[MassHistPres] 40c hardship

[Dennis De Witt]

The question of hardship when claimed can be emotional and fraught with pitfalls.  The following is extracted from 40c and from the only memo I recall seeing on the subject which I pulled a couple of years ago from the town of Belmont website.  (It is noted as a "draft memo")  I wonder if there is anyone -- lawyer or not -- who might have any additional or contrary thoughts on it.  (Unfortunately, I think it may lose its formatting when being posted.  If so, it might be better read from the Belmont site.)

Dennis De Witt

 
Below is the hardship clause of 40c together with a draft portion of a memorandum on LHD Commission duties and responsibilities published on the web by the town of Belmont.  (The Belmont argument seems to be that LHD "Hardship" is in law comparable to zoning hardship re the applicable tests and precedents and that those tests and precedents relate to the property and not the owner.

Per the language of 40c there may be a tendency to focus on only one of possibly five tests that must be met to grant a hardship application -- i.e.:  
a) substantial hardship, financial or otherwise,

However, it would appear that there may be four other tests to be met and none of which relate to the owner  — i.e:
b) owing to conditions especially affecting the building or structure involved [the classic variance test]
c) owing to conditions . . . not affecting the historic district generally
d) such application may be approved without substantial detriment to the public welfare 
e) such application may be approved without substantial detriment  . . . from the intent and purposes of this chapter

Here is Chapter 40C: Section 10. Additional powers, functions and duties of commission in which this is found:
(c) If the construction or alteration for which an application for a certificate of appropriateness has been filed shall be determined to be inappropriate, or in the event of an application for a certificate of hardship, the commission shall determine whether, owing to conditions especially affecting the building or structure involved, but not affecting the historic district generally, failure to approve an application will involve a substantial hardship, financial or otherwise, to the applicant and whether such application may be approved without substantial detriment to the public welfare and without substantial derogation from the intent and purposes of this chapter. If the commission determines that owing to such conditions failure to approve an application will involve substantial hardship to the applicant and approval thereof may be made without such substantial detriment or derogation, or in the event of failure to make a determination on an application within the time specified in section eleven, the commission shall cause a certificate of hardship to be issued to the applicant.



     Belmont draft memo re Specific Standards To Be Used In Passing On Requests For Certificates Of Hardship

        The term "hardship," as used in regard to historic preservation legislation, refers to situations where denial of a certificate of appropriateness in a particular case would be unduly oppressive, arbitrary or confiscatory.  See generally, Marr v. Back Bay Architectural Commission, 23 Mass. App. Ct. 679 (1987); Gumley v. Board of Selectman of Nantucket, 371 Mass. 718 (1977).  Furthermore, hardship should not be considered an isolated factor.  The public interest and the intent of the ordnance/bylaw must be balanced against the particulars of a situation.  See Wolfson v. Sun Oil Co., 357 Mass. 87 (1970) (c. 40A Zoning case which holds that all requirements must be satisfied before a variance is issued).           
        The hardship exception language of Chapter 40C §6 is substantially similar to the language authorizing zoning variances for hardship purposes which appears in G.L. c. 40A §10.  As such, the courts in passing on decisions rendered by local districts have relied upon court decisions under both sections of Chapter 40.  See, Sleeper v. Old King's Highway Regional Historic District Commission, 417 N.E.2d 987 (1996).

        "Hardship" has been construed to be limited to situations where the locus is peculiarly affected.  See Abbott v. Appleton Nursing Home, Inc., 355 Mass. 217, 221, 243 N.E.2d 912 (1969); Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 41, 247 N.E.2d 720 (1969).  The hardship may not be merely a personal hardship to the owner.  Dowd v. Board of Appeals of Dover, 5 Mass.App. 148, 156, 360 N.E.2d 640 (1977).  Financial or pecuniary hardship to the owner alone will not establish substantial hardship.  In other words, the hardship asserted must be unique to the applicant's property and affect it in a particular manner.  It cannot constitute a condition which generally afflicts other property within the district.  See Twomey v. Board of Appeals of Worcester, 347 Mass. 684 (1964) (parallel zoning provision regarding variances - M.G.L. c. 40A); Girard v. Board of Appeals of Easton, 14 Mass.App.Ct. 334 (1982) (re: M.G.L. c. 40A).  For instance, if artificial siding is not allowed within a district, a property owner cannot claim hardship because he is required to retain the structure's natural siding.  Another pre-requisite to a finding of hardship is that it be based only upon factors which directly affect the property and not upon circumstances which result in personal hardship to the owner.  See Sleeper v. Old King's Highway Regional Historic District Commission, 11 Mass.App.Ct. 571 (1981) (denial of certificate to erect antenna to amateur radio operator does not constitute statutory hardship).  Everpure Ice Mfg. Co. v. Board of Appeals of Lawrence, supra, 324 Mass. at 438, 86 N.E.2d 906 (1949).  

        Hardship applications are often based on alleged financial loss.  Financial detriment alone, however, is not sufficient to constitute statutory hardship.  The standard has been strictly construed to require a showing of substantial deprivation of beneficial uses for the property.  Delgaudio v. Board of Appeals of Medford, 1 Mass.App. 850 (1973) (fact that it is not economically feasible to erect a two story motel is not sufficient to warrant issuance of variance for six stories).  

        Furthermore, there is no hardship merely because potential profit may be lost.  Abbott v. Appleton Nursing Home, Inc., 355 Mass. at 221, 243 N.E.2d 912; City Council of Waltham v. Vinciullo, 364 Mass. 624, 631, 307 N.E.2d 316 (1974), or because a need exists for the proposed use.  Cass v. Board of Appeal of Fall River, 2 Mass.App. 555 557, 317 N.E.2d 77 (1974).  Nor will preliminary construction, expense incurred, or the existence of nearby nonconforming uses constitute a hardship.  Raia v. Board of Appeals of No. Reading, supra, 4. Mass.App. at 321-322, 347 N.E.2d 694 (1976).
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