Updates Designed to Increase Housing Construction

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.

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.

Download the article as seen in Banker & Tradesman on July 27, 2026. Learn more about Christopher R. Vaccaro.