This article presents the major revisions affecting the power and procedures for cities and towns to zone and make zoning decisions. In our opinion, these changes are essential to understand. Here they are, itemized outline form for you.

Chapter 40A, § 5 - Adoption or change of zoning ordinances or by-laws; procedure:

• Permits some legal notices to be sent electronically (previously by mail only)

Chapter 40A, § 6 - Existing structures, uses, or permits; certain subdivision plans; application of chapter:

• Relaxes the standard for alteration or extension of pre-existing nonconforming structures or residential uses that do not conform because of lot size or shape, frontage, lot coverage, or flood area ratio requirements. These pre-existing nonconforming structures or uses may be extended or altered as of right (without the need for a finding by the special permit granting authority) IF the extension or alteration complies with the current dimensional regulations for height, stories, and setback.
• Extends the zoning freeze (grace period in which projects do not have to comply with newly or subsequently amended local zoning) from 12 months to 24 months. A change of zoning will not apply to construction or operation under a building permit if the construction or operation commences within 24 months after issuance of the last permit necessary for construction (and the construction is continuously pursued).
• The period to begin construction under a special permit (c. 40A, § 9) and site plan approval remains the same (within 3 years after issuance of the permit).
• Extends the period for abandonment or nonuse of nonconforming uses or structures. Municipalities may regulate nonconforming uses or structures abandoned or not used for a period of four (4) years or more—instead of 2 years. This allows uses and structures to maintain their vested status for an additional 2 years.
• Extends the protection to all lots (previously just single- and two-family residentially zoned lots) from an increase in requirements for area, frontage, width, yard, or depth.
  • These increases under a local zoning ordinance or bylaw do not apply to any lot, which at the time of recording or endorsement (whichever is sooner), was not held in common ownership with any adjoining land, conformed to then-existing zoning requirements, and had less than the proposed requirement but at least 5,000 sf of area and 50 feet of frontage.
  • These increases under a local zoning ordinance or bylaw do not apply for a period of five years from its effective date or for five years after January 1, 1976, whichever is later, to any lot, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with any adjoining land and conformed to the existing zoning requirements as of January 1, 1976, and had less area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least 7,500 sf of area and 75 feet of frontage, and provided that said five year period does not commence before January 1, 1976, and provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership.

Chapter 40A, § 10 – Variances:

• Old Standard: substantial hardship 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. This made variances harder to get than most other states in the nation.
• New Standard: Practical difficulty. The permit granting authority weighs the benefits of the project to the public and the applicant.
• Allows use variances for residential projects (previously no use variances at all unless the city or town had opted to allow them).
• Extends the period to exercise the rights granted by a variance from 1 year to 2 years.
• Permit granting authority may extend the time for exercising those rights for 2 years (previously 6 months).

Chapter 40A, § 11 - Notice requirements for public hearings; parties in interest defined; review of special permit petitions; recording copies of special permit and variance decisions:

• Permits some legal notices to be sent electronically (previously by mail only)

The legislation is intended to foster the Healey-Driscoll Administration’s goal of creating 222,000 homes between 2025 and 2035 by allowing for more certainty and more time to obtain the necessary permits to begin projects.

The lessons of the new Zoning Act amendments are to think again—and maybe apply again. Please be aware that a previously denied project might now be permittable or indeed not need a special permit or section 6 finding.

Landowners should promptly consider that the zoning ground under them has shifted in their favor, especially for housing. Municipalities should promptly review and update their zoning to comply with the new statutory standards and processes.

Recall, though, that the Zoning Act does not apply within the City of Boston, which has its own Zoning Code statute. We await what may be any similar changes to it during this very busy legislative session at the Massachusetts State House.