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Massachusetts Supreme Judicial Court Affirms Validity of Late-Recorded Variance

The Massachusetts Supreme Judicial Court has upheld the Land Court’s ruling that a variance is effective even if it is recorded outside the statutory one-year period where there was substantial reliance on the variance, no harm to interested parties, and the variance was recorded less than two weeks after the one-year recording deadline. Grady v. Zoning Board of Appeals of Peabody, 465 Mass. 725 (2013).

The Zoning Act provides that “If the rights authorized by a variance are not exercised within one year of the date of grant of such variance such rights shall lapse….” M.G.L. c. 40A, § 10. Further, it states that, “No variance…shall take effect until a copy of the decision…is recorded in the registry of deeds….” M.G.L. c. 40A, § 11. In short, “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 v. Bd. of Appeals of Dracut, 453 Mass. 888, 891 (2009). However, the Cornell Court also noted that, “We leave for another day whether the failure to record a variance may void a variance on which a variance holder substantially has relied.” Id. at 891 & n.7. Based on the facts in Grady, the SJC answered this question in the negative.

The Stefanidis obtained a frontage variance in order to construct a two-family house in Peabody. No appeal was taken and a Certificate of No Appeal was issued by the Town Clerk in July, 2008. Although the Stefanidis failed to record the variance within the one-year period, they had hired a general contractor, applied for and received a building permit, employed an architect to review the work progress and prepare reports, obtained a construction loan secured by a mortgage, drew substantial funds from the loan, and began clearing the site, all within this period. Shortly after the recording deadline, an abutter requested that the Building Inspector revoke the building permit due to the failure to timely record the variance. Learning of this appeal, the Stefanidis recorded the variance eleven (11) days after the one-year period expired. The Building Inspector denied the revocation request and the Zoning Board of Appeals upheld his decision. The abutter appealed to Land Court which, in turn, upheld the Zoning Board. The SJC took the case on its own motion.

The SJC held that the variance became effective in the “unusual circumstances here” consisting of (1) the performance of “substantial steps within the one year period” in reliance upon the variance, (2) the absence of “harm to any interested parties, including the plaintiff, other than any harm resulting from the original, uncontested grant of the variance,” and (3) the recording of the variance “less than two weeks” after the one-year period. In a footnote, the SJC further ruled that Chapter 40A does not “mandate that actions taken to exercise a variance, such as obtaining a building permit… must be undertaken only after the variance has been recorded.” Reciting the purpose of the variance recording requirement – ensuring timely recording and notice to subsequent purchasers and others of a limited right to deviate from the requirements of the zoning code – the SJC found nothing in the record suggesting that the plaintiff, other abutters, or any potential purchasers, were prejudiced by this “de minimis recording delay.”

The SJC affirmed the Land Court’s decision upholding the ZBA’s ruling not to revoke the building permit.

© 2017 Beveridge & Diamond PC

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About this Author

Marc J. Goldstein, Environmental Attorney, Beveridge Diamond law firm
Principal

Marc Goldstein helps clients resolve environmental and land use disputes and to develop residential, commercial, and industrial projects.  He serves as the Managing Principal of Beveridge & Diamond’s Wellesley, Massachusetts office.

781-416-5715
Brian Levey, Land Use, Real Estate, Attorney, Beveridge Diamond, Law Firm
Principal

Mr. Levey, a Principal with Beveridge and Diamond, P.C., has more than twenty years of project development experience before permit-granting authorities and in court. He is Co-Chair of the Firm’s Land Use Practice Group.

Mr. Levey's real estate development and land use and zoning law experience focuses on the representation of builders, developers, and property owners seeking all types of permits and approvals — special permits, site plan approvals, variances, and comprehensive permits — before dozens of boards throughout Massachusetts. His environmental practice focuses on permitting matters before local boards and state agencies on wetlands and Title V matters. Representative project approvals include residential subdivisions, affordable housing projects, retail stores, shopping centers, restaurants, telecommunications towers and assisted living facilities. In addition to property owners and developers, his clients include educational and religious nonprofit institutions and project abutters and neighborhood associations. He also has experience serving as special counsel to boards.

781-416-5733