standing

Under Massachusetts Zoning Law, Abutter’s Presumptive Standing to Appeal Can Be Rebutted Even if Unchallenged by Defendant

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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.

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Mass. Appeals Court Ventures Onto High Wire of Zoning Standing Doctrine, Answers Vexing Question

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It’s about time!  Not since the notable 1961 adverse possession case Kershaw v. Zecchini have real estate litigators had an important decision inspired by circus performers.

In its recent decision in Murrow v. ESH Circus Arts, LLC, the Appeals Court answers a question that concurring Justice Peter J. Rubin notes “has vexed the judges of the trial court, who have reached different conclusions about it.”  In zoning appeals under M.G.L. c. 40A (the Zoning Act), plaintiffs may have the benefit of a rebuttable presumption that they are “persons aggrieved” – meaning they have standing to appeal.  This judicially-created presumption, which originated in the 1957 case Marotta v. Board of Appeals of Revere, is conferred on “parties in interest” as described in Section 11 of the Zoning Act.  Section 11 defines “parties in interest” as:

the petitioner [i.e., the applicant for zoning relief], abutters, owners of land directly opposite on any public or private