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.
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.
Conditions upon land use permits are so ubiquitous that the authority for imposing them can easily be taken for granted. The Supreme Court's decision in Koontz v. St. Johns River Water Mgmt. Dist., 133 S.Ct. 2586 (2013), however, places a significant constitutional limit upon local boards' ability to do so.
When it comes to site plan review, perhaps too many zoning attorneys know all too well the following scenario.