Agenda - Planning Commission - 08/06/2009

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Zoning Bulletin June 25, 20091 Volume 3 I No. 12 Duration and Revocation-Building permit is denied because variance lapsed Variance holder claims he timely exercised variance by obtaining an "approval not required" indorsemen.t . Citation: Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 906 N.E.2d 334 (2009) MASSACHUSETTS (05/22/09)-Paul Cornell sought to divide a lot that he owned into two parcels and to build a home on the small- er of the parcels. Because the frontage on the smaller parcel was less than the minimum required by the town's zoning bylaws, Cornell needed a variance. On March 7, 2002, the town's board of appeals (the "BOA") granted Cornell a variance. Eventually, Cornell set out to obtain approvals from the town's planning board, board of health, and conservation commission-all of which were prerequisites for a building permit. In August 2002, believing his development plan did not require approval under the subdivision control law, Cornell filed an "approval not required" plan ("ANR") with the town's planning board. In early 2003, Cor- nell submitted a septic plan to the board of health, and sought an order of conditions from the conservation commission. By the anni- versary of the issuance of the variance: the planning board had ap- proved the ANR, but the board of health and conservation commis- sion had not yet issued a decision or order. After the final prerequisites were obtained in June 2003, Cornell applied for a building permit. The building inspector denied the build- ing permit on the ground that Cornell's variance had lapsed due to Cornell's failure to apply for a building permit within one year of the grant of variance. State statutory law, Mass. Gen. Law c. 40A, ~ 10, provided that: "[i]f the rights authorized by a variance [we]re not ex- ercised within one year of the date of grant of such variance, such rights ...lapse[d] ...." After both an extension of the variance and a reapplication for a variance were denied, Cornell brought a legal action in state Land Court. In that action, he asked the court to declare that the original vaJiance had never lapsed. He maintained that because the variance was a prerequisite for the ANR indorsement, he had "exercised" the variance in seeking that indorse~ent. @ 2009 Thomson Reuters 7 ,;. 157