Last month in
Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 (2013)
the SJC determined that a variance decision that had been relied upon by the
applicant did not expire notwithstanding that the decision was not recorded
within one (1) year of its grant as required by Statute.
“
No variance, or any extension, modification or renewal thereof, shall take
effect until a copy of the decision bearing the certification of the city or
town clerk that twenty days have elapsed after the decision has been filed in
the office of the city or town clerk and no appeal has been filed, or that if
such appeal has been filed, that it has been dismissed or denied, or that if it
is a variance which has been approved by reason of the failure of the permit
granting authority or special permit granting authority to act thereon within
the time prescribed, a copy of the petition for the variance accompanied by the
certification of the city or town clerk stating the fact that the permit
granting authority failed to act within the time prescribed, and no appeal has
been filed, and that the grant of the petition resulting from such failure to
act has become final, or that if such appeal has been filed, that it has been
dismissed or denied, is recorded in the registry of deeds for the county and
district in which the land is located and indexed in the grantor index under
the name of the owner of record or is recorded and noted on the owner's
certificate of title.” Mass. Gen. Laws Ann. ch. 40A, § 11 (West)
In the Land Court, Justice Long found that the Permit
Extension Act did not extend the time period within which a variance decision
must be recorded. Justice Long wrote: “ The Permit Extension Act, in relevant
part, provides, ‘[n]otwithstanding any general or special law to the contrary,
an approval in effect or existence during the tolling period shall be extended
for a period of two years, in addition to the lawful term of the approval.’
St.2010, c. 240 § 173(b)(1) (emphasis added). As Cornell makes plain, however, under G.L. c. 40A §§ 10 &
11, ‘a variance does not ‘take effect’ until it is recorded ... and the
recording of a variance within one year of its grant is necessary to ‘exercise’
it.’ Cornell, 453 Mass.
at 891. Simply put, unless ‘substantial reliance’ is sufficient to bring
variance rights into effect, there is no actual ‘variance’ unless and
until timely recording occurs. Thus, absent a ‘substantial reliance’ exception,
there was no ‘approval’ capable of being extended by the Permit Extension Act.
In short, on the facts of this case, the ‘substantial reliance’ issue cannot be
avoided.” Grady v. Langone, 09 MISC. 419147 KCL, 2011 WL 3242211 (Mass.
Land Ct. July 27, 2011) judgment entered, 09 MISC. 419147 KCL, 2011 WL
3163300 (Mass. Land Ct. July 27, 2011) aff'd sub nom. Grady v. Zoning
Bd. of Appeals of Peabody, 465 Mass. 725 (2013)
Those of you who find
this kind of thing exciting will no doubt remember Paul Cornell who attempted
to develop two lots in Dracut but was stopped when the SJC finally ruled that
he had not exercised his variance decision within a year. Within that year period
“Cornell hired a registered land surveyor to prepare an ‘approval not required’
plan (ANR), see G.L. c. 41, § 81P, which subsequently was filed with the
planning board, and approved and indorsed on August 14, 2002. Cornell then
retained Norse Environmental Services, Inc. (Norse), to prepare septic and
wetlands delineation plans. Norse began testing the soil in November, 2002, and
submitted a septic plan to the board of health on February 14, 2003. At some
point in early 2003, Cornell applied for an order of conditions from the
conservation commission. By March 7, 2003, the anniversary of the issuance of
his variance, the board of health and the conservation commission continued
proceedings concerning Cornell's applications several times, and had not issued
any decision concerning Cornell's applications” Cornell v. Bd. of Appeals of
Dracut, 453 Mass. 888, 889, 906 N.E.2d 334, 336 (2009).
Notwithstanding
actions that most of us would have considered to be steps that relied upon the
original grant of the variance, the Court in Cornell did not agree.
In the Grady
case, the SJC upheld the Land Court decision that found that the following
steps were sufficient for a finding that the variance had been exercised: “They
had previously (pre-grant) hired a surveyor (Jan. 27, 2008) and architect
(Sept. 2, 2008). Now they (1) hired a general contractor (Feb. 18, 2009), (2)
applied for a building permit (Feb. 22, 2009), (3) were issued that
building permit by the City's building inspector (Feb. 24, 2009), (4) hired (at
the City's insistence) a supervising architect to review the progress of the
work and prepare periodic reports for the City (Jun. 15, 2009), (5) applied for
and received a $350,000 construction loan from Community Credit Union of Lynn
(Jun. 17, 2009), (6) granted a mortgage on Lot B to Community Credit Union
(Jun. 17, recorded Jun. 18, 2009), (7) drew an initial $59,120 from the loan to
begin funding construction activities (Jun. 19, 2009), and (8) began clearing
the site (Jun.2009). Each involved a corresponding expenditure.” Grady v.
Langone, 09 MISC. 419147 KCL, 2011 WL 3242211 (Mass. Land Ct. July 27,
2011).
It is important to
note that the Grady variance was recorded a year and eleven (11) days
after the grant thereof, the Plantiff had notice of the original variance
proceedings but did not file an appeal and the Plaintiff’s land was subject to
an easement that was created over her land for the purpose of the use being
constructed on the lot in question.
PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN &
SANTOS, P.C.
