GENERAL PRINCIPLES Of THE VARIANCE ~ No One Has

general principles of the variance ~ no one has a legal right to a variance. “it is firmly established that [n]o person has a legal righ

GENERAL PRINCIPLES of THE VARIANCE
~ No one has a legal right to a variance.
“It is firmly established that "[n]o person has a legal right to a
variance and they are to be granted sparingly." Damaskos v. Board of
Appeal of Boston, 359 Mass. 55, 61 (1971). Our review focuses upon
whether there was evidence of the factors necessary to satisfy the
statutory prerequisites. Broderick v. Board of Appeal of Boston, 361
Mass. 472, 479 (1972)” as quoted in Awad v. Tricon Global Restaurants,
Inc., 60 Mass. App. Ct. 1116, 803 N.E.2d 359 (Table), 2004 WL 253322.
Even if an applicant proves all of the necessary conditions the board
does not have to grant a variance. Bruzzese v.. Bd. of Appeals of
Hingham, 343 Mass 421, 423 (1962).
~ The size and area of the lot are not enough to obtain a variance.
“...[T]he size of the locus alone is insufficient justification for a
variance. Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329,
331-332 (1993). "The size of a lot does not qualify as 'shape of the
land' grounds for the grant of a variance." Bertrand v. Board of
Appeals of Bourne, 58 Mass.App.Ct. 912 (2003). "Variances are not
normally available to remedy deficiencies in frontage and area."
DiCicco v. Berwick, 27 Mass. App.Ct. 312, 314 (1989).
~ The conditions for granting them are so strict that boards can grant
them only sparingly.
“Variances ... are always in derogation of the zoning system adopted
by the town under its lawful powers.... No person has a legal right to
a variance and they are to be granted sparingly.” Lopes v. Board of
Appeals of Fairhaven, 27 Mass.App.Ct. 754, 756 (1989), quoting from
Pendergast v. Board of Appeals of Barnstable, 331 Mass.555, 557( 1954)
and Guiragossian v. Board of Appeals of Watertown, 21 Mass.App.Ct.
111, 115 (1985).
~ If the Board doesn’t conform to the law’s strictness of the law, the
courts must “ensure” that they do.
"If variances ... are granted with undue frequency ..., and without
strict compliance with the proscribed statutory criteria, zoning
regulations can become a matter of administrative whim." Damaskos v.
Board of Appeals of Boston, 359 Mass 55, 61-62 (1971).
~ The statutory requirements are conjunctive and "a failure to
establish any ONE of them is fatal.”
Blackman v. Board of Appeals of Barnstable, 334 Mass. 446, 450 (1956).
Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct.423, 428
(1984); Pendergast v. Bd. Appeals of Barnstable, 331 Mass 555, 557
(1954).
Mandatory findings: Before the grant of any variance from the
requirements of this chapter, the Board of Appeals must specifically
find that [1] owing to circumstances relating to the soil conditions,
shape or topography of land or structures and especially affecting
such land or structures but not affecting generally the zoning
district in which it is located, [2] a literal enforcement of the
provisions of this chapter would involve substantial hardship,
financial or otherwise, and [3] that desirable relief may be granted
without substantial detriment to the public good and without
nullifying or substantially derogating from the intent or purpose of
this chapter. See M.G.L.c. 40A, § 10.
Applicant must prove all three conditions:
1. The existence of unique soil or topographical conditions, or a
unique shape of his land or structures which affect his property
especially and not other property generally in the district;
2. That literal enforcement of the ordinance will involve “substantial
hardship financial or otherwise”;
3. That the Board can grant the variance without substantial detriment
to the public good and without nullifying or substantially derogating
from the intent or purpose of the ordinance.
CONDITION I
Unique Physical Conditions
The Board can’t grant the variance unless there are unique physical
conditions relating to the land itself and a causal connection between
these physical conditions and the applicant’s inability to comply with
the ordinance. If the problem has been created by the applicant’s use
of the property, so that he can’t add a new structure without
violating the ordinance or getting a variance, he has created his own
problem!
See Awad v. Tricon Global Restaurants, Inc., 60 Mass.App.Ct. 1116
(2004). In this case the triangular shape of the locus, the slope of
the locus's topography, and the proximity of the locus to protected
wetlands was not enough to meet the first test.
To paraphrase the Appeals Court in the Awad case : “It bears noting in
this regard that a portion of the locus is already committed to other
uses.” As the Awad Court put it : “not all ... of the locus [is]
available for the proposed construction. Otherwise put, presently
existing uses rather than the size of the locus itself appear to be
the operative constraints upon the space available to [him] for
parking ... Further, the size of the locus alone is insufficient
justification for a variance. (Citation omitted.) We have held that
"[t]he size of a lot does not qualify as 'shape of the land' grounds
for the grant of a variance." Bertrand v. Board of Appeals of Bourne,
58 Mass. App.Ct. 912 (2003). Similarly we have stated that
"[v]ariances are not normally available to remedy deficiencies in
frontage and area." DiCicco v. Berwick, 27 Mass. App.Ct. 312, 314
(1989) ...” “[A] new judgment is to enter annulling the decision of
the zoning board of appeals that granted the variance as in excess of
its authority.”
