| Home Page | Massachusetts General Laws, Chapter 40A |
| Subject: | Case Law Excerpts - Variances |
| Cases: | Sixty Six (66) Excerpts |
| Date: | June 1, 1998 |
| Location: | Town of Billerica, Massachusetts |
Zoning Objectives, Purposes and Roles:
The purpose of a zoning bylaw is to promote the health, safety, convenience, morals, or welfare of the inhabitants of a municipality. [1]
Zoning regulations are intended to have a certain degree of permanency, as evidenced by fact that they are more difficult to amend than most other bylaws and ordinances, compared to a building code which is much more flexible. [2]
The purposes and operation of zoning laws and building codes are somewhat divergent. The main purpose of zoning is to stabilize the use of property and protect an area from deleterious uses. A building code relates to safety and structure of buildings. [2]
One of the objectives of zoning is to protect, so far as possible, property owners in more restricted districts from activities and uses permitted in less restricted areas, but a complete separation of uses is not always feasible or desirable, and zoning statutes permit a certain amount of flexibility. [3]
The primary purpose of zoning is the preservation in the public interest of certain neighborhoods against uses, which are believed to be deleterious to such neighborhoods. [4]
One of the main purposes of zoning is to stabilize the use of property, and the advantages that owners of nonconforming property acquire by enactment of a zoning ordinance, are not to be subsequently augmented unless permitted by such ordinance. [5]
Zoning is Local Legislation:
Zoning is treated as a local matter, and much weight must be accorded to the judgment of the local legislative bodies [e.g. city council, town meeting], since it is familiar with Local conditions. [6]
The town has a wide latitude in differentiating between uses where purely zoning considerations are involved. [7]
Reasonable interim zoning provisions may be enacted, within scope of general zoning enabling act, without reliance on specific statutory authorization for such interim ordinances. [8]
There was no requirement in former Massachusetts General Laws, Chapter 40A for comprehensive plan as condition of precedent to the enactment of a zoning by-law. [9]
A town, in its zoning by-law, may regulate or forbid changes in nonconforming uses. [10]
Appeal Procedures:
The landowners could not maintain an action against a building inspector to compel the enforcement of a zoning by-law where the landowners did not make a written request of such inspector to enforce the zoning by-law; there was no indication that the inspector had refused to take an enforcement action. [11]
No action lies against a building inspector to compel the enforcement of the zoning by-laws until the question has been determined at the local administrative level [e.g. board of appeal, zoning administrator]. [12]
Within a zoning context, the principle of exhaustation requires that a person aggrieved by an action of a local zoning administrator must first attempt to redress a grievance through the local board of appeals before seeking a judicial review. [13]
A trial court's findings that a landowner was experienced in real estate transactions and familiar with the reading survey plans were relevant to an analysis whether the property was encumbered with a hardship within meaning of this section authorizing a variance and whether the landowners were entitled to a variance from the town ordinance, which required a minimum width of 125 feet at the location of dwelling. [14]
On an appeal from the grant of a variance from the setback requirements of the town's zoning bylaws, neither the trial court's findings as to inhibiting the effect of the requirement on the most appropriate use of the land, nor such additional findings as might properly be supplied from the evidence, were sufficient to sustain the burden of a landowner and the board of appeals, which granted variance, to produce evidence that "substantial hardship" within meaning of Massachusetts General Laws, Chapter 15 of former Chapter 40A arose from conditions especially affecting the landowner's property but not affecting generally the zoning district. [15]
In a zoning litigation, the statutory phrase "person aggrieved" has meant someone who can assert a plausible claim of a private right, a private property interest, or a private legal interest, as opposed to a general public concern about zoning question. [16]
The uses permitted by a variance cannot be a prior nonconforming use because, by definition, a variance was required and it therefore was not allowed as matter of right. [10]
There was no adequate basis for the grant of a variance to construct a forty-five (45) unit apartment complex on a parcel of land zoned to permit no more than three-family residences where, among other things, there was no finding of conditions especially affecting such parcel but not affecting generally the zoning district in which it was located, such that, there was a substantial hardship, financial or otherwise, to applicant. [17]
