Zoning Variances Should Be the Exception, Not the Rule
(from Maine Townsman, December 1986)
By Patricia Finnigan, MMA Paralegal

Please Note: Despite this article’s original publication date, it remains a valid resource on the relevant subject matter. Recent cases and statutory references are footnoted to reflect current law (8/98).

A request that zoning boards of appeals must deal with fairly regularly but which normally can't be granted legally is a landowner's request for a zoning variance. The Court in Maine has observed that when a municipality adopts a comprehensive plan outlining the future growth and development of the community and a zoning ordinance to implement that plan, the people have concluded that the restrictions are necessary for the public benefit and the ordinance should be observed. Therefore, in the Court's opinion "variances should not be easily or lightly granted and a variance should be the exception not the rule." Lovely v. Zoning Board of Appeals of City of Presque Isle, 259 A.2d 666 (Me. 1969). Rather than abiding by the plan outlined in the zoning ordinance, people seeking a zoning variance are asking the board of appeals (BOA) to allow them to use their property in a way that is forbidden by the zoning ordinance. This differs from a request for a special exception which is a request to use the property for a permitted use under certain circumstances. (See Maine Townsman, September, 1982). "It is said that a variance is designed as an escape hatch from the literal terms of the ordinance which, if strictly applied, would deny a property owner all beneficial use of his land and thus result in confiscation." Anderson, American Law of Zoning (2nd ed.) p. 137. Consequently there are strict criteria that must be met before the BOA can grant a variance.

A zoning variance may only be granted if it meets all the requirements found in the state law (30 M.R.S.A. 4963) [30 M.R.S.A. 4963 repealed and replaced by 30-A M.R.S.A. 4353] plus any other variance standards contained in the local zoning ordinance. The state law prohibits the granting of a variance unless the property owner can convince the board that not granting the variance would cause an "undue hardship." Undue hardship, in this context, means a problem created by some feature of the land rather than a personal problem of the applicant, such as not having as much living or commercial space as he or she would like. This concept is illustrated in Lippoth v. Zoning Board of Appeals of South Portland, 311 A.2d 552 (Me. 1973). In this case the landowner applied for a setback variance to construct a garage. The hardship claimed by the landowner was that he had "three cars and one-half of a garage." Due to the plaintiff's health it was difficult to park and move cars, especially in the winter. The landowner claimed that the variance would permit him to build a garage where he could keep the vehicles off the street and help improve access to the two houses beyond his property via a narrow paved way. The Board denied the variance; the Superior Court permitted it. Ultimately the Supreme Court agreed with the Zoning Board of Appeals noting the claimed hardship did not meet any of the hardship criteria, including the requirement that the hardship was not due to circumstances unique to the property. "The alleged hardship," the Court ruled, "arises from the ownership of three cars, a non-conforming front yard area, an unusable basement garage, and the Plaintiff's deteriorated physical condition."

In order for the BOA to determine that an "undue hardship" exists, an applicant must meet all four of the following statutory criteria:

it is impossible for the applicant's land to yield a reasonable return without the variance,

the need for the variance is due to the unique circumstances of the property and not to the general conditions of the neighborhood

granting the variance will not alter the essential character of the locality, and

the hardship is not the result of action taken by the landowner or a prior owner.

Reasonable Return

The concept of "reasonable rate of return" has been defined in very specific terms by the court. To prove that the landowners will receive no reasonable return without the variance, they must show that they will be deprived of all beneficial use of their land. What this standard means is that they must show that the land is not suitable for any use permitted by the zoning ordinance.

