Navigating the complexities of Massachusetts real estate law can be daunting, especially when it comes to zoning regulations. Among the most critical elements are special permits and variances, which serve as essential tools for property developers and homeowners alike. This article delves into the statutory frameworks and procedural requirements that govern these two concepts, ensuring you are well-informed as you engage in real estate transactions.
Special Permits: G.L. c. 40A, §§ 9, 9A, 9B
General Laws Chapter 40A, § 9 provides the foundational framework for special permits. Municipal bylaws may permit specific uses upon the issuance of a special permit, which must align with the general intent of the zoning bylaw. Special permits are particularly useful for establishing uses that are desirable yet not allowed as a matter of right due to compatibility issues within the zoning district. For instance, G.L. c. 40A, § 9A permits special permits for adult bookstores or theaters, while § 9B focuses on the protection of access to sunlight for solar energy.
It is crucial to understand that special permits are discretionary. The special permit-granting authority (SPGA) may impose conditions, safeguards, or limitations on the use, offering a flexible approach to managing development. Notably, the rights conferred by a special permit may be limited in terms of transferability, meaning they can only be exercised by the original permit holder. The SPGA may include boards such as the board of selectmen, city council, board of appeals, or planning board. G.L. c. 40A, § 1A.
Procedure for Seeking a Special Permit
To obtain a special permit, applicants must file an application with the municipal clerk’s office, subsequently submitting a certified copy to the SPGA. The SPGA is obligated to hold a public hearing within sixty-five days of the filing date. The authority must issue its decision within ninety days following the hearing, or the permit will be constructively granted. Extensions to these timeframes are permissible with a written agreement G.L. c. 40A, § 9.
Applicants should prepare a detailed description and plan of the proposed project, even in the absence of a separate site plan review provision. The SPGA requires this information to ascertain compliance with local bylaws and to ensure the project is not “detrimental to the neighborhood” Gage v. Town of Egremont, 409 Mass. 345, 349 (1991).
Failure of the SPGA to act within the allotted time frame results in constructive approval. However, to vest the rights of a constructively approved special permit, the applicant must notify the municipal clerk within fourteen days of the ninety-day expiration (or any agreed extension), and send notice to all parties in interest.
Quorum Requirements for Special Permits
Special permits necessitate a supermajority approval from the SPGA—three votes for a three-member board, four for a five-member board, and a two-thirds majority for larger boards. Absences or vacancies do not reduce the quorum necessary for a decision, underscoring the importance of full board participation.
Variances: G.L. c. 40A, § 10
In contrast to special permits, a variance under G.L. c. 40A, § 10 allows an applicant to deviate from certain zoning bylaw requirements altogether. Unlike special permits, variances are granted sparingly, with courts emphasizing that there is no legal entitlement to a variance. Sheppard v. Zoning Bd. of Appeal of Bos., 81 Mass. App. Ct. 394, 398 (2012). For my case summary of the Sheppard case, click here: Case Summary: Sheppard v. Zoning Board of Appeal of Boston.
To secure a variance, applicants must demonstrate compliance with three stringent criteria:
- There are unique circumstances related to the soil, shape, or topography of the lot that do not generally affect the surrounding zoning district.
- Strict enforcement of the bylaw would cause substantial hardship—financial or otherwise—to the petitioner.
- Relief can be granted without detriment to the public good or the intent of the zoning bylaw.
Importantly, “substantial hardship” must go beyond mere financial inconvenience; it must show that the property’s shape or features genuinely impede compliance with zoning laws. Steamboat Realty, LLC v. Zoning Bd. Of Appeal of Bos., 70 Mass. App. Ct. 601, 602 (2007).
Variances are also unique in that they run with the land, meaning that a board of appeals may not condition a variance so as to make them non-transferrable to subsequent owners. Lussier v. Bd. of Appeals of Peabody, 447 Mass. 531, 536 (2006).
Conclusion
Understanding the nuances of special permits and variances is essential for anyone engaged in real estate in Massachusetts. Whether you are a property developer seeking to expand your project’s possibilities or a homeowner exploring options for renovation, being well-versed in these regulations can significantly impact your success. As always, consulting with an experienced attorney specializing in real estate law can provide invaluable guidance tailored to your specific circumstances.
