- Real Estate
- 7 mins
Zoning laws play a crucial role in shaping how land is used and developed in Massachusetts. Whether you're a property owner, developer, or prospective buyer, understanding zoning regulations is essential for compliance and successful land use. In this legal blog post, we'll delve into the different zoning classifications in Massachusetts, pre-existing non-conforming properties, and the process of obtaining variances for special land use permissions.
Zoning Classifications in Massachusetts
In Massachusetts, all cities and towns are authorized to adopt their own zoning ordinances and bylaws as set forth under M.G.L c. 40A. Zoning laws are considered part of a municipalities policing powers, which are fundamental Constitutional rights of a government to enact and enforce its own laws to protect the public health, safety, morals, and general welfare.
Massachusetts zoning laws categorize properties into different zones based on their designated land use. Common zoning classifications include:
- Residential Zones: These zones are primarily designated for residential use, including single-family homes, multi-family dwellings, and apartment complexes.
- Commercial Zones: Commercial zones accommodate businesses, retail stores, restaurants, and other commercial activities.
- Industrial Zones: Industrial zones are reserved for manufacturing, warehousing, and industrial activities.
- Mixed-Use Zones: These zones allow for a combination of residential, commercial, and sometimes industrial uses within the same area.
- Special Purpose Zones: Certain areas may have special purpose zones for specific uses such as conservation, agricultural, or historic preservation.
Pre-Existing Non-Conforming Properties
A pre-existing non-conforming property is one that does not comply with current zoning regulations but was legally established before the enactment of those regulations. These properties may have been within legal compliance at the time of construction but no longer conform to the current zoning standards. These requirements can include building height, lot size, density, frontage, and the positioning of buildings on a lot. Owners of pre-existing non-conforming properties are often subject to restrictions on modifications or expansions to maintain conformity with zoning laws.
A great example of this can be found in the city of Somerville, Massachusetts. It is estimated that only 20-25% of all residential dwellings in Somerville are in compliance with the city's current zoning bylaws. How can that be? When all of the dwellings were originally constructed, they were in compliance with all zoning ordinances at that time. But over the years, zoning laws and ordinances can be changed and updated for a vast number of reasons, such as general welfar or public safety reasons. Therefore none of these residential dwellings are in violation of the current bylaws because they are considered pre-existing non-conforming property.
Obtaining A Variance for Special Land Use Permissions
In cases where property owners seek to use their land in a manner that deviates from zoning regulations, they may apply for what is known as a zoning variance. A variance is a special permit that allows for exceptions to zoning laws to be made under specific circumstances. To obtain a variance in Massachusetts, the land owner seeking the variance will have to appear before the Zoning Board of Appeals. Each municipality will have its own Zoning Board of Appeals that is comprised of local residents that have been appointed to the board to oversee all zoning appeals. This Board holds hearings that are similar to a court hearing but are far less formal where the owner stands before the board and makes their case as to why they should be granted a variance. During these hearings property owners typically attempt to demonstrate:
- Unusual hardship or unique circumstances that justify the need for a variance.
- That the variance would not substantially impact the surrounding neighborhood or violate the overall intent of the zoning regulations.
- How you intend to use the property will not negatively impact the general public’s well being
- Typically, financial gain or increased taxes to the town or city will not alone be enough to obtain a variance
If the zoning board denies the request for the variance, the property owner does have one last recourse. They can make an appeal to the Massachusetts Land Court where the decision will be put before a Land Court Judge.
A Noteworthy 2024 Change in Massachusetts Zoning Laws
On August 8, 2024, Governor Maura Healey signed into law an ambitious plan to combat housing prices across the state, known as the Affordable Homes Act. A part of this bill made reference to potential changes as to how Accessory Dwelling Units (referred to as ADUs) will be interpreted from a zoning perspective. The most common types of Accessory Dwelling Units are structures such as in-law apartments or separately constructed in-law additions that are all within the bounds of the same single-family residential lot. These ADUs can be either attached or detached from a single-family home and most frequently come in the shape of a basement or attic conversion, a small cabin in a backyard, or a bump-out addition to a home. The new Act attempts to apply a standard zoning regulation across the entire state with a uniform law that will allow single-family residential homeowners to add these small ADUs (under 900 square feet) by right, without the need to request and be approved for a special permit or variance. Historically, a homeowner that wished to build an in-law apartment or detached ADU on their lot would need to seek a special permit or variance through the Town Zoning Board, which could take several months or even years before acquiring the necessary approvals before construction could begin. The policy is scheduled to taked effect on February 2, 2025. However it is important to note that this policy does not override the specific bylaws of a given town or city. Most importantly, any construction of an ADU is still subject to local building codes, meaning you should always seek approvals from your specific town before commencing any additions or construction work on your lot.
The notable Amendment to M.G.L. c. 40A from the Affordable Homes Act states in part:
"Section 3 (Subjects which zoning may not regulate; exemptions; public hearings; temporary manufactured home residences:) of said chapter 40A, as so appearing, is hereby amended by adding the following paragraph:No zoning ordinance or by-law shall prohibit, unreasonably restrict or require a special permit or other discretionary zoning approval for the use of land or structures for a single accessory dwelling unit, or the rental thereof, in a single-family residential zoning district; provided, that the use of land or structures for such accessory dwelling unit under this paragraph may be subject to reasonable regulations, including, but not limited to, 310 CMR 15.000 et seq., if applicable, site plan review, regulations concerning dimensional setbacks and the bulk and height of structures and may be subject to restrictions and prohibitions on short-term rental, as defined in section 1 of chapter 64G. The use of land or structures for an accessory dwelling unit under this paragraph shall not require owner occupancy of either the accessory dwelling unit or the principal dwelling; provided, that not more than 1 additional parking space shall be required for an accessory dwelling unit; and provided further, that no additional parking space shall be required for an accessory dwelling located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station. For more than 1 accessory dwelling unit, or rental thereof, in a single-family residential zoning district there shall be a special permit for the use of land or structures for an accessory dwelling unit. The executive office of housing and livable communities may issue guidelines or promulgate regulations to administer this paragraph."
Governor Healey's office estimates that this change will result in between 8,000 and 10,000 ADUs being built across the state over the next five years due to passage of the law. The goal of the recent amendment is to increase the supply of available housing due to the historically low supply that the state has seen over the past few years, accompanied by a historically high demand. And with interest rates scheduled to decrease, it is certianly possible that homeowners look to not only refinance, but to leverage the equity of their home to build an ADU that can be used as supplemental rental income. For more information on today's rate climate and the potential benefits of refinancing, please read our full legal blog post here.
How to Navigate Zoning Laws in Your City or Town
Navigating zoning laws in Massachusetts requires a comprehensive understanding of zoning classifications, pre-existing non-conforming properties, and the variance or special permit application process. Massachusetts is notoriously known as one of the most complex states when it comes to zoning regulations, especially in and around the city of Boston. Whether you are planning to develop land, modify an existing property, or address zoning issues, consulting with a knowledgeable real estate attorney can provide valuable guidance and ensure compliance with applicable regulations.
At Lane, Lane & Kelly, our experienced team specializes in real estate law and zoning matters in Massachusetts. Contact us today to learn more about how we can assist you in navigating land use regulations and achieving your property development goals.
This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.
