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Town planner: new state law changes how ZBA should weigh residential variances
Summary
Wareham town planner Josh Flattery told the Zoning Board of Appeals the governors July 1 amendments to the General Appropriation Act alter variance standards: boards may now weigh whether a project benefits housing production rather than rely solely on the traditional three-part hardship test, and staff will return with written guidance.
Josh Flattery, Warehams town planner, told the Zoning Board of Appeals on July 22 that the governor has approved changes to Chapter 48 that take effect July 1 and substantially alter how municipalities should evaluate residential variances. "The standard that you've all been viewing variances on soil condition, shape, topography no longer need to be satisfied," Flattery said, explaining the statute now asks whether a project advances housing production.
The planner said the amendments include an emergency declaration making them effective July 1 and that town staff and counsel are still working through how the changes apply, particularly for commercial cases. "I'm still working on getting an actual opinion out to you guys on what all these effects mean," Flattery said, and promised written guidance and updated decision templates at the board's next meeting.
Board members asked practical questions about how the law would interact with existing nonconformities, floor-area ratio (FAR) calculations and whether municipal officials (for example, the building inspector) needed to be rebriefed. Flattery said some parts of the bylaw regime remain in force but that the requirement to show the classic three statutory hardships has been relaxed for residential variances; he advised caution and consultation with counsel before changing routine practices.
The board directed staff to prepare a short written opinion and a draft change to the boards decision-standard paperwork so members would have uniform language to use when issuing findings or conditions. Chair Naziel Collase said he wanted the board to have a clear, reviewed approach rather than improvise: "We'll want something in writing at your next meeting," Flattery said, and added he would consult land-use attorneys and town counsel to clarify ambiguous points.
The planner and several members also flagged an ancillary but immediate consequence: under the new reading, some increases to nonconformity (for example, certain FAR or coverage changes) may be permitted by right if other thresholds are met, which could limit future ZBA leverage over subsequent owners. Flattery warned that the board should not assume the same analysis applies to commercial properties and recommended staff and counsel prepare a short memo for the board's packet before the next hearing.
The board accepted that schedule and moved on to the evenings hearings.
