Own a Nonconforming Property? Recent Massachusetts Zoning Changes Could Give You More Options
If you own an older property in Massachusetts, there is a good chance some aspect of it does not comply with today's zoning requirements.
Maybe the house sits too close to a property line. Perhaps an addition doesn't meet current setback requirements. The lot may be smaller than today's minimum lot size, or the property's existing use may no longer be permitted under current zoning.
These properties are often described as preexisting nonconforming properties, and making changes to them has historically presented additional zoning challenges.
Recent changes to Massachusetts zoning law, however, may give some property owners greater flexibility.
What Is a Preexisting Nonconforming Property?
A property or structure can become nonconforming when it was lawful when originally built or established but no longer complies with zoning rules adopted later.
This is particularly common in Massachusetts communities with housing stock that predates modern zoning bylaws.
Nonconformities can involve issues such as:
Building setbacks
Lot size or frontage
Building height or coverage
Placement of a structure on the lot
The property's existing use
Being nonconforming does not necessarily mean the property is illegal. In many cases, the property is allowed to continue because its condition or use existed lawfully before the current zoning requirement took effect.
The challenge often appears when an owner wants to alter, expand or redevelop the property.
Massachusetts Has Changed Some of the Rules
Recent amendments to Massachusetts zoning law have made significant changes affecting property owners, developers and local zoning boards.
One important area involves alterations to certain preexisting nonconforming structures.
Under the revised law, some changes to a nonconforming single- or two-family residential structure may be permitted without the same level of discretionary zoning relief previously required, provided the proposed work complies with applicable dimensional requirements and does not create a new nonconformity.
That could potentially simplify projects that previously faced a more complicated approval process.
But it does not mean every addition or renovation to a nonconforming property can now move forward automatically. The specific nature of the existing nonconformity, the proposed project and applicable local zoning rules still matter.
The Variance Standard Has Also Changed
Another significant development involves zoning variances.
Historically, obtaining a variance in Massachusetts generally required an applicant to demonstrate a substantial hardship tied to specific circumstances affecting the property. That could be a difficult standard to satisfy.
Recent legislation changed that framework by introducing a “practical difficulty” standard for certain variance requests.
This potentially gives zoning boards greater flexibility when evaluating whether relief is appropriate.
The changes also place greater emphasis on housing production in some zoning decisions, reflecting Massachusetts' broader effort to address the state's housing shortage.
For owners of properties with unusual lots, older structures or existing zoning constraints, this change may create possibilities that weren't previously available.
A Previously Rejected Project May Be Worth Revisiting
The practical impact could be particularly important for homeowners who previously abandoned a project because zoning relief appeared too difficult or uncertain.
For example, an owner might want to:
Expand an existing home
Reconfigure an older structure
Add living space
Modify a nonconforming portion of a residence
Redevelop an unusually shaped or undersized lot
Convert or adapt an existing property for a different residential configuration
A project that was difficult under the previous legal framework may deserve another look under the current rules.
That doesn't mean approval is guaranteed. Local zoning bylaws, permitting requirements and the facts surrounding an individual property remain critical.
Don't Assume Your Property Is—or Isn't—Buildable
One of the biggest mistakes a property owner can make is relying solely on what a neighbor was allowed to do, what happened with the property years ago or a general understanding of the town's zoning rules.
Two seemingly similar properties can have very different zoning histories.
Before planning an addition or redevelopment, owners should determine exactly what is nonconforming, why it is nonconforming and what protections apply to the property.
That can require reviewing deeds, surveys, building permits, zoning decisions, historical records and the municipality's current zoning bylaws.
What Should Massachusetts Property Owners Do Now?
If you own a nonconforming property and have been considering an addition, renovation or redevelopment, recent changes to Massachusetts zoning law make this a good time to reassess your options.
The first step is understanding the property's current zoning status and how the new rules interact with your municipality's requirements.
For some owners, the changes may provide a more straightforward path forward. For others, a special permit, variance or other local approval may still be necessary.
Either way, understanding the zoning issues before investing heavily in architectural plans or construction documents can save considerable time and expense.
A Massachusetts real estate or land-use attorney can review the property's zoning history, determine which state and local rules apply, and help identify the appropriate permitting strategy for a proposed project.
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Massachusetts zoning and land-use laws are complex and may be affected by local bylaws, regulations, court decisions and the specific facts of a property. Property owners should consult with a qualified Massachusetts real estate or land-use attorney regarding their individual circumstances before making decisions regarding development, permitting or zoning.
