Agenda - Planning Commission - 10/03/2013

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Zoning Bulletin August 25, 2013 1 Volume 7 1 Issue 16 by Mass. Gen. L. c. 40A, § 10 will become effective if its holders have substantially relied upon it within that period. The Background/Facts: Arthur and Irene Stefanidis, trustees of the A & I Trust (the "Stefanidises "), owned a single large lot in the city of Peabody (the "City "), on which there was an existing structure. They divided this parcel into Lot A, the front portion of the parcel containing the 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. The Stefanidises subsequently planned to build a two - family house on Lot B. In furtherance of that plan, they applied for a variance from the City's zoning board of appeals (the "Board ") to allow them to build despite the lack of street frontage. The variance was approved, with certain conditions. The variance was filed in the city clerk's office on June 23, 2008. The decision granting the Stefanidises' variance notified the Stefanidises that they were responsible for recording the variance decision in the county registry of deeds within one year. Pursuant to Massachusetts statutory law — Mass. Gen. L. c. 40A, §§ 10 and 11 —the Stefanidises had one year to record and exercise their variance. Specifically, Mass. Gen. L. c. 40A, § 10 provides: "If the rights authorized by a variance are not exercised within one year of the date of grant of such variance such rights shall lapse . . .." Section 11 requires that the variance be recorded before it can "take effect." The Stefanidises nonetheless failed to record the variance; apparently they simply forgot to do so. Soon after receiving the variance, the Stefanidises ap- plied for a building permit from the City building commissioner without submitting proof of recording. The building permit issued. The Stefanidises proceeded to obtain a loan for construction, hired a general contractor and supervising architect, and began to clear and prepare the site. On June 29, 2009, approximately one week after the one -year anniversary of the grant of the Stefanidises' variance, Mary E. Grady —an occupant of one of the units on Lot A —made a written request to the building commissioner that he revoke the building permit. She argued that the building permit should be revoked on the ground that the Stefanidises had failed to record the vari- ance within one year. Notified by the building commissioner, the Stefanidises recorded the vari- ance °on July 3, 2009, 11 days after the expiration of the one -year lapse period. 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. Grady appealed and the Board upheld the building commissioner's denial of the request to revoke the building permit. Grady then filed a complaint in the Land Court. The Land Court judge determined that the variance had not lapsed because the Stefanidises had taken substantial steps in reliance upon it, and had recorded it within a short period of time after the expiration of the lapse period. Grady appealed to the Appeals Court. The Supreme Judicial Court of Mas- sachusetts took up the case on its own motion. © 2013 Thomson Reuters 3