted barn as a residence and instructed them to apply for a permit. The Buckleys obtained a building permit to convert the barn into additional living space for the main house (rather than as a separate dwelling), with no permanent provisions for cooking. They removed their stove and oven from the barn’s kitchen, which the building commissioner viewed as meaning the barn could no longer be considered a dwelling unit.
Talmo initiated a second zoning enforcement action in October of 2010. Both the building commissioner and the zoning board denied the requested relief and Talmo appealed to the Land Court. After trial and a “view” of the property (i.e. a site visit), the Land Court judge found that Talmo’s presumed “aggrieved person” standing as a direct abutter to the Buckleys’ property had been rebutted. The judge relied on Talmo’s own testimony and evidence about the distance between Talmo’s home and the converted barn, and on partial screening of Talmo’s view of the barn. Talmo offered no specific evidence of particularized harm, so the judge found Talmo lacked standing and dismissed the case. In response to Talmo’s motion for a new trial the judge reopened the trial on the issue of standing. Talmo offered evidence related to alleged contamination of his drinking water well, which the judge found insufficient to show that Talmo was aggrieved by the zoning board’s decision.
Under the Zoning Act, only a “person aggrieved” has standing to challenge a decision of a zoning board of appeals, and abutters are entitled to a rebuttable presumption that they are aggrieved. Although Framingham did not press its affirmative defense that Talmo lacked standing, the Land Court judge found – and the Appeals Court agreed – that Talmo’s presumption of aggrievement had been rebutted by evidence introduced by Talmo himself, “amplified by the judge’s view.” The Appeals Court held that Talmo’s standing was a “jurisdictional” prerequisite to proceeding with the case and, as such, it was properly reached by the trial judge sua sponte.
The Appeals Court noted the Land Court judge’s willingness to let Talmo to introduce evidence of his aggrievement once the judge determined sua sponte that the presumption had been rebutted. However, under well-established law setting forth the standard for determining aggrievement, that evidence was insufficient to support Talmo’s sole basis for asserting particularized injury.
Although, as the Appeals Court concluded, the Land Court’s decision is well supported by the law, one might wonder if the Land Court judge was influenced by the fact that the Buckleys had lived in the converted barn for more than 20 years before Talmo initiated zoning enforcement against them in 2009. According to the Framingham Assessor’s records, Talmo purchased his property in 1999 and built a single-family home there in 2002. (There is no indication whether this information was in the trial record.) Nonetheless, it remains clear that presumptive standing is just that – presumptive – and a trial judge may dismiss a case for lack of standing sua sponte when the evidence rebuts an abutter’s presumption of aggrievement.