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0012 MERIDETH WAY
e a ,p. ,�. <.. �, � ,; .. .: � � .. ., �' .. � �, ` 4 L ,. ��. P _ y. � ,. - :. o .. ., _ _ .. �. _ �� �.. - .. e. �� � - - ., - - �. .. � � �. a .. .� � a .. � �. .. ., a _.: �. ... 8 _ � � .. f ,. .. o �. F .. >. � w ,�. .. x � � a a -, <. ,a _ .. .. .,. _ i - - � � .. � _ ., s �. ,, y _ _. ., o e .. h .. H o _ �. -.a, JOHN W. KENNEY ATTORNEY AT LAW 12 CENTER PLACE 1550 FALMOUTH ROAD CENTERVILLE, MASSACHUSETTS 02632 TELEPHONE 771-9300 FAX NO. 775-6029 AREA CODE 508 e-mail:john@jwkesq.com April 24, 2019 Brian Florence, Building Commissioner Town of Barnstable Building Division 200 Main Street Hyannis, Massachusetts 02601 Re: Variance No. 2007-061 Keramus Lot 7, Plan Book 332, Page 81 Assessors Map 148 Parcel 148 12 Merideth Way, Centerville, MA Dear Mr. Florence: I have been asked to render an opinion whether Variance No. 2007-061 affecting the lot shown as Lot 7 (12 Merideth Way/Assessor's Map 148, Parcel 148) as shown on the plan recorded in the Barnstable County Registry of Deeds in Plan Book 332, Page 81 was timely exercised. Based upon my review of the facts in this matter, Variance No. 2007-061 was timely exercised. This opinion is based upon the following: 1. On May 24, 2007, James G. Keramus, Trustee of James Realty Trust applied for a variance from Section 240-13(E) Bulk Regulations — Minimum Lot Area of the Zoning Ordinance to unmerge the lot located at 12 Merideth Way from the lots located at 361 Nye Road, 19 South Precinct Road and 343 Nye Road. 2. The hearing on the request for a variance was opened on July 25, 2007 and continued to August 8, 2007. 3. At the continued hearing on August 8, 2007, the Zoning Board of Appeals voted to grant the request to unmerge the property located at 12 Merideth Way (Lot 7, Plan Book 332, Page 81)from the abutting lots (see copy of Decision and Notice in Appeal No. 2007-061 attached hereto as Exhibit A). 4. The Decision of the Zoning Board of Appeals was filed with the Town Clerk on August 17, 2007 (see Exhibit A). . 1 r , 5. After the twenty day appeal period expired on September 7, 2007 the Decision was recorded in the Barnstable County Registry of Deeds on September 14, 2007 in Book 22336, Page 175 (see Exhibit A). 6. Condition Number 7 in the Decision required the Applicant to exercise the relief granted within "one year form the date of issue of this variance..." 7. On August 1, 2008, James G. Keramus as Trustee of James Realty Trust executed a deed transferring title to Lot 7 to Maria Keramus, individually (see copy of the deed attached hereto as Exhibit B). 8. After executing the deed, Mr. Keramus delivered the deed to me with instructions to record the deed. 9. The execution and delivery of the deed to a third party for recording by Mr. Keramus on August 1, 2008 completed the conveyance from Mr. Keramus as Trustee of James Realty Trust to Maria Keramus, individually (see Earle vs. Fiske 103 Mass. 491 attached hereto as Exhibit C). The conveyance took place prior to the expiration of the one-year timeframe for exercise of the variance, which would have expired either on August 8, 2008 or August 17, 2008. 10.The deed was recorded in the Barnstable County Registry of Deeds in Book 23124, Page 107 on August 27, 2008. Although the Deed was recorded after the August 8 (or 17th), 2008 deadline for exercise of the variance, recording of the deed prior to said date was not necessary. The purpose of recording a deed is simply to give constructive notice to all others who do not have actual notice of the deed (see Earle v. Fiske 103 Mass. 491 — Exhibit C and M.G.L. c. 183 §4 — Exhibit D). 11.The conveyance of Lot 7 by James Keramus, Trustee of James Realty Trust to Maria Keramus individually in reliance on the variance to put said lot into separate ownership from the lots located at 343 Nye Road, 361 Nye Road and 19 South Precinct Road was sufficient action to exercise the variance (see Cornell v. Board of Appeals of Dracut 453 Mass. 888 (2009), SJC — 10307 attached hereto as Exhibit E). 12. Maria Keramus was the second wife of James Keramus. Prior to their marriage on June 16, 2007, the parties entered in an Antenuptial Agreement whereby each party to the marriage waived any claim to the assets of the other party owned prior to the marriage or thereafter acquired (see Exhibit F attached hereto). The existence of the Antenuptial Agreement eliminates any question of "common control" between,Lot 7 and the other lots owned by James Keramus. 2 CONCLUSION Based upon the foregoing facts, supporting case law, and Massachusetts General Laws, it is my opinion that the execution and delivery of the deed conveying title to Lot 7 from James Keramus, Trustee of James Realty Trust to Maria Keramus on August 1, 2008, completed the conveyance of title to Lot 7 into Maria Keramus within the one-year timeframe "to exercise" the variance. Therefore, the variance was timely exercised and remains in effect, subject to any subsequent conveyances of Lot 7. Very truly yours, AP John W. Kenney, Esq. G JWK/mmc Enclosures 3 p�5 K`"�`�pt EXHIBIT 039. Town of Barnstable Zoning Board of Appeals Decision and Notice Appeals 2007-061 - Keramas -s Variance Section 240-13(E)Bulk Regulations—Minimum Lot Area' To separate an undersized lot, 12 Meredith Way, from 343 & 361 Nye Road, and 19 South Precinct Road, Centerville, MA. All lots having merged into one zone lot due to common ownership of undersized lots: Summary: Granted with Conditions Applicant: James G. Keramas-Trustee,James Realty Trust Property Address: 343 and 361 Nye Road, 19 South Precinct Road, and 12 Meredith Way Centerville MA ' yJ Assessor's Map/Parcel: Map 148, Parcels 147, 140, 141, 148 Zoning: Residence C Zoning District Relief Requested & Background: The objective in Appeal r2007-061 is to unmerge one lot from four lots. All theseilots had merged into one lot for zoning purposes due to the undersized nature of the lots and common ownership. The four undersized lots are situated between South Precinct Road and Meredith Way as they intersect with Nye Road in Centerville.; The vacant lot to be separated is addressed as 12 Meredith Way and ti consists of 17,474 sq.ft._The lot was created by a 1979 subdivision of land recorded in the Barnstable Registry of Deeds in Plan Book 332 page 81. The lot is shown on that plan as Lot No. 7.' The lots to which it is'merged°are, a developed lot addressed as 343 Nye Road and consists of 24;437 sq.ft. and two vacant lots addressed as 361 Nye Road and 19 South Precinct Road. The 361 Nye Road and 19 South Precinct Road lots were also granted a variance to exist as a single developable lot in the prior.Variance 2007-060 issued by the Board. . r Procedural & Hearing Summary: This appeal was filed at the Town Clerk's office and at the office of the Zoning Board of Appeals on May 24, 2007. , A public hearing before the Zoning Board of Appeals was duly advertised and notice sent to all abutters,in accordance with MGL Chapter 40A.