Creation of Building Lots:
The owners of four separate but contiguous lots could not combine lots so as to create multiple lots, each of which were not sufficiently large to meet current zoning requirements, even though each of created lots would meet minimum size for "grandfather" status, though it was open to them to combine all four lots so as to produce one nonconforming grandfathered lot; their attempt to create two undersized lots ran contrary to principle that landowners may not create dimensional nonconformity if use of adjoining land they own can avoid or diminish nonconformity. [18]
The division of a single lot with a frontage of two hundred and fifty (250) feet into two lots which did not conform with the zoning by-law establishing the minimum frontage requirement at one hundred and sixty (160) feet, did not create a substantial hardship especially affecting the vacant lot which would justify zoning variance under Massachusetts General Laws, Section 15 of the former Chapter 40A, even though the vacant lot could not be built upon without the variance, in view of fact that the vacant lot could have remained part of a conforming lot. [19]
A board of appeals had no authority to grant a variance to build a house on lot with the area too small to qualify as a buildable lot under the zoning ordinance, and too small to qualify for protection as a house lot under this section's "grandfather" provisions, despite a finding of a hardship in regard to the topography of the land, which sloped approximately 12 feet; the slope did not prevent the erection of a house, but rather, the hardship arose solely from the fact that the lot was too small to qualify as a buildable lot under the zoning ordinance or to achieve an exemption under grandfather clauses applicable to lots created before zoning. [20]
There was substantial evidence supporting a trial court's finding that there was no substantial hardship especially affecting premises, on which two existing four-apartment buildings were constructed, which would permit a variance from the minimum area standards so that the owners might construct a single apartment building containing not more than thirty one (31) apartments. [21]
Substantial Detriment:
The conclusion that a portion of a statute providing that, "Pre-existing, nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood" must be read as "shall not be substantially more detrimental than the existing, nonconforming structure or use to the neighborhood," in order to render statute intelligible and to effectuate its obvious purpose. [22]
Shape and Soil Conditions:
The fact that a lot has a special shape because of its location on a cul-de-sac cannot support the granting of variance from the required area and frontage requirements. [23]
Where the soil on an owner's lot was similar to the soil on nearby lots on which apartment houses were built, the fact that the nature of the soil would make the erection of apartment house on owner's lot unduly expensive was not a justification for a board of appeal's decision to grant an owner a variance in zoning law permitting him to erect a business building in a residential zone. [24]
Adversely Affected:
Even though a residential property, immediately adjacent to district zoned for commercial use, was likely to be less valuable for residential purposes than similar property which was not contiguous to business area, regard must also have been given to the property of others in a neighborhood which would have been adversely affected by the granting of variance. [25]
Condition Must Especially Affecting Land:
For purposes of a grant or a denial of variance, a condition need not have affected all of the property in a zoning district to be regarded as a condition generally affecting the district as a whole. [15]
Even if there was a causal relationship between the fact that a locus for which a variance was sought was contiguous to a business zone, which had become highly commercialized, and the fact that the cost of a residential development of property was prohibitive, such contiguity could not be considered as a "condition" especially affecting land, within meaning of Massachusetts General Laws, Section 15 of the former Chapter 40A. [26]
The fact that the original applicant for a zoning variance constructed a foundation for a house on a certain property, in contravention of the applicable zoning ordinance, did not constitute a condition "especially affecting such parcel" but not affecting generally the zoning district in which it was located, for the purpose of the statutory prerequisites of a zoning variance. [19]
The existence of a zoning violation was not a condition "especially affecting such parcel or such building but not affecting generally the zoning district in which it is located" so as to permit the granting of a variance for further violative construction. [27]
