Zoning in on a plan - yesterday contiued

Okay, I mentioned in the last post that there were several articles of interest,. at least to me, in the Fairhaven Neighborhood News. Let's get to the ZBA article. The part of the article I am talking about is the denial of a request for a variance to essentially subdivide property.

Now the intent of this article is solely related to the concept of zoning.  It has nothing to do with the party involved, nor the location of the land nor the actual specifics of the petition.  I want to be clear on that. I also want to be clear on the fact that comments about past specific decisions by the ZBA will be monitored very closely.

Moving on ...

Some of you may disagree with me on this, but when it comes to requests for zoning variances, my fundamental belief is such matters should be under the purview and jurisdiction of the planning board.

Why you may ask? Especially taking into account recent posts involving the planning  board.

Easy answer, for me anyway. 

Zoning is part of a plan, the development of which is charged to the planning board to not only develop, but also to review, alter, amend, etc. To me it would make sense to leave it up the the board charged with the plan to determine if circumstances exist to actually warrant a variance from that plan, applying the actual legal standards that should be applied. Standards that are very stringent by the way to insure the plan isn't ignored or disregarded simply for matters of convenience, and to insure those who have followed the plan aren't put at a disadvantage, and to further insure that the plan itself is not adversely affected.

This does not do away with the Board of Appeals by the way.  There are a number of other functions under the law that would remain.

But we are essentially dealing with a philosophy on procedure as to the who should do it, so be it on board or another, if the law is properly applied, I am not going to get to troubled about it. Especially since to get to that would involve special legislation or some vary creative by-law enactments or both.  Just a concept that would make sense to me anyway.

You might be scratching your head a bit on this article.  Why write it?  Well it seems too many people have little regard for this particular process, simply believing variances are somehow a "right", and can in fact simply be handed out like candy at Halloween.  There is no legal right to a variance.  Even if you meet the stringent criteria, the board still has a level of discretion; and, if truth be told, if the legal procedure and standards were strictly followed, you would have to cancel that Halloween.

Variances are a unique creature. If you were playing Monopoly the same would be akin to the "Get Out of Jail Free" card.

A request for a variance is a petition to get permission to "not" be bound by applicable by-laws.  It is an application to the government for an edict that the applicant is excused from the legal requirements passed by a 2/3 vote of town meeting. It is a request that one's circumstances are so unique from everyone else that but for a variance, one's land would be essentially useless. 

It is a procedure that the Supreme Judicial Court has stated time and time again is to be utilized extremely sparingly, and only when specific criteria are met. Indeed any party that wishes to challenge the granting of a variance who is willing to expend the time and money necessary to take an appeal to the SJC and who follows the proper procedure and time standards for the appeal has essentially a near guaranty of success.

And there in lies the problem for a party wishing to challenge a granted variance. You have to be willing to do the "full monty" and you have to pay to do it to boot.

Requirements may vary at the initial stages from community to community. You have to have the ability to deal first with all required administrative appeals, then a Superior Court/Land Court case, then a petition to the Court of Appeals and finally the SJC.

Statistically at the administrative level your success rate at challenging a granted variance is probably around 40%.  Local boards are well local boards.  The inclination is to give deference to other local boards. At the Superior Court level, you probably have a 70% chance of getting the variance granted overturned. At the Court of Appeals level your odds increase to probably to 90%.  Take it to the SJC, your odds are less than 100% but probably greater than 99%.

As to appealing the denial of a variance, well you best hope the town you live in doesn't think the issue worth the cost, which in my mind should never be the case on such matters, well maybe there being a rare exception or two.

Yes I do believe enacted zoning is in fact that important.  That is why when you hear of a zoning amendment or new by-law that may affect or concern you it is important to be at those public hearings at a minimum. Make your position known. Once enacted the same are the law of the land (pun intended), and should be given the full force and application as intended.

When you have been denied a variance, appealing a zoning variance denial is not a good use of your money unless either you have tons of it to waste, or you are hoping your town doesn't fight these appeals. A zoning variance denial is considered about as bulletproof as exist under the law. Indeed, I would go so far as to say over 99% bullet proof.

Success is extremely limited, and at the SJC level, as far as having the actual denial being ruled incorrect, nearly non existent.  Where appeals of a denial prevail, it is most often as a result of a finding that the there was no need for a variance in the first place or procedural faults, or complete bungling on the local level. Even in these cases the court includes strong dicta regarding the standards for variances.

The case law in Massachusetts is solidly against granting zoning variances.  The courts have historically upheld the high value placed on the concept of not allowing zoning to be changed by the sympathetic or arbitrary act of a board.

