Obtaining a Variance or Special Permit in Massachusetts

By Robert Nislick

You are a landowner in Massachusetts. You have a project in mind for improving your property. Perhaps you would like to build an addition to your home. For example, Alison wants to bump the front door out so it is a little closer to the street, and build a nice new entryway, closet, and mudroom in that space. Bill wants to build a detached three-car garage behind his house, and add a second floor that will be the perfect man cave.

The homeowners talk to their contractor, get their plans together, and submit a building permit application. The local building commissioner will review the application. Among other things, the building commissioner will look to see whether the project that the homeowners have applied to build complies with the town’s zoning by-laws. He will look to see whether the use applied for is allowed as-of-right. “An as-of-right use refers to a use that is allowed without the need for a special permit, use variance, amendment, waiver, and/or other discretionary approval.” See Framingham Zoning By-Law, Section I.E. at 7. He will also look to see whether the proposed project will comply with the table of dimensional requirements.

If not, then the building commissioner will deny building permit application. “He shall issue no building permit for the construction of any building or structure which would be in violation of any of the provisions of this Bylaw.” See, e.g., Town of Walpole Zoning Bylaws, Section 3.1.A. The building commissioner may also advise the applicant in writing as to the sections of the zoning by-law with which the application and plans are not in compliance. See e.g., Framingham Zoning By-Law, Section VI.G. The building commissioner may tell you that you need a variance or a special permit. See G. L. c. 40A, §§ 9, 10.

At this point, the homeowner or landowner will have to apply to the local zoning board of appeals for zoning relief. It would be worthwhile to retain counsel at this point. Every city and town has its own procedures for applying for a variance or special permit. Detailed instructions can often be found online, and any applicant would be well advised to follow the town’s application procedures carefully. For example, information about how to seek zoning relief in Framingham, Natick, Marlborough, Southborough, and Wellesley, can be found by clicking the links.

“A board of appeals shall have the following powers: . . . (2) To hear and decide applications for special permits upon which the board is empowered to act under said ordinance or by-laws. (3) To hear and decide petitions for variances as set forth in section ten.” G. L. c. 40A, § 14.

The Zoning Act, G. L. c. 40A, sets forth very detailed requirements which are binding on both boards and applicants. For example, the statute covers many complex topics including exemptions, changes to zoning by-laws, pre-existing nonconforming structures and uses, enforcement of zoning regulations, appeals, notice, timing, and judicial review.

Additionally, the statute establishes substantive and procedural requirements governing special permits and variances. There are several different types of special permit, but primarily, G. L. c. 40A, § 9, states in pertinent part: “Zoning ordinances or by-laws shall provide for specific types of uses which shall only be permitted in specified districts upon the issuance of a special permit. Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use.” See G. L. c. 40A, § 9.

The standard for obtaining a variance is more stringent. In order to obtain a variance, G. L. c. 40A, § 10, requires the applicant to demonstrate that, and the permit granting authority must specifically find that, “owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.” See G. L. c. 40A, § 10.

For non-attorney homeowners who simply want to do something nice to improve their house, it can feel very intimidating to appear before a board to explain the project, and be told that they have to demonstrate how they satisfy the requirements for obtaining a variance. There will often be a disconnect between the board and the applicant. The board is not necessarily trying to give the applicant a hard time. Still, the applicant feels like a deer in the headlights, not understanding the board’s questions or how to answer them to the board’s satisfaction.

Again, it would be wise to hire a lawyer who can walk you through the process, and develop arguments in favor of the zoning relief you need, and present your case to the members of the zoning board. Counsel may also help you to modify your plans so that you can avoid the necessity for obtaining zoning relief, and doing so may prove to be a better course of action under certain circumstances.

If you need an attorney to represent you concerning a zoning matter, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.