-The hearing was opened July 25, 2007 and continued to August 8, 2007; at which time,the Board found to grant the variance'with conditions. Board Members,deciding this appeal were, Ron S.Jansson, Randolph'Childs,James R. Hatfield,John T.`Norman'iand Chairman Gail C. Nightingale. Attorney John W..Kenney represented the applicant. He cited the overall history of the four subject lots'in this appeal. - He`noted that the lots were created by two separate subdivisions. The two vacant lots abutting South Precinct Road were created by a 1973 subdivision plan recorded at the Barnstable Registry of Deeds in Plan Book 281 page 73. They are shown on that plan as Lots No. 22 and 23, and are now addressed as 3.61 Nye Road and 19 South Precinct Road. The other two subject lots were created by a 1979 abutting subdivision of land recorded in the Barnstable Registry of Deeds Town of Barnstable-Zoning Board of Appeals Variance- 2007-061 -Keramas in Plan Book 332 page 81. They are shown on that plan as Lots No. 7 and 5. Lot 5 is a developed lot addressed as 343 Nye Road. Lot 7 is the vacant lot that is the subject of this appeal. It is addressed as 12 Meredith Way, Centerville, MA. At the time of the subdivisions, the Residence C required 15,000 sq.ft. minimum lot area and all four of the lots conformed to that requirement. The 15,000 sq.ft. minimum lot area remained until 1985 when one-acre zoning was adopted. - Mr. Keramas and his wife, Virginia purchased 343 Nye Road (the lot upon which the dwelling sits) in May of 1981. The other vacant three lots were purchased by the applicant as Trustee of the James Realty Trust in July of 1982. All the lots were independently developable when purchased. Over the years, the house lot was transferred into the same trust as the three vacant lots were held and as zoning had been increased to one-acre, all'united into one lot for zoning purposes. The objective in this appeal is to unmerge the vacant 12 Meredith Way lot from the other undersized lots and allow it to be a buildable undersized lot. Mr. Kenney noted that the resulting lot would consist of 17,474 sq.ft. similar to'other lots in the subdivision. He noted that the lot could be developed with a single-family dwelling in conformity to all other zoning requirements and would be limited to that of a one-bedroom under the 330 Rule. However, with an alternative system perhaps two bedrooms might be possible. Mr. Kenney stated that the lot had been assessed and taxed as a developable lot."The variance conditions are established by the size and configuration of the four lots as they cannot function as one. This vacant lot fronts on a different street from the-house lot and from the other two vacant lots fronting on South Precinct Road. This lot only shares a very small common lot line with the vacant parcels and could not be used with that land. The Board discussed the proposal and Mr. Kenney noted that the applicant is aware that use of the lot could be limited to that of a one bedroom. Public comment was requested-and no one spoke in favor or in opposition to the request. Findings of Fact:At the hearing of August 8, 2007, a motion was duly made and seconded to find the following findings of fact: 1. Appeal 2007=061 is the of.James G. Keramas, Trustee of the James Realty Trust seeking a variance to Section 240-13.E - Bulk Regulations, Minimum Lot Area. The applicant seeks t'o separate"an undersized lot consisting of 17,474 sq.ft. from other undersized lots which have merged due,to common ownership thereby establishing an independent buildable lot. The subject lot to be separated is addressed as 12 Meredith Way,-Centerville, MA, and is shown on Assessor's.Map 148 as Parcel 148. t 2. The property is in a Residence C Zoning District and in the Resource Protection Overlay District which currently requires two-acres of contiguous upland for all new developable lots. 2 Town of Barnstable-Zoning Board of Appeals Variance- 2007-061 -Keramas It is also located in the Wellhead Protection Overlay Districts that limits on-site wastewater disposal to 330 gallons per day'per acre. 3. The lot abuts Meredith Way in Centerville and was created by a.1979 subdivision plan recorded at the Barnstable Registry of Deeds in Plan Book 332 page 81. The lot is shown on that plan as Lot No. 7. The lot was purchased by the applicant as Trustee of the James Realty Trust in July of 1982. The lot was purchased for fair market price at that time and has been assessed and taxed as an independent buildable lot. 4. The lot, when purchased, was an independent buildable lot as it conformed to the minimum lot area required at that time which was 15,000 sq.ft. Since that time, the minimum lot area increased to one-acre in 1985 and later in 2000 where it was again increased to 2-acre minimum lot area for all new lots in the Resource Protection Overlay District. 5. The average citizen has little if any knowledge of the doctrine of merger under MGL Chapter 40A, Section 6. The applicant has paid taxes for some 27 years as though the lot was a buildable lot. To•deny the relief requested would pose a hardship on the applicant. 6. The subject lot fronts onto a different street than the existing house lot or the other vacant lots. The grant of the variance would not be detrimental to the neighborhood nor in degradation of the zoning ordinance as the size of the lot is similar to,other developed lots in the neighborhood. The vote was as follows: . AYE: Ron S.Jansson, Randolph Childs,James R.`Hatfield, John T. Norman NAY: Gail C. Nightingale Ms. Nightingale cited that she voted in the negative as she did not find that variance conditions existed. She expressed concern over the size of the lot as it'is very small and development on it would be detrimental'to the neighborhood in terms of current nitrogen loading concerns. In addition, the grant of this variance would only permit a one-bedroom to be developed in conformity to the 330.Rule. The removal of this land area from the developed house lot would cause the existing dwelling to not be in conformance with that 330 Rule as the number of bedrooms exceeds that which would be permitted. r Decision Based on the findings of fact,'a motion was duly made and seconded to grant Appeal 2007-061 for a Variance to Section 240-13(E) Bulk Regulations—Minimum Lot Area—to allow an undersized merged lot addressed as 12.Meredith Way, Centerville, MA, as shown on Assessor's Map 148 as Parcel 148 to be a developable lot consisting of 17,474 sq.ft., subject to all of the following conditions. 