This will be a three part blog series on the requirements for obtaining a variance in Massachusetts. This first post concerns the first (and often most consequential) variance criterion: a showing that the property has unique conditions.
Overview of Variances
Massachusetts towns and cities regulate the use of property through zoning ordinances, which generally include restrictions on the type of activities permitted on properties, including height, width, and other building dimensions. A property owner is permitted to apply for an exemption from one of these requirements, known as a variance.
A zoning variance is not granted automatically. Such a request must be decided by a local zoning board, which must find that the applicant complies with all of the requirements for a variance. Failure to meet any of these criteria will result in a denial.
Requirement #1 for a Variance: Unique Conditions
The first requirement for a variance is a showing that the property has unique conditions. Specifically, it must be shown that there are “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 . . .”
As I will discuss in my next blog post, a variance requires that the unique condition of the property result in some form of hardship. A property, for example, that is oddly shaped may qualify for a variance of a setback requirement if such a requirement makes it impossible to reasonably use of the property.
What’s The Purpose of This Zoning Requirement?
It is helpful to understand the purpose of this requirement in order to understand its relevance for a zoning variance.
If a property is like every other property in its zoning district, the town or city would have considered this when they passed its zoning ordinance. For example, if every property in a zoning district has a narrow width, it is reasonable to think that the town and city took this into account when determining its zoning regulations. It would be unfair to allow an exemption of one of these requirements if such property was no different than every other one in its location.
The picture I used for this blog post is, obviously, not from Massachusetts. It’s from the Cliffs of Kerry, one of the most breathtaking locations in Ireland (much better than the more commonly visited Cliffs of Moher). I include it to make this point: a location like the Cliffs of Kerry is particularly unique, and an example of the kind of property that qualifies for a variance: different than the surrounding property in its location.
It isn’t necessary, of course, to have land like the cliffs above to get a variance. It is critical, however, to show something unique about the property. Failure to satisfy this requirement is one of the most common grounds for denying a variance.
It is a common misconception that mere hardship, on its own, will allow for a variance. This is incorrect: one must atisfy this first requirement in addition to a showing of hardship from the applicable zoning ordinance.
If you need assistance with a zoning matter, contact me for a consultation.