A May 2009 decision by the Supreme Judicial Court mandates timely and decisive action to exercise a variance under the Zoning Act, which applies to all municipalities other than Boston. The Court's decision in Cornell v. Board of Appeals of Dracut clarifies that exercise of a dimensional variance requires the holder to record the variance and make diligent efforts to obtain a building permit within one year of the grant of the variance. Failure to take timely action could cause the variance to lapse. To learn about the circumstances of the case and the Court's findings, continue reading.
Cornell v. Board of Appeals of Dracut
Cornell v. Board of Appeals of Dracut arose from a property owner’s proposal to divide his land into two parcels with the intention of building a house on the smaller parcel. Because the frontage on the development parcel was less than the frontage required by the local zoning bylaw, the property owner applied for and received a variance from the board of appeals. Consistent with Zoning Act, the variance certificate issued by the board stated that the variance would not take effect until recorded in the registry of deeds. Section 10 of the Zoning Act provides that a variance shall lapse if the holder does not exercise the rights authorized by the variance within one year. The Cornell decision brings new focus on what is required to “exercise” a variance under Section 10.
Within one year of the grant of the variance, variance holder Cornell had obtained an indorsed approval not required plan from the local planning board, submitted a septic plan to the board of health for approval, and applied for an order of conditions from the conservation commission. Fifteen months after the grant of the variance, Cornell applied for a building permit. The building inspector denied the building permit application on the ground that the variance had lapsed. Cornell then requested an extension of the variance; the board of appeals denied the request as untimely. A subsequent reapplication for a variance was denied. The original variance was recorded approximately 22 months after it was granted.
Cornell sought a declaratory judgment from the Land Court that the original variance had not lapsed. The Land Court agreed with the building inspector that the variance had lapsed, finding that the variance did not take effect and could not be exercised because it was not recorded within one year of the grant of the variance. The Appeals Court and the Supreme Judicial Court affirmed the Land Court’s decision.
The Supreme Judicial Court’s decision clarifies a number of ambiguities within the Zoning Act and includes several noteworthy findings:
- A variance will not take effect until it is recorded; a variance will lapse if it is not recorded within one year.
- In order to exercise a variance, the holder must record the variance and obtain a building permit within one year of its grant. In some circumstances, conveyance of a lot in reliance on a recorded dimensional variance may be considered a valid exercise of the variance.
- Approvals from local boards (e.g., the planning board, the board of health, or conservation commission) confer no right to use a variance and do not signify compliance with zoning.
- In the event that its is not possible to obtain a building permit within one year of the grant of the variance, the holder of a recorded variance may seek an equitable tolling by filing a written application for an extension of the variance prior to the expiration of the one year period. The Zoning Act authorizes the permit granting authority, in its discretion, to extend the time for exercise of a recorded variance for a period not to exceed six months. Equitable tolling is warranted if the application is timely and the variance holder can show that delays in the issuance of a building permit are clearly attributable to others (e.g., an appeal by an abutter). Delays within the control of the variance holder are insufficient.
The Court left open a number of questions related to the timely exercise of a variance. For example, the Court did not decide whether failure to record a variance could void a variance on which a variance holder has substantially relied. It is possible that conveyance of one of the subdivided lots in reliance on the variance within one year of the grant would have been adequate to avoid a lapse of the variance. The Court also did not address the actions necessary to exercise a “use” variance that does not require a building permit.
Despite the remaining open questions, one thing is clear. Variance holders should promptly record variances and make diligent efforts to obtain a building permit within one year from the grant of a variance. Although a variance holder can seek an equitable tolling of the deadline for exercise of a recorded variance by filing a written application for an extension of time, the Cornell decision imposes a significant burden on the variance holder to demonstrate that an extension is warranted, and the permit granting authority has broad discretion to deny an application.