Talmo v. Zoning Board of Appeals of Framingham ( 2018 )


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    17-P-438                                                Appeals Court
    ROBERT D. TALMO     vs.    ZONING BOARD OF APPEALS OF FRAMINGHAM &
    others. 1
    No. 17-P-438.
    Suffolk.         February 5, 2018. - July 24, 2018.
    Present:   Green, C.J., Henry, & Singh, JJ.
    Zoning, Person aggrieved. Practice, Civil, Zoning appeal,
    Standing, Presumptions and burden of proof, Findings by
    judge.
    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.
    1   Carleton J. Buckley and Heidi Pihl-Buckley.
    2
    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
    2 We refer to Heidi Pihl-Buckley by her first name to avoid
    confusion.
    3
    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.
    3 The board found that the by-law was "ignored not only as
    to the construction of a second single family dwelling on one
    lot, but the location was used for commercial purposes." After
    the board's decision, the building commissioner informed the
    Buckleys that they would have to cease using the converted barn
    as a single-family dwelling, and instructed them to apply for a
    permit necessary to make the alterations required to achieve
    that goal. See Lord v. Zoning Bd. of Appeals of Somerset, 
    30 Mass. App. Ct. 226
    , 227-228 (1991) (G. L. c. 40A, § 7's ten-year
    limitations period for construction without a permit does not
    apply to use violations).
    4 Talmo received notice of the 2010 building permit through
    his attorney on July 29, 2010.
    4
    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.
    5
    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 he is aggrieved by the board's
    decision, and declined to alter the prior judgment.     This appeal
    followed.
    Discussion.   1.   Rebuttal of presumption.   "Under the
    Zoning Act, G. L. c. 40A, 'only a "person aggrieved" has
    standing to challenge a decision of a zoning board of appeals.'
    G. L. c. 40A, § 17."     81 Spooner 
    Rd., 461 Mass. at 700
    .
    Abutters are, however, "entitled to a rebuttable presumption
    that they are 'aggrieved.'"     
    Ibid. See G. L.
    c. 40A, §§ 11, 15,
    17; Marotta v. Board of Appeals of Revere, 
    336 Mass. 199
    , 204
    (1957); Watros v. Greater Lynn Mental Health & Retardation
    Assn., 
    421 Mass. 106
    , 110-111 (1995).
    A rebuttable presumption "continues only until evidence has
    been introduced which would warrant a finding contrary to the
    presumed fact."    Scaltreto v. Shea, 
    352 Mass. 62
    , 64 (1967).
    See Jacquot v. Wm. Filene's Sons Co., 
    337 Mass. 312
    , 316 (1958)
    (presumption favoring plaintiff disappeared based on her own
    testimony); Potter v. John Bean Div. of Food Mach. & Chem.
    6
    Corp., 
    344 Mass. 420
    , 425 n.1 (1962); Standerwick v. Zoning Bd.
    of Appeals of Andover, 
    447 Mass. 20
    , 34 (2006); 81 Spooner 
    Rd., 461 Mass. at 702
    .    Thus, in the zoning context, the standing
    "presumption recedes when a defendant challenges the plaintiff's
    status as an aggrieved person and offers evidence supporting his
    or her challenge."    
    Watros, 421 Mass. at 111
    .
    Here, the judge found that Talmo's presumption of
    aggrievement was rebutted by evidence introduced by Talmo,
    amplified by the judge's view.    Although the defendants asserted
    lack of standing as an affirmative defense in their answers,
    they never claimed at trial that Talmo lacked standing, and
    Talmo argues that the judge was not permitted to reach the issue
    on his own.
    Talmo's standing, however, was a "jurisdictional"
    prerequisite to proceeding with the case in the sense that his
    status as an aggrieved person is an essential prerequisite to
    judicial review.    See 
    Watros, 421 Mass. at 107
    ; 81 Spooner 
    Rd., 461 Mass. at 700
    n.12; Nickerson v. Zoning Bd. of Appeals, 
    53 Mass. App. Ct. 680
    , 681 n.2 (2002).    As such, it was properly
    reached by the judge sua sponte.    See Rental Property Mgmt.
