In the recent Land Court decision of E&C Sports, LLC v. Town of Holliston, 11 MISC 445780 (KFS), 2013 WL 1804192 (Mass. Land Ct. Apr. 5, 2013), we are reminded of two principals. The case pertained to applications submitted by a swimming and tennis club seeking approval of an “air supported structure so as to provide tennis courts year round to the members of the Tennis Club.” The case reminded us that:
1. A use or structure that depends on a previously issued variance is not a lawfully pre-existing non-conforming use or structure. Therefore, such use or structure cannot expand in accordance with a MGL Chapter 40A Section 6 Special Permit which otherwise allows non-conforming uses and structures to be altered and expanded. “It would be anomalous if a variance, by its nature sparingly granted, functioned as a launching pad for expansion as a nonconforming use.” Mendes v. Board of Appeals of Barnstable, 28 Mass.App.Ct. 527, 531 (1990), rev. denied, 407 Mass. 1103 (1990); see also Star Enterprise v. Zoning Bd. of Appeals of Medfield, Land Court Misc. Case No. 141347 (1991) (Kilborn, C.J.), aff'd 35 Mass.App.Ct. 1109 (1993) (Relying on Mendes, holding that a Section 6 finding was not possible in the action because “a use based on a variance was not non-conforming within the meaning of Section 6”); and
2. If you submit two applications, for example an application for Site Plan Review and an Application for a Special Permit, and at the hearing the Board appears to act upon only one, speak up and ask them to specifically act on both applications. If you assume that you can obtain a Special Permit by constructive approval (see MGL Chapter 40A Section 9, clause 13) you may be sadly disappointed. In the E&C case the Court found that that it was the Board’s intention to act on both applications and constructive approval was not available to the petitioner/plaintiff. Over the years, I have seen many examples of a Board losing track of the details of the applications before it and forgetting to specifically act on one application. If you attempt to rely on constructive approval you may also lose your opportunity to file an appeal under Chapter 40A Section 17, which must be filed within twenty days of the decision being filed with the Town Clerk.
PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.