The fact that a property owner constructed a building on a lot in contravention of the applicable zoning ordinance did not constitute a condition "especially affecting such parcel" within contemplation of Massachusetts General Laws, Section 15 of the former Chapter 40A. [28]
A "substantial hardship", required by Massachusetts General Laws, Section 15 of the former Chapter 40A before a zoning variance will be granted, must have been related to a specific lot in which the variance was being sought and not to some other lot or other person seeking variance. [29]
A variance permitting the construction of a nine-store shopping center in a residence district, where garden apartments had been constructed by the permittee, could not have been sustained in the absence of finding of conditions especially affecting the land, which would have involved substantial hardship, financial or otherwise, to the permitter but which would not have affected generally the zoning district in which the land was located. [30]
The Amendment of Section 15 of the former Chapter 40A in 1958, causing it to read that a variance may have been granted for "substantial hardship, financial or otherwise" in no way lessened the requirement that the hardship must have been due to conditions especially affecting parcel for which the variance was sought, but not generally the zoning district. [31]
Where the owner of a hardware business had operated such a store about five hundred and fifty (550) feet away from the lots in a residential zone, and because of expanding business, and because his landlord would not give him a new lease, the owner bought lots to obtain a location near his store so as to benefit from the good will he had acquired, the hardship to the owner in not being able to use the premises for a hardware store as he intended was not a hardship growing out of conditions especially affecting the parcel of land, but not affecting generally the zoning district, and such a hardship did not authorize the granting a variance from the zoning ordinance to permit the operation of a store on the lots. [32]
The evidence, that an existing lot had a "pork chop" shape, that the size of the lot exceeded that of most surrounding lots by a significant amount, that the existing topography would accommodate a driveway from public way to the main portion of the lot, that the lot could be sold only if a variance were granted, and that the lot would be unbuildable without a variance, was sufficient to support findings by a town zoning board of appeals that the lot had significant special characteristics beyond the lack of conformity with the zoning requirements and that the owners would suffer substantial hardship if a variance from the frontage and width requirements were not granted. [33]
In a suit challenging the action of a city board of appeals, granting developers the various permits and variances in connection with the construction of an apartment building, the evidence sustained a finding that the soil conditions affecting the locus in question did not affect generally the zoning district in which the locus was situated and that the peculiarities of the locus were the cause of a financial hardship to the developers resulting from the zoning requirements that there be a "buffer zone" between multiple-dwelling buildings and single-family houses in a district zoned for multifamily residences. [34]
A hardship caused a landowner, by the taking of a former site, was irrelevant in determining whether such a landowner was entitled to a zoning variance permitting him to build an automobile service station in a general residence district. [31]
The fact that the house line was not in conformity with the zoning bylaw pertaining to the depth of a side yard, that the proposed porch would be in line with an existing house line, that the porch was for use of an invalid child, and that there was high shrubbery running along a lot line was insufficient to show a hardship to permit the granting of a variance for the construction of a porch. [27]
The mere shortage of housing units for large families did not constitute such a hardship, financial or otherwise, as to justify a variance to construct a forty-five (45) unit low-income apartment complex on parcel zoned to permit no more than three-family residences. [17]
The "Hardship" in provision of zoning bylaw as ground for variance did not refer to personal infirmity. [27]
Where a nursing home failed to establish that its building, without a substantial external change, allegedly requiring a zoning variance, could not be used for a twenty-two (22) bed nursing home, even if the state requirements were put into effect, a zoning restriction which prohibited structural changes in the nursing home that would make it look more like an institution and less like a dwelling caused no hardship affecting the nursing home's lot, as distinguished from its existing nonconforming use, in a manner which was not applicable generally throughout the zoning district. [44]
Use Variances:
