On Tuesday, the Appeals Court issued its opinion in Talmo v. Zoning Board of Appeals of Framingham.  Massachusetts suffers no shortage of case law on standing (the right to file suit) in zoning appeals.  In this case, the issue was whether the abutter’s “injury” was sufficient to create “standing” to appeal Framingham’s issuance of a building permit to his neighbor to convert a barn into “additional” living space.  This otherwise routine standing case is notable for two reasons.

First, it’s a useful reminder that a fatally flawed case can remain fatally flawed, even if the opponent doesn’t press the issue at trial. Here, Land Court Judge Howard Speicher found sua sponte (without being asked to do so by the parties) that Talmo lacked standing to bring his appeal.  Although Framingham had asserted a lack of standing as an affirmative defense, it never contested Talmo’s standing at trial.  Nevertheless, Judge Speicher found Talmo had no injury sufficient to confer standing.  Concluding that standing was a “jurisdictional prerequisite” to proceeding with the case, the Appeals Court affirmed.

Second, Talmo’s “presumptive” standing as an abutter was just that, a presumption. To have standing, the abutter’s injury must be more than speculative, and it must be different than the concerns of the rest of the community.  In this instance, Talmo’s home was more than 250 feet from the offending barn and buffered by trees, boulders and other landscaping.  The Court also rejected Talmo’s suggestion that his drinking water well was contaminated by the barn’s septic system.  Based on those facts, Judge Speicher concluded, and the Appeals Court affirmed, that Talmo’s presumptive standing was rebutted by the facts, including Talmo’s own testimony.

Now, if I could only get Elton John’s “I’m Still Standing” from replaying in my head. Over and over again…