What is a zoning variance? How do I get a zoning variance or special permit?
Zoning bylaws allow certain uses as of right and allow other uses upon issuance of a special permit. The special permit granting authority may be the Planning Board, or the Zoning Board of Appeals. The zoning bylaw will specify the material that must be submitted as part of a special permit application, as well as the criteria that the proposal must meet. Issuance of a special permit is only after notice to abutters, advertising, and a public hearing.
If the use, structures, or the lot itself are not permitted under the zoning bylaw, you may apply for a variance. Although some people consider a variance to be a simple way around the zoning bylaw, the statutory criteria for the granting of a variance are actually quite strict. The necessity for a variance must be created by soil conditions, shape or topography of the lot, and it must affect the client but not the zoning district generally. The variance can only be granted if the granting authority finds that the variance will not be a detriment to the public good, nor derogate from the intent or purpose of the zoning bylaw.
You want an attorney who can put you on the proper path, properly prepare the application and present it to the board at the hearing. It is good to work with an attorney who knows the zoning board members and understands the history of the town. Sometimes, it is possible to get an informal sense of the obstacles that stand in the way of getting a variance before you purchase the land. An experienced attorney may include in the Purchase and Sale Agreement a condition that a special permit or variance must be approved before closing.
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