4 3 Town of Barnstable-Zoning Board of Appeals Variance- 2007-061 -Keramas 1: The use of the property is limited to that allowed under the Residence C Zoning District which is one single-family dwelling not to exceed 1.5 stories in height and 2,000 sq.ft. in area (not including below grade basement area). 2. All construction shall conform to all applicable building codes, fire regulations, and health requirements. 3. The on-site septic system shall meet all requirements of Title 5 and the local Board of Health , without variance. 4. All equipment associated with the dwelling (electrical generators; air conditioning units, etc...) shall be located so as to conform to all district setback requirements and shall be screened from street and neighbor's view: 5. Upon completion of the proposed dwelling as conditioned in this decision, the structures shall not be further expanded in footprint or in gross area as that will be considered full build out on the property. 6. With respect to 343,Nye Road;Centerville, as this variance also applies to that existing developed' t lot, no conditions areimposed upon that lot as it is developed already..,' 7. The relief authorized in'this variance shall expire one year from the date of issue of this variance unless extended by,the applicant as provide for.in MGL Chapter 40A Section_ 10 The vote was as follows: ; AYE: Ron S.Janssoh, Randolph Childs;James•R. Hatfield" John T. Norman; NAY: Gail C. Nightingale Ordered: Variance 2007-061 is granted with conditions. This decision must be recorded at the Barnstable Registry of Deeds for it to be in effect and notice of that recording submitted to the Zoning Board of Appeals Office. The relief•authorized by this decision must be exercised within one year. Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17, within twenty (20) days after the date of the filing of this decision. A copy of which must be filed in the office of the Barnstable Town Clerk. 9/17/07* it C. Nightin le-Chai an" Date Sign .d I Linda Hutchenrider, Clerk of the Town of Barnstable, Barnstable County, Massach certify that twenty (20) days have elapsed since the Zoning Board of Appeals.filed ci]t _pan :•.�gorth��r that no appeal of the decisicihas been filed in the office of the Town Clerk.- sty %:: Signed and sealed this day f ���urrde'r the pain and . ••. a �. Linda Hutchenrider-Town Cl e 'ilk *�* P •� R EXHIBIT. E: B QUITCLAIM DEED I, JAMES G. KERAMAS, Trustee of the James Realty Trust, u/d/t dated July 13, 1982 and recorded at the Barnstable Registry of Deeds in Book 3517, Page 149, of P.O. Box 554, Centerville,'Massachusetts 02632, for consideration paid in the amount of ONE AND 00/100 ($1*00) DOLLAR s grant to MARIA KERAMAS, individually, of P.O. Box 554, Centerville, Massachusetts 02632, 3 with Quitclaim Covenants the land in Barnstable (Centerville), Barnstable County, Massachusetts, described as follows: LOT 7, as shown on plan of land entitled "CROSS RIDGE', Subdivision Plan of Land in Barnstable—Centerville' — Mass. for ALDEN HOMES INC. Scale: 1" 60', Jan. 22, 1979", which said plan is duly recorded with the Barnstable County Registry of Deeds in Plan Book 332, Page 81. Subject to an easement to New England Telephone and Telegraph Co., et al, dated June 15, 1979, and recorded with said Registry of Deeds in Book 2946, Page 288. Subject to drainage easements,the locations of which are shown on said plan. Subject to a reservation in favor of the grantor to use Meredith Lane and May Lane for all purposes for which public ways are now or may hereafter be used in the Town of Barnstable. Property Address: 12 Meredith Way, Centerville, MA 02632 Subject to an easement to Centerville-Osterville Fire District dated November 6, 1979 and.recorded with said Registry of Deeds in Book 3041, Page 36. The above described premises are conveyed subject to the restrictions set forth in the deed recorded in Book 3519, Page 258. Said premises are conveyed subject to and with the benefit of a Variance issued by the Town of Barnstable Zoning Board of Appeals recorded in Book 22336, Page 175. I, James G. Keramas, Trustee as aforesaid, hereby certify as follows: 1. p That I am the sole Trustee of-the above-mentioned Trust; 2. That said Trust has not been altered, revoked or amended and is in full force and effect; 3. That the beneficiaries of the Trust are of legal age, they are not disabled and have all assented to the sale of the trust property; and 4. That I am duly authorized on behalf of all of the beneficiaries of said Trust -to convey the property known as 12 Meredith Way, Centerville, MA 02632, for,corisideration in the amount of One and 00/100 ($1.00) Dollar to Maria Keramas, Individually. For title,see deed recorded at the Barnstable Registry of Deeds in Book 3519, Page 258. . f 4 EXECUTLD under seal this -4day of August, 2008. jJjaes Realty Trust B' Cames era as, rustee COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. , 3 On this' All day of August, 2008, before me, the undersigned notary public, personally appeared James G. Keramas, and proved to me through satisfactory evidence of - identification, which was a MA Drivers License, to be the person whose name is signed on the preceding or attached document, and acknowledged to that he signed it voluntarily for its stated purpose. ' eta ublmmission expires: �a�1� , f .} Casemaker Page 1 of') EXHIBIT c 103 Mass.491 - 103 Mass.491 (Mass. 1870) Nicholas H.Earle V. Elizabeth L. Fiske&another Supreme Court of Massachusetts, Middlesex January, 1870 Writ of'entry against Elizabeth L. Fiske,(wife of Benjamin Fiske,) and Mary,E. Fiske,to recover land in Malden.Writ dated April 14, 1868. Plea, nul disseisin. At the trial in the superior court, before Putnam,J., these facts appeared: Nancy A. Fiske, being owner of the . demanded premises, conveyed them to Benjamin and Elizabeth for their lives, and, subject to their life estate,to Mary E.