Major Changes Made To State Zoning Law; Will Benefit Housing Development

 HARWICH – In signing the fiscal 2027 state budget bill July 9, Gov. Maura Healey approved changes to the state zoning statute that alters the way zoning boards of appeals weigh variances. Several of the new provisions expand housing development opportunities.

 Town Counsel Amy Kwesell of KP Law held a training session with members of the board of appeals and planning board on Aug. 3 in an effort to bring board members up to speed on the changes. 

 The changes ease standards that a zoning board of appeal considers when weighing a variance. The standard for zoning variances in Massachusetts has been considered one of the more stringent provisions in the country.

Under the previous law, Kwesell said, variances could only be granted if an applicant could demonstrate significant hardship related to the soil, shape or topography of a lot. The new standard changes the “substantial hardship” provision to “practical difficulty,” and specifically allows a board the need for housing in a community.

 The new standard for reads: ”If the permit granting authority specifically finds that a strict enforcement of the ordinance or bylaw would result in a practical difficulty, in making its determination, the permit granting authority shall weigh the benefits to the appellant or petitioner and to the public interest, including the interest in supporting the production of housing against the detriment to the public health, safety and welfare of the neighborhood.”

 The board may also consider whether the strict enforcement would impose financial hardship on an appellant, whether the benefits sought by the appellant can be achieved by some other method feasible for the petitioners, and whether the “practical difficulty” was self-created.

 “Essentially, a variance regarding residential use is going to be very hard to deny,” said Kwesell. 

 Kwesell said it will take court rulings to clarify the interpretation of financial hardship and practical difficulty.

 A zoning board of appeals (ZBA) must weigh the benefits of a variance to the petitioner and the public interest, including the interest in supporting the production of housing against the detriment to the public health, safety and welfare of the neighborhood, she said. 

 “The ZBA will need to evaluate facts of each case, and it will probably take some time to get more clarity as the courts interpret this language through variance appeals,” said Kwesell.

 A separate provision related to use variances previously allowed variances only when authorized in a local bylaw or ordinance. The new law allows a board to consider any use variance if it applies to residential housing. In other words, use variances for residential uses are allowed even if an ordinance or bylaw is silent, according to Kwesell. That would allow, for instance, multi-family or single family residences in commercial and industrial zones, she said.

 Appeals Board Chair Brian Sullivan asked if Stop and Shop could build accessory dwelling units in its parking lot for employee housing. Kwesell it could be allowed.

 There is also a new provision for handling extension or alteration by right of pre-existing nonconforming structures. Kwesell said provided the extension or alteration complies with dimensional regulations as to height, setback and or stories, the structure or use now can be altered as of right. Such projects no longer need a finding from the special permit granting authority, according to Kwesell.

 There was discussion of whether a ZBA can still issue conditions on variances. Kwesell said language in the previous law that stated permit granting authority “may impose conditions, safeguards and limitations both of time and use” was removed from the new law. She suggested the board issue "findings" agreed to by the petitioner.  

The new law increases the valid period of a variance from one to two years, and it can be extended for another two years while the appellant pursues other permits to construct the project.

Kwesell made it clear there are a number of areas where the courts will have to step in and interpret language in the newly promulgated 40A law. 

The new law expands lot merger zoning protection to cover all lots, not just residential, as in the previous legislation. There is also a change in the legislation allowing communities to create a zoning ordinance or bylaw to extend the abandonment timeframe for nonconforming uses from two to four years.

Among other changes in the law is the way the public is notified about public hearings. The previous provisions required a posting at town hall, legal publication and notification by mail to abutters. The posting in town hall and publication remain, but abutters can now be notified either by mail or through electronic mail.

Appeals board member Kenneth Dickson said that a number of the town’s zoning bylaws now do not comply with the state law.

Kwesell said changes will be necessary. She cited 10 town bylaws in need of revisions to conform with the new state statute. The plan is to address those changes at next May’s annual town meeting. 

Sullivan asked what the consequences would be if town meeting rejects the changes. Kwesell said it would be in conflict with state law, because the bylaws do not match the state statute. The building commission will have to work with applicants providing direction, she added.

Matt Sutphin wanted to know if water impacts were considered by the legislature when making these decisions. 

“No, I don’t think water or sewer was considered during this process,” said Kwesell.

Kwesell said there was no communication with the Massachusetts Municipal Association and other associated groups when legislators made the changes.