Posted by: Patricia Salkin | April 1, 2013

MA Supreme Court Holds that Demolition Referenced in a Variance Need Not Be Completed Within One Year

In 2005, C.B.L. Realty Trust applied to the Fall River, Mass. Zoning Board of Appeals for a variance to demolish Global Glass structures on its property and subdivide the parcel into 20 residential lots for use as single family homes.  On issuing the variance, the board also gave permission to CBL to demolish the Global Glass structures and stipulated that any rights created by the decision had to be exercised within one year of variance approval.  Before one year had elapsed, the Fall River Planning Board signed off on an “approval not required” plan submitted by CBL showing its proposed subdivision, selling 16 of the lots to E&J Properties, LLC, and retaining four lots for CBL.  CBL subsequently began demolition of Global Glass and E&J Properties began construction on some of the lots.

In January 2009 the Fall River Building Inspector ordered CBL to cease and desist its work, claiming it was proceeding in a manner which did not comply with the variance.  In his notice of violation, the building inspector indicated his understanding of the variance was that the entire Global Glass building would be demolished within the time period set by the variance.  CBL appealed the notice, claiming that the variance’s express terms did not include a deadline for complete demolition of Global Glass.  The Board of Zoning Appeals found for CBL, holding that the transfer of 16 lots to E&J, partial demolition of Global Glass, and commencement of residential construction was enough to constitute “substantial use of rights” created by the variance.  E&J appealed that holding in Mass. Land Court, which upheld the Board’s decision.  On appeal, the Mass. Appeals Court reversed the Board’s decision, and CBL here appeals.

The Mass. Supreme Court held that while the Board had relied upon CBL’s representation that it would demolish the entire Global Glass structure, the variance did not include express terms setting a time limit for the demolition, and CBL was merely required to comply with the Board’s variance within a reasonable but unspecified time period.  Therefore, the Court held that the Board’s decision to overturn the notice of violation was reasonable and that the Land Court’s affirmation of the Board’s ruling in favor of CBL should be upheld.

E&J Properties, LLC v. Medas, 464 Mass. 1018 (Mass. Sup. Ct. 3/19/13)

The opinion can be accessed at: http://masscases.com/cases/sjc/464/464mass1018.html


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