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Talmo v. Zoning Board of Appeals of Framingham

Appeals Court of Massachusetts, Suffolk

July 24, 2018

ROBERT D. TALMO
v.
ZONING BOARD OF APPEALS OF FRAMINGHAM & others.[1]

          Heard: February 5, 2018.

         Civil 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.

          Alan E. Lipkind for the plaintiff.

          Peter L. Mello (Christopher J. Petrini also present) for zoning board of appeals of Framingham.

          Present: Green, C.J., Henry, & Singh, JJ.

          HENRY, J.

         In this 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.

         Background.

         The 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.[2] 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.

         The 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.[3]

         Thereafter, 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.[4] The Buckleys then removed their stove and oven from the barn's kitchen and had the stove connection capped.

         On 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.

         The 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 the case.

         Talmo 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 ...


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