Home Page	Board of Appeals
Subject:	Analysis of Activity - Variances
Dates:	November 1997 through January 1998
Location:	Town of Billerica, Massachusetts

Variances- Authority of the Board of Appeals

To grant a Variance, the board: (1) must specifically state the reasons why the variance was granted, (2) must determine and specifically state the reasons that such petition was granted "owing to circumstances relating to the soil conditions, shape, or topography of such land or structures", and (3) must determine and specifically state the reasons that led the Board of Appeal to determine that each of the three conjuctive tests to grant a Variance were all met. The three conjunctive tests are: (1) a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and (2) that desirable relief may be granted without substantial detriment to the public good, and (3) without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law. The reasons for granting a Variance must be specific to each case. Merely reciting the statutory language as a reason for granting a Variance is insufficient to support granting a Variance. When the Board of Appeal fails to make specific findings, a court reversal, on an appeal to the Board's decision to grant is very likely (see: Superior Court of Middlesex County and the Massachusetts Court of Appeals)

Court decisions governing the Board of Appeal

A local zoning board may grant a variance from applicable requirements if it finds that: (1) enforcement of the zoning by-law would cause substantial hardship to the Petitioner, (2) due to special circumstances relating to the soil conditions, shape, or topography of the particular parcel of land, and (3) granting the requested variance would not substantially derogate from the general purpose of such by-law.
Pendergast v. Board of Appeals of Barnstable 331 Mass. 555, 557 (1954); and Tsagronis v. Board of Appeals of Wareham, 415 Mass. 333 (1993)

Each of the three elements above must be satisfied in order for a variance to be properly granted.
Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423, 428 (1984)

The board must explicitly disclose its reasons for granting the variance.
Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972)

It is insufficient for the board to merely recite that the statutory requirements of MGL Chapter 40A, Section 10 have been satisfied.

"The burden is on the person seeking a variance, and the board granting one, to produce evidence , [to show] that each of the discrete statutory prerequisites has been met and that the variance is justified."
Guirsaossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111, 115 (1985)

As a general rule, variances are a disfavored form of relief which should be sparingly granted. Id.

Recent Record of the Billerica Board of Appeals

The following table states how each member of the Board of Appeal voted on all of the Variances that they presided over and were filed with the Town Clerk during the months of November 1997, December 1997 and January 1998. The Town Clerk provided twenty six (26) such cases where the Board of Appeal granted 92% of the Variances that it acted upon (i.e., twenty four were granted and only two were denied). In general, it is clear that the Billerica Board of Appeals finds that granting variances is a favored form of relief and that this record appears to be in direct conflict with case law. The following table shows how each member voted in aggregate on the twenty six (26) variances acted upon in the three month period noted above:

The following table states how each member of the Board of Appeal voted to allow a petitioner the right to override individual Sections of the Billerica Zoning By-Law on the Variances described above. The Board of Appeal granted deviations to 87% of the petitioned Billerica Zoning By-Law Variances that it acted upon (i.e., seventy seven were granted and only twelve were denied). The following table shows how each member voted in aggregate on the ninety nine (99) Billerica Zoning By-Law section variances that were petitioned:

The following table states how each member of the Board of Appeal voted on the Variances described above. Some variances had split votes, where part of the variance was granted and part was denied.

The Board of Appeal gave the same reason for all twenty (24) variances granted:
"Relief could be granted without a detriment to the public good. Relief could be granted without nullifying or substantially derogating from the intent and purpose of the Zoning By-Law. Literal Enforcement of the provisions of the Zoning By-Law would cause the petitioner a hardship, financial or otherwise."

In the case, "Dougherty v. Billerica Board of Appeal", July, 1996, the Massachusetts Court of Appeals and the Superior Court of Middlesex County, both decided that the mere recital of the statutory requirements is insufficient to grant a variance.

However, in direct conflict with this court decision, the Billerica Board of Appeal has boldly continued this practice of merely reciting the statutory reqirements as a reason to grant a variance. The Billerica Board of Selectmen, with full knowledge of the appellate court decision, has taken no action since the July 1996 court decision was rendered, to force their appointees to follow the Appellate Court's decision or remove them for their recalcitrant practices. However, a new town policy is currently being considered by Selectman Chairman Ed Hurd and Selectman Mike Rosa to provide a prospective remedy to this problem.

GENERAL LAWS OF MASSACHUSETTS

Section 10. The permit granting authority shall have the power after public hearing for which notice has been given by publication and posting as provided in section eleven and by mailing to all parties in interest to grant upon appeal or upon petition with respect to particular land or structures a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and 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 such ordinance or by-law. Except where local ordinances or by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located; provided however, that such variances properly granted prior to January first, nineteen hundred and seventy-six but limited in time, may be extended on the same terms and conditions that were in effect for such variance upon said effective date.

The permit granting authority may impose conditions, safeguards and limitations both of time and of use, including the continued existence of any particular structures but excluding any condition, safeguards or limitation based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner.

If the rights authorized by a variance are not exercised within one year of the date of grant of such variance such rights shall lapse; provided, however, that the permit granting authority in its discretion and upon written application by the grantee of such rights may extend the time for exercise of such rights for a period not to exceed six months; and provided, further, that the application for such extension is filed with such permit granting authority prior to the expiration of such one year period. If the permit granting authority does not grant such extension within thirty days of the date of application therefor, and upon the expiration of the original one year period, such rights may be reestablished only after notice and a new hearing pursuant to the provisions of this section.