The digest version of the reasoning, it is a statutorily created concept enacted and enforced to insure not only the intent of a planning concept, but the will of the people who have enacted the zoning, i.e. town meeting in our case by a 2/3 vote. A concept that should only be deviated from under extreme circumstances.

Remember a variance is essentially permission to allow a single applicant to be exempt from a standard that all others must follow.  

The courts feel zoning statutes have sufficient safeguards in place to insure its local enactment is proper, fair and reasonable. It is considered the express desire of the Commonwealth's communities' to plan out development and should not be lightly disturbed.

As those involved with it know, there are stringent requirements that must be followed to enact or amend zoning.  Strict time lines, proper notices, advertisements, public hearings, a 2/3 vote from town meeting and an A.G. review are involved. A town's zoning plan should not be arbitrarily disregarded and ignored. Although admittedly the state from time to time seems to have no problem carving out statutory exceptions that do just that.

Nonetheless, you have to remember, zoning is in fact a right granted to communities under state law and the state law is the absolute minimum standard that must be followed, and that standard in and of itself is pretty high.

The only reason the vast majority of variances granted survive is that most of those are never appealed in the first instance, and of those that are most of the appellants usually don't have the money to take the appeal up to the next level in the event of an adverse decision in a lower level appeal.

Quite frankly no one should ever have to go through that exercise and expense for the proper application of what is essentially boiler plate law.

Note the term boiler plate by the way if tempted to utilize this statement for some other issue.

So if you are reading this and have sought and obtained a variance and utilized it, be thankful for kind neighbors, timid neighbors, poor neighbors or just plain cheap neighbors; and, not to mention a sympathetic board. There is nothing unique about sympathetic boards by the way.  The same have and do exist across the Commonwealth since the inception of zoning.

But variance rights weren't created to deal with sympathetic cases.  The loophole created that allows the process to be used that way is the fact someone actually has to appeal the grant and for the reasons discussed above, often do not.

Zoning variances were intended to keep a parcel of land from becoming useless because of zoning requirements.  The variance process was never intended be used to make a return from a parcel the most profitable or even simply more profitable.  As far as financial hardship exceptions, you would be pretty surprised at what is and isn't considered such a hardship, financial or otherwise. Needing the money, doing something to conform would be to expensive, or a personal hardship don't qualify.  The hardship relates to the land, i.e. useless or worthless, not more useful or more valuable.

In fact the granting of a variance should very seldom be allowed at all, i.e. just about never. It is only suppose to be used when no other options exist which would allow the land to be used for a permitted purpose within the zone.  

You often hear the argument "what's the harm". Zoning is suppose to be a safety net. A few holes in a net here or there may not seem significant in a very wide net.  Yet if you don't tend to that net constantly, attempting to keep it whole rather than letting it get holey, eventually what do you end up with?

Think zoning is unfair?  Change it. Want to make certain exceptions less stringent? Create a special permit process where the law says you can.  Want to grant variances? Well dot the i's and cross the t's and apply the law properly and consistently if and when it can be done.

Otherwise don't pick and choose. Don't grant a variance for party A because people aren't in opposition and deny the same variance request for party B because people show up in opposition. Let everyone who applies for one get one. I rather see a consistent disregard than a selective disregard.  

Once a by-law passes muster, it is in fact what it is. There may some changes down the pike with the Zoning Reform Act, but until then and perhaps adoption of some local options, shouldn't people have a right to expect correct application of the present law?

Oh, least we forget the other common argument, it is my land, I should be able to do what I want. Well unfortunately for you, you can't. Haven't be able to for a very long time.  Indeed land use restrictions are as old as the concept of deed restrictions.  Government control nearly as old.

Unless you are a strictly cash type of buyer, if you signed a p & s or obtained title insurance, you were put on notice before you bought the property that it was being sold subject to local zoning. Even if you are the rare individual that would not apply to, there is the legal concept ignorance of the law is no excuse.

Just some special notes for this one.  A variance and a special permit are two different things. So are matters statutorily exempt from zoning. So try and keep that in mind when you want to comment.

So in what is an absolute personal observation, to our ZBA let me say that if you ever are asked by a reporter if you are 100% confident in your decision to deny a variance don't dodge the question.  Be honest, and answer: "No not 100% positive, just 99.99 %. "

Just a note of caution though, don't use the same response if asked about granting one.

Okay, enough on the second article, and enough for now.

Be safe.

P.S.

Some of you may be curious as to the "standards". You can review the same by reading M.G.L. c. 40A, Section 10. Town Code provision is Section 198-9. Read them in tandem because that is how the courts do it. State law trumps local as to "minimum" standard. Also, if you want a more detailed analysis for zoning read the module prepared by Jon Witten for the CCC.  It is perhaps as good as it gets as far as analyzing zoning variances in a format that is about as easy a read as you are going to find for such a technical matter.