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Intro to Variances I: Soil Conditions, Shape & Topography

In some instances, obtaining a variance is a lawful means to deviate from strict compliance with current zoning requirements. Although zoning boards usually grant them sparingly, an approved variance can be a useful tool for landowners seeking to, inter alia, site, construct, alter or enlarge a structure on their property that would otherwise violate some aspect of the zoning code.

Variances are governed by M.G.L. c. 40A, § 10, which provides that a zoning board may grant a variance if the statutory three-part test is satisfied. The zoning board must specifically find that

1) owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located,

2) a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and

3) that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

M.G.L. c. 40A, § 10. Notably, M.G.L. 40A, § 10, does not provide for use variances: "Except where local ordinances or by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located . . . ." In other words, only a local zoning bylaw or ordinance can allow for a use variance.

As for the first element of the variance requirements test, the types of unique soil conditions, shape or topography affecting the land or structure in question typically involve site features like irregularly shaped lots (i.e. triangular), steep grades or slopes, deep depressions, failure to meet dry lot requirements or the presence of wetlands.

But the important caveat meeting this first variance requirement is that these types of conditions must be unique to the lot in question. If the site's soil, topography or shape conditions are deemed by the zoning board (or, on appeal, the court) to be shared by or common throughout the particular zoning district, it is likely that the variance request will be denied on these grounds. For example, if wetlands are prevalent throughout the zone, then the variance applicant is likely going to have a difficult time convincing the board that his lot is unique enough to warrant a variance. This is where doing some investigative work in advance is a good idea.

In a future post, we will discuss the two remaining requirements necessary for a zoning board to approve a variance, so stay tuned.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC. on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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