Requirement #3 for a Massachusetts Variance: Substantial Detriment

This is a three part blog series on the requirements for obtaining a variance under Massachusetts zoning law.  The first post concerned the first variance criterion: a showing that the property has unique conditions. The second post discussed the requirement of hardship. This final post discusses the final requirement: that the variance will not substantially harm public good or substantially derogate from the bylaw’s purpose.

Overview

Obtaining a Massachusetts variance requires a showing of three distinct requirements; all of which a petitioner must satisfy:

[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.

G.L. c. 40A, § 10

This third requirement requires consideration of how the requested variance fits in with the local community and zoning ordinances. Even if a petitioner meets the first two variance requirements, the permit granting authority has discretion to deny a variance under this third criterion.

Practical Implications for a Massachusetts Variance

Compared to the first two variance requirements, there are not as many court decisions interpreting this criterion. Generally, if a petitioner can make a good case for the first two requirements, they can generally meet this final criterion.

Nonetheless, a party seeking a Massachusetts variance should not ignore this last requirement. Rather, they should make a case that their variance is keeping with the purpose of the zoning ordinances, and will not cause harm to anyone else. Obtaining the written support of those who are living in the vicinity of the property can often be helpful in making such an argument.

Conclusion

If you need assistance with a zoning matter, contact me for a consultation.