Posted by: Archipelago Law in Uncategorized on February 7, 2022

Effects of Development and Reactive Zoning Amendments: An Increased Need for Hardship Variances

The swift reaction by many jurisdictions to regulate development could have a drastic side effect for everyday Mainers in hopes of developing their land.  The rate of development in Maine is at an all-time high.  As a result of this unprecedented urban sprawl, municipalities may be forced to react by enacting strict land use regulations limiting the unencumbered spread of development.  In many cases, when a municipality creates more stringent zoning regulations, not all properties within the newly adopted zoning districts meet the applicable requirements.  Property that conformed to past zoning standards but do not meet the newly adopted standards are considered legally nonconforming.  Property owners planning to develop legally nonconforming properties are essentially forced to embark on a lengthy and challenging permitting venture through the municipality’s Zoning Board of Appeals.  The nonconforming parcel owner must prove that those newly adopted regulations create an undue hardship which limits their ability to develop the land.

Traditional Zoning

Zoning is an exercise of a municipality’s “police powers” to protect the public health, safety, and welfare. These powers are granted to municipalities by the State as an extension of its powers.  Conventional zoning is the division of a municipality into districts for the purpose of regulating the use of private land. Each district establishes certain regulations such as allowed uses, space and bulk requirements, and performance standards for specific activities.  Zoning regulations are often criticized for the lack of flexibility provided to the landowner.  If a parcel within a specific district does not meet the minimum space and bulk standards adopted by the municipality, the parcel is considered nonconforming and therefore no development can occur until the property is brought into conformance or a variance is granted.

Hardship Variance

Maine law provides a specific tool for granting variances providing that “any municipality which adopts a zoning ordinance shall establish a board of appeals.”  Along with hearing appeals from various land use decisions of the municipality, the Board of Appeals is tasked with hearing variance requests from applicants wishing to use land that is itself not in compliance with the zoning ordinance or use the land in a way not specifically allowed by the ordinance.  The Board may grant a variance only when strict application of the ordinance to the landowner’s property would cause undue hardship.  Generally, the Board of Appeals grants a “hardship variance” where:

  1. The land in question cannot yield a reasonable return unless a variance is granted;
  2. The need for a variance is due to the unique circumstances of the property and not the general conditions in the neighborhood;
  3. The granting of a variance will not alter the essential character of the locality; and
  4. The hardship is not the result of action taken by the applicant or a prior owner.

A party seeking a variance must establish all four elements to demonstrate undue hardship. Additionally, a municipality may adopt supplementary criteria that must be met by the applicant; but cannot waive these base standards set forth under Maine law.  A municipality can always make it more difficult to receive a hardship variance, never easier.

A. Reasonable Return

The reasonable return prong has been hotly contested in Court.  The Court has been adamant that reasonable return does not necessarily mean maximum return or economic return.  The reasonable return prong of the undue hardship test is met where strict application of the zoning ordinance would result in the practical loss of all beneficial use of the land.  

Maine Courts have firmly held that a variance should not be granted where the property owner can gain a reasonable return from the land.  In a York County case, a property owner applied for a variance to construct a single-family home on a nonconforming shorefront parcel previously used for boating and storing marine equipment.  The Court found that the applicant could not prove practical loss of all beneficial use of the land where they could gain a reasonable return from the parcel without constructing a residential dwelling and continuing to utilize the property for recreational purposes.  The Court affirmed the Town’s denial of a hardship variance because homeowner had not been deprived of a reasonable return on his property.   The lesson from this, and many other cases like it, is that Owners must prove without a variance, the land is practically useless.

B. Unique Circumstance of the Property

Generally, a unique circumstance is found when the hardship suffered by the nonconforming parcel owner is isolated to that property and not common to other lots in the immediate vicinity.  In 2008, a shorefront property owner was granted a variance to construct a home on a nonconforming parcel.  The abutting property owner fought the variance by arguing that each parcel in the immediate neighborhood shared the same nonconformance, not meeting the space and bulk standards of the zoning ordinance.  The Court reversed the Board of Appeals decision granting the variance because the applicant did not show that unique circumstance was isolated to the subject parcel.  For a property owner to receive a hardship variance, the applicant must prove that the property contains a distinctive characteristic separate from the neighboring properties causing the nonconformity.

C. Character of the Locality

A primary purpose of zoning is to promoting uniformity within the districts.  A municipality identifies the permitted uses, and the essential characteristics criterion is limited by the ordinance’s provisions regarding the permitted uses and the purposes of the district.  The Court has stated that variances are meant for those situations where the application of the ordinance bears so little relationship to the purposes of zoning that, as to that property, the regulation is, in effect, confiscatory or arbitrary.  So, where an applicant is requesting a variance to construct a single-family home in an exclusively industrial district, the proposed use will alter the character of the locality and does not comply with the intent of enacted zoning.  The requested use must conform with the intent of the ordinance and, in turn, the character of the surrounding community.

D. Self-Created Hardship

A basic principle of variance law is that the zoning change must occur after the owner acquires the land, otherwise the hardship is self-created.  The Court has continuously held that when a property owner purchases a nonconforming property after an ordinance took effect, he or she is presumed to have had knowledge of the restrictions on use of the lot which the ordinance imposes.”  The Court has taken this one step further finding that when a landowner had actual or constructive knowledge of the zoning regulations, they may not be granted a variance on the grounds of undue influence.  So, where the landowner purchased the property after the enactment of the current ordinance, that owner had knowledge of the nonconformance and therefore created their own hardship by purchasing the land.

Change is inevitable and municipalities must plan for continued growth; however, it is important for the average landowner to understand how newly adopted regulations affect their land and may impede future development.  While traditional zoning is an effective means for providing orderly, consistent, and planned development, there is no perfect model that will guarantee all existing land uses are positively affected by the changing regulations.  Understanding this flaw, Maine has enacted legislation to confront the ongoing issues involved with preemptive zoning amendments.  

Landowners often find that developing a property is no easy task with unexpected surprises and procedural roadblocks after each step.   Projects large or small often require the expertise of trained land use professionals to help navigate the ins and outs of zoning law and permitting procedures, and for the preparation of necessary documentation required for municipal review.  The advice of a qualified land use attorney should be sought to develop a strategic method to accomplish your development goals.

Michael J. Skolnick, Esq.

Archipelago Law, LLP