- Fiske, by deeds dated April 22,1864, but not recorded till 1867, and died in 1865, leaving said Benjamin, her son, as her sole heir,and he in 1866 executed and delivered to the demandant a deed of the premises,which was recorded in the same year. Upon these facts,the judge ruled that Nancy A. Fiske"had no seisin,at her death,which would descend to Benjamin Fiske, so as to enable him to convey a good title"to the demandant. Upon this ruling, the demandant,who made no claim to any estate less than a fee simple, submitted to a verdict for the tenants, and alleged exceptions. Plaintiffs Exceptions sustained. J. G.Abbott, for the demandant. R. D.Smith &H. H. Sprague,.for,the tenants. OPINION 103 Mass.492 Ames,J. ; The formalities which shall be deemed indispensable to the valid conveyance of land are prescribed and regulated by statute. A deed duly,signed, sealed and delivered is sufficient, as between the original parties to it, to transfer the whole iitle of the grantor to the grantee;,,,,though the instrument of conveyance may not have been acknowledged or recorded.The title passes by the deed, and not by the registration. No seisin remains in the grantor, and he has literally nothing in the premises which he can claim for himself,transmit to his heir at law, or convey to any other person. But when the effect of the deed upon the rights of third persons, such as creditors or bona fide purchasers, is to be considered,the law requires something more, namely, either actual notice, or the further formality of registration,which is constructive notice. It may not be very logical to say that, after a man has literally parted with all his right and estate in a lot of land, there still remains in his hands an attachable and transferable interest in it, of exactly the same extent and value as if he had made no conveyance whatever. But,for the protection of bona fide creditors and purchasers, the rule has been established that although an unrecorded deed is bindinQ anon the grantor. his heirs_and devisee and also 1�on all persons having actual notice of it it is not valid and efferrilal as against any other persons As to all such other persons, the unrecorded deed is a mere nullity. So far as they are concerned, it is no conveyance or transfer which the httpl//www.casemakerlegal.com/docView.aspx?DocId=2836219&Index=D%3a%5cdtsearc... 3/5/2014 r Casemaker Page 1 of 1 EXHIBIT p , GENERAL LAWS OF MASSACHUSETTS Part II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS , Title I.TO REAL PROPERTY Chapter 183.ALIENATION OF LAND Current through Chapter 38 of the 2014 Legislative Session , § 183:4. Effect of recordation or actual notice of deeds or leases,or of assignments of rents or profits t - A conveyance of an estate in fee simple,fee tail or for life, or a lease for more than seven years from the making thereof, or an assignment of rents'or profits from an estate or lease, shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in section thirteen of chapter thirty-six, or,with respect to such a lease or an assignment of rents or profits, a notice of lease or a notice of assignment of rents or profits,as hereinafter defined, is recorded in the registry of deeds for the county or district in which the land to which it.relates lies.A"notice of lease", as used in this section, shall mean an instrument in writing executed by all persons who are parties to the lease of which notice is given and shall contain the following information with reference to such lease: the date of execution thereof and a description, in the form contained in such lease,of the premises demised,and the term of such lease,with the date of commencement of such term and all rights of extension or renewal.A"notice of assignment of rents or profits",as used in this section, shall mean an instrument in writing executed by the assignor and containing the following information: a description of the premises, the rent or profits of which have been assigned, adequate to identify the premises,the name of assignee, and the rents and profits. which have been assigned. A provision in a recorded mortgage assigning or conditionally assigning rents or profits or -- obligating the mortgagor to assign or conditionally assign existing or future rents or profits shall constitute a"notice of assignment of rents or profits Cite as Mass.Gen. Laws ch. 183, §4 CASEMAKER©2014 Lawri[er;LLC.All Rights Reserved:Privacy;Settings_Contact Us 1-877-659-0801,(@ i http://www.casemakerlegal.com/bDocView.aspx?statecd=MA&codesec=183:4&sessionyr=... 3/5/2014 Casemaker Page 2 of 3 statute recognizes as binding on them, or as having any capacity adversely to affect.their rights,as purchasers or attaching creditors.As to them, the person who appears of record to be the owner is to be taken as the true and actual owner, and his apparent 103 Mass.493 seisin is not divested or affected by any unknown and unrecorded deed that he may have made.Gen. Sts. c. 89,,§ 3. It is argued, however, that,as the unrecorded deed from Nancy A. Fiske was valid and binding upon herself and her heirs at.law, nothing descended`from her to her son Benjamin,and he had no seisin or title which he could convey to the plaintiff.A case is cited ( Hill v. Meeker, 24 Conn. 21 1) in which the supreme court of Connecticut(Hinman and Storrs,jj.) in 1855 decided that a deed of land, not recorded until after the death of the grantor, is valid against a purchaser from his heir at law,although such purchaser has no knowledge of the existence of the deed.From this decision the chief justice(Waite)dissented, saying, "So far as my researches have extended, this is the first case in the whole history of our jurisprudence,in which it has ever been holden that an'unrecorded deed shall defeat the title of a bona fide purchaser or mortgagee; having no knowledge of the existence of any such deed, unless it were recorded within a reasonable time."The cases cited from the decisions of the supreme court of Kentucky are to the effect also that the protection afforded by their registration laws against an unrecorded deed only extend to purchasers from the grantor himself,and not to purchasersfrom his heirs or devisees. Ralls v. Graham, 4 T. B. Monr. 120. Hancock v. Beverly, 6 B. Monr. 531.That court however in a more recent case, decided in 1857, say that, if it were a new question, "and had not been heretofore decided,"they should be strongly inclined to give to-the statute a liberal construction,and make it operate as a remedy for the whole evil which it was intended to guard against.They add, however, that as the previous decision had become a'settled rule of