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Variance Conditions Revisited: Green v. Board of Appeals of Southborough; The Difference between Exercising Variances and Satisfying their Conditions

We previously blogged about a case study, which we encountered in representation of a kennel before a local zoning board, regarding how conditions of variances work and how they are applied and enforced. Recently, the Appeals Court published Green v. Board of Appeals of Southborough, adding to the body of law on these issues. In particular, Judge Wolohojian, writing for the panel in Green, explicated the difference between those things which a variance holder must do to "exercise" the variance within one year as required by G. L. c. 40A, § 10, on the one hand; and the meaning and effect of a variance condition, which acts as a condition precedent (a precondition) to a holder being able to take advantage of the variance, on the other. As discussed below, the former refers to those acts necessary to give the variance legal effect, in the first instance; whereas the latter must be fulfilled in order for the variance holder ultimately to make use of the variance.

Background for the Green Decision

In Green, the private defendant/project proponent (the "Developer") had been seeking a comprehensive permit to construct 180 units of affordable housing on a 101.25-acre parcel in Southborough. The Developer also sought to construct 158 market-rate, townhouse units on a different part of the same property. In response to community opposition, the Developer revised its development plans, distilled to a concept plan dated April 8, 2015.

However, because the project, revised or not, was to be located in three different zoning districts, which did not permit it as-of-right, the Developer had to apply for a use variance in order to proceed with its development plan. On May 27, 2015, the local board granted the requested use variance, which included the following condition:

"The [v]ariance shall be effective only following final [b]oard approval of [Park Central's] c. 40B [c]omprehensive [p]ermit [a]pplication for a 180 unit rental affordable housing project with buildings and infrastructure located in substantial compliance with the April 8, 2015 concept [p]lan and which approval shall be final with all appeals have [sic] expired."

No party appealed the use variance decision, and it was recorded on July 25, 2015.

Thereafter, on August 23, 2016, a town resident, different than the plaintiff in Green, and living approximately one mile away from the project, sent a letter to the Southborough Building Inspector. In that letter, she requested that the inspector declare the use variance lapsed or expired, and of no legal effect, owing to the project proponent's alleged failure to "exercise" the variance within one year as required by G. L. c. 40A, § 10. The inspector denied this request on the same day that it was made. On the following day, August 24, 2016, the board granted the project proponent the comprehensive permit, contemplated by condition from the use variance, as quoted above.

This resident brought a timely administrative appeal of this negative determination by the building inspector to the board of appeals. On the date of the first hearing on that appeal, November 3, 2016, the plaintiff, Green, filed a document styled "Request for Formal Opinion" with both the building inspector and board, raising the same claim as the other town resident. Neither instrumentality of the Town of Southborough ever responded to this request by Green.

Ultimately, the board denied the other resident's administrative appeal. Green then joined the resident in an appeal to Superior Court pursuant to G. L. c. 40A, § 17. However, the other resident ultimately sought to be dismissed with prejudice from that suit, leaving only Green as party plaintiff. On cross motions for summary judgment, the Superior Court dismissed the appeal on the grounds that Green failed to exhaust his administrative remedies. As detailed below, the Appeals Court in Green, however, affirmed the judgment on different grounds.

Holding and Reasoning of Green

Skipping over the preliminary, though potentially jurisdictional, procedural issues upon which the Superior Court granted summary judgment, the Appeals Court reached the merits of Green's claim and rejected it. Green's argument, before town officials and the Appeals Court, is hyper-technical: General Laws Chapter 40A, Section 10 requires variances to be "exercised" within one year; by its own terms, the use variance at issue did not become effective until the comprehensive permit was issued by the board, and that permit did not issue for more than a year after the use variance was issued; therefore, the use variance had expired, as a matter of statute, before it could become effective and be used. The Appeals Court "disagree[d]." In so doing, the panel explained the difference between conditions and the statutory requirements necessary for a variance to take legal effect.

Conditions of Permits Versus Permits Taking Legal Effect

As the court reasoned, "[t]he granting of variances is governed by G. L. c. 40A, § 10, which, among other things, authorizes permit-granting authorities to 'impose conditions, safeguards and limitations both of time and of use' on variances -- but speaks neither of 'effectiveness' nor confers authority over legal effectiveness of a variance to local bodies." "By contrast," as the panel observed, "legal effectiveness is statutorily pegged to the recording of the variance. A variance becomes legally effective when it is recorded with the registry of deeds pursuant to G. L. c. 40A, § 11, which provides that '[n]o variance . . . shall take effect until a copy of the decision . . . is recorded in the registry of deeds for the county and district in which the land is located.'"

