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A Case Study in Conditions to a Variance

Recently one of our clients was forced to confront a challenge to the operation of their dog kennel business, which had been operating lawfully in a residential zoning district pursuant to a use variance granted in 1973. The challenge was that the variance authorized the kennel business, but not the use of exterior play yards that allowed the dogs to socialize and come to the kennel for day care. The case required an exploration of the scope of conditions that attach to variances. Based upon the analysis that follows, our office successfully protected our clients' business.

By definition, "[a] variance represents a waiver of rules adopted by the local legislative body." See Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 207 (2005) ("[v]ariances . . . are individual waivers of local legislation"); Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396, 400 (1980), quoting 3 Rathkopf, Zoning and Planning § 38.06, at 38-63 (4th ed. 1979) ("effect of a variance is to give a landowner a license or permit to use his property in a manner otherwise violative of the zoning ordinance"). While "[v]ariances are not allowed as a matter of right and should be 'sparingly granted,'" Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531, 534 (2006); these principles do not mean that they can be disregarded once they have been granted, and they run with the land. See Huntington v. Zoning Bd. of Appeals of South Hadley, 12 Mass. App. Ct. 710, 716 (1981) ("a variance applies to the land rather than to its current owner, and . . . runs with the land when it is conveyed to [another] person"). Indeed, the finality of a variance, unlike building permits which can be rescinded, see, e.g., Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 162-163 (1977); hinges only upon the holder's avoidance of the lapse provisions of G. L. c. 40A, § 10. See Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 728-732 (2013).

In a Notice of Violation issued by the local building inspector, it was asserted that the activities at the kennel were limited to the uses described in the 1973 variance and that "[n]owhere in the 1973 variance does it mention open exterior play yards for dogs or doggy daycare." The Notice of Violation was appealed to and heard by the local zoning board of appeals. "In order for conditions on a variance to be binding, they must be set forth in the variance decision itself." Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531, 535 (2006). The 1973 variance authorized the operation of a "kennel," without condition or limitation, and thus the scope of the variance was set: all uses typically associated with the operation of a kennel. The assertion by the building inspector that outdoor activities or day boarding are unauthorized improperly seeks to separate outdoor activities and dog daycare from the definition of a "kennel." Such an effort ignores the decisional law interpreting the scope of variances and the imposition of conditions upon the grant of variances. This case law uniformly and unambiguously supports the continuation of outdoor activities and day boarding at the kennel under the 1973 variance.

The Scope of the 1973 Variance Includes Outdoor Activities and Day Boarding.

The 1973 variance authorized the use of the property for a "kennel." A review of the local zoning bylaw in effect in 1973 and through today establishes that the term "kennel" is an undefined term. "'[W]ords undefined by zoning laws and ordinances are to be construed in accordance with common understanding and usage.'" Id. at 534-535. In Lussier, the Supreme Judicial Court applied a plain meaning analysis to the unambiguous term "garage," ascribing to that term its ordinary meaning in determining the scope of a variance authorizing the construction of a garage:

A 'garage' is generally accepted to be a place to store motor vehicles and household items. See Building Inspector of Falmouth v. Gingrass, 338 Mass. 274, 275, 154 N.E.2d 896 (1959) (building permit authorizing garage on single-residence lot did not permit storage of seaplane but rather of automobiles); Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 222, 95 N.E. 216 (1911) ("'garage is defined as "a stable for motor-cars"'). We have no difficulty concluding that the 1995 variance was limited to the construction of a building to be used for the storage of motor vehicles. The construction of a second floor for use as living space violates the limiting condition of the variance that the addition be a 'garage.'

Id. 534-535.

Applying a plain meaning analysis to the scope of the 1973 variance, the term "kennel," means "[a]n establishment where dogs are bred, trained or boarded." American Heritage Dictionary 717 (New College Ed. 1975). Nowhere in this definition is there a limitation upon when the boarding is to occur, i.e., during the day alone or overnight, or where these activities, breeding, training and boarding-those intrinsic to a kennel-are to take place, i.e., indoors or outdoors. Indeed, on the contrary, it is a matter of common knowledge that dogs cannot, healthfully, be held indoors alone. Any dog owner will recount the many hours spent walking his or her dog outdoors so that the canine can make bowel movements, get exercise and be socialized. Likewise, it is more atypical to consider dog training as an indoor activity than one conducted outdoors. To conclude otherwise would require contorting the term "kennel." The claim that the 1973 variance had to specifically authorize outdoor play areas, play groups or day boarding to make such activities part of a "kennel" use undermines and is inconsistent with the plain meaning analysis of Lussier and related cases.