Where an owner's property was in an area zoned as residential, the fact that it was partly bounded on one side by an area zoned for business property did not justify a decision of board of appeal granting the owner a variance whereby he was permitted to erect a business building. [24]
The fact that business had been conducted in a residentially zoned district in violation of the zoning ordinance, without permission from the proper authority, did not give an wner any preferred standing to obtain a variance to permit the operation of a business. [36]
Where the lot on which the defendant wished to construct a motor inn, which was located in an area zoned for single family residential use, thus could be used for residential purposes, there was no substantial hardship, financial or otherwise, to justify the granting of a variance to permit construction of a motor inn, and the variance should not have been upheld. [37]
Substantial Hardship:
The fact that something may be desirable does not rise to the dignity of a "hardship" for purposes of justifying a zoning variance. [38]
The fact that a governmental regulation may deprive an owner of the most beneficial use of his property does not create a hardship if a single-family residence, conforming to the requirements of the regulation, can be constructed on the property. [39]
For the purpose of determining whether the grant of a variance is authorized, the substantial hardship is usually present when landowner cannot reasonably make use of his property for purposes, or in the manner, allowed by zoning ordinance. [39]
For purpose of determining whether a town's zoning setback requirements gave rise to a substantial hardship especially affecting the landowner's property but not generally affecting the zoning district, the fact that railroad tracks ended on landowner's property was not in itself sufficient to support the inference that a setback requirement worked greater hardship on the landowner than on others owning property along the path of the railroad in the relevant zoning district. [15]
The evidence that a new hospital for which a variance was sought would face major highway, with ten other nonconforming uses fronting it, and some old hospital structures to be demolished were at the rear of the locus adjacent to a main residence area in a single-family district, and that the location of a new hospital would have a tendency of shifting the existing traffic pattern away from the main residence area, and that the demolition of old buildings would eliminate several outdoor parking areas and the improve appearance of entire locus, was sufficient to sustain findings that the erection of a hospital on the locus would not have constituted a substantial detriment to the public good and that the granting of a variance would have had no adverse or deleterious effect on property values. [40]
Substantial Hardship [Cannot Be Profit/Loss or Personal/Business Finances]:
A "hardship", which must affect the locus peculiarly for the grant of a lawful variance in the locus, may not be merely be a personal hardship to the owner; financial or pecuniary hardship to the owner alone will not establish a substantial hardship, nor is there a hardship merely because a potential profit may be lost or because the need exists for the proposed use; preliminary construction, expense incurred, or the existence of nearby nonconforming uses do not constitute a hardship. [41]
There was no substantial hardship which would have permitted a variance merely because there may have been an expense involved in continuing an existing use or because higher profits may have resulted from a nonconforming use. [21]
The fact that an owner of land might personally have suffered a financial hardship because he erroneously assumed that a parcel of land was zoned for business purposes, and therefore paid $7,000 for it, and received no offer higher than $2,500 for the land, did not justify the granting of a zoning variance to permit the construction of an apartment building on the grounds that there were "conditions especially affecting" land "but not affecting generally" other land in a zoning district as required by Massachusetts General Laws, Section 15 of former Chapter 40A.
[42]
The
The fact that a nursing home would not be able to continue economically unless it was enlarged to a thirty-four (34) bed rather than a twenty-two (22) bed nursing home did not create hardship of a type to justify a zoning variance.
[44]
The
The frontage on two streets, which was unique to a lot for which an owner was seeking a variance as to number of square feet necessary for two-family house, was an asset, not a hardship sufficient to support the granting of variance.
[46]
The
The landowners were not entitled to a variance to permit the erection of a supermarket building on a parcel part of which was zoned for business purposes, and part of which was zoned for residence purposes, on the grounds of a hardship because the parcel was less valuable, because all of it could not be used for a business purpose, and no major use for part of it was presently economically practical.