property, it is better that the law should remain permanent,"although settled originally upon doubtful principles." Harlan v. Seaton, 18 B. Monr. 312. We do not, under the circumstances, incline to yield to the authority of these cases in the construction of a local statute of this Commonwealth. It appears to us that the plain meaning of our system of registration is,that a purchaser of land has a right to rely upon the information furnished him by the t 103 Mass.494 registry of deeds,and in the absence of notice to the contrary he is justified in taking that'information as true, and acting upon it accordingly. It is impossible to see why the unrecorded deed of Nancy A. Fiske should have any greater weight or force after her decease than it had immediately after it was first delivered. It could not be any more or less binding,on her heir at law than it.was upon herself; he was as much the apparent owner of the land as she had been. during her lifetime.The manifest purpose of our statute is,that the apparent owner of record shall be considered as the true owner,(so far as subsequent purchasers,without notice to the contrary are concerned,) notwithstanding any unrecorded and unknown previous alienation.As against the claim of this plaintiff,the unrecorded deed of Nancy A. Fiske had no binding force.or effect, and the objection of the defendants,that in consequence of her having given that deed nothing descended'to her son Benjamin from her, is one of which they cannot avail themselves.As a purchaser without notice,the plaintiff.is in a position to say that the unrecorded deed had no legal force or effect; that she died seised; that the property descended to Benjamin, her son and sole heir at law. Upon that assumption, his deed would take precedence over the unrecorded deed of his mother,in exactly the same manner as a deed from his mother in her lifetime would have done over any unrecorded or unknown previous deed from herself.The ruling at the trial was therefore erroneous,and the plaintiffs Exceptions are sustained. e ' F http://www.casemakerlegal.com/docView.aspx?Docld=2836219&Index=D%3 a%5cdtseare... 3/5/2014 EXHIBIT 453 Mass. 888 (2009), SJC-10307, Cornell v. Board of Appeals of Dracut E a Page 888 , 453 Mass. 888 (2009) Paul CORNELL ' V. BOARD OF APPEALS OF DRACUT & another. �1) SJC-10307 Supreme Judicial Court of Massachusetts, Suffolk May 22, 2009 Heard: March 5, 2009: ,. CIVIL ACTION commenced in the Land Court Department on December 15, 2003. The case was heard by AlexanderH. Sands,.J., on motions for summary judgment, and a motion to alter or amend the judgment was heard by him. After review by the Appeals Court, the Supreme'Judicial Court granted leave to obtain further appellate review. Justin Perrotta for the plaintiff. James P. Hall(Raymond T Weickerwith him)for the defendants. Ilana M."Quirk, for Massachusetts Chapter of the American Planning Association;amicus curiae, submitted a brief: y' Marshall, C.J.,Ireland Spina; Cordy, Botsford, & Gants, JJ. SPINA,J. This zoning case requires us to decide the actions a variance holder must take-to "exercise a dimensional variance under G.L. c. 40A, § 10, to prevent it from lapsing. [2] Page 889 t The plaintiff, Paul Cornell, owns a fourteen-acre lot in Dracut. He proposed a plan to divide the property into two parcels, with the intention of erecting a home on the smaller of the two parcels. Because the frontage on that parcel was twenty-five feet less than the minimum frontage required by the Dracut zoning bylaws, a variance was necessary. On March 7, 2002, the board of appeals of Dracut granted Cornell a variance. The certificate granting Cornell a variance contained an advisement stating that G.L. c. 40A, § 11, provides that the variance shall not take effect until it is recorded in the registry of deeds for the county and district in which the land is located. Cornell belatedly set out to obtain approvals from the planning board; the board of health, and the M conservation commission, all of which were prerequisites for a building permit.- To this end, Cornell hired a registered land surveyor to prepare an "approval not required" plan (ANR), see G.L. c. 41, § 81 P, which subsequently was filed with the planning board, and approved and indorsed on August 14, 2002. Cornell then. retained Norse Environmental Services, Inc. (Norse), to prepare, septic and wetlands delineation plans. Norse began testing the soil in November, 2002, and submitted a septic plan to the board of health on February 14, 2003. At some point in early 2003, Cornell applied for-an order of conditions from the conservation commission. By March 7,2003, the anniversary of the issuance of his variance, the board of health and the conservation commission continued proceedings concerning Cornell's applications several times, and had not issued any decision concerning Cornell's applications. On May 7, 2003, the conservation.commission issued an order of conditions,and on June 12 the board of health approved Cornell's septic plan. By this time, Cornell had expended more than $15,000 in seeking all three approvals. In the same,month, Cornell applied fora building permit, but was told by the defendant, Frank Polak, a building inspector, that his application would be denied on the ground that the variance had lapsed due to Cornell's failure to apply for a building permit within one year of the grant`of the variance. Polak told Cornell that he either hadto seek an. extension of the variance or reapply for the variance in order to obtain a building permit. On June 16, 2003, Cornell requested an extension from the board of appeals', which was Page 890 denied as untimely.