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

On March 16^th 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.

paul@lawbas.com

http://www.lawbas.com

 

 

A PARCEL IS NOT A BUILDABLE LOT UNLESS IT HAS SUITABLE, PRACTICAL FRONTAGE.

I am willing to make two predictions at this time regarding coming trends in local residential real estate. First, as more of the “Baby Boomer Generation” approaches retirement age, the Boomers will jettison their maintenance-heavy two-story colonials and seek the relative ease of condominium life (yours truly being an exception), and second, as the market for new buildable lots increases, there will be a renewed interest in attempting to build on existing parcels which may benefit from existing private ways and paper street. I can make the second prediction based upon the questions that are coming across my desk,  plus the recent Land Court decision by Justice Cutler in Williams v. Norwell Bd. of Appeals, 10 MISC 419885 JCC, 2013 WL 139534 (Mass. Land Ct. Jan. 11, 2013)

Williams obtained a building permit on an existing 2.076 acre parcel of land, which was overturned by the Norwell Board of Appeals. The local Zoning By-law requires that all lots have frontage on a street or way shown on an approved subdivision plan or being suitable in the opinion of the Planning Board (like the language in MGL Chapter 41, Section 81L). Williams argued that he was exempt from the local requirement because his lot was protected by MGL Chapter 40A, Section 6 which states:

“ Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.” Mass. Gen. Laws Ann. ch. 40A, § 6 (West)

Justice Cutler concluded that Williams almost had a buildable lot, but he was unable to prove that he has the requisite fifty feet of frontage. William’s argument was based primarily on his reference to a “right of way” contained in a deed, but the right of way was not improved on the ground. As Justice Cutler summarized: “…a mere grant of a ‘right-of-way’ across land of others to access a public way, does not necessarily qualify as ‘frontage’ for purposes of § 6, particularly where there is no evidence that it ever existed on the ground, or was used for access to a public way.” Furthermore,  “…as long as the Plaintiff is claiming to have frontage on a private way in existence prior to subdivision control in Norwell, he cannot avoid an adequacy determination by the Planning Board, with respect to the statutory 50–foot minimum needed to qualify the Lot for separate lot protections under § 6. And it is undisputed that the Planning Board has not made such a determination with regarding the right-of-way across Lot 62.” Williams v. Norwell Bd. of Appeals, 10 MISC 419885 JCC, 2013 WL 139534 (Mass. Land Ct. Jan. 11, 2013).

Invest in condo development but use caution when attempting to develop land with questionable frontage.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com