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
Pierce Atwood’s real estate practice spans all aspects of real estate and land use law. Our clients are owners, buyers, sellers and developers of commercial and residential real estate around New England and across the country. This blog focuses on the legal landscape of Massachusetts – the court decisions, legislation, regulatory changes and policy debates that affect the use and development of land in the Bay State. We hope you’ll find our posts useful and come back often.