[MassHistPres] 40c hardship

[Ralph Slate]

That's an interesting read. I'm not convinced that the hardship relates 
specifically to the property and not the owner though.

In Springfield, we apply it as a two-part test. First, is the condition 
specific to the property and not general to the district?  If so, then 
we weigh the hardship to the owner against the detriment to the 
district. As such, the hardship may affect different owners differently. 
For example, if we determine that a porch that has collapsed is a 
specific condition, we might give more leeway to an elderly person on 
fixed income than a two-income family, because the financial hardship to 
a fixed-income elderly person has more impact than to a two-income family.

The weighing is the great balancing act. I still remember a case which I 
voted for but did not prevail -- someone had a chimney that was 
minimally visible to the public because it was on the rear of the house. 
Maybe 10 bricks could be seen. It was a secondary chimney. The chimney 
was in need of repair; it was not functioning as a chimney anymore. The 
homeowner proposed to remove it. The commission voted to deny the 
removal of the chimney because enough commissioners felt that the 
hardship of repairing a chimney did not outweigh the detriment of the 
public seeing the intact chimney. I felt that the house looked perfectly 
normal with one chimney, that most people never even saw the chimney, 
and that spending somewhere near a thousand dollars was more of a burden 
than the removal was a detriment. I guess that's why we have people 
voting rather than using a computer program to decide cases.

On a somewhat related note, Springfield recently won its case against 
the Roman Catholic Diocese of Springfield concerning a historic district 
created for a church. The judge ruled that creation of the district does 
not violate any religious separation laws. However, the judge did note 
that removal of things like religious statues or stained glass windows 
would probably fall under the hardship category because it would cause a 
religious hardship.

That seems to imply that if the church sells the building intact to a 
non-religious owner, the new owner could be prohibited from removing 
stained glass windows or statues, but if the church applies to remove 
them, the church probably could not be prohibited from doing so. And 
that seems to imply that the rules can be different based on the owner. 
Which seems weird because could mean that transferring a property to 
someone with a different level of assets could result in a different 
outcome.

Ralph Slate
Springfield, MA

On 1/11/2011 4:25 PM, Dennis De Witt wrote:
> 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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