New Variance Test
(from Maine Townsman, July 1997)
By Rebecca Warren Seel, MMA Senior Staff Attorney

The Maine Legislature has enacted a new variance test for granting variances from certain dimensional requirements in a zoning ordinance (lot area, lot coverage, frontage and setback) [LD 1074, enacted as Public Law Chapter 148 and found in 30-A M.R.S.A. 4353 (4-C)]. This new test is applicable only in municipalities which have adopted it as an amendment to their zoning ordinances after the effective date of the new law (September 20, 1997). Municipalities may not apply this new test to variance requests in the shoreland zone. The new test also may not be used to grant a variance for a use which is otherwise prohibited by a zoning ordinance. Municipalities which do not adopt this test by ordinance will continue to be governed by the existing "undue hardship" test for variances found in 30-A M.R.S.A. 4353(4).

The focus of the new test is the "practical difficulty" of complying with zoning dimensional requirements. If adopted by the municipality, the test allows a zoning board of appeals to grant a variance from any of the types of dimensional requirements listed above if the board finds that:

strict application of the ordinance to the petitioner and the petitioner’s property would cause practical difficulty and each of the following conditions exist:

A. The need for a variance is due to the unique circumstances of the property and not to the general condition of the neighborhood;

B. The granting of a variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties;

C. The practical difficulty is not the result of action taken by the petitioner or a prior owner;

D. No other feasible alternative to a variance is available to the petitioner;

E. The granting of a variance will not unreasonably adversely affect the natural environment; and

F. The property is not located in whole or in part within the shoreland areas as described in Title 38, Section 435.

The law defines "practical difficulty" to mean that "the strict application of the ordinance to the property precludes the ability of the petitioner to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury to the petitioner."

This new test apparently was enacted out of frustration with the traditional "undue hardship" test which generally governs the granting of variances and which is found in 30-A M.R.S.A 4353(4). The "undue hardship" test is extremely difficult to meet when properly applied. It essentially allows a variance only where necessary to avoid an unconstitutional "taking" of a person’s property. The new "practical difficulty" test does not use the words "reasonable return" the way the "undue hardship" test does. It requires a showing of "significant economic injury," a term which the statute does not define but which apparently was intended to be a less stringent requirement than a showing of "reasonable return." However, even under this new test, it may not be that easy to obtain a variance in most cases. The applicant must show that the need for the variance is the result of some limitation unique to his or her land that doesn’t exist in the neighborhood generally. And, although the law speaks of a "significant economic injury" rather than "a reasonable return," the New York courts appear to be interpreting those terms as synonymous. (Some of these New York cases are discussed below.)

A problem with the new "practical difficulty" test is that it uses many words which the law doesn’t define. There are no Maine court cases interpreting this new law to help guide a board. Boards are left to their own devices in trying to determine the answers to the following questions: (1) What is "an undesirable change in the character of the neighborhood"? (2) What is an "unreasonably detrimental effect on the use or market value of abutting properties"? (3) What does "no other feasible alternative" mean? (4) What is a "significant economic injury to the petitioner"? Since the new "practical difficulty" test is similar in several respects to the test for area variances used in the State of New York, boards can get some guidance from New York court decisions. However, as with Maine cases interpreting the "undue hardship" test, "practical difficulty" is determined case-by-case by a court, based on the facts presented. There is no single rule to guide the board as to the correct way to interpret the law. The following is a summary of the holdings in some of the New York cases involving area variances:

"…(I)n determining whether significant economic injury would result, the inquiry should properly focus upon the value of the parcel as presently zoned, rather than upon the value that the parcel would have if the variance were granted. The petitioner is required to show that its property will not yield a reasonable return if the area standard restrictions are imposed…Proof that property could be used more profitably if a variance were granted is insufficient to warrant granting an application …" Soundside Estates, Inc. v. Board of Zoning Appeals of City of Glen Clove, 589 N.Y. S.2d 585, 586 (A.D. 2 Dept. 1992)

"…(S)imply because the alternatives suggested by the Zoning Board of Appeals would be more expensive than the erection of a ten-foot fence does not mandate the granting of the variance. While financial hardship is a factor to be considered, proof that the desired improvement could more easily and cheaply be constructed if the variance were granted does not change the nature of the improvement from one that is merely desirable to one that is necessary for the practical utilization of the property." Katz v. Town of Bedford Zoning Board of Appeals, 609 N.Y. S.2d 24, 25 (A.D. 2 Dept. 1994).