Given that the use variance at issue had been indisputably recorded on July 27, 2015, it was then "when it thus became legally effective. See Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 891 (2009) ('variance could not become operative, and by implication, could not be exercised, until it was recorded')." The Appeals Court held, "[c]ontrary to Green's view, legal effectiveness of the use variance [wa]s not controlled by condition no. 2" of the use variance itself, but rather by the statutory recordation requirement.

Rather than stopping there, Judge Wolohjian wanted to clarify what likely seemed incongruous in the Appeals Court's analysis: "What then does condition no. 2 mean when it states that the use variance shall become 'effective' only once the comprehensive permit is approved?" In answering, she explained that "[i]n context, it means nothing more than that approval of the comprehensive permit is a condition of the use variance." First, it was included "in a section [of the use variance decision] titled 'Conditions,' is prefaced . . . with language identifying it as a condition, and appears with no special demarcation among a lengthy list of sixteen conditions." "Thus," she concluded that "the use variance itself gives no reason to think that the board intended condition no. 2 to be anything other than what it was called: a condition to which the use variance was subject, rather than a predicate to legal effectiveness."

Permits Not to Be Construed to Be Illusory; Circumstances Beyond Variance Holder's Control Will Not Cause Expiration

Second, the Judge pointed out that Green's reading "would, as a practical matter, render this particular use variance illusory". "There is nothing to suggest that the board intended to grant the use variance with one hand while invalidating it with the other by delaying action on the comprehensive permit. This is especially so given that the comprehensive permit application had been submitted, heard, and changes to the development had been negotiated to the satisfaction of the neighborhood and town -- all before the board approved the use variance." She added that "[t]he record gives no insight into why the board did not grant the comprehensive permit within one year of the use variance but, in any event, there is nothing to suggest that the timing was in any way chargeable to Park Central. See Cornell, 453 Mass. at 893 ('Circumstances beyond a variance holder's control may make obtaining a building permit within one year of the grant of a variance impossible and thus warrant equitable tolling of the one-year period')." Therefore, "[i]n this context, it is clear that condition no. 2 makes issuance of the comprehensive permit a condition of the use variance, rather than a mechanism by which the use variance could lapse."

Variances Can Be "Exercised" Before They Take Effect

Third and final, Judge Wolohjian opined that, "[e]ven were we to conclude that condition no. 2 meant that the use variance did not become legally effective until the board issued the comprehensive permit, it does not follow that Park Central was foreclosed from exercising rights under the use variance before then." "'[T]he language and intent of G. L. c. 40A, §§ 10 and 11, do not mandate that actions taken to exercise a variance, such as obtaining a building permit in good faith, must be undertaken only after the variance has been recorded [i.e. has become legally effective].' Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 730 n.10 (2013)." She reasoned that, "[i]f rights under a variance can be exercised before it becomes legally effective pursuant to statute, there is no reason the same would not also be true where 'effectiveness' is conditioned by a local board."

The Judge, then, proceeded to explain how a variance holder might "exercise" a variance, even before it were formally to become effective. "'Exercise' for these purposes 'means "to bring into play: make effective in action . . . bring to bear."' Cornell, 453 Mass. at 891, quoting Webster's Third New Int'l Dictionary 795 (1993). A variance need not be fully carried out for rights to be 'exercised' within the meaning of G. L. c. 40A, § 10. See Hogan v. Hayes, 19 Mass. App. Ct. 399, 404 (1985). '[A] "use" variance may not require any construction or excavation, and a building permit may not be necessary to exercise such a variance. Evidence of "use" within one year of issuance of the variance may be sufficient to exercise such a variance.' Cornell, supra at 894 n.9."

Applying this analytical framework to the summary judgment record in Green, Judge Wolohjian detailed how there was no genuine dispute of material fact about how the Developer had taken "various steps . . . after approval of the use variance and in reliance on it" to "exercise" it before the comprehensive permit had issued. These efforts included engaging "engineers, wetlands specialists, and other professionals to redesign and modify the development plan to comply with the requirements and conditions of the use variance"; at an aggregate cost of nearly $800,000.00. Given these facts, there was no genuine dispute that the Developer had, in fact, "exercised" the use variance within the one year required by G. L. c. 40A, § 10, even assuming it did not formally take legal effect, under condition no. 2, until the comprehensive permit had issued.

Conclusion

Green is the latest example that the general principles, governing variances -- that they are disfavored and are to be strictly construed -- have their limits. The Massachusetts judiciary will take a practical, functionalist approach to hyper-technical arguments, designed to deprive variances of their legal effect. Though they are disfavored and should be interpreted narrowly, once granted, variances have meaning and provide legal dispensation to do things that would be otherwise illegal under local zoning. Courts are not likely to read variances out of practical existence, once they have been granted.

Written by Nicholas P. Shapiro, Esq.

Copyright (c) 2018 -2019 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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