Zoning Permitting And Litigation: Variances
Landowners sometimes need a variance from the local zoning bylaw or ordinance in order to undertake a particular use or develop or alter certain structures on their property. Variances must be obtained from the special permit granting authority (SPGA) for the municipality, typically the zoning board of appeals, or, sometimes, the planning board. This often happens when a parcel of land falls short of minimum dimensional or area requirements of the zoning code in relation to the proposed use or structure, or when the use, structure or land otherwise fail to meet other criteria found within the zoning regulations. In order to qualify for a variance, the landowner must show that his request meets certain thresholds established under both state Zoning Act (G.L. c. 40A, § 10) and local zoning laws. Specifically, it must be shown and found by the SPGA that:
- 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, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant.
- 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.
An applicant seeking a variance must be mindful that no person has a legal right to a variance, and they are to be granted sparingly by the SPGA. The three statutory requirements are conjunctive, and each must be met. It is also well-settled that the “substantial hardship” must be related to the land itself – specifically, the soil conditions, shape or topography issues that also support the need for a variance – and is not merely personal to the landowner.
Moreover, 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.
Challenges to Variances and Variance Denials
Where an approved variance is challenged by an appeal, or if a variance application is denied, our attorneys at Phillips & Angley analyze the SPGA’s findings of fact and legal conclusions and research and assess relevant case law and statutory and regulatory criteria to advocate for our client’s rights. Where appropriate, we can defend against or launch an appeal on our client’s behalf.
When May an Appeal be Pursued?
Only “persons aggrieved” have the right to appeal zoning decisions. Part of our representation includes an analysis of legal “standing” – that is, the right to participate in an appeal. Where a challenge to standing is available, it is sometimes appropriate to seek a dismissal of an appeal without addressing the merits of the case.
With decades of experience in zoning and land use law and real estate law to inform us, we are properly positioned to handle the appeal of your special permit, variance or site plan approval. We represent clients before the Land Court, the Superior Court and the Massachusetts Appeals Court, as well as local boards and administrative agencies.