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...
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.
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
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.
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