Tuesday, August 6, 2013

A NEW STANDARD FOR DEMONSTRATING THAT A VARIANCE HAS BEEN EXERCISED


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.


 

No comments:

Post a Comment