Wednesday, March 27, 2013

DEMOLITION REFERENCED IN A VARIANCE DECISION DID NOT HAVE TO OCCUR WITHIN ONE YEAR, OR FOUR YEARS.


On March 16th the SJC issued a decision that reinforces some of the earlier decisions that have concluded that absent specific conditions within a ZBA decision, there are no specific time requirements to perform certain steps anticipated by the decision. In E & J Properties, LLC v. Medas, 464 Mass. 1018, 1019 (2013) the Defendant obtained a variance in 2005 to demolish structures and subdivide property into twenty building lots. According to the decision, “[w]ithin one year of the board's variance decision, the Fall River planning board indorsed an ‘approval not required’ plan that showed the property divided into twenty lots, and sixteen of the lots were sold to the plaintiff. Thereafter, the plaintiff began construction of housing units on some of those lots, and the trust demolished a portion of the Global Glass Building. The trust retained for itself the four lots shown on the plan that were occupied by the remainder of the Global Glass Building.”  In 2009 the building inspector issued a notice of violation because the remainder of the building had not been demolished, notwithstanding that the defendant had represented to the ZBA at the variance hearing that it would be demolished.  Upon appeal the ZBA decided that the variance decision did not require demolition within a particular time, and ultimately the SJC found their conclusion to be “both legally tenable and reasonable.”
“While the variance decision requires that ‘rights authorized by the decision’ be exercised within one year, demolition was not a ‘right’ authorized by the variance per se. To construe demolition as a ‘right’ subject to lapse after one year would be nonsensical, as demolition was precisely the result sought by the building inspector in his enforcement order. “ E & J Properties, LLC v. Medas, 464 Mass. 1018, 1019 (2013)
Note that the controversy arose in January, 2009 and the SJC decision was issued in March, 2013.  That’s not what happens on the TV lawyer shows; everything gets adjudicated within an hour.
PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.
 

 

No comments:

Post a Comment