B+A Greater Boston

law matters BEWARE of permit and variance deadlines By Mark A. Kablack in auGuSt 2010, maSSaChuSettS passed into law the Per mit Extension Act. This legislation was promoted by the Home Builders Association of Massachusetts and others as a necessary reaction to the economic recession of the past several years. The Permit Extension Act provided an automatic extension of permit and approval deadlines that were in effect during the period of August 15, 2008 through August 15, 2010. All permits and approvals within that period were given an automatic extension of two years (with limited exceptions for enforcement orders, federal permits and 40B approvals). The automatic extension provided a huge boost to the sagging real estate industry by keeping the vested rights of shovel-ready projects intact and poised for development, and many in our industry have benefitted from this legislation. The Permit Extension Act is not the last word on this issue, however. Many projects that were effective during the 2008 to 2010 window are still in jeopardy of fast-approaching deadlines, even with the two-year extension. Others that have been approved since August 15, 2010 are not currently eligible for the relief. Regardless of the circumstances, when a permit or approval is issued, an applicant must pay close attention to deadlines and filing/recording requirements. Most permits contain express conditions with action requirements and deadlines. In other instances, such as with special permits and variances, the action requirements are dictated by statute. A special permit lapses within two years unless substantial use or construction under the permit is commenced (M.G.L. c.40A, section 9), and a variance lapses within one year if rights under the variance are not exercised (M.G.L. c.40A, Section 10). Recent court decisions involving variance decisions have provided some additional guidance on this topic. In 2009, the Massachusetts Supreme Judicial Court (SJC) opined that a variance decision must be recorded within one year of its issuance in order for the variance to be effective. Secondly, the SJC ruled that even after recording, an applicant must take affirmative steps within the one-year period (e.g. obtain a building permit or convey a lot) in order to properly exercise rights and vest in the relief granted. In its decision, Cornell v. Board of Appeals of Dracut, 453 Mass. 888 (2009), it was not enough that the applicant spent significant time and money following issuance of the variance in order to obtain plan approval, wetlands mapping and other items prerequisite to construction. The SJC was unwilling to extend the one-year clock on this basis, determining in this instance that the applicant had not substantially relied upon the variance approval. A more recent land court case, Grady v. Langone, et al. (2011), provides additional insight into the Cornell decision and sets parameters for use of the substantial reliance test as a last resort. In Grady, the applicant failed to record a variance decision, thus violating the one-year recording rule. Faced with the potential loss of the variance relief on this basis, the applicant argued that it had substantially relied upon the variance, and that the variance should be upheld. The applicant argued that within the one-year period of the variance, it had hired an architect and general contractor, received a building permit and a construction loan, secured a mor tgage and commenced clearing the site for construction. These arguments convinced the land court to rule that the one-year requirement is not a strict one in all instances and can be overcome where there is adequate demonstration of good-faith reliance. All applicants who have obtained a variance should be mindful of the Cornell decision. Applicants should pay close attention to the calendar. Absent relief under the Permit Extension Act, or an affirmative extension by a board of appeals, an applicant must make take steps to record the variance decision and exercise rights under the variance within one year of its issuance. Failure to follow these steps will potentially jeopardize the effectiveness of the variance decision, and an applicant could be left with vanishing rights. Applicants are best advised to heed the rules of Cornell, despite the flexibility suggested in some instances under the Grady decision. n

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