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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.