�3� Cornell then reapplied for a variance. His application was denied on November 13. In December, Cornell commenced the present action in the Land Court seeking, inter alia, [41 a declaratory judgment that the original variance never had lapsed. Cornell-recorded the.variance, `which allegedly had lapsed, on January 16, 2004,.in the Middlesex y County northern district registry of deeds. See G.L. c. 40A, § 11, fifth par. } On Cornell's motion for summary judgment, a judge in the Land Court ruled that the variance did never"take effect," G.L. c. 40A, § 11, fifth par., because it was not timely recorded. Consequently, he reasoned, the variance could not be exercised under G.L. c. 40A, § 10, to prevent it from lapsing. The judge further concluded that, in any event, Cornell had failed to demonstrate that he exercised the variance by March, 2003, because he had neither acquired a building permit nor conveyed one of the lots in reliance on the variance. After judgment entered for the defendants, Cornell moved to alter or amend the judgment, arguing, among other things, that G.L. c. 40A, § 11, did not require a variance holder to record the variance in order to exercise it under G.L. c. 40A, § 10. That motion was denied, and Cornell appealed. The Appeals Court affirmed. See Cornell v. Board of Appeals of Dracut, 72 Mass.App.Ct. 390 (2008). We granted Cornell's application for further appellate review and affirm the judgment. We conclude that Cornell did not exercise his variance under G.L. c. 40A, § 10, within one year of its issuance. General Laws c. 40A, § 10, provides,-in relevant part: "If the rights authorized by a t variance are not exercised within-one year of the date of grant of such variance, such rights shall lapse...." [51 This section, intended "to eliminate to some degree the current confusion Page 891 regarding status of Land within municipalities," 1973 House Doc. No. 6200, at 20; see Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne, 14 Mass.App.Ct. 76, 81-83 (1982) (outlining legislative history of G.L. c. 40A, § 10), ensures the prompt utilization of duly granted .variances. The statute does not define "exercised:" Where a statute does not define a particular word, "the natural import of words according to the ordinary and approved usage of the language when applied to the subject matter of the'act, is to be considered as expressing the intention of the Legislature." Boston& Me. R.R. v. Billerica, 262 Mass. 439, 444 (1928). "Exercise" means "to bring into play: make effective in action..._bring to bear." Webster's Third,New Int'I Dictionary 795 (1993). We agree with the Land Court-judge that under G.L. c..40A, § 11, fifth par., which is set out in relevant part in the margin, �61 a variance does not"take effect" until it is recorded and that the recording of a variance within one year of its grant is necessary to "exercise" it. The ordinary meaning of the phrase "take effect" is "to become operative." Webster's Third New Int'i Dictionary, supra at 2331. Thus, the variance could not become operative, and by implication, could not be exercised, until it was recorded. Here, despite the advisement on the certificate granting him a variance, Cornell failed,to record the variance within one year of-its grant, and thereby caused the variance to lapse. [7] Even if the variance had been recorded timely, we would nonetheless,conclude that Cornell's - actions fell short of=exercising"the variance. We agree with the Land Court judge and the Page 892 Appeals Court, that at the very least, in addition to recording the variance, Cornell needed to obtain a building permit or convey one of the lots in reliance on the variance. Cornell v. Board of Appeals of Dracut, 72 Mass.App.Ct. 390, 393 (2008), citing Hogari v. Hayes, 19 Mass.App.Ct. 399, 404 (1985). Without a building permit or a conveyance of one of the lots, Cornell did not utilize the variance, or"make[it] effective in action," because he did not undertake any action on the lot necessitating the variance. Cornell contends that because the variance was a prerequisite for the ANR indorsement, [8] he "exercised"the variance. We disagree. The ANR indorsement conferred no right on Cornell to use the variance.,The ANR indorsement serves merely to permit the plan to be recorded, see Cricones v. Planning Bd. of Dracut,.39 Mass.App.Ct. 264, 268 (1995), and is not an attestation of compliance with zoning requirements. See Hamilton v. Planning Bd. of Beverly, 35 Mass.App.Ct. 386, 389 (1993); Smalley v. Planning Bd. of Harwich, 10 Mass.App.Ct. 599, 603 (1980). An ANR indorsement, like an approval from a board of health, conservation commission, or similar entity, y is, in this Page 893 case, essentially preliminary to the issuance of a building permit or'a conveyance. Cf. Smith v. Board of Appeals of Brookline, 366 Mass. 197, 201 (1974) (not every expenditure of time, effort, " and money is enough'to'qualify as construction for purposes of exercising special permit). A building permit, in contrast, authorizes a variance holder; such as Cornell, to build on the ' nonconforming lot and thus is the culmination of the permitting process that allows him to utilize that lot in a way that-otherwise does not conform with the applicable zoning provisions. Our. conclusion gains support from the fact that a building permit is needed to grandfather this variance against a subsequent zoning change. See G.L. c. 40A, § 6, first par. With respect to a conveyance of less than the original parcel, i.e., a conveyance of one of these lots, an ANR indorsed plan is a prerequisite to recording a deed. See G.L. c. 183, § 6A. Therefore, it was necessary.for Cornell to have obtained a.building permit or convey one of the lots to realize the benefits of the variance. Circumstances beyond a'variance holder's control may make obtaining a building permit within one year of.the grantof a variance impossible and thus warrant equitable tolling of the,one-year period. However„reasonably.avoidable impediments to obtaining a building permit will preclude equitable tolling. See Smith v. Board of Appeals of Brookline, supra at 202 (statutory six-month period to begin construction not tolled where owner who ultimately abandoned special permit could have resolved litigation over special permit earlier). In order to demonstrate that equitable tolling is warranted, a variance holder must show that the holder has timely sought.an extension of the variance, see;G.L: c. 40A, § 10, third par., and that delays clearly attributable to others have hampered the holder's efforts to obtain a building permit. Cf. Belfer v. Building Comm"r of Boston, - 363 Mass. 439, 444 (1973) (two-year period in which variance had tobe used under zoning code tolled where appeal from granting of variance created "real practical impediments to use of a [variance]"). Cf. also Smith v. Board of Appeals of Brookline, supra at 201 ("real practical impediments" caused by litigation may toll six-month statutory period to begin construction pursuant to special permit). Cornell has not demonstrated that equitable tolling would be Page 894 appropriate in this case. Cornell did not seek an extension of the variance until several months after the expiration of the one-year period. He has also failed to establish that the delays in obtaining the approvals necessary for a building permit were not reasonably