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.
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.