 The fact that a lot has a special shape because of its location on a
cul-de-sac cannot support the grant of a variance from area and
frontage requirements. Tsagronis v. Board of Appeals of Wareham, 415
Mass. 329 (1993), where owner of lot failed to establish that shape of
land was cause of any hardship; hardship to owner was solely due to
owner's failure to construct house on undersized lot before statutory
protections against zoning changes ran out.
 The size, area, width, or frontage of a lot standing alone do not
qualify as "shape of the land" grounds for the grant of a variance
from width, area, and frontage requirements of a zoning bylaw. Feldman
v. Board of Appeal of Boston, 29 Mass.App. Ct. 296, 297 (1990)
(frontage and width); Mitchell v. Board of Appeals of Revere, 27
Mass.App.Ct. 1119, 1120 (1989) (area). The "shape" of a lot is not to
be confused with its "size." Shafer v. Zoning Bd. of Appeals of
Scituate, 24 Mass.App.Ct. 966, 967 (1987). Size of lot does not
qualify as "shape of the land." Bertrand v. Board of Appeals of
Bourne, 58 Mass.App.Ct. 912 (2003), variance was not warranted.
CONDITION II
Substantial Hardship
 With respect to substantial hardship, applicants’ must prove that "the
hardship alleged must arise from the shape of the locus or one of the
other factors specifically referred to in § 10 [of the Zoning Act]."
Guiragossian v. Board of Appeals Watertown, supra, 21 Mass.App.Ct. at
118.
 There is a “symbiotic relationship between the shape and hardship
requirements ... and the level of proof necessary to justify a finding
that any claimed hardship is substantial.” “The shape must give rise
to the hardship.” Guiragossian v. Board of Appeals Watertown, supra,
21 Mass.App.Ct. at 118. Accord, Whelan v. Zoning Board of Appeals of
Norfolk, 430 Mass. 1009 (2000); Unless the owner's hardship relates to
soil conditions, shape, or topography of the land, a variance cannot
lawfully be granted. Tsagronis v. Board of Appeals of Wareham, 415
Mass. 329, 331-332 (1993). Bertrand v. Board of Appeals of Bourne, 58
Mass.App.Ct. 912 (2003).
 It is not the personal hardship to the petitioner or his family
which establishes the qualifying criterion. It is the hardship to the
locus. Dowd v. Board of Appeals of Dover, 5 Mass.App.Ct. 148 (1977);
Barnhart v. Board of Appeals of Scituate, 343 Mass. 455 (1962); Winn
v. Board of Appeals of Saugus, 358 Mass. 804 (1970) (poor health of
petitioner and large family); Russell v. Zoning Board of Appeals of
Brookline, 349 Mass. 532 (1965); Paulding v. Bruins, 18 Mass.App.Ct.
707 (1984), holding that health of lot's owner, his financial
situation, and any other considerations unrelated to the underlying
real estate were irrelevant to the issue of substantial hardship. The
Guiragossian court also noted that the landowner could reasonably make
use of the property as allowed under the zoning ordinance in a manner
that was not "economically unfeasible." Ibid. at 118.
 Self-imposed hardships cannot be the basis for granting a variance.
In Adams v. Brolly, 46 Mass. App. Ct.1 (1998), the Court stated: “The
issue on appeal is whether the hardship alleged by Brolly has been
‘self-created.’ Our starting point is the well-established principle
in our cases prohibiting self-imposed hardships as a basis for
obtaining a variance. See Raia v. Board of Appeals of N. Reading, 4
Mass.App.Ct. 318, 322, 347 N.E.2d 694 (1976); Gordon v. Zoning Bd. of
Appeals of Lee, 22 Mass.App.Ct. 343, 350, 494 N.E.2d 14 (1986); Karet
v. Zoning Bd. of Appeals of Worcester, 27 Mass.App.Ct. 439, 440, 539
N.E.2d 81 (1989). Cf. Feldman v. Board of Appeal of Boston, 29
Mass.App.Ct. 296, 297, 559 N.E.2d 1263 (1990).”
The Board can lawfully consider ONLY the hardship to the lot itself
and not any personal hardship.
The Applicants’ have created their own hardship by building their
swimming pool and family room. Having built these, they cannot now
complain that they have no room left for their large addition!! On
August 5, 1991, the Applicants’ applied for a building permit to
construct an 18' x 40' swimming pool, see Building Department Permit
N. 251 - 91; on July 11, 1994, they applied to construct a “screened
in porch.” See Building Department Permit No. 279 - 94. Both were
built. The “screened in porch”1 is the portion of the premises which
Mr. Kaddy will tear down to make way for the new family room.
CONDITION III
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Substantial Harm or Derogation From Ordinance’s Purpose
The requirement of substantial derogation recognizes that the effect
of a variance is to give a landowner a license or permit to use his
property in a manner which otherwise violates the zoning ordinance.
Some derogation from an ordinance’s purpose is anticipated by every
variance. If relief were denied on the basis of a slight or
insubstantial departure from the goals of the bylaw, the prohibition
of the grant of a variance would approach confiscation by depriving
the property owner of virtually all practical use of his property.
The applicant must show that the proposed plan/variance will not have
deleterious effects on the abutters’ and neighbors’ property. The
court looks at the overall effect of the proposed use on “other
property within the same district a necessary element in determining
whether the statutory standard has been met,” Planning Bd. of
Framingham v. ZBA of Framingham, 5 Mass. App. Ct. 789-790 (1977);
Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396 (1980).
1  See footnote 1, supra.
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