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<br />June 25, 20091 Volume 3 \ No. 12 <br /> <br />Zoning Bulletin <br /> <br />Finding there were no material issues of fact in dispute, and de- <br />ciding the matter on the law alone, the Land Court issued summary <br />judgment for the BOA. . <br /> <br />Cornell appealed, and the Appeals Court affirmed. <br /> <br />Cornell again appealed. <br /> <br />DECISION: Affirmed. <br /> <br />The Supreme Judicial Court of Massachusetts concluded that Cor- <br />nell's variance had lapsed because he had failed to-exercise it within <br />one year of its issuance. <br />In so concluding, the court held that in order to "exercise" a <br />variance under Mass. Gen. L. c. 40A, ~ 10 to prevent it from laps- <br />ing, a variance holder must, within one year of its grant: (1) record <br />the variance; and (2) obtain a building permit or convey the lot for <br />which the variance was granted.. <br />The court explained that because Mass. Gen. L. c. 40A, ~ 11 <br />said that a variance would not "take effect" until it was recorded, <br />a variance could not be exercised until it was recorded. Here, Cor- <br />nell had failed to record the variance within One year of its grant. <br />(It was not recorded until after he brought the legal action in Land <br />Court). Because the variance was not recorded within the year of <br />its issuance, the court found that Cornell could not have exercised <br />it within that year and, thus, under Mass. Gen. L. c. 40A, ~ 10, his <br />variance had lapsed. <br />Even if the variance had been recorded timely, the court said it <br />would have found "Cornell's actions fell short of 'exercising' the <br />vf!.riance." He had not taken any action on the lot "necessitating the <br />variance." Specifically he had neither obtained a building permit nor <br />conveyed the lot. The court explained that "exercise". of a variance <br />required the variance holder to obtain a building permit (or convey <br />the lot) because: only a building permit was the "culmination of the <br />permitting process," allowing. a variance holder to use the variance <br />and thus the lot in a way that otherwise did not conform with the <br />applicable zoning provisions. Contrary to Cornell's contentions, the <br />ANR indorsement did not "exercise" the varian.ce as it "conferred <br />no right on Cornell to use the variance." The ANR indorsement did <br />not confirm compliance with zoning requirements; rather, "like an <br />approval from a board of health, conservation commission or similar <br />entity .., [it was] essentially preliminary to the issuance of a building <br />permit or conveyance." <br /> <br />8 <br /> <br />@ 2009 Thomson Reuters <br /> <br />" <br /> <br />158 <br />