For decades, Massachusetts property owners seeking zoning variances faced a high bar: They generally had to demonstrate that strict application of local zoning rules created a “substantial hardship” tied to particular characteristics of their property.
That changed this summer.
A new state law replaced the “substantial hardship” standard with a lower “practical difficulty” standard and gave zoning boards greater discretion in deciding whether to grant variances.
The law also requires boards to consider the benefits to the applicant and the public interest, including the interest in supporting housing production.
Now Marblehead’s Zoning Board of Appeals is learning how to apply a standard with little case law behind it, as town officials and municipal attorneys across Massachusetts work to determine what the changes mean in practice.
“The previous variance standard was very specific and strict, and the rules for that standard had been developed over 50 years of case law,” said Nina Pickering-Cook, a Marblehead resident and Boston attorney who serves as town counsel in Acton, Bedford and Dover. “Now we have a new standard that just requires practical difficulty, which there is no definition for.”
The result is more room for local boards to determine whether circumstances amount to a practical difficulty sufficient to justify an exemption from zoning requirements.
“The upshot is that variances are going to be easier to get … and harder to challenge,” Pickering-Cook said.
From ‘substantial hardship’ to ‘practical difficulty’
The new standard is part of a broader set of amendments to Chapter 40A, Massachusetts’ Zoning Act, that Gov. Maura Healey signed into law as part of the state budget in July. The changes took effect immediately.
Under the previous law, a property owner seeking a variance generally needed to establish a “substantial hardship” arising from the soil conditions, shape or topography of the land — a standard that had been interpreted through decades of court decisions.
The new law instead uses “practical difficulty.”
The change gives local zoning boards more discretion, Pickering-Cook said, because the new standard lacks precedent.
“On behalf of municipalities, we have no guidance right now as to how this new variance standard applies,” she said.
The state had discussed having the Executive Office of Housing and Livable Communities issue guidance or regulations, Pickering-Cook said, but that has not happened yet.
Instead, she said, the meaning of the new standard will develop through individual cases.
“It’s going to be developed by case laws, by people challenging decisions and going to court,” she said.
That means the first cases reaching the courts could become particularly important for municipalities trying to determine how much latitude the new standard gives their zoning boards.
“I think that people will use whatever cases go through for guidance,” Pickering-Cook said. “So, the cases that come out of the courts early on are going to be very important.”
Housing is now part of the equation
The law also directs zoning boards to consider the benefits to the applicant and the public interest, including the “interest in supporting the production of housing,” alongside the potential detriment to the public health, safety and welfare of the neighborhood.
That does not mean a project automatically qualifies for a variance because it creates housing. Rather, housing production is now explicitly among the factors a board must consider when weighing a proposal.
That could matter in Marblehead, where development proposals frequently encounter dimensional constraints.
“Especially in a town like Marblehead, that is full of prior nonconforming structures and lots given the age of our town,” she said, the change could have particular relevance.
The new law also allows certain nonconforming structures and uses to be altered or changed as of right if they meet specified criteria, Pickering-Cook said, removing some discretionary local review and giving applicants more pathways to build housing.
An early example
One local project that could illustrate how the new standard affects development is the Flower House proposal on Pleasant Street.
The owner is seeking to convert the property from commercial use to mixed use, including residential space, while removing the existing second floor and constructing new second- and third-story additions.
The proposal involves several dimensional issues, including parking, lot area, open area and side and rear-yard setbacks, according to ZBA records.
Town officials said the project has been continued while issues including parking are addressed.
But the project’s housing component could now carry weight in the variance process that it would not have under the previous standard.
Pickering-Cook said a proposal such as Flower House could benefit from the change because housing production is now an explicit consideration.
“This would certainly help that development move towards permitting,” she said.
She cautioned that she had not reviewed the Flower House application itself and was speaking about the effect of the law generally.
More broadly, she expects housing production to become a more common argument in variance applications.
“A lot of developments that are coming in now will simply add housing units in order to say, We should be able to get a variance because this adds housing,” Pickering-Cook said.
Town Administrator Thatcher Kezer said the change reflects a broader shift in how housing decisions are made in Massachusetts, with the state increasingly moving decisions traditionally made at the local level toward by-right development.
“The local communities should be making those decisions, and the state seems to be shifting in more under their purview under the law,” he said.
Municipalities are all asking the same questions
Town officials say they are still working through what the changes mean for the ZBA.
The board had not yet received training on the new law at the time of the interview, Community Development and Planning Director Brendan Callahan said, although training was being scheduled.
He said officials have been communicating with town counsel and the chairs of the ZBA and Planning Board as the new rules take effect.
“It’s a new law, some significant changes and probably some legal concepts that are going to get challenged and need to be tested in the courts,” Callahan said. “The point being is this isn’t a Marblehead challenge — this is a Commonwealth Municipal Challenge in Massachusetts.”
The Massachusetts Municipal Association has been hearing concerns from communities across the state about how the new requirements apply to applications already in progress and how municipalities should structure their processes going forward, according to its executive director and CEO, Adam Chapdelaine.
“We’re certainly not in favor of what was adopted,” he said. “We’re in that solutions-oriented position, trying to figure out what we can do to both advise municipalities, work with the Mass. Municipal Lawyers Association, but also see if there are some fixes that could be considered at the legislative level to remove some of the uncertainty or upset that’s been caused by the change.”
Chapdelaine said the MMA welcomes additional state guidance and training, but municipalities will need to rely heavily on local attorneys and planners because zoning decisions are highly specific to individual properties.
“I think in this particular case, especially when you’re dealing with variances and ZBAs, it quickly gets highly technical, highly local, highly precedential,” he said.
What will it mean for housing?
Whether the new standard will actually produce more housing remains an open question.
Chapdelaine said it is too early to know.
Pickering-Cook said municipal planners and attorneys are sharing information as applications begin to test the boundaries of the new law. Ultimately, however, she expects court decisions to provide the clearest guidance.
One possible early test, she said, could involve a variance allowing housing to be built on a lot previously considered unbuildable.
For town officials, the ultimate impact remains unclear.
Kezer said there is not yet enough history under the new rules to compare how projects would have been treated before and after the change.
“The open question, because it’s so early yet,” he said, is what impact the changes will have. “They may be more significant than we think. They may be less significant. We just don’t know yet because there’s not a history yet of decisions.”
For now, Callahan said, municipalities are waiting for the first cases to help establish what the new standard means.
“We’re all kind of waiting for the first guinea pig case, really,” he said.
