By Timothy C. Twardowski and E. Christopher Kehoe
Let's say you want to put an addition on your house and the local zoning bylaw requires your lot to have at least 10 feet between any structure and your side property line.
Unfortunately, that granite ledge in your back yard makes it impossible to build the addition without encroaching into the setback area. Just when you think all hope is lost, your architect suggests that you might have a good case for a "variance."
What's a variance? It's more or less a way around the local bylaw.
Massachusetts has a three-part test for variance applications. You have to meet each of the three requirements in order to prevail, and it won't necessarily be easy. Judges have described the variance as a "disfavored form of relief" that should be granted "sparingly."
That said, here's what you will have to show:
Unique conditions: You have to prove that the lot is affected by unique conditions. If your lot is irregularly shaped or has a lot of slopes, that may work. If you have a copy of the plot plan or photographs, that will suffice for evidence. But your lot really does have to be unusual. If every other property in the neighborhood has a slope, for example, yours is not unique.
Substantial hardship: If your conditions make it extremely difficult — or impossible — to build an addition in conformance with the law, you may have satisfied this part of the rule. It doesn't work if hardship is self-created. For example, a hardship cannot be established if a property owner creates the legal problem by subdividing a larger, developable parcel into two lots. Also, financial hardship is not a valid basis for variance relief; the hardship must be based on the unique circumstances directly affecting the property.
The public good: Consider this requirement met if your addition would be good news for others. If you are able to build something on your property that brings it in harmony with other yards in the neighborhood, the variance can be granted without substantial detriment to the public good.
There is never a guarantee that a requested variance will be approved. And this introduction is not a comprehensive examination of the variance law. To increase your chances of success, you should consult with an attorney whose practice includes zoning issues.
The writers are lawyers with the Boston office of Robinson & Cole. They can be contacted at ttwardowski@rc.com and ckehoe@rc.com.
May 1, 2007
