Safety Issue Can Be “Hardship” Justifying A Zoning Variance

by Pierce Atwood LLP
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The Massachusetts standard for granting a zoning variance is notoriously difficult to meet.  In a nutshell it requires proof that: (1) due to circumstances concerning soil conditions, the shape of the lot, or the topography of the land; which (2) especially affect the land but not the zoning district generally; (3) literal enforcement of the zoning ordinance would cause a substantial hardship (financial or otherwise); and (4) relief can be granted without substantial detriment to the public good; (5) without nullifying or substantially derogating from the intent or purpose of the ordinance.  See M.G.L. c. 40A, § 10.  Each requirement must be met and the courts tell us variances should be “sparingly granted.”  As a result, while zoning boards issue variances with some frequency, the percentage of those variances that meet the standard and would survive judicial scrutiny is relatively small.  A new, easier-to-meet variance standard is a perennial feature of the zoning reform bills that are introduced each year in the Legislature and, so far, have failed to pass.

With this backdrop, the Appeals Court’s recent decision in Furlong v. Zoning Board of Appeals of Salem is interesting, both because it involves a legitimate variance and because it confirms that, in the right circumstances, a safety issue can be a “substantial hardship” under the variance standard.  The land at issue in Furlong borders Salem Harbor and is used as a marina.  The marina applied for a variance allowing it to construct a new building on the edge of the lot closest to the water – within the required zoning setback – for its boat repair operation.  The marina claimed that it needed to locate this building within the setback to provide sufficient room to safely operate a large piece of equipment called a “travelift,” which lifts boats out of the water and carries them to where they will be repaired.  The Salem Zoning Board of Appeals granted the variance, an abutter appealed, and on appeal the Land Court affirmed.

On further appeal, the Appeals Court affirmed the Land Court’s “comprehensive and thoughtful” decision.  As to the first two prongs of the standard, the Appeals Court agreed that the lot has a “peculiar shape” with “at least twenty-five sides.”  As to the last two prongs, the court accepted the Land Court’s finding that the new building would not be a detriment to the public good or derogate from the intent or purpose of the zoning ordinance.  The main issue on appeal was the third prong:  whether the safety concerns underlying placement of the building in the zoning setback could constitute “substantial hardship.”  The Appeals Court noted that this question has not been “extensively analyzed” and that only one case, Josephs v. Brookline Board of Appeals, has ever held that a safety issue can give rise to variance-worthy hardship.

Comparing Josephs to the case before it, the Appeals Court was satisfied that if the marina adjusted its plans to meet the requirements of the Salem zoning ordinance, “a significant risk of harm for the people and property” would result.  On this basis, the court agreed with and adopted the Land Court’s conclusion that “[w]here a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance, such a hardship may merit a variance.”  Citing what it called the “unique circumstances in this case” and the “degree of danger that would result” from compliance with the ordinance, the Appeals Court affirmed the Land Court’s decision upholding the variance.

In the wake of Furlong, look for safety issues – real or imagined – to start cropping up more frequently as stated grounds for the issuance of variances.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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