A thicket of well-intentioned rules slow housing production in Massachusetts. We need to keep identifying barriers and removing them. It is not a matter of a single magic bullet; it is about working through dozens of individual issues. In our recent budget, we worked through and addressed several important barriers to housing production in the zoning law.
Sections 40 through 49 of our FY27 budget streamline local zoning permits as regulated by Chapter 40A of the General Laws. See the Boston Globe’s endorsement of these changes. These changes do not apply in Boston which has its own zoning charter (Chapter 665 of 1956).
- Zoning Freeze Extension: Section 42 freezes the zoning applicable to a building or special permit at the time of application for the permit. Existing law only freezes zoning after the permit is issued, allowing zoning changes designed to defeat a lawful permit. It also broadens the freeze to cover other applications like variances. The freeze expires if construction is not commenced timely. Current law gives a 12 month freeze. Section 45 extends that freeze to 24 months from the last necessary permit plus time waiting for permits.
- Protection of rights on non-conforming lots: Sections 43 and 44 liberalize structural alteration rules for non-conforming structures. This will eliminate many burdensome permit hearings for homeowners. In some communities, many properties do not conform to current zoning laws as to minimum lot size (or shape, frontage, lot coverage or floor area ratio requirements). This is commonly due to down-zoning that expanded minimum lot sizes. Most alterations to structures on these lots currently require zoning review as opposed to a simple building permit. Under the new law, no variance or special permit will be required provided that the alterations comply with current dimensional regulations regarding height, stories and setback. Similarly, section 46 extends existing rules that grandfather the development rights of small lots against increases in area, frontage, width, yard, or depth requirements — it extends the protection from only lots for single and two-family homes to lots for any use permitted under current zoning.
- Liberalization of variance requirements. Section 47 liberalizes variance rules. Under current law, a zoning board may grant a variance of it finds that unique conditions on a lot impose a substantial hardship and a variance would not be detrimental to the public good. Under the revision, the variance shall be granted from the strict requirements of a zoning by-law if they create a “practical difficulty.” The revision requires consideration of a broader set of interests in determining 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, and may also consider: (i) whether the practical difficulty relates to soil conditions, shape or topography of such land or structures; (ii) whether the strict enforcement would impose a financial hardship on the appellant or petitioner; (iii) whether the benefit sought by the appellant or petitioner can be achieved by some other method feasible for the appellant or petitioner to achieve; and (iv) whether the practical difficulty was self-created.
This flexible new statute will smooth the decision process about variances and allow for more housing production. The new statute also authorizes variances from use rules where the proposed use is housing. - Electronic notices: Sections 40-41 and 48-49 together allow hearing notices to individuals and agencies to be sent electronically instead of by postal mail. Of course, this will only have effect where the notifying agencies have access to email addresses. Newspaper publication and town-hall posting requirements are unchanged.