[35]
The
The health of a lot's owner, his financial situation, and any other considerations unrelated to the underlying real estate, were irrelevant to a town's zoning board of appeal inquiry into the question of a substantial hardship for the purposes of granting a variance from the frontage and width requirements. [33]
A variance may have been granted where a substantial hardship to an applicant would have been involved, but the substantial hardship could not have been personal; it must have been one especially affecting such parcel. [48]
Neither the expense of razing an inn located on the property on which the defendant wished to construct a motor inn, nor the loss of a possible sale in the locus for a business use, established a hardship required to permit the granting of a variance for the construction of buildings for a motor inn on the locus located in an area zoned for single family residential use. [37]
The expense of razing nonconforming buildings and the loss of an opportunity to the sell property for business use was not a substantial hardship, financial or otherwise, which would justify a zoning variance. [49]
The difficulty of operating a service station on a lot in a local business district without the use of adjoining lot, which was almost entirely in a general residence district, as a means of access and for other necessary operations of a service station was not a "substantial hardship" required by Massachusetts General Laws, Section 15 of the former Chapter 40A before a zoning variance will be granted. [25]
The tustees of a realty trust, who owned a brick building leased to a corporation as a garage where automobiles were sold, serviced, and repaired, and who acquired title to a realty adjacent to the building, were not entitled to a variance so as to permit the realty to be used for the parking of an automobile by the corporation's customers and employees, on the grounds of a hardship. [50]
The fact that a person who had a permit to remove gravel from a parcel of land prior to a zoning change, prohibiting the removal of gravel from the area would, if not permitted to complete the work contemplated under a variance, be unable to comply with the previously imposed restoration requirements, showed only a personal financial hardship to the individual but did not show a substantial hardship resulting from conditions specially affecting the land but not affecting generally the zoning district in which it was located, and thus did not support a grant of a conditional variance to permit the continued removal of gravel. [51]
The fact that an owners' profits from two four-apartment buildings were declining did not constitute a hardship, which would permit the grant of a variance from the minimum area requirements so as to permit construction of a single building containing not more than thirty-one (31) apartments. [21]
The fact that it would be economically impracticable to use a parcel of land for residential purposes, a lot which was almost entirely in a general residence district, because the lot was contiguous to a gasoline station in a local business district was not a "substantial hardship", required by Massachusetts General Laws, Chapter 15 of the former Chapter 40A, before a variance would be granted to permit a lot to be used as a means of access and for other necessary operations of station.
[25]
The
The chief purpose of a zoning statute related to the public welfare, and an owner's financial situation or pecuniary hardship was not alone sufficient to justify a variation of the zoning ordinance. [53]
A decision of a town's board of appeals, granting a variance to landowners from two hundred (200) foot frontage requirement of a rural residential zone, was properly reversed where the trial judge found no condition specially affecting land in question and that any hardship was purely financial and was of the landowners' own making. [54]
In a proceeding for a variance from the zoning regulations, evidence failed to establish anything more than a financial hardship, which was not sufficient to constitute "substantial hardship," required for variance. [55]
The hardship to a nursing home because of a zoning restriction on the expansion of the nursing home, in an area zoned for single-family residences was personal to the nursing home and its use of the land, and was not a hardship especially affecting no single home's parcel of land. [44]
Substantial Hardship [Cannot Be Self-Created]:
The owner of a lot in a residential development did not establish that the shape of the land was a cause of any hardship warranting a variance; a hardship to the owner was solely due to owner's failure to construct a house on an undersized lot before the statutory protections against zoning changes ran out. [23]
The insufficient width of a one hundred (100) feet by two hundred (200) feet lot, to permit construction of a dwelling in compliance with the town ordinance that required a minimum width of one hundred and twenty five (125) feet at the location of a dwelling, did not constitute a special circumstance of "shape" within meaning of this section authorizing a variance; the landowners created the one hundred (100) foot width by conveying the adjacent property. [14]
In an action by a landowner for a zoning variance to permit the construction of a building on the last lot remaining in a subdivision without a dwelling thereon, the claim that a property owner's hardship was self-created was not borne out by the record. [56]
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