Second and assuming, for the sake of argument, that there was an open question of whether the term "kennel" includes outdoor activities and day boarding, the 1973 variance was procured to bring an existing set of activities and uses into lawful nonconformity. In Mendoza, the court considered whether nude dancing falls within the scope of "entertainment," the use for which the subject variance had been granted. Id. at 205. To resolve this issue, the Supreme Judicial Court looked to the uses of the property occurring directly prior to the grant of the variance, which was intended to bring those uses into legal nonconformity under the local zoning ordinance. See id. at 205-209. Accordingly, if there is ambiguity on this question, then under Mendoza, those historic kennel uses at the property set the scope of the 1973 variance.

There Is No Condition in the 1973 Variance Prohibiting Outdoor Activities and Day Boarding.

The position of the Building Inspector-that the 1973 variance does not authorize outdoor activities and day boarding-is another way of positing that the 1973 variance contains a condition forbidding outdoor activities and day boarding. Under Massachusetts law, however, "the terms of a variance must appear on its face, and nothing in the variance decision [here] supports the imposition of a requirement that" the applicant be barred from such activities. E & J. Properties, LLC v. Medas, 464 Mass. 1018, 1019 (2013), citing Mendoza, supra at 205 (citation omitted). See also Lussier, 447 Mass. at 535 ("[i]n order for conditions on a variance to be binding, they must be set forth in the variance decision itself"); Mendoza, 444 Mass. at 505, quoting Healy, Procedure for Obtaining Variances and Special Permits, 1 Massachusetts Zoning Manual § 10.14.5(f), at 10-48 (Mass. Continuing Legal Educ. 1999 & Supp. 2002) ("Conditions that do not appear on the face of a recorded decision should not . . . be held to bind a mortgagee or purchaser who acquires an interest in the affected property without notice or knowledge of the error"); Spear v. Board of Appeals of Danvers, 77 Mass. App. Ct. 220, 222-224 (2010) (absent condition in use variance decision prohibiting subdivision of property, subdivision does not vitiate use variance). Accordingly, because the plain meaning of the 1973 variance includes outdoor activities and day boarding, and because it lacks any condition or restrictions prohibiting these activities, there is no legal basis for the Notice of Violation, and the Notice of Violation contravenes the 1973 variance.

The Notice of Violation Contravenes General Laws c. 40A, § 7.

Even if the entirety of the foregoing analysis were incorrect, and the 1973 variance neither authorized outdoor activities, nor day boarding, or included a condition prohibiting the same, the Notice of Violation violates G. L. c. 40A, § 7 and is, therefore, unenforceable. General Laws Chapter 40A, Section 7 states that

if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit ... by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained [unless commenced within six years of the alleged violation of law].

(Emphasis added). See Garabedian v. Westland, 59 Mass. App. Ct. 427, 436-437 (2003). In this context, "[c]onditions of a variance or a special permit are subsumed in the provisions of c. 40A and ordinances or by-laws under which they are promulgated; they are part of the zoning law to be enforced." Wyman v. Zoning Bd. of Appeals of Grafton, 47 Mass. App. Ct. 635, 637 (1999). Thus, if a condition of a variance is violated by the use of a building pursuant to a duly issued building permit, then a city or town has six years to remedy the situation; otherwise, the enforcement action is time barred.

Here, a building permit was issued on May 22, 1973 for construction of inter alia a "Kennel Building" which led to the construction of the kennel pursuant to the 1973 Variance. The uses associated with the "Kennel Building," including outdoor activities and day boarding, commenced immediately upon the construction of that building, and continued uninterrupted for the last 40 years. The very purpose of § 7 is to protect longstanding uses, such as those at issue in this case, made pursuant to duly issued building permits, from distant future complaints, such as those lodged by the abutters in this matter. At a certain point in time uses become protected under G. L. c. 40A.

Based on the foregoing arguments, the local zoning board refused to uphold the building inspector's Notice of Violation, allowing the kennel to continue its normal operations.

Written by Jeffrey T. Angley, Esq. on behalf of Jeffrey T. Angley, P.C

Copyright (c) 2011-2018 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for informational 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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