Massachusetts Appeals Court Considers Whether Safety Hazard Merits Allowance of a Variance in Zoning Case

In some situations, there may be an exception to a zoning ordinance that would otherwise prohibit a particular activity or change to a property.  In a recently published opinion, the Appeals Court of Massachusetts reviewed a case in which the defendant sought and received a dimensional variance from the zoning board, allowing it to build a new boat repair facility outside the setback requirements of the local zoning ordinance.  In Furlong v. Zoning Bd. of Appeals of Salem (Mass. App. Ct. Dec. 12, 2016), the owner of the abutting property appealed that decision to the Land Court. The Land Court affirmed the zoning board’s ruling, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard and that the defendant had demonstrated a hardship sufficient to merit the allowance of a variance. The plaintiff then brought his appeal to the higher court.

Variances are individual waivers of local legislation that permit nonconformity. A variance may be allowed only when, due to circumstances relating to the soil conditions, shape, or topography of such land, a literal enforcement of the ordinance or by-law would involve a substantial hardship, financial or otherwise, for the landowner, and if relief may be granted without substantial detriment to the public good and without substantially deviating from the purpose of the ordinance or by-law.

In Furlong, the defendant owned property upon which it operated an active marina with a parking lot and several structures. In 2011, the defendant submitted a petition for a variance of the setback requirements, seeking to construct a boat repair facility at the edge of the property in order to provide adequate room for the safe operation of the travel lift and reduce the noise and fumes. The building plan included widening the entrance to the marina from the street.  The defendant argued that, because of the peculiar shape of the property, a hardship in the form of safety hazards would result if the building were constructed within the setback requirements.  These safety hazards would be caused by the building interfering with the operation of the travel lift, which requires a large, open turning radius free of blind spots.

On appeal, the plaintiff argued that the safety concerns found by the Land Court did not constitute a hardship under the statute. However, in reviewing the facts of the case, the appeals court concluded that if the defendant adjusted its plans to fit within the requirements of the local zoning ordinance, a significant risk of harm for the people and property near the travel lift would result. Under the unique circumstances of the case and considering the shape of the defendant’s property, the court agreed that the degree of danger that would result from complying with the ordinance supported a finding of a hardship. Accordingly, the variance was upheld by the court.

If you have concerns regarding commercial development or other land use issues that may affect your property, a real estate attorney can offer guidance as to your legal recourse.   At Pulgini & Norton, our Massachusetts property lawyers can counsel individuals in all areas of real estate law, such as purchase and sale agreements, home closings, zoning issues and building permits, and more.  To discuss your real estate matter with a member of our highly qualified legal team, contact Pulgini & Norton by phone at (781) 843-2200 or online.

More Blog Posts:

Massachusetts Property Owners Challenge Rezoning Approval for Multi-Family Development, Massachusetts Real Estate Lawyer Blog, published September 26, 2016

Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property, Massachusetts Real Estate Lawyer Blog, published September 19, 2016

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