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Grady v. Zoning Board of Appeals of Peabody, et al. (Lawyers Weekly No. 10-122-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11267   MARY E. GRADY[1]  vs.  ZONING BOARD OF APPEALS OF PEABODY & others.[2]     Suffolk.     March 5, 2013.  ‑  July 10, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Zoning, Variance, Lapse of variance.       Civil action commenced in the Land Court Department on December 28, 2009.   The case was heard by Keith C. Long, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     William R. DiMento (Debora T. Newman with him) for the plaintiff. Louis J. Muggeo for Arthur Stefanidis & another.       DUFFLY, J.  This case presents the question whether a properly-granted zoning variance may be deemed to have “taken effect” pursuant to G. L. c. 40A, § 11, where it was not recorded with the registry of deeds within the one-year lapse period set forth in G. L. c. 40A, § 10, but was recorded eleven days thereafter, and where the holders have substantially relied upon it.  The question whether a variance will take effect if the holders have substantially relied upon it was left open in Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 891 n.7 (2009) (Cornell).  In the unusual circumstances of this case, we conclude that the variance has taken effect, and has not lapsed. Background.  We recite the facts as found by a Land Court judge following a jury-waived trial.[3]  Arthur and Irene Stefanidis, trustees of the A & I Trust, owned a single large lot in the city of Peabody (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.  They then deeded the lot to the Central Gardens Condominium Trust and converted the building on Lot A into three condominium units.  A & I Trust retained Lot B after the condominium trust declined to purchase it.   The Stefanidises subsequently planned to build a two-family house on Lot B, and applied for a variance from the zoning board of appeals of Peabody (board) to allow them to build despite the lack of street frontage.  The variance was approved, […]

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Posted by Massachusetts Legal Resources - July 11, 2013 at 3:38 am

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