A new duplex under construction. Developers seeking relief from zoning regulations have easier paths to approval under changes approved by the state Legislature this month. iStock photo
Over the last several years, the Massachusetts legislature has repeatedly amended the state Zoning Act to better promote housing construction.
For example, a 2021 amendment requires that communities with access to MBTA service allow higher density housing near public transit stations. That amendment also removed supermajority requirements once needed to adopt zoning amendments and approve special permits that favor housing production.
Another amendment in 2024 allows property owners outside of Boston to create accessory dwelling units as of right in single-family zoning districts. Other amendments let courts require that abutters who file questionable suits challenging zoning relief post bonds of up to $250,000 for indemnification and reimbursement of costs incurred by developers delayed by the litigation.
The favorable trend continues. This month, Gov. Maura Healey signed an appropriations bill that includes language amending the Zoning Act, drawn from proposals by the Real Estate Bar Association, making it easier for property owners to obtain zoning variances from local boards of appeals. To appreciate the importance of this amendment, familiarity with the law’s previous treatment of variances is helpful.
Seeking Relief from Standard Requirements
Local zoning regulations focus on controlling density (by limiting building heights and dimensions and setting minimum lot sizes) and uses (by confining commercial and industrial uses to zoning districts where they have less impact on residential neighborhoods). Property owners seeking relief from zoning restrictions generally must petition local boards of appeals for variances.
Until this month, the Zoning Act severely limited boards’ discretion to issue variances.
Petitioners had to demonstrate, and boards had to specifically find, that, one, because of soil conditions, shape or topography especially affecting the petitioner’s land or structures, a literal enforcement of the zoning regulation would cause “substantial hardship” to the petitioner.
Boards also had to find that granting a variance would not harm the public good or substantially compromise the purpose of the applicable zoning restriction.
These conditions were difficult to satisfy. The situation was particularly discouraging for property owners seeking relief from use restrictions. The Zoning Act only allowed boards of appeals to grant “use variances” if the local zoning regulations specifically let them. Many local regulations do not allow use variances.
Members of boards of appeals, who might have otherwise supported a given variance petition, often had no choice but to deny the variance because of the zoning act’s strict requirements.
Petitioners lucky enough to secure variances had to exercise their rights within one year. Otherwise, their variances lapsed unless the board of appeals authorized an extension limited to six months.
This month’s amendment to the zoning act addresses these difficulties head on. Boards of appeals may now grant variances if they find that a literal enforcement of a zoning regulation would result in a “practical difficulty,” instead of a “substantial hardship” to the petitioner.
This linguistic change is significant. It will presumably give boards of appeals more flexibility when they evaluate variance petitions.
Christopher R. Vaccaro
Weighing Benefits to Public
Also, when considering variance petitions, boards of appeals must now weigh the benefits to the petitioner and the public interest, including housing production specifically, against the detriment to the health, safety and welfare of the neighborhood.
Boards of appeals may – but are no longer required to – consider whether an identified practical difficulty relates to soil conditions, shape or topography of land or structures; if enforcement of the zoning regulation would impose financial hardship on the petitioner; if the benefit sought by the petitioner is achievable by another feasible method; and whether the practical difficulty was self-created.
The new legislation also allows boards of appeals to grant use variances for residential uses, regardless of whether the local zoning regulation specifically permits them.
The amendment expands the timeframe for property owners to exercise variance rights. Variance holders now have up to two years to exercise their variance rights. Time spent pursuing other entitlements necessary for the project or defending against appeals of variances in court, suspends the running of the two-year period. Boards of appeals may extend variance rights for up to another two years.
The recent amendment is expected to make it easier for petitioners to obtain and utilize variances, and for boards of appeals to justify granting them. However, as is the case with other amendments to the Zoning Act, this amendment will not affect Boston zoning, which is governed by a separate enabling act instead of the Massachusetts Zoning Act.
This contrast causes many to wonder if Boston’s leadership will someday collaborate with the state legislature to liberalize Boston’s zoning regulations. In the meantime, the regulatory environment for housing construction in the commonwealth’s other 350 cities and towns continues to improve.
Christopher R. Vaccaro, Esq. is a partner at Dalton & Finegold, L.L.P. in Andover. His email address is cvaccaro@dfllp.com.
