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Cornell v. Board of Appeals
Citations: 72 Mass. App. Ct. 390; 892 N.E.2d 746; 2008 Mass. App. LEXIS 889Docket: No. 07-P-1280
Court: Massachusetts Appeals Court; August 19, 2008; Massachusetts; State Appellate Court
No exercise of a variance under G. L. c. 40A. 10 occurred in this case, leading to the affirmation of the Land Court's judgment. The plaintiff, Paul Cornell, was granted a variance by the Dracut board of appeals on March 7, 2002, to subdivide his fourteen-acre property into two lots. However, when Cornell applied for a building permit in June 2003, it was denied by the building inspector on the basis that the variance had expired, as it had not been exercised within the required one-year period. Cornell contested this by filing a lawsuit in the Land Court, asserting that his efforts to obtain necessary approvals from various town boards demonstrated sufficient exercise of the variance. The Land Court ruled in favor of the defendants on summary judgment, noting that Cornell did not record the variance until January 16, 2004, which meant it could not have legally taken effect or been exercised within the one-year timeframe. Additionally, the judge concluded that Cornell’s actions did not constitute an exercise of the variance regardless of the recording issue. Cornell’s subsequent motions to alter the judgment were denied, and he appealed, but the central issue remained that the variance could not be considered exercised due to the lack of timely recording and insufficient actions taken within the designated period. A zoning board has discretion to grant a variance, but there is no legal right to receive one, as established in Pendergast v. Board of Appeals of Barnstable. Variances are specific waivers allowing nonconformity with local laws and should be granted sparingly, as indicated in Fussier v. Zoning Bd. of Appeals of Peabody. The language of a variance is interpreted against the applicant. According to General Laws c. 40A, if rights granted by a variance are not exercised within one year, they lapse. The determination of whether a variance has been exercised depends on actions taken by the holder in reliance on it, as clarified in Hogan v. Hayes. In Hogan, sufficient exercise was found when the property owner took steps to divide the property in reliance on the variance, despite not fully building. In this case, Cornell's actions, such as obtaining approvals and applying for permits, did not demonstrate a substantial change in position that would constitute an exercise of the variance. His preparations could have been made independently of the variance, and he did not seek a six-month extension when he could not obtain permits within the year. Therefore, the steps taken were deemed insufficient to exercise the variance, leading to the affirmation of the judgment against him. It is noted that Cornell's proposed subdivision would result in one lot lacking the required 175 feet of frontage, having only 150 feet. The plaintiff required approvals from the planning board, board of health, and conservation commission to obtain a building permit. According to General Laws c. 40A, § 11, a variance is not effective until recorded in the registry of deeds. The cited Land Court cases serve as guidance rather than precedent. In Laberis vs. Gandlofo, the plaintiff received a variance to split her property but needed to execute a land exchange with an abutter to comply with the variance. Despite not obtaining a building permit within the required time, the Land Court determined that the variance had been exercised as the land exchange was completed. General Laws c. 40A, § 10 allows a variance holder to request a six-month extension to exercise the variance if filed before the one-year expiration. Cornell applied for an extension on June 16, 2003, but it was denied because it was not submitted within the one-year timeline. Cornell contested the judge’s conclusion that failing to record the variance within a year resulted in lapse due to lack of exercise, arguing that this was inconsistent with McDermott v. Board of Appeals of Melrose, which held that a special permit does not necessarily lapse if not recorded within two years, provided it had been substantially used. However, McDermott is distinguishable as the plaintiff in that case had exercised her special permit, while Cornell did not exercise his variance. If he had, and was later informed of a lapse due to failure to record, his situation would more closely resemble McDermott.