    Servs. v. Hatcher, 
    479 Mass. 542
    , 547 (2018), quoting from
    Nature Church v. Assessors of Belchertown, 
    384 Mass. 811
    , 812
    (1981) ("[W]henever a problem of subject matter jurisdiction
    becomes apparent to a court, the court has 'both the power and
    7
    the obligation' to resolve it, 'regardless [of] whether the
    issue is raised by the parties'").   See also Litton Bus. Sys.,
    Inc. v. Commissioner of Rev., 
    383 Mass. 619
    , 622 (1981);
    Prudential-Bache Sec., Inc. v. Commissioner of Rev., 
    412 Mass. 243
    , 248 (1992).
    There being no impediment to the judge's reaching the
    issue, his factual determination that the evidence warranted a
    finding contrary to the presumption is reviewed for clear error.
    See Murray v. Board of Appeals of Barnstable, 
    22 Mass. App. Ct. 473
    , 476 (1986).   We see no error here.   The judge found based
    on testimony, photographs admitted in evidence, and his view 5
    that the converted barn is not in close proximity to, and cannot
    clearly be seen from, Talmo's house.   Specifically, the judge
    found that Talmo's house is located in excess of 250 feet from
    5 Whether to take a view is a matter within the discretion
    of the trial judge, and a view may be taken on the judge's own
    motion. See Sargeant v. Traverse Building Trust, 
    267 Mass. 490
    ,
    495 (1929); Berlandi v. Commonwealth, 
    314 Mass. 424
    , 450-451
    (1943). "A view is not technically evidence and subject to all
    the principles applicable to evidence in the technical sense."
    
    Berlandi, 314 Mass. at 451
    . Nevertheless, "it has been said
    that [a view] inevitably has the effect of evidence, and
    information properly acquired upon a view 'may properly be
    treated as evidence in the case.'" Ibid., quoting from Keeney
    v. Ciborowski, 
    304 Mass. 371
    , 372 (1931) (citations omitted).
    To the extent the judge's factual findings were based in part on
    his view of the parties' respective parcels, there was no error.
    See 
    Sargeant, 267 Mass. at 495
    (finding no error where finding
    was based on conflicting oral testimony and on judge's view of
    locus). See also Madden v. Boston Elev. Ry. Co., 
    284 Mass. 490
    ,
    494 (1933).
    8
    the Buckleys' converted barn, confirming Talmo's testimony as to
    the "substantial" distance between the two properties.   The
    judge also found that trees, boulders, and other landscaping
    partially obscure the view of the barn from Talmo's property and
    that "[t]he distance between the two houses is great enough that
    it is virtually inconceivable that traffic, noise or light from
    the former barn, now occupied as a residence, could disturb or
    injure Talmo in the use of his property, and there was no
    evidence to suggest otherwise."   The available evidence was
    sufficient to rebut the presumption of standing.
    The case before us might be more difficult had Talmo not
    been given notice of the issue and an opportunity to introduce
    countervailing evidence of his aggrievement once the judge
    determined sua sponte that the presumption was rebutted.
    Certainly, the better practice would have been to alert the
    parties that the judge was concerned that Talmo's presumptive
    standing had receded in light of evidence presented at trial,
    and invite the parties to offer evidence and possibly briefing
    on the issue prior to the entry of judgment.   However, where, as
    here, the judge reopened the trial as to the standing issue upon
    Talmo's motion, we see no procedural or factual error, nor abuse
    of discretion, in the judge's determination that the presumption
    was rebutted.
    9
    2.   Factual determination on reopened evidence.   Once the
    presumption of standing has been rebutted, whether an abutter
    qualifies as an aggrieved person "will be decided on the basis
    of all the evidence, with no benefit to the plaintiff from the
    presumption of aggrievement."   81 Spooner 
    Rd., 461 Mass. at 701
    .
