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VARIANCES: DEMOLITION NOT A "RIGHT" TO BE EXERCISED IN ONE YEAR

In a very short rescript decision, E & J Props., LLC v. Medas, 464 Mass. 1018 (2013), issued by the SJC on March 19, 2013, the highest court (on further appellate review of a Rule 1:28 decision), held that the defendant variance holder was not precluded from completing the demolition of a structure on his lot well after a year since the variance was issued.

The basic facts of the case are as follows:

  • In 2005, ZBA granted defendant a variance "[t]o demolish existing structures and to subdivide [the subject property] into twenty . . . buildable lots . . ." and that the "[r]ights [a]uthorized by this [d]ecision shall be exercised within one year of the grant." The defendant's plan (submitted with its variance petition) showed that an existing structure would be demolished on the property.
  • Within one year of the variance decision, the planning board endorsed an ANR plan showing the property divided into twenty lots.
  • Plaintiff purchased sixteen of those lots, and began construction of some e housing units on a portion of the lots.
  • Meanwhile, defendant demolished a portion of the existing structure. The defendant continued to own the remaining four lots, which were the site of the now-partially demolished existing structure.
  • In early 2009, the building inspector issued a notice of violation to defendant, and ordered that the defendant cease and desist from violating the zoning ordinance provision relative to execution of the variance. That is, the building inspector believed that by not demolishing the entire structure within one year of the variance decision, that the defendant was in violation of the zoning ordinance and the terms of the variance itself.
  • Defendant appealed the building inspector's notice of violation to the ZBA, arguing that the variance contained no deadline for completion of demolition (or any other activities authorized by the variance).
  • ZBA reversed the notice of violation, stating that the conveyance of the sixteen lots and commencement of the construction constituted "'substantial use of the rights' granted by the variance." (citation omitted)
  • Plaintiff (abutter/owner of the 16 lots) appealed the ZBA's decision to the Land Court.
  • The Land Court affirmed the ZBA's reversal.
  • Plaintiff appealed. The Appeals Court reversed (Rule 1:28 decision) the Land Court, essentially upholding the Building Inspector.

Upon further appellate review in the SJC, the highest court noted that the ZBA's "variance decision neither required demolition nor imposed a time deadline for the demolition to occur." To the extent that "[t]he terms of a variance must appear on its face," this particular variance decision contained no such timelines or deadlines. See Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 205 (2005).

Perhaps more importantly, however, was the SJC's noting the following:

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 Props., LLC at 1019 (emphasis added). For this reason, the SJC found the ZBA's reversal of the building inspector's notice of violation reasonable and legally tenable.

This kind of nuanced review of the ZBA's variance decision sends a reminder to zoning boards to be specific with their words, if they envision a specific outcome; here Fall River apparently did not care how long the demolition work would take, knowing that eventually it would happen. It also, however, sends a message to variance holders and any potential opponents that there will be some flexibility read into the terms of the variance if the ZBA was not explicitly detailed, yet another thing to consider before contemplating an appeal.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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