To be effective, a variance granted under M.G. L. c. 40A, § 10 must be recorded and exercised within one year of issuance. In its 2009 decision in Cornell v. Board of Appeals of Dracut, the Supreme Judicial Court (SJC) left open the question of whether substantial reliance could validate an otherwise lapsed variance. In its decision earlier this month in Grady v. Zoning Board of Appeals of Peabody, the SJC affirmed a Land Court decision and ruled that a variance recorded 11 days after the expiration of the one-year period was nevertheless effective in light of the significant steps the variance holders had taken in reliance on the variance. Those steps included obtaining a building permit, arranging construction financing, and hiring a general contractor and an architect. In addition, construction work – which was visible to the plaintiff-appellant – had begun on the site.
This decision is rooted in common sense. Note, however, the court’s emphasis on the “unusual circumstances” that led to this result. Besides the evidence of substantial reliance, the court observed that the plaintiff owns a unit in an adjacent condominium over which the variance holders have an access easement. The SJC suggested it would be “intrinsically inequitable” for the plaintiff to use the apparent lapse of the variance to thwart the variance holders’ enjoyment of their easement.