Variances: Exercising and Recording
G.L.c. 40A, §10 requires that action with respect to the exercise of the rights granted by the variance be taken within one year. However, there is a recording requirement, but it's tucked away in §11:
No variance or special permit, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the city or town clerk that twenty days have elapsed after the decision has been filed in the office of the city or town clerk and no appeal has been filed . . . is recorded in the registry of deeds . . . .
Unlike section 10, that provides for a specified time (one year) during which the rights of the variance must be "exercised," section 11 has no time specified for recording of the variance, but simply states that the variance shall not "take effect" until it is recorded. What does this mean?
It seems that a variance could not be "exercised" before it has "taken effect." So, although action may have been taken on the site (holes dug, buildings erected) those actions would not be an "exercise" of the variance if the variance had not yet been recorded, because the recording is what determines whether the variance has "taken effect." Actions taken before the recording would not be an "exercise" of the variance, but would be actions taken without authority. So, both recording and action on the site must be taken within the year.
[Editor's Note: This issue has now been settled in Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 906 N.E.2d 334 (2009)]
1 But sometimes a variance might be sought and allowed where a building had already been erected in violation of the zoning bylaws. The pre-variance, zoning-violative construction, which necessarily would have occurred before the recording of the variance, could be attacked until the variance was recorded ("takes effect"), but upon the recording of the variance the structure would be protected from enforcement of the general zoning bylaws. The point is that here's an example of a situation where the violative action was taken before the variance was recorded - or even issued - so what would be the difference if the action permitted under the variance was timely taken and the variance was recorded later (other than the fact that the owner runs a risk of an attack before the recording is accomplished)?