Agenda - Planning Commission - 11/06/2008

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:~~;.~,~:=~:';:':"--:..-,:=-.:-~...:....-".:",,:: () (j. .~-::--"::;:::-::..:.,;:.;._::...:.,:..,::...:~,.;-,-,----,_..,,-,-----.;.-. ,_.--~---- ---- --~--_.--_.-- - --------- - --- October 10, 20081 Volume 2\ No. 19 and wetlands delineation plan prepared, and soil testing performed. He applied for approval ofa septic design on February 14,2003. He finally received approval from the town board of health on June 12, 2003. In early 2003, he also sought an order of conditions from the town conser- vation commission. That order eventually issued on May 7,2003. In June 2003, Cornell applied to the town?s bUilding inspector fora building permit. The permit was denied on the ground that the variance had 'expired because it had not been exercised within one year. Cornell then filed for an extension of the 2002 variance. The extension was de- nied because it was not timely. Cornell then applied for a new variance. That request was denied by the town's board of appeals. Cornell brought sUit, asserting that the variance had not lapsed. The land court found for the town. Cornell appealed. DECISION: Affirmed. On appeal, the court conCluded that Cornell.failed to timely exercise the variance. The court explained that state law (Mass. Gen: Laws c. 40A, ~. 10) provided that "[i]f the rights authorized by a variance [were] not exer- cised within one year of the:qate of grant ,of such variance such rights lapse[d]." The court said that whether a variance had been "exercised" was determined by the acts taken py the holder in reliance on the vari- ance. To exercise a variance, an applicant had to take steps necessary to achieve the purpose for which it was granted or had to "substantially change his position in reliance thereon." )ll other words, the applicant had to take an action which, but for the variance, would have been de- nied. The coUrt found that while Cornell to~k necessary steps towaJ;d obtaining a bUilding permit and subdividing his l~d, none of his a<;:- tions "substantially changed his position in reliance upon the variance." In fact, the court noted, all the other approvals could have been sought "simultaneously with, or even prior to, seeking the variances." Because the steps taken by. Cornell could have been done without a variance, ex- plained the court, they were insufficient to amount to an "exercise" of the variance. the court therefore concluded that Cornell's variance had expired due to nonexercise. See also: Hogan v. Hayes, 19 Mass. App. Ct. 399, 474 N.E.2d 1158 (1985). (" ......~ Case Note: In its decision, the court also noted that Cornell neither recqrded the variance nor timely sought to extend it. @ 2008 Thomsqn ReutersIWest 3 71