The Maine Supreme Court has reached the following conclusions regarding undue hardship as it relates to reasonable rate of return. The case, Sibley v. Inhabitants of Town of Wells, 462 A.2d 27 (Me. 1983), concerned plaintiffs who lived on a lot in their mobile home. They later bought a contiguous undersized lot for $4,200 that was subject to a deed restriction requiring that any structure erected on it be at least 26 feet wide. It would be impossible to build a 26-foot-wide home and also comply with the zoning provisions. The Sibleys constructed a concrete foundation on the lot without a building permit. After being served a notice of violation, the Sibleys sought a variance from the sideline setback and lot size requirements. The BOA treated both lots as one and granted the request for the lot size variance provided that the mobile home be removed after the new dwelling was completed. The sideline setback was denied. On appeal to the Supreme Court the plaintiffs argued that there was an "unconstitutional taking" of their property since they had paid $4,200 for the unbuildable lot which by itself was valued at $1,000. The Court said this result did not create an undue economic hardship or an unconstitutional taking since the Sibleys' land had substantial use and value in conjunction with the adjacent lot. The Court found that "administrative relief is not warranted where the owner of contiguous substandard lots can solve his own problem by combining them to meet the minimum requirements of the zoning regulations. In such a case, his development plans may have to be revised, and he may not be able to extract the maximum profit from his tract, but he has not been denied reasonable use of his land." In a similar case, Barnard v. Yarmouth, 313 A.2d 741 (Me. 1974), the owner of two contiguous parcels of land sought a lot size variance to build a second year round dwelling. The Court held that the minimum lot size restrictions were not unreasonable or unconstitutional. The property owner claimed a hardship since denial of the variance prevented her from building an additional home and thus increasing the desirability of the property. The Court found that the owner would still realize a reasonable economic return without the variance since she would still be able to enjoy full use and occupation of the existing house. Finally, the Court determined that even though denial of the variance prevented the property owner from increasing the property value, the property was still marketable and "reasonable return" wasn't synonymous with "maximum return." In Curtis v. Main, 482 A.2d 1253 (Me.1984), the plaintiffs had bought 21 lots on an island in Kittery two years before the town enacted a zoning ordinance. Amendments enacted in 1977 affected the plaintiffs' land which became part of the Shoreland Area Protection Zone. In 1980 the plaintiffs proposed to combine twelve of their single lots into five new lots for sale as residential lots. None of the proposed lots met the minimum lot size requirements of 80,000 square feet, the largest lot having only 38,500 square feet. None of the lots met the required set back from the road or water, and only one met the required set back for sewage systems. The plaintiffs sought variances for lot size, set back, and sewage set back. Although the Board of Appeals found that the plaintiffs met two of the statutory criteria (i.e., the need for a variance is due to unique circumstances of the property and the hardship was not a result of action taken by the landowner), it denied their request because it was not convinced that the lots couldn't yield a reasonable return without the variance. The plaintiffs appealed to the Superior Court and lost and then appealed to the State Supreme Court. The Court agreed with the BOA and found that although the record contained testimony from a real estate agent regarding the value of the lots if the variances were granted, the plaintiffs "failed to prove that other beneficial uses did not exist for their property." The Court also noted that although without the variances the lots would be worthless as residential property, there was no unconstitutional taking of their property because the plaintiffs did not meet their burden of proving that there was no other use for the property except residential.

In Leadbetter v. Ferris, 485 A.2d 225 (Me. 1984), where the property owner wanted to expand a retail business into a wholesale business as well, the Court concluded that a variance was not justified since the evidence showed that the retail store had been successful and that it would continue to operate successfully as a retail outlet even if the variance were denied. The Court again reiterated that it is clear that "reasonable return" does not mean "maximum return."

The most recent Supreme Court case (as of the date of this writing) involving the issue of variances is Marchi v. Town of Scarborough, 511 A.2d 1071 (Me. 1986). In this case the applicant signed an agreement to purchase a corner lot located in a residential zone conditioned upon receiving a setback variance that would make the parcel a buildable lot. In a 2 to 2 decision the BOA denied the request for the variance. The board unanimously found that the plaintiffs had met two of the statutory requirements: the variance approval would not alter the essential character of the locality and the hardship was not the result of the applicant's action. However, because one of the neighbors had indicated that he would be willing to pay $3,500 for the lot if unbuildable, two of the BOA members concluded that a reasonable return was possible without granting a variance.

In its decision the Court noted that it has repeatedly recognized that reasonable return is not maximum return. It noted that the record revealed that the property was strictly confined to residential use pursuant to the zoning ordinance and it was unbuildable unless the variance was granted. Thus the Court reasoned that the record fully established the absence of any other beneficial use for the substandard lot. It referred to Driscoll, Cushing, and a Rhode Island case which noted that "a variance to permit development of a substandard parcel may not be denied solely on the ground that the applicant had an offer of purchase. A landowner has the right to develop his land; he is not required to sell it." Anderson, supra, p. 292. The Court found that the "opportunity to sell the land did not provide the owner with a 'land use' within the zoning concept" and the denial of a variance rendered the small lot unbuildable and thus deprived the owner of all beneficial use of the land.

Unique Circumstances

An undue hardship exists only if the problem is unique to the property of the applicant. A problem is not unique if it is shared by other land in the district. Because an applicant must meet each part of the four-part test contained in the state statute, as well as the ordinance requirements, an applicant may fail to qualify for a variance even though his property will not yield a fair return through any use permitted by the zoning regulations if the hardship is not due to circumstances peculiar to the land.

In Barnard cited above, the owner of two contiguous parcels of land sought a lot size variance to build a second year round dwelling. The Court held that the minimum lot size restrictions were not unreasonable or unconstitutional and that a need for a variance wasn't created due to any unique circumstances of the property. The Court noted that the only "uniqueness" attaching to the appellant's property was its large size in relation to other parcels in the immediate area. The Court did note that a good portion of the lot fronted on the ocean and it was undeniable that the property occupied a most desirable location, but concluded that denial of the variance did not deny the applicant the normal use of the land and the very purpose of the challenged ordinance restriction was to prevent what the landowner proposed - the partitioning of an existing lot in order to accommodate another building. The Court determined that circumstances did not render the entire parcel unmarketable or unable to yield a reasonable return and the applicant was "not entitled to be given every conceivable opportunity to maximize her return or potential return in derogation of a duly enacted legitimate zoning ordinance."