"(Petitioner) established that expansion of the retail space on either side or the front of the building was not feasible. Existing lease agreements restricted expansion on either side. Front expansion would eliminate 50 prime parking spaces and disrupt vehicular and pedestrian access…(T)he retail space, which consisted of 50% of the entire (shopping) Center, had been vacant for a year and (petitioner) had been unable to find interested parties to rent this large space, except for Hannaford (which needed a rear setback variance to expand the building to meet its minimum needs for a grocery store). Because an anchor store was needed to draw shoppers to the Center, the continued vacancy would create an economic hardship. The practical utilization of the retail space was as an anchor store, especially inasmuch as the Center is located in a B-2 commercial zoning district whose purpose is to ‘accommodate the needs of a larger consumer population." Gersten v. Cullen, 610 N.Y. S.2d 675, 677 (A.D. 3 Dept. 1994).

"The petitioner did not establish the existence of any 'unique conditions' peculiar to and inherent in the property as compared to the other lots in the neighborhood such that strict compliance with the zoning law would have caused 'practical difficulties'," Morano v. Bennett, 581 N.Y. S.2d 424, 425 (A.D. 2 Dept. 1992).

"Petitioner’s only proof on the issue of financial hardship was that, if the variance was to be granted, the property would be worth $58,500 for building purposes. However, in the absence of any evidence of the price which the petitioner paid for the parcel when he initially purchased it in 1985, or of its value without the requested variance, no factual predicate exists which would support a finding that denial of the variance would cause him significant economic injury." Durler v. Accettela, 560 N.Y. S.2d 343, 344 (A.D. 2 Dept. 1990).

"…(T)he alternatives to an area variance appear to be impractical. Redrawing the boundary line between the Irving Avenue property and the contiguous Elmont Avenue property would cause the Elmont Avenue property to be in violation of the village’s minimum front-yard setback required by the zoning ordinance. Moreover, according to petitioner, it has been unable to purchase additional property which would bring it into compliance with the village’s minimum rear-yard-setback requirement. And, the only other alternative is to raze the mansion. For all practical purposes, the petitioner will not be able to put the property to its intended use without being in conflict with the village’s zoning ordinance." Human Development Services of Port Chester, Inc. v. Zoning Board of Appeals of Village of Port Chester, 493 N.Y. S.2d 481, 488 (A.D. 2 Dept. 1985).

Given the many uncertainties of the statutory language in the "practical difficulty" test, it is our advice that when a municipality is thinking about adopting this new statutory test by ordinance, it should decide how it wants to define the vague terms used in the statute and draft appropriate definitions to adopt as part of the new ordinance. For example, "an undesirable change in the character of the neighborhood" could be defined to mean that the variance could not cause the structure to be larger or closer to the road or property lines than the majority of structures within x feet or would not result in a percentage of lot coverage which was greater than the majority of the lots within x feet. As another example, "unreasonable detrimental effect on the use or market value of abutting properties" could be defined by whether a variance for the subject property would have the effect of blocking an established view, posing a fire safety hazard, casting a shadow onto a certain percentage of the adjoining lot or of reducing the appraised value of the adjoining property by a certain percentage. "No other feasible alternative" could be defined to mean that there is no other place on the lot or no other location on the structure that the proposed construction could go without the need for a variance or without causing the owner to create other compliance problems on the lot because of the zoning ordinance, deed restrictions or conditions imposed by a lease or contract. "Significant economic injury to the petitioner" could be defined as putting the owner in a position of having to purchase other property in order to have a structure or accessory structures of the size and type that the applicant had wanted to have by obtaining a variance or placing the applicant at a competitive disadvantage in the neighborhood by applying ordinance standards which would prevent the applicant from having a structure or accessory structures comparable in size, location and number to those of other lot owners within x feet.

Before rushing to adopt the new variance test, a municipality should ask itself what it is trying to achieve by adopting the dimensional requirements which a person might seek to have reduced by a variance. If the end result of the new variance test will be that anyone making a request will be granted the desired reduction, then perhaps the municipality should simply eliminate or reduce the dimensional requirements across the board or in certain neighborhoods. At least in that way the reduction can be done as part of an overall planning strategy and process rather than piecemeal through the granting of individual variances.

In summary, as noted earlier, this new law creates an additional test for the granting of a zoning variance. It applies only in municipalities which adopt it by ordinance and only in non-shoreland zoning areas. It does not replace the standard "undue hardship" test for granting a zoning variance in those municipalities which do not adopt it by ordinance. It does not replace or affect the disability variance test provided in 30-A M.R.S.A 4353(4-A), which applies to all municipal zoning ordinances without any action by the municipal legislative body. It does not replace the special residential setback variance test which is outlined in 30-A M.R.S.A 4353 (4-B), which also applies only in those municipalities which have adopted it by ordinance.

Contact MMA’s Legal Services Department for more information about these other variance tests.