Can you please fix this, Can you see if there is anything that needs to be taken out or added to the paper. This is the question:
your client, Jim, lives in Worcester, Massachusetts. He owns a downtown Worcester property that is zoned for commercial office space. However, since there is already plenty of office space available in Worcester, Jim does not feel that it would be wise to build another office building. Instead, he wishes to build a gas station to service the downtown traffic.
He asks you to do a bit of research on Massachusetts law to determine:
a) what standard your client must show to get a variance to allow him to build the gas station; and
b) if you can find any case law on the basis of which to guess whether he will be successful.
Please do so.
There is NO need to write an IRAC-style essay for this assignment.
Here is the paper…
The issue at hand is about the standards Jim must show so as to be able to get a variance to enable him to build the gas station.
If Jim is to be granted the permission to convert the space in his commercial building into a gas station, there are four major tests he must meet before the Board can grant him the variance. If he does not prove them to their satisfaction, it means that the Board will not have the legal authority to grant Jim a variance. The first rule is that Jim must show that the land in question cannot produce a reasonable return unless the variance is given. In this test, the Board will be looking for a proof that without the variance Jim cannot make reasonable use of the property as a commercial office building. It is crucial to note that a reasonable return under the law does not necessary mean maximum return in terms of finances (Cordell, 2014). Second, the law requires that a variance is granted owing to the unique situation of the property as well as not to the general condition of the neighborhood. Under this regulation, the Board looks for proof that the property is somehow different from any other property in the neighborhood (Cordell, 2014). The difference could encompass its topography, shape, or even its unique position. Third is the granting if the variance does not change the essential character of where the property is localized. To meet this requirement, a person must be in a position to prove to the Board that the proposal will not alter the neighborhood. It is also required that the individual proves that the variance will not pose safety or health problems (Cordell, 2014). This is considered the easiest step a person can meet. Last, the hardship for which one seeks to obtain variance is not the result of an action taken by the prior owner of the property or the applicant. In this rule, the past history of a property is critically relevant. A good example would be where a property owner decides to split a lot out of larger parcel and doing this made a substantial lot after zoning was granted (Cordell, 2014). As such, an individual will need to present to the Board, a clear history of how the property was made as well as developed over the course of years.
So as to determine the standards Jim must show in order to get a variance to enable him build the gas station the board would rely on two so that to develop relevant decision: B.J.’S Wholesale Inc. V. Hutchings and Shacka v. Board of Appeals, 341 Mass. 593. In the B.J.’S Wholesale Inc. V. Hutchings case the plaintiff, B.J.’S Wholesale Inc. seeks judicial review of a decision for a denial of a request for a permit to construct as well as operate a gasoline station in a parking lot of the company’s whole club store adjustment to Route 1 in Attleboro. The court rejected the request for the permit stating some shortcoming it realized with the B.J.’S Wholesale Inc. application (Commonwealth of Massachusetts Superior Court BRISTOL, 2000). The first one was that the Board made a conclusion that the gas station to be constructed would result in undue traffic congestion as well as hinder pedestrian safety as three areas. the court reasoned that the gas station would add more problems to the already existing ones in terms of traffic. The Board also based its argument on the decision that the gasoline station would exacerbate the current issues facing this location impairing the pedestrian’s safety and make a bad situation worse. The second shortcoming is that, as identified by the Board, the gas station would have a serious undesirable impact on the public and neighborhood (Commonwealth of Massachusetts Superior Court BRISTOL, 2000). The Board held that the people already had enough problems to deal with, the gas station will only add to this because it would result in a lot of noises, the unreasonable level of traffic, and glares from the parking lights.
In the case of Shacka v. Board of Appeals, 341 Mass. 593, appellant had purchased a property at Gorham Street, Chelmsford next to a highway as a location for a service station. This is after the intervener was evicted from the current position due to public construction activities (Wilkins, Spalding & Cutter, 2000). The new site was flat and could be used for almost anything. However, the Board ruled against the appellant on the grounds that there was not substantial hardship was experienced by the applicant. the hardship was caused by taking the previous space and was found unnecessary because it did not affect the zoning district in which it was positioned (Wilkins, Spalding & Cutter, 2000). From this, it can be argued that Jim does not have a good basis of getting the variance. This is because it can be seen that he does not meet that hardship requirement. Second, his case is similar that of Shacka v. Board of Appeals in that he is only interested in getting the variance so that he can meet his financial needs. In the same way, getting the variance does not benefit the public in any way. Therefore, the Board is most likely to deny granting Jim the variance.
The issue at hand concerns the standard that Jim must meet so that he can granted a variance to zoning his commercial office building into a gas station. With respect to the analysis and rules, it can be seen that Jim does not meet most of the requirement stipulated in the rule and. Therefore, the Board will not grant him the variance.