October 10, 2014
How to Oppose a Variance
by Michael W. Wiggins
You have just received notice that your next door neighbor has applied to the local zoning board for a variance to allow her to demolish that cute toy Victorian house and put up an enormous McMansion that will grossly exceed what the law would otherwise allow her to build by right. How can you stop it?
Under Massachusetts law, loosely summarized, local zoning boards do not have authority to grant variances unless they first find that there is some peculiar condition of the land or structure, not typical in the local zoning district, that will create a hardship for the owner if some limited relief is not granted. A few examples of what would might constitute the requisite hardship include an irregularly shaped lot that makes it difficult to build a house without invading one or more of the setbacks from the front, side or rear lot lines; a steep slope on part of the lot or a ledge underneath a part of the lot that makes it impractical to build in that area; or an unusual feature of the existing building, such as a poorly constructed foundation or frame that would make it far more expensive to modernize the existing building than to replace it with another structure. The individual circumstances of the owners cannot form the basis of the hardship. Thus, the small size of the lot can never excuse overbuilding it just so that the owner can acquire as much living space as the Joneses who happen to own a larger lot. Nor can the number of people in the growing family that lives in the house support an expansion of the floor area beyond what the law allows.
Armed with this knowledge, you should go down to the zoning board office, examine the application and the plans that have been filed to determine what relief the owner is asking for, and find out when the hearing is scheduled. You should then talk with your other immediate neighbors about the project, and as many of you as are adversely affected by the plans should go to the hearing and explain to the board how the proposed building would interfere with your use and enjoyment of your respective homes. If the owner doesn’t present compelling evidence of a hardship arising from the peculiar conditions of the land or structure, you should urge the board to deny the variance.
What if the board ignores the law and grants the variance? You will have only 20 days after the board’s written decision is filed with the town clerk to file a complaint in court to have the zoning board’s decision reversed. In court, before you can persuade the judge that there is no requisite hardship that would justify the grant of a variance, you must first convince the court that you have “standing” to be there. Having standing means proving that the project would have a significant adverse impact upon your use and enjoyment of your own property that is different in kind or intensity from the general impact it would have on other lots in the district. For example, if the new house will be located only a few inches from the property line, directly facing your largest living room window, there’s a direct impact on your privacy, light source, and possibly air flow and views, that is different from the general effect of an overbuilt lot on the district. Conversely, if your neighbor only seeks to build a small second floor dormer or two on the side of her house that doesn’t face your lot, you may have a hard time convincing the court that you are peculiarly affected.
Most of the litigation in contested variance cases centers around this threshold issue of standing. Unless you can demonstrate to the court that you have standing, the court can and often will summarily dismiss your complaint without ever examining whether the zoning board’s decision was proper. For a more in depth discussion of how essential the establishment of standing is to the successful prosecution of a variance appeal, see “Variances in the Crowded City: A Reaffirmation of Abutter’s Right in McGee v. Board of Appeal” Massachusetts Bar Institute Section Review Vol. 7 No. 3 (2005) by Michael W. Wiggins, Esq.