Variances: Self-Created Hardship Revisited
(from Maine Townsman, November 1995)
By Richard Flewelling, MMA Senior Staff Attorney

A recent Maine Law Court decision significantly revises the rule of self-created hardship which the Court itself has led lower courts and boards of appeals to apply in cases involving zoning variances. In Twigg v. Town of Kennebunk, 662 A.2d 914 (Me. 1995), the Court ruled that while actual or constructive knowledge of zoning restrictions prior to the purchase of property may be considered in determining self-created hardship, it is not, by itself, determinative. Rather, prior knowledge, in combination with other factors, may result in self-created hardship. This is a substantial departure from earlier cases apparently holding that prior knowledge of zoning restrictions is tantamount to self-created hardship. (See, e.g., Bishop v. Town of Eliot, 529 A.2d 798 (Me. 1987); Your Home, Inc. v. Town of Windham, 528 A.2d 468 (Me. 1987); Sibley v. Town of Wells, 462 A.2d 27 (Me. 1983)).

In articulating the new rule, the Court seemed to concede that its prior decisions may have been misleading but contended that they had been misconstrued as well. The Court rejected Bishop explicitly, however, and distinguished Sibley and Your Home by noting that in both cases, in addition to their prior knowledge, the petitioners' attempted avoidance of zoning restrictions was "clear." Unfortunately, what is now not clear is whether prior knowledge of zoning restrictions has any relevance to self-created hardship absent some overt act of the property owner or an appeal utterly lacking in merit.

Nevertheless, Twigg reaffirms the most important principle of law governing zoning variances, namely, that the requisite "undue hardship" exists only where the property cannot yield a reasonable return from any permitted use. Noting that this is tantamount to the practical loss of all beneficial use, the Court concluded that the current use of the property in this case (for recreational boating activities) was sufficient to deny the appeal.