MA Appeals Court Holds that Variance was Merited Because It Prevented a Greater Risk of Harm than Compliance with Zoning Ordinance

The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina, received a dimensional variance from the defendant, zoning board of appeals of Salem, allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed an appeal in the Land Court. The judge therefore affirmed the board’s decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance.

On appeal the court agreed with the trial court that if Brewer adjusted its plans to fit within the requirements of the local zoning ordinance, a significant risk of harm for the people and property near the travel lift would result, as the operation of the travel lift required a large, open turning radius free of blind spots. The court also agreed with the trial court judge that “where a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance such a hardship may merit a variance.” Accordingly, due to the degree of danger that would result from compliance with the zoning ordinance, the court found the record supported the judge’s finding of a hardship.

Furlong v. Salem Zoning Board of Appeals and BHCM Inc. D/B/A Brewer Hawthorne Cove Marina, 90 Mass.App.Ct. 737 (MA. App. 12/12/2016)