Have you read the legal justifications to obtain a variance? The grant of a variance in Massachusetts is nearly indefensible! Whenever I see a savvy board or a potentially problematic abutter, I suggest to my clients that they look to Chapter 40A, Section 6, whenever possible. A “finding” under this section only requires a Special Permit, and therefore has a much lower threshold for approval.
Of course, you cannot seek a “finding” for just any situation. In this instance, an existing nonconforming condition is a requirement. Specifically, I’m referring to Chapter 40A, Section 6 of the Massachusetts General Laws (M.G.L.). This section of the M.G.L. allows for the permit granting authority to issue a “finding” stating that the proposed change, extension, or alteration shall not be, “substantially more detrimental than the existing nonconforming use” to the neighborhood. Most local bylaws mimic the language in the General Laws.
Recently, I was approached by a new client who was attempting to add parking (by construction of a larger parking area) to its existing nonconforming use. The use had been in place since before zoning, and unfortunately before everyone began driving everywhere, so the parking offered was woefully deficient. What was interesting is that their previous attorney had obtained a standard VARIANCE, which was summarily appealed by an abutter.
In this day and age, with increasingly savvy boards and aggressive abutters, I always recommend to my clients that they seek the least amount of permitting to complete the task at hand. In this case, the client listened and ultimately agreed with my assessment. So, a few weeks later, we returned to the board with a slightly different plan, this time seeking a Special Permit under a local section of the bylaw and its M.G.L. counterpart, Chapter 40A, Section 6.
Whenever requesting a Variance, the applicant often has to answer questions dealing with nearly impossible and often utterly inapplicable thresholds such as: “owing to circumstances relating to the soil conditions, shape, or topography of such land or structures”, issues, “especially affecting such land or structures but not affecting generally the zoning district in which it is located”; “substantial hardship, financial or otherwise…”… “without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law”. Needless to say, the standards are high and this language often causes unnecessary confusion and ultimate denial of the permit request. And, if approved and appealed, the permits can be overturned because these high standards are exactly that—high.
On the other hand, the request for the Section 6 “finding”, a Special Permit, merely requires a showing that the proposal is not substantially more detrimental. In the latest example, once my client was again approved, and later appealed, it made our defense much more tenable and my client was ultimately successful. Yet again, less was more—more practical, efficient, and profitable!