Recently we were asked to address the situation where a landowner obtained a use special permit with a condition that the structure containing the use be built as located on a designated site plan, and that a final as-built plan be filed after completion of construction. A building permit issued for the structure, but without reference to the site plan or location of the structure. The structure was built and occupied. No final as-built plan was ever filed. More than 10 years passed. It was later determined that the structure was sited on the lot incorrectly. The landowner became concerned that the structure located on its property was not properly authorized and so was unlawful, rendering the property non-compliant with zoning.
We previously blogged about a case study, which we encountered in representation of a kennel before a local zoning board, regarding how conditions of variances work and how they are applied and enforced. Recently, the Appeals Court published Green v. Board of Appeals of Southborough, adding to the body of law on these issues. In particular, Judge Wolohojian, writing for the panel in Green, explicated the difference between those things which a variance holder must do to "exercise" the variance within one year as required by G. L. c. 40A, § 10, on the one hand; and the meaning and effect of a variance condition, which acts as a condition precedent (a precondition) to a holder being able to take advantage of the variance, on the other. As discussed below, the former refers to those acts necessary to give the variance legal effect, in the first instance; whereas the latter must be fulfilled in order for the variance holder ultimately to make use of the variance.
It is a basic and oft-cited principle of Massachusetts zoning law that the courts give "'some measure of deference' to the local board's interpretation of its own zoning by-law." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003), quoting APT Asset Mgmt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133, 138 (2000). The standard for this measure of deference, however, is tautological: the courts "accord deference to a local board's reasonable interpretation of its own zoning bylaw, with the caveat that an 'incorrect interpretation of a statute . . . is not entitled to deference.'" Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012), quoting Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 6 (2003) (citations omitted). Put differently, deference is given to a local bylaw interpretation when the courts happen to agree with that interpretation. This standard, as one might expect, is not completely conducive to predictable outcomes.