Like most states, zoning decisions in Massachusetts are primarily made at the local level, through municipal boards. One of the most common types of zoning decisions are requests for variances. While a municipal board (commonly called the zoning board of appeals in most towns and cities) makes the decision on whether to grant a variance, such a decision can be appealed.
What is a Variance?
A variance is an exemption from a zoning requirement. Zoning ordinances regulate how a land owner may use their property, which typically includes regulations on the allowed uses and activities.
A property owner has a right to seek an exemption from a zoning requirement by applying through a variance. A variance requires the following:
[T]hat 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, 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.
In short, a variance requires that the property have something unique about it, and due to this condition, the property owner will suffer hardship if forced to comply with the zoning ordinance.
Appealing a Variance
The decision to grant a variance is generally made by the local zoning board of appeals (“ZBA”). Such decisions are done at open public meetings, with members of the community permitted to speak in favor or in opposition of the request. After a decision is made, the ZBA issues a written decision stating its reasons for approval or denial.
A party aggrieved by a variance decision has a right to appeal. Such an appeal is made to either Superior Court or, most commonly, to Land Court. In such an appeal, the court hears all evidence about the variance and issues a decision upholding or denying the variance.
What’s the most important thing to know about appealing a variance? Act quickly. There is a short deadline for filing such an appeal, and a detailed process for doing so. Failure to comply with these requirements can be grounds for immediate dismissal of an appeal.
Not anyone can appeal a variance. Only a person “aggrieved” by such a decision may do so. The issue of whether a person can bring such a claim (known legally as whether the party has standing) needs to be determined carefully. Simply not agreeing with a zoning decision, on its own, is not enough to bring an appeal.
Appealing a variance requires a thorough knowledge of the applicable law and underlining property. For this reason, one should strongly consider hiring an experienced lawyer for such a matter.
If you need help with a variance, contact me for a consultation.