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ZBA reviews recent state law changes that ease variance standards and broaden nonconforming protections
Summary
Board members reviewed July 9 state legislation amending variance and nonconforming-structure rules (effective retroactively to July 1), warned the new 'practical difficulty' standard is unclear, and discussed likely increases in appeals and requests for guidance from town counsel.
Members of the Mashpee Zoning Board of Appeals spent significant time on July 22 reviewing changes in the state budget bill that alter the rules governing variances and preexisting nonconforming residential structures.
Chair Ronald Bonvy summarized key changes, including the adoption of a "practical difficulty" test that gives weight to housing production and that (for residential matters) requires boards to weigh benefits to an applicant and the public interest before denying relief. The legislation also expands protections that allow certain modifications to preexisting nonconforming residential structures if they meet current dimensional regulations regarding height, stories and setbacks. "This is enormous," Bonvy said, warning that many cases the board previously denied could return under the new standard. Town counsel confirmed the changes are retroactive to July 1 and cautioned the board that the statutory language is ambiguous and likely to generate litigation and requests for clarification from municipalities.
Board members asked staff to prepare updated guidance and said they expect an increase in petitions and requests for use variances and nonconforming-structure determinations in coming months. The board discussed withholding final positions until case law or clearer attorney guidance emerges.