avoidable. Although the board of health and the conservation commission continued proceedings concerning Cornell's applications several times, nothing in the record on appeal explains why Cornell waited until after he received the ANR indorsement in August, 2002, to hire Norse to prepare a septic plan and a wetlands.delineation plan. Nothing.prevented Cornell from simultaneously seeking all three approvals immediately after, and in some cases before, the variance was granted. Furthermore, while it is unclear when Cornell submitted his request for an order of conditions to the conservation commission in 2003, he did not submit the septic plan to the board of health until February 14, 2003. He could not have reasonably expectedthe board of health to review and approve his application in a mere three weeks'time. In these circumstances, Cornell's expenditures in seeking the requisite approvals for a building permit do not offset his unexplained delay in seeking those approvals. In sum, at the very least, Cornell should have recorded the variance and obtained a building permit within one year of being granted the variance to prevent it from lapsing. 191 We recognize that delays in fulfilling the prerequisites for a building permit may occur notwithstanding a variance holder's diligence..ln those circumstances, the one-year period in which a variance holder must "exercise" the variance may be equitably tolled if; in.addition'to establishing that such delays were not reasonably avoidable, the variance holder seeks an extension of the variance in a r Page 895 timely fashion. See G.L. c. 40A, § 10, third par. However, variances are generally disfavored, see Planning Bd. of Nantucket v. Board of Appeals of Nantucket, 15 Mass.Apo'Ct. 733, 738 (1983), and where, as here, a variance holder has.not timely applied for an extension of the variance and failed to provide a reason for not diligently pursuing the approvals necessary for a building permit, .the one-year period is not tolled Judgment affirmed. Notes: [1] Building inspector of Dracut. [2] We acknowledge the amicus brief submitted in support of the defendants by the Massachusetts Chapter of the American Planning Association. i [3] General Laws c. 40A, § 10, third par., authorizes the board of appeals, in its discretion, to extend by not more than six months the time in which to exercise a variance, provided the application therefor is filed before the expiration of one year from the date the variance was granted. [4] Cornell also sought review of the denial of his second,application for a variance, see G.L. c. 40A, § 17, but failed to pursue that claim below and does not raise it now. ` [5] We note that G.L. c. 40A„§ 9, fourteenth par:, states that special permits "shall lapse [after expiration of the period of time set forth in the ordinance or bylaw] if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun by such date except for good cause." [6] Section 11,fifth par., provides, in relevant part: "No variance, 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..." (emphasis added). We leave for another day whether the failure to record'a variance may void a variance on which a variance holder,substantially has relied.V. McDermott v. Board of Appeals of Melrose, 59 Mass.App.Ct. 457 (2003) (failure to record special permit not fatal where plaintiff substantially used special permit). Here, Cornell did not substantially rely on the variance because he did.not sell either lot or engage in construction on the lot for which the variance was granted. [8] An "approval not-required" (ANR) indorsement"shall not be withheld unless such plan shows a subdivision." G.L. c. 41, § 81 P. A "subdivision" is: - "[T]he division of a tract of land into two or more lots... provided,-however, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on'(a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the ` .:subdivision control law became effective in the city or town in which the land Kies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or,served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. Such frontage shall be of at least such distance as is f - then required by zoning or other ordinance or by-law, if any, of said city or town for erection of a building on such lot, and if no distance is'so required, such frontage shall be of at least twenty feet" (emphasis added). G.L. c. 41, § 81 L. 191 This decision is not intended to resolve all questions concerning timely exercise of a variance. For example, a "use" variance may not require any construction or excavation, and a building permit may not be necessary to exercise such a variance. Evidence of"use" within one year of ' issuance of the variance may be sufficient to exercise such a variance. Here, construction of a house on a nonconforming lot was sought, hence the need for a building,permit. Cf. G.L. c. 40A, § . 9, fourteenth par. (relatingto'special permits). We note that unlike G.L. c. 40A, § 9, fourteenth par., which requires the commencement of construction to prevent a special permit from lapsing, the Legislature has not required commencement of construction as a prerequisite for"exercise" of a variance. 17 4 E U 4 j � n ` ANTE-NUPTIAL AGREEMENT ` N s !T; 'fl-11S AGRJ;F,MFNT made this 2Q J. ay of May, 2007, between ]aes G IC a�r�Ff Centerville, Massachusetts; 02632 (hereinafter called "James") and 'ntMaria 1'lippg9;leqr 'ti - Guilderland,NY 12084(hereinafter called"Maria") - sa144e7 p _ C' "IrRE-AS, the P ,ea Parties Ian to be married in the near future;and more particularly oa A)rita 16,2007 p � WHCKLAS, each of the parties desires to have the exclusive right, except as herbtn a or t otherwise provided, to dispose of his or her real and personal property, stow owned b>k, i r v hereafter acquired,both during his or her lifetime and upon his or her death,as his or•hef oVt t C absolute property,without interference from the otherparty; 1 g, i� r.