Similarly in Sibley cited above, the court ruled that "the mere fact that the lot was substandard was not a unique circumstance justifying grant of a zoning variance, where all undeveloped lots in the neighborhood were of substandard size." The Sibleys had contended that because the lot was small and subject to a deed restriction requiring any structure built upon it to be of a certain size, the circumstances of the lot were unique. However, the Court found that the Sibleys did not show that the deed restriction was unique to their property and in fact many parcels in their subdivision were burdened in the same way. In other words, a claimed hardship which is not peculiar to the applicant's land but is shared by a neighborhood or an entire area will not support the granting of a variance to relieve it. Where the hardship is no greater than that suffered by nearby property owners, the appropriate remedy is to seek a change in the zoning ordinance rather than a variance.

Neighborhood Character

A variance must be denied if the proposed use would alter the essential character of a neighborhood. While the courts frequently have disapproved variances to permit nonresidential uses in residential districts on the basis that such uses would change the essential character of the neighborhoods, a variance to permit a use in a zone where it is not permitted might be proper, such as to allow an apartment in a single family district where the land is located on a busy highway and the neighborhood has been commercialized, or where the site is improved by remodeling a large old house. Anderson, supra., pp.252-254. Most municipalities in Maine do not permit use variances. However, the Court has decided several cases that pertain to use variances.

In Cushing v. Smith, 457 A.2d 816 (1983) the Court found that it was reasonable for a variance to be granted to permit establishing a group home for recovering mentally ill people in a district zoned for single or two-family residences because competent evidence showed that the property would not yield a reasonable return for those limited residential uses because it was best suited to be used for multi-family residences. The Court concluded that there was competent evidence to support the finding that the granting of a variance would not alter the essential character of the locality.

Self-Created Hardship

A person who purchases land with knowledge, actual or constructive, of the zoning restrictions which are in effect at the time of such purchase is said to have created whatever hardship the restrictions entail. [Actual or presumed knowledge of the municipality’s existing zoning requirements on the part of a person acquiring property does not automatically constitute "self-created hardship" for the purposes of the undue hardship test. It no longer means that the board must deny the variance application. It is now simply part of the evidence which the board must consider in deciding whether there is self-created hardship or undue hardship.] See Twigg v. Town of Kennebunk, 662 A. 2d 914 (Me. 1995)] Although the fact that the landowners knew about the restrictions at the time they purchased the property does not prevent them from possibly receiving favorable treatment from the Court, most courts say that a landowner is in a poor position to complain since the fact that they purchased the property with knowledge of the restrictions will be considered in determining whether their basic rights are infringed upon by the regulation. In Maine at least, the courts reason that there is no unnecessary hardship when the applicant created his or her own difficulty by acquiring the land with knowledge of the use limitations: hardship which is self created is imposed by the applicant, and not by the ordinance. It is presumed that the purchase price was set with the restrictions in mind and that the applicant's loss of value due to the restriction is due to their own poor investment. For instance, in Sibley the plaintiffs claimed that they had a hardship because they purchased a nonconforming lot for $4,200 but it was worth only $1,000 because of the zoning restrictions. The Sibleys claimed that the hardship was not the result of their own action because the lot was established before the zoning ordinance was enacted. The Court ruled that when the Sibleys bought the lot they "were charged with knowledge of the zoning ordinance provisions that would create problems both because of the lot size and because of the deed restriction contained in their deed to the lot."

Variance Upheld

In Lovely v. Zoning Board of Appeals, City of Presque Isle, 259 A.2d 666 (1969) the Court established that "variances should not be easily or lightly granted and a variance should be the exception and not the rule." But variances are permissible in some instances such as in Driscoll v. Gheewalla, 441 A.2d 1023 (Me. 1982). A variance was granted by the BOA and upheld by the Court. The lot involved was undersized and located on a corner. It needed a large onsite sewage system. If the setback requirements were not varied, Gheewalla could only build on seven percent of the total lot and the structure could only be 17 by 20 feet. The BOA approved variances for street and side yard setbacks. The Court found that there was no self-created hardship; that a variance wouldn't alter the essential character of the neighborhood because other houses were as close to the street as Gheewalla proposed; that there were unique circumstances because of the need for a larger onsite sewer system, the lot's small size, and its location on a corner which resulted in two road setback requirements; and that no reasonable return could result without a variance because otherwise only an unusually small home (17' x 20') could be built.

In conclusion, a zoning variance can be granted only if it is specifically authorized by the ordinance and if it meets the statutory standards. It should be noted, however, that if the ordinance is silent about the types of variances which may be granted, 30 MRSA 4963 [30 M.R.S.A. 4963 repealed and replaced by 30-A M.R.S.A. 4353] authorizes variances from any or all of the ordinance requirements, provided an "undue hardship" exists. If the request before the BOA is not essential because there is nothing unique about the property, or it would alter the essential character of the locality, or it is the result of the landowner's actions, or if the land can be used for one or more of the uses permitted in the zone and still yield a reasonable rate of return, not necessarily the maximum economic benefit, then the request must be denied.