ROBERT D. TALMO
ZONING BOARD OF APPEALS OF FRAMINGHAM & others.
Heard: February 5, 2018.
action commenced in the Land Court Department on March
9, 2011. The case was heard by Howard P. Speicher,
J., and a motion for a new trial was heard by him.
E. Lipkind for the plaintiff.
L. Mello (Christopher J. Petrini also present) for zoning
board of appeals of Framingham.
Present: Green, C.J., Henry, & Singh, JJ.
zoning appeal, we must decide whether the trial judge could
determine sua sponte that a direct abutter's presumptive
standing was rebutted where the defendants did not press the
issue at trial. We conclude that the judge properly reached
the question and affirm the judgment of dismissal.
defendants Carleton J. Buckley and Heidi Pihl-Buckley
(collectively, the Buckleys) reside at 30 Nixon Road,
Framingham, in a converted barn located on the same lot as
Heidi's parents' single-family home. The barn was
constructed in 1971 and used as a horse stable and then as
storage for Heidi's father's business. In the
mid-1980s, the barn was converted into a residence without
any permits authorizing the renovation. The Buckleys, who
have owned the parcel since 2009, have resided in the
converted barn since the mid- to late-1980s and reared their
now-adult children there. In 2004, Heidi's father applied
for a building permit to construct a twelve foot by
twenty-four foot addition onto the barn to serve as a
"great room." The permit was granted and the
addition was built.
plaintiff, Robert D. Talmo, owns 28 Nixon Road, which
directly abuts the Buckleys' property. In 2009, Talmo
sought zoning enforcement from Framingham's building
commissioner (see G. L. c. 40A, § 7), requesting that
the Buckleys be ordered to cease using the converted barn as
a residence. The building commissioner denied the request,
and Talmo appealed to the zoning board of appeals (the
board). The board reversed the building commissioner's
decision, and ordered him to take all action necessary to
enforce Framingham's zoning by-law.
the Buckleys filed an application for a building permit
seeking to convert the barn into "additional living
space for main house. Not to be used as a separate dwelling.
Not to include permanent provisions for cooking." A
permit issued on June 17, 2010. The Buckleys then removed
their stove and oven from the barn's kitchen and had the
stove connection capped.
October 18, 2010, Talmo initiated a second zoning enforcement
action. The building commissioner again denied his request
for relief, taking the position that the converted barn could
no longer be considered a dwelling unit for purposes of the
by-law because the cooking facilities had been removed,
making the building a permissible "accessory use."
Talmo appealed and the board denied Talmo relief. He appealed
that decision to the Land Court.
case was tried to a Land Court judge on December 8, 2015, and
the judge took a view the next day. In his decision, the
judge did not reach the substance of Talmo's argument
that the board exceeded its authority in upholding the
building commissioner's determination that the converted
barn now qualifies as a permissible accessory use. Instead,
he found that Talmo's presumed "aggrieved
person" standing as a direct abutter to the
Buckleys' property was rebutted by evidence presented at
trial. See 81 Spooner Rd., LLC v.
Zoning Bd. of Appeals of Brookline, 461 Mass. 692,
700 (2012). 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. Since Talmo offered no specific evidence of
particularized harm in the face of this evidence, the judge
found Talmo lacked standing and entered a judgment dismissing
filed a motion for new trial. The judge allowed the motion in
part, reopening the trial on the issue of standing. Talmo
then offered evidence related to alleged contamination of his
drinking water well, on the theory that the contamination was
caused by the existence of a second septic system on the
Buckleys' property. The judge found that Talmo's
evidence was insufficient to show that ...