Posted by: Patricia Salkin | October 23, 2013

MA Supreme Court Holds Failure to Record Variance within One Year Time Frame Did Not Invalidate Variance Where Substantial Work Was Done

The Stefanidis, trustees of the A & I Trust, owned a parcel of land in the city of Peabody, Massachusetts (“city”). They divided the parcel into Lot A, the front portion of the parcel containing a structure, and Lot B, the undeveloped portion at the rear of the parcel that did not have street frontage. They reserved an easement in favor of Lot B over the driveway and parking area of Lot A. They then deeded the lot to the Central Gardens Condominium Trust and converted the building on Lot A into three condominium units. A & I Trust retained Lot B.

The Stefanidises planned to build a two-family house on Lot B, and applied for a variance from the zoning board of appeals (“ZBA”) to build with the lack of street frontage. It was approved with conditions and was filed in the city clerk’s office on June 23, 2008. On July 22, the city issued a certification stating that the grant of the variance had not been appealed. The decision contained notice that the Stefanidises were responsible for its recording and stated that proof of such was to be presented before the city building commissioner would issue a building permit. It was specified that the variance was applicable for one year.

The Stefanidises hired a contractor and a supervising architect at the city’s request. They also obtained a construction loan secured by a mortgage on Lot B and drew significant amounts from that loan. Approximately one week after the one-year anniversary of the grant of the variance, Plaintiff, a condominium owner, Mary E. Grady (“Grady”) and trustee of the Central Gardens Condominium Trust, made a written request to the building commissioner that the building permit be revoked on the ground that the Stefanidises had failed to record the variance within the one year set forth in the Mass. Gen. Laws and therefore was not effected.

After notification from the commissioner and less than two weeks after the expiration the Stefanidises recorded the variance. The building commissioner denied Grady’s request on the grounds that the “rights authorized by the variance have been exercised within one year;” work had commenced pursuant to a building permit; and the Stefanidises had complied with the conditions specified in the variance.

A Superior Court judge denied Grady’s motion for a temporary injunction because Grady had not yet exhausted her administrative appeals. On December 10, 2009, the ZBA upheld the building commissioner’s denial and Grady commenced an action in Land Court.
After a bench trial, it was determined that the variance had not lapsed because the Stefanidises had acted in good faith to comply with the requirements of Mass. Gen. Laws, and recorded the variance immediately after their oversight was brought to their attention. They had also had taken substantial steps in reliance upon it. Grady appealed to the Appeals Court, and the Supreme Judicial Court transferred the case to their court on their own motion.

The court stated that their previous decision in Cornell v. Board of Appeals of Dracut, 453 Mass. 888, where they interpreted Mass. Gen. Laws, as requiring both timely recording and exercise of the rights granted by a variance to prevent its lapse was based on legislative history. History had indicated that the purpose of requiring recording to prevent lapse was to ensure that recording occurred in a timely fashion and that subsequent purchasers and others with an interest in the status of the land have notice of the grant to a land owner of a limited right to deviate from the requirements of the zoning code.
However, they reserved consideration of whether failure to record a variance may void a variance on which a variance holder had substantially relied.

Here, the court concluded that the Stefanidises’s variance had become effective. This was because they took substantial steps within the one-year period in reliance upon an otherwise valid variance; there was no apparent harm to any interested parties, including the plaintiff, other than any harm resulting from the original, uncontested grant of the variance; and the variance was recorded less than two weeks after the expiration of the one-year period. The Stefanidises did not postpone recording in order to avoid community opposition or for other strategic reasons they just simply forgot. Nothing in the record suggested that anyone, including Grady, any other abutters, or any potential purchasers, suffered prejudice as a consequence of this de minimus recording delay. Grady, whose condominium overlooked the driveway that the Stefanidises used to access Lot B, did not contest that she was notified of the application for a variance, but did not appeal from its grant.

Therefore, they held that the variance had become effective and had not lapsed.

Grady v Zoning Bd. of Appeals of Peabody, 465 Mass 725 (7/10/2013)

The opinion can be accessed at:

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