Variances: Maine's Undue Hardship Test Explained

So your family has been holding on to a small, vacant piece of real estate for decades. You never really got around to building anything on it and have decided now is the time to develop.  Surprise, your lot is smaller than your town’s minimum lot size for single family homes. Further, even a small house would be in violation of the town's setback requirements.  Are you completely out of luck and stuck with a useless piece of property? Not necessarily.  Some lots will be eligible for variances, which will relax zoning requirements in some circumstances.  

To fully understand variances, it is helpful to think about the background of why they exist in the first place.  Under the Fifth Amendment of the U.S. Constitution there is a prohibition against governments taking property without paying just compensation.  Over the years, a line of Supreme Court cases applying the takings clause has developed and regulation by governments can now exact takings. As a result, variances exist as an escape valve to provide landowners another way to maintain value to their property and not leave government bodies on the hook paying for land that had been regulated to the point of being useless.  

The Undue Hardship Test

Maine statute provides towns with the limited circumstances in which a variance should be allowed.  A [TF1] Zoning Board of Appeals may only grant a variance if "Undue Hardship" is shown.  It is important to note that the undue hardship refers to the land and not to the individual applicant.  This can be a sticking point for some because it is easy to think of hardship in the context of the applicant or landowner. For example, one may think a hardship could be when landowner with limited financial means has trouble meeting ordinance standards.  However, an applicant’s ability to meet the requirements is irrelevant when properly considering whether to grant a variance.  The real focus is on the land, and the impact of the zoning ordinance on the land.  

Maine's standard for reviewing variance requests is as follows: 

"the board may grant a variance only when strict application of the ordinance to the petitioner and the petitioner’s property would cause undue hardship. The term “undue hardship” as used in this subsection means:

  • A.  The land in question cannot yield a reasonable return unless a variance is granted;
  • B.  The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
  • C.  The granting of a variance will not alter the essential character of the locality; and
  • D.  The hardship is not the result of action taken by the applicant or a prior owner."  30-A M.R.S. § 4353

An applicant needs to demonstrate all four of the components of undue hardship to receive approval for a variance.  

1.     Land Cannot Yield a Reasonable Return

The Law Court has defined reasonable return as follows: "[t]he 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." Toomey v. Town of Frye Island, 2008 ME 44, ¶15.  This is a pretty strict standard to meet. You will have difficulty getting a variance for a five bedroom home when a smaller home could be built in compliance.  You really do need to plan to demonstrate that your lot is practically useless.  For example, the Law Court has held that unbuildable shore-land properties with recreational opportunities can yield a reasonable return.  See Toomey v. Town of Frye Island, 2008 ME 44.

It may be tempting for opponents to argue that even if the lot is unbuildable, there is a potential to sell to abutters and therefore the land can yield a reasonable return.  However, the Law Court has held that “the possibility that property might be sold to a neighbor is not sufficient on its own to allow the ZBA to find a reasonable return.” Summerwind Cottage, LLC v. Town of Scarborough, 2013 ME 26, ¶19. The Court went on to note that “there may be room for abutting landowners who oppose the variance request to abuse the variance process if they are able to defeat a neighbor's request for a variance simply by offering to purchase the land and citing that offer as grounds to deny the variance, regardless of whether the offer is genuine.” Id. Therefore, when evaluating the appropriateness of a variance, the correct analysis must focus on the use of the property.

2.     Unique circumstances of the Property

The “unique circumstances” factor involves looking at the physical characteristics of the property and demonstrating that something different about the property results in the need for a variance.  As the Law Court has defined it, "the unique circumstance requirement is met when the hardship suffered by the lot owner is not a hardship that is common with other lots in the neighborhood."  Camp v. Town of Shapleigh, 2008 ME ¶11.  Proper application of this prong will require something actually unique about the property. For example, a lot with an odd shape that other area lots do not have may be a good lot for a variance. 

3.     Won't Alter Character of the Locality

The “Character of the Locality” prong does not appear to be a component of the undue hardship test with a lot of substance. If you are proposing an industrial facility in a residential neighborhood, then you will have a problem with character.  However, you will likely have some serious hurdles with the other prongs as well.  There are not a lot of great cases in which a variance is denied solely on character. With that said, it is an essential component of the analysis and needs to be given attention. Projected impacts on character can be a very subjective.  One board member could have a completely different image in their mind of the character from the applicant or another board member.  There should be preparation to address these possible roadblocks.

4.     No Self-Created Hardship

The final prong prevents landowners from getting relief in the form of a variance when the hardship was a product of their own actions. One example of self-created hardship would be if the landowner subdivided off the small parcel from a larger piece. In this situation, the landowner created the nonconformity by dividing a larger parcel.  It could be argued that purchasing property with knowledge of zoning restrictions would be self-created hardship. However, the Law Court has stated that this knowledge alone is insufficient.  Rocheleau v. Town of Greene, 1998 ME 59.  Opponents need to point to something in addition to that knowledge to show self-created hardship.

Variances provide relief in circumstances where your land may otherwise be useless.  A land use attorney can help you apply for a variance and make sure your town's Board of Appeals reviews your variance request properly. Further, an attorney will be able to make sure your presentation and application focuses on the right issues and puts you in the best position to achieve your goals.