Opinion
11-P-564
03-05-2012
E & J PROPERTIES, LLC v. C.B.L. REALTY TRUST & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a Land Court judgment upholding the zoning board of appeals of Fall River's (board) reversal of an order by that city's building inspector requiring C.B.L. Realty Trust (Trust) to demolish a building located on Trust property. We reverse.
Background. The Trust owns certain property in Fall River zoned for industrial use. In 2005, the Trust applied for a variance '[t]o demolish existing structures and to subdivide parcel into twenty (20) buildable lots for use as sites for single-family residences[.]' The existing structure to which the variance application referred is the Global Glass building (building). The board granted the variance, upon the condition that the '[r]ights [a]uthorized by this [d]ecision shall be exercised within one year of the grant[.]'
The Trust sold sixteen of the twenty newly-subdivided lots to the plaintiff. Within one year of obtaining the variance, the Trust demolished part of the building. Three years later, the building inspector issued a notice of violation to the Trust, stating that the failure to completely demolish the building violated the variance. The Trust appealed to the board, which decided that there was no violation because the variance did not specify a time limit for demolition of the building. The plaintiff appealed pursuant to G. L. c. 40A, § 17, and, after a bench trial, the Land Court upheld the board's decision.
Discussion. We accept the judge's findings unless they are clearly erroneous, and review his legal conclusions de novo. T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569 (2010). The plaintiff argues that the judge's finding that the 2005 variance did not require immediate demolition of the building was clearly erroneous. We agree.
In his decision, the judge correctly noted that '[i]n making its decision to grant [the Trust's] request for a variance, the Board necessarily relied on [the Trust's] representation that the Global Glass Building would be demolished. . . . The plan and application submitted by [the Trust], as well as the Board's decision to grant the variance, all clearly reference the demolition of the entire Global Glass Building.' The judge then noted that the board did not express a time within which the demolition must occur, and that the only time requirement of the variance was that the rights granted therein must be exercised within one year. Finally, the judge opined that the Trust's right to demolish the building within one year had lapsed because it failed to demolish the entire building. The judge misconstrued the Trust's obligation to demolish the building as a 'right' granted by the variance. The Trust does not need a variance to demolish the building. However, we interpret the language of the variance to impose demolition as a condition.
'In order for conditions on a variance to be binding, they must be set forth in the variance decision itself.' Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531, 535 (2006). Here, the variance clearly states that the building will be demolished. 'While it might have been preferable for the variance to have explicitly denominated th[is] term[] as [a] condition, [its] use as such is apparent on its face and in the context of the grant.' Ibid. Construing the language of the variance against the Trust, DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 347 (1985), the Trust is required to demolish the building as a condition of the variance.
The Trust prevented the variance from lapsing by demolishing part of the building, dividing the property, and conveying sixteen lots to the plaintiff within one year of the grant. See Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 892 (2009). However, the Trust is required to demolish the entire building as a condition of the variance. The Trust is required to fulfill its obligation within a reasonable time. See Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne, 14 Mass. App. Ct. 76, 83 n. 11 (1982) (noting 'the Legislature's policy of setting time limits on other uses and authorizations arising in connection with land development under or pursuant to zoning and planning laws').
The judgment of the Land Court is therefore reversed, and the case is remanded to the Land Court which is to remand the case to the board with instructions that it enter a decision consistent with this memorandum and order.
So ordered.
By the Court (Grasso, Cohen & Carhart, JJ.),