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.
