Furlong v. Zoning Board of Appeals of Salem, 90 Mass. App. Ct. 737

Brewer Hawthorne Cove Marina (Brewer) owns a highly irregular, nonrectangular marina parcel in Salem with marina operations, a temporary Quonset hut used for boat repairs, and a travel lift that needs large open turning radii to operate safely.
Brewer applied for a dimensional variance to locate a new boat‑repair building at the northern edge of the lot outside the setback requirement to (a) provide safe operation space for the travel lift, (b) remove the Quonset hut from the center of the lot, and (c) widen the entrance for improved/ emergency access.
The Salem Zoning Board of Appeals approved the variance after hearings, finding that the proposed siting would have less neighborhood impact than building in the by‑right location.
Abutter Michael F. Furlong (about 100 feet from the northern boundary) appealed under G. L. c. 40A, § 17, claiming the board’s decision was arbitrary, capricious, and legally untenable.
The Land Court judge found Furlong was a person aggrieved, held a de novo factfinding hearing, and concluded strict enforcement of the setback would create substantial safety hazards (a statutory hardship) that justified the variance; the judge affirmed the board.
On appeal to the Appeals Court, the court affirmed: the safety risk from enforcing the setback satisfied the § 10 hardship requirement and the other statutory prongs were met (no substantial detriment to public good; no substantial derogation of ordinance intent).

Issue	Furlong's Argument	Brewer's Argument	Held
Whether safety risks from enforcing the setback can constitute a § 10 "hardship"	Safety concerns do not qualify as a statutory hardship	Safety hazard to people/property from constrained travel‑lift operation is a substantial hardship	Safety risk that would be prevented by the variance may constitute a hardship; court held it did here (agreeing with Josephs)
Whether granting the variance would substantially detriment the public good	Variance would increase density and harm neighborhood (views, etc.)	Proposed siting reduces neighborhood impact, preserves open area, and improves safety/access	Court held no substantial detriment to public good; judge’s findings supported by record
Whether the variance would nullify or derogate ordinance intent (e.g., by increasing density)	Variance increases perceived density and thus derogates ordinance purpose	Placement on lot edge limits interference with neighbors’ views and maintains open area to avoid perceived density	Court held variance would not substantially derogate ordinance intent
Whether any hardship is self‑created (bar to relief)	Any hardship arises from Brewer’s choices and is self‑created, so variance should be denied	Unique lot shape and operational needs create non‑self‑created safety hardship	Court concluded Warren/Arrigo inapplicable; hardship not of the same self‑created kind and variance permissible

Josephs v. Board of Appeals of Brookline, 362 Mass. 290 (recognizes safety risk can satisfy § 10 "hardship")
Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1 (discusses requirement that all § 10 prongs be satisfied and addresses self‑created hardship doctrine)
Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531 (variances are not a right and should be sparingly granted)