Obtaining a Variance of a Zoning Requirement

Zoning consists of land use controls imposed by Massachusetts towns and cities that regulate how an owner may use their property.  Most of us, I believe, would agree that zoning serves a useful purpose: we do not want businesses to be located in the middle of a residential neighborhood, or unusually large buildings in areas meant to be quiet neighborhoods.  Zoning requirements are often detailed and specific as to what can and cannot be done with property.

If a property owner wishes to obtain an exception from a particular zoning requirement, they have a right to request a variance.

Process for Obtaining a Variance 

Obtaining a variance generally requires a property owner to file an appeal with their local zoning board of appeals (“ZBA”).  The owner generally has to publish notice that it is pursuing such an appeal, and those who live near the property (“abutters”) are generally provided notice as well.  The ZBA will hold a public hearing on the matter and issue a written decision on whether it is denying or granting the variance, or granting it with conditions.

What is Required for Obtaining a Variance?

Obtaining a variance under Massachusetts law requires a property owner to show the following:

[O]wing 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, and 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.

Importantly, a claimant must prove each of these elements.  Failure to do so, even under the most compelling circumstances, will result in a variance denial.

Practical Considerations for Obtaining a Variance

There are many, many important points about variances, which I plan to write more about in the future.  Here are a few practical considerations for requesting a variance.

No automatic right to a zoning variance.  Massachusetts law is clear that a property owner is not automatically entitled to a variance, and must meet the requirements listed above.  In particular, a property owner must show something unique about their property that justifies this relief.

A ZBA is not permitted to determine the validity of a zoning ordinance.  A property owner may believe that a zoning restriction is unfair and should not be a land use requirement.  A ZBA, however, is not permitted to make such a finding.  Only a court action challenging a zoning ordinance can determine this.

A land owner must generally wait two years before trying again for a variance, if unsuccessful.  If a property owner is denied a variance, he or she must generally wait two years before applying again.

Right to Appeal.  A property owner who is denied a variance has a right to appeal this decision to Superior or Land Court.  A “person aggrieved” by such a decision may do so as well.

Conclusion 

Obtaining a variance requires a strong understanding of Massachusetts zoning law and an ability to make a compelling case for this relief to a ZBA or court.  If you need assistance with such an endeavor, contact me for a consultation.

 

Drone Privacy Law in Massachusetts

Drone Privacy Law in Massachusetts

Drones have changed a great deal in the last several years.  Once entirely used for military and warfare purposes, consumer drones are mainstream and increasingly being used for commercial and recreational purposes.  The uses of drones are endless: home builders, surveyors, and even lawyers are finding that drones, and the ability to do aerial photography and video, is an incredible tool.

Yours truly is an avid drone user.  The picture below was taken by me with my drone from the Middlesex Fells  in Medford, and shows my office location in Assembly Square, Somerville.

This picture highlights a growing concern with drones: this new technology has an amazing ability to capture photographs and video that could not otherwise be seen before.  Such use of aerial vehicles raises many legitimate concerns over privacy rights.  Here, I want to discuss drone privacy law in Massachusetts and discuss what can be done if you have privacy concerns arising from another person’s use of a drone.

Drone Law in Massachusetts 

Massachusetts, like most states, is still grappling with how to regulate drones. Presently, Massachusetts does not have a statewide law regulating drones.  This isn’t surprising; many states similarly do not regulate drones, although there are many proposed laws in state legislatures across the country.  Here in Massachusetts, some local towns and cities, such as Newton, have passed local ordinances on when and where drones can fly.  It is fair to say, however, that drone law in Massachusetts is very much in its infancy.

Drones and Privacy

An increasing problem with drones are privacy concerns.  It is increasingly common to hear complaints about drones flying too closely to homes and places of business and taking unwanted photos and videos.  With the limited laws on drones in Massachusetts, what can be done if you feel your privacy is being invaded by a drone?

Massachusetts, unlike many states, provides a specific right to privacy for its residents:

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

I’m not aware (yet) of anyone using this law in regards to a drone, but I suspect that Massachusetts’s Right of Privacy Act could be effective in dealing with the unreasonable use of a drone.  This law, importantly, provides a court with equitable powers, allowing a court to issue an injunction, restraining order, or other declaration preventing someone from invading another’s privacy with a drone.

Once again, drone law in Massachusetts is new and it will be up to the courts to decide whether Massachusetts’s Right of Privacy Act and other existing laws cover drones.  If you find yourself in need of assistance with one of these matters, contact me for a consultation.