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Intro to Variances II: Finding of Substantial Hardship

As discussed in an earlier post (Intro to Variances I), there are a few necessary findings before a zoning board can grant a variance. Last time we talked about soil conditions, shape or topography that support the need for a variance. This post explores the necessity of a "substantial hardship" that will result if literal enforcement of the zoning code is required.

Specifically, the "substantial hardship" provision is found in M.G.L. c. 40A, § 10:

The permit granting authority shall have the power . . . to grant . . . a variance . . . where [it] specifically finds that 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. (emphasis added)

So what kind of "substantial hardship" satisfies this test? Below we look at some very recent Land Court decisions that dealt with this issue. What becomes apparent is that sometimes it is easier to identify what is not a "substantial hardship" than what is.

It is well-settled that the "substantial hardship" must be related to the land itself-specifically, the soil conditions, shape or topography issues that also support the need for a variance-and is not merely personal to the landowner. See, e.g., Lydon v. Town of Milton Bd. of Appeals, 2012 WL 1572128 *1, *14 (Mass. Land Ct. May 3, 2012).

Although financial hardship is an appropriate consideration in this context, the board should not and cannot consider the personal financial situation of the landowner-applicant. In other words, it is irrelevant whether the current owner cannot afford to use or develop the land unless he has the variance-the soil, shape and topography conditions of the land must be such that they would affect any owner financially.

Incidentally, the Lydon court also points out that a potential decrease in land value or increased building costs that may result without the requested variance do not qualify as a hardship that justifies a variance, much less that land in a residential zone might be easier (i.e. cheaper) to adapt to a commercial use than a residential use. Id.

A landowner's desire to maximize his profits from his land also does not qualify as a "substantial hardship". See Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139 (2002) (citations omitted). In Hoffman v. Cambridge Zoning Bd. of Appeals, 2012 WL 2014271 *1, *20 (Mass. Land Ct. June 5, 2012), the court articulated this concept as follows:

And while the statute [M.G.L. c. 40A, § 10] does include financial hardship among those which will support the grant of a variance, the cases are clear that this does not mean that every inability to maximize the possible economic gain theoretically available to be extracted from a lot constitutes a valid hardship . . . "[The SJC did not] construe the use of the words 'financial or otherwise' in the statute to mean that a deprivation of potential advantage constitutes a 'substantial hardship'" (quoting Bruzzese v. Bd. of Appeals of Hingham, 343 Mass. 421, 424 (1962).

Additionally, the courts do not construe § 10 to allow for hardships of the landowner's own making, innocent or otherwise. See Hoffman at *21 (holding that even if the hardship was created by the applicant under the guise of other prior but invalid permits issued by the municipality, it is not sufficient to meet the standard required in § 10).

Even special personal situations-such as the landowner's health or a sympathetic basis for the variance request in the first instance-will likely not rise to the level of substantial hardship necessary because they have nothing to do with the soil, shape or topography of the underlying land itself and/or because the land can still be used in ways that do not require a variance. Sodano v. Marks, 2012 WL 1345314 *1 (Mass. Land Ct. April 17, 2012), highlights this all-too common scenario.

In Sodano, the landowner-applicant sought a variance to raise the roof to a third story on one half of the house so that it would be even with the previously raised roof on the other side of the house. Because the town zoning bylaw only allowed 2 ½ stories, a variance was need to create the remainder of the "third" floor. The landowner, who occupied the top floor of the structure, sought to expand his living quarters so that he could more easily care for his elderly mother who lived downstairs on the first two floors. Unfortunately for the landowner, the court, although sympathetic to the situation, did not find this to be a "substantial hardship" that justified a variance:

[The applicant] argues that the sloping topography of his lot creates the "hardship of limited use of the land." But he is using that land now as a two-family residence (the same use he intends if the variance is granted), and at most is prevented from expanding its usable square footage. The additional space may well make the house more comfortable, but this is not sufficient to justify a variance. . . . I have great sympathy for Mr. Sodano's desire to expand his unit to make it easier for him to care for his elderly mother downstairs, but "the grant of a variance [must] be based only upon circumstances which directly affect the real estate and not upon circumstances which cause personal hardship to the owner. The criteria in the act relate to the land, not to the applicant." [citation omitted] "The special circumstances justifying the grant of a variance must relate to the soil conditions, shape or topography of such land or structures." [citation omitted] Here, they do not.

Sodano at * 5.

These cases seemingly do not give much hope to the variance applicant, particularly given the stringent test that must be satisfied before a variance can be approved (not to mention the fact that no one has a legal right to a variance even when that standard has been met). But it's important to remember that this is just a small sampling of the many variance cases already adjudicated, many of which have supported the grant of a variance (or annulled the denial of one). This is because every parcel of land is unique and thus there is usually an opportunity to make distinctions. So long as the hardship that will be suffered by the applicant without the variance is substantial and relates directly to the soil, shape or topography of the land, the uphill battle to a variance will not be as steep.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

1 Comment

I fully agree with your writings and find it refreshing to have you cite some recent cases. As a ZBA member for many years, I will use your presentation to re-assert the requirements for the issue of a variance. This is somewhat of a periodic challenge.

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