    Thus, we now turn to the judge's finding, based on the evidence
    entered upon reopening the trial, that Talmo lacks aggrieved
    person status.   "In this context, standing becomes, then,
    essentially a question of fact for the trial judge," Marashlian
    v. Zoning Bd. of Appeals of Newburyport, 
    421 Mass. 719
    , 721
    (1996), and the judge's determination will not be overturned
    unless clearly erroneous.   Kenner v. Zoning Bd. of Appeals of
    Chatham, 
    459 Mass. 115
    , 119 (2011).
    A person is "'aggrieved' if he suffers some infringement of
    his legal rights."   
    Marashlian, 421 Mass. at 721
    .   "The injury
    must be more than speculative," ibid., and also must be "special
    and different from the concerns of the rest of the community."
    
    Standerwick, 447 Mass. at 33
    , quoting from Barvenik v. Board of
    Aldermen of Newton, 
    33 Mass. App. Ct. 129
    , 131, 132 (1992).
    
    Kenner, 459 Mass. at 120
    (plaintiffs had burden of showing they
    suffered "particularized injury" as result of alleged zoning
    infraction).   "Aggrievement requires a showing of more than
    10
    minimal or slightly appreciable harm." 6   81 Spooner 
    Rd., 461 Mass. at 700
    , quoting from 
    Kenner, 459 Mass. at 121
    .
    During the reopened trial, Talmo's sole basis for asserting
    particularized injury was alleged contamination of his drinking
    water well. 7   The judge found, however, that the amount of
    nitrates and nitrites detected in Talmo's well was so far below
    the level of contamination permissible under Federal regulations
    that any contamination did not constitute a specific cognizable
    injury.   Moreover, even if there were an injurious level of
    contamination, the judge found that the evidence was
    insufficient to establish a nexus between that contamination and
    the septic systems on the Buckleys' property. 8
    6 "The adverse effect on a plaintiff must be substantial
    enough to constitute actual aggrievement such that there can be
    no question that the plaintiff should be afforded the
    opportunity to seek a remedy. To conclude otherwise would choke
    the courts with litigation over myriad zoning board decisions
    where individual plaintiffs have not been, objectively speaking,
    truly and measurably harmed." 
    Kenner, 459 Mass. at 122
    .
    7 "The right or interest asserted by a plaintiff claiming
    aggrievement must be one that G. L. c. 40A is intended to
    protect." 
    Kenner, 459 Mass. at 120
    . We assume without deciding
    that contamination of Talmo's well caused by the dual septic
    systems, if proved, would constitute the requisite
    particularized injury to support standing. Cf. Bertrand v.
    Board of Appeals of Bourne, 
    58 Mass. App. Ct. 912
    , 912 (2003)
    (abutters articulated density concerns related to noise, light,
    privacy, and environmental implications of two septic systems
    instead of one).
    8 Specifically, the judge found that the evidence was
    insufficient to show: (i) that the septic systems on the
    Buckleys' land were inadequately separated from groundwater;
    11
    To prove aggrieved person status, the plaintiff in a zoning
    appeal "must put forth credible evidence to substantiate his
    allegations" of particularized or special injury, with "credible
    evidence" being comprised of both quantitative and qualitative
    components.   Butler v. Waltham, 
    63 Mass. App. Ct. 435
    , 441
    (2005).   "Quantitatively, the evidence must provide specific
    factual support for each of the claims of particularized injury
    the plaintiff has made."    
    Ibid. "Qualitatively, the evidence
    must be of a type on which a reasonable person could rely to
    conclude that the claimed injury likely will flow from the
    board's actions."   
    Ibid. Having reviewed the
    record, we see no
    error in the judge's factual findings.     Here, where the measured
    level of contaminants was so low in comparison to Federal safety
    standards and evidence that any existing contamination could be
    traced to the Buckleys' property was lacking, Talmo's evidence
    of particularized injury fell short of the "credible evidence"
    standard.
    Judgment affirmed.
    (ii) that the groundwater flows from the Buckleys' land toward
    Talmo's well; or (iii) that several other potential sources of
    contamination, including Talmo's own septic system, could be
    ruled out as the cause of any harm to Talmo's well.