Eastham boards briefed on new 'practical difficulty' variance standard

Carolyn Murray of KP Law told a joint meeting of Eastham's planning board, zoning board of appeals and zoning task force that a major change to Massachusetts General Law chapter 48 took effect July 1 and will change how local boards evaluate variances.

"The new standard is now whether strict enforcement of the bylaw ordinance would result in a practical difficulty," Murray said, explaining that the permit-granting authority must weigh benefits to the petitioner and the public interest, including an interest in supporting housing production, against any detriment to public health, safety and the neighborhood.

Murray said the old test'which focused narrowly on a lot's shape, soil or topography'has been replaced and that the statutory text invites consideration of financial hardship, alternative means to achieve the same benefit, and whether the practical difficulty was self-created. "Most of the folks that have reached out to me about this have said, when isn't it self created?" she said, noting that courts will likely be asked to clarify application of the new standard.

Board members raised concerns that the change could make variances easier to obtain in some cases, and Murray urged caution and local review of existing bylaw language. She recommended that Eastham apply the new statutory test immediately for any incoming variance applications and begin preparing bylaw amendments to align town language with the statute before the May 2027 town meeting.

The boards did not take action on any application during the workshop; the presentation was informational and aimed at preparing staff and volunteers to apply the statute and to consider drafting conforming bylaw language.