Yesterday the Appeals Court upheld a variance decision by our former colleague, Land Court Justice Robert Foster.  In that case, Furlong v. Zoning Board of Appeals of Salem, Furlong challenged a variance granted to the abutting Brewer Hawthorne Cove Marina in Salem.

The variance permitted the Marina to construct a new building outside of the setback requirements of the local zoning ordinance for use as a boat repair facility and office.  The Marina proposed to locate that building at the edge of its property within the setback in order to provide adequate room for the safe operation of a travel lift that moved boats and to reduce the noise and fumes generated by the boat repairs in their present location.  The Marina also proposed to widen the entrance to the marina, which would provide better access including for emergency vehicles. On appeal, Furlong argued that the safety concerns relied on by the Land Court in upholding the variance do not constitute a hardship under the statute.

The Appeals Court began by noting that “the statutory requirements that must be met for an individual seeking a variance are rigorous.”  The Court noted that the governing statute, G.L . c. 40A, § 10,

authorizes a board of appeals to grant a variance from the local zoning ordinance only where it: “specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [c] that desirable relief may be granted without substantial detriment to the public good and [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.”  Each of the requirements of the statute must be met before a board may grant a variance.

The appeal turned on whether “a safety concern, ameliorated by the granting of a variance, qualifies as a hardship under § 10.”  For guidance on this question the Appeals Court looked to the sole Massachusetts case that it could find on the issue,  Josephs v. Board of Appeals of Brookline, 362 Mass. 290 (1972).  In Josephs, the Supreme Judicial Court affirmed a lower court decision upholding a variance to construct a loading bay with a reduced height in a high-rise commercial and residential building because, if the zoning ordinance were strictly applied, “one alternative would result in a safety hazard to persons using the excessively steep ramp, while the other would result in an economic loss due to interference with the configuration of the building.”  Id. at 293.  Based on these facts, the SJC concluded that the lower court was warranted in finding that a “hardship, financial or otherwise” had been demonstrated.  Id.

Against that legal backdrop, the Furlong court reasoned:

Like the developer in Josephs, the facts here demonstrate that if [the Marina] 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. We agree with the judge that “[w]here 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.” We also agree that the unique circumstances in this case, and the degree of danger that would result from compliance with the zoning ordinance, support the judge’s finding of a hardship. Accordingly, where the unchallenged evidence, found de novo by the judge, satisfies all of the requirements of the statute, the decision of the board must be affirmed.

This case throws a life line to parties seeking a variance for safety reasons.