• F ` k 1r '` NOW, TT-JEREPORE; in consideration and in contemplation of the marriage planned ;� t F between them in the near future, and in consideration of their mutual agreements herein contained;the parties agree as follows: 9 Except as otherwise may be expressly provided elsewhere in this Agreement, the individual property of each of the parties,both real and personal,now owned by him or her, -_ r or which he or site may hereafter acquire or become entitled to from the.traceable proceeds ' thereof, shall remain and be the sole and exclusive property of the owner,subject to his or her individual control and use as if he or she were unmarried. Neither shall acquire by reason F < t •s �t A.Y ti••, YI of the marriage any interest in the separate property now or hereafter acquired,of the other or -" the right to the control thereof, or any interest in the income or any increase in value arising y therefrom. Each party shall at all times have the full and complete right to sell or dispose of } " an),or all of his or her separate property by deed,will, or otherwise without the consent or ' i` a joinder of the other, and each agrees, upon request, to execute such deeds, mortgages, or c t _ other papers as may be necessary or convenient to make effectual the mortgage;sale,gift,or i µ other disposal of any of either party's property free and clear of all rights,interests,or claims } g a p L l y of the other. After the death of a party hereto, his or her property shall be free from any claims of the other, including, without limitation,,dower,homestead,widow's or widower's ' allowance, a distributive share of the other's estate.in the event he or she dies intt late,an a t J l, election to take against the other's will in the event he or she dies testate, or any other right, statutory'or otherwise,arising by reason of the marriage between them. A,. In the event that the marriage of "James" and "Maria' shall terminate by reason of t i' Yieii divorce, or if action for legal.separation is It tinted by either of them,the parties hereby o e that,yin view of their respective ages, existing families and issue,,and individual assets GJhgome available to each therefrom,neither party shall make any claim against the other l"ltfa" separate maintenance, or support, or a division or assignment of income or r l `thy'other as, a part of, or in lieu of, such alimony under the laws of the ;. 0=11th sachusetts or an tother jurisdiction, In consideration of their mutual p A Of y i Grlposes,'Qf fairness and equity, the,parties assert that no transfer of fun q ds 2. tl e e ,�- V, ifs',, C + a any titne�subse uent to marriage. ram_ � �. � t t y.� q g K zq� r, YN an 40 k t v 3. Each party hereby acknowledges that the Egli,, ments contained herein Shall I�r�uf£ `�- o ' reasonable resolution of an lights the mn { 3., Y Y acquitc in Utc in 1 constitute a s+other to all foreseeable circumstances, including legal se ar¢lton nn se s.orestate of the 1ht9* ! =r? marriage by divorce,giving consideration to their current and i1tnation of he yf�,�t � • c ` ture ages.the length of the ? o- x ^ P o Ba b Section 34,or similar laws of other jurisdictions. Chapter 208, marriage, and other factors co i<able under Massachusetts General l arts, u r 4. No contained herein shall be construed as it bar to either of the j { devising,or bequeathing tut P P Y Y e Parties `1\r r off, 6 Y of his or ro ert to the other b will,gift,or Otherwise;tag l t�" � 1 t . M�S. { 5. If separation or divorce proceedings are commenced by either party against ' a initially by the time when either is living in any house or apartment that had been other at _ Q _ other, then al the request of the party who had initially obtained such residence, the other '•_ ''_' Party thereupon will immediately vacate the same and remove all of his or her personal 4 t. Possessions from such residence. R 6. It is understood that,in the event of their marriage,the parties expect to reside together in a location,style,and manner mutually suitable to them.t y I 7. Each party hereby acknowledges that he or she has been fully advised by counsel of his or ' her own selection as to all of the rights proposed marriage and as to the legal effect of this Agreement. Each hereby acknowledges l i that the other has made full and frank disclosure of the size and character of his or.her estate, s l - r y as summarized in Exhibits A(for"James")and B for"Maria')annexed hereto. . . . 7x; o �a 8, This Agreement shall inure to the benefit of and be binding on the heirs, executors, Itr�"r r 1 r administrators,and assigns of each of the parties. ` t 9. 1f any provision of the Agreement shall be deemed to be invalid or unenforceable, such } invalidity or unenforceability shall not affect he validity or enforceability of any other x ' " provision of this Agreement,and each of said other provisions shall be enforced to the fullest t f f xo end permitted• ,� 4 4 ^' t �, ! extend P by law. �.r S 10. In the event that a Court having jurisdiction over any separation or divorce proceedings between the parties shall, at the request of one party; award to him or her any support, or a � •r. i t property settlement, thus contravening the provisions of this Agreement,the other party shall be entitled in an action'at law to obtain liquidated damages for such breach of this contract in the full amount of such award, plus his or her reasonable costs and expenses in connection i r P With such action at law and in defense of any claim for such award. The validity and construction of this Agreement shall be determined in accordance with. ` the laws of The Commonwealth of Massachusetts. ➢qi l b� w d VJ _ - ! T2. Each party.understands this agreement should be reviewed With counsel of his or her 4 "t 1 �ehgIce,-and failure to do so may be considered clear awareness that each party understands 1,fispects of the agreement and each executes the agreement freely and voluntarily., ° i p...,.. pp� i•kny,t ,-Yge- a �<. e ,,- v r r` - ... J < 1 s n 9' t i _ { c ° o . 'e `t t r1r fi .. r -e - lrrceutcd in triplicate under the seal and date first above written. �r ati 1 ness f 1 LG c a t a wy sr Jam sue. lte ,nri �t��� ��:� '•, 4 y." S �,� . t f of c l Witnes G �.. LG! s -Az Z F a s Maria Pappas t2,a i COMMONWLAi.TII OF MASSACHLISLVFS , 4 SS: Date: May Z`(9 211C)7 a On this day of May 2007,before me;the undersigned notary public.personally appeared �A. James G. Keramas,proved to me through satisfactoryevidence of identification, which.vas. " personally known to me, to be the person whose name is signed on the preceding or attached cdoctiment in my presence.: G. Wayne-A. u My commissl n expires: 1124/2008 COMMONWEALTH OR'MASSACHUSETI`S Date; Ma}L 15 2007 _ 20Q7 before me,the undersigned notary public, t r , ; t toyed to me through sjAisfactory evidence of L.l;y Aw"l-to he theperson whose x, ' ❑4 i�ot;att gibed doctime in my presence: &10 o 2 11, M COt1111115Stdil CX 1t 5o tary , tk u - jv.� .L, a. I fir` • IQ BRA S .:a > Ai. , �.��a-;�+n;�Y ` '' �^ _ -•.::t. ' , y.- t, BIV1�EC R �d A \ ' • Z DEB 4 • i , t Myijt.��Cljt(1R1}f3Stbt1 A ` a�' ti� °.tee 7