Christine Rasmussen

As you may recall in 2024 the legislature passed the Affordable Homes Act (AHA), to support Governor Maura Healey’s goal of building 220,000 new units of housing in Massachusetts by 2035. It authorized over $5 billion in spending and legalized Accessory Dwelling Units (ADUs) by right statewide. Recently a committee connected to the Real Estate Bar Association for Massachusetts (REBA), led an effort build on the AHA foundation, by enacting zoning changes in an “Outside Section” (see editorial note) of the Fiscal Year 2027 State Budget that was signed by the governor on July 9th.

In Massachusetts towns like Stockbridge have an elected Planning Board, Board of Appeals, and Select Board members who have authority from state laws and the town’s zoning bylaws to review applications for building or modification of structures. This process has been used for decades, but because of the ability of abutters to challenge the validity of the permits through the court system, causing lengthy delays in securing necessary permits, the legislature using the REBA’s research changed the process making it more predictable and with less opportunity for legal challenges.

The new provisions include:

Fewer Special Permits Needed: If your house or lot doesn’t currently fit standard zoning rules (for example, your lot is too small or close to the property line), you used to have to go through a lengthy public hearing process with the Zoning Board of Appeals just to make changes. Now, you can expand or alter nonconforming residential structures without special local zoning relief, if your new construction project follows basic height, story, and setback rules for your town. However, you still must get a building permit.

The Variance Standard Has Been Fundamentally Rewritten

Massachusetts had one of the country’s most restrictive variance standards by requiring a showing of “substantial hardship,” That standard is now a new “practical difficulty” standard and boards now have to weigh the benefits of granting a variance including supporting housing production-against any detriment to the neighborhood. The hardship factor that boards would spend hours considering is now a discretionary consideration.

Multifamily Use Variances: Previously building multifamily housing on parcels not zoned for residential use required the developer to engage in a lengthy, uncertain municipal rezoning process. Developers can now apply for a “use variance” from local Zoning Boards of Appeals (ZBAs) for the required permits.

Extended Zoning Freezes: The law extends the protection period (zoning freeze) for approved housing projects, giving builders more stability against changing local bylaws.

Nonconforming Properties: It expands local flexibility to allow modifications and improvements to pre-existing nonconforming lots.

Modernized Communication: It authorizes electronic communications to streamline municipal notice requirements.

Who Can Sue: In the past, opponents could easily delay projects for years by filing lawsuits, even with weak arguments. The new law completely changes the rules for who has the right to sue (called “standing”).

Here is what those major legal changes mean:

1. Opponents Can No Longer “Hide in a Crowd.”
   • The Old Way: If a group of ten neighbors sued a developer, the court only required one person in the group to have a valid reason to sue. If just one person qualified, the whole lawsuit moved forward. This meant wealthy neighbors with no real case could fund the lawsuit from the sidelines.
   • The New Way: Every single person named in the lawsuit must now prove they have an individual, valid reason to sue.
   • Why it matters: It makes it much easier for developers to settle with one or two neighbors who have a real issue, rather than being forced to fight a large, stubborn group.

2. Abutters Lose Their Advantage
   • The Old Way: If you lived right next door, across the street, or within 300 feet of a project, the court automatically assumed you had the right to sue. The developer had to spend time and money proving you weren’t harmed.
   • The New Way: This automatic assumption is gone. Now, even immediate next-door neighbors start with zero advantage. They must immediately bring forward proof that the project will harm them.

3. Complaints Must Prove “Measurable” Harm
   • The Old Way: Neighbors could sue based on vague complaints, like claiming a new building would block their view or make the neighborhood a bit noisier.
   • The New Way: Complaining is no longer enough; opponents must prove concrete, measurable financial or physical damage. For example, you cannot just say, “I will see the building.” You must prove that seeing the building directly violates a specific zoning law and causes you a distinct, measurable injury.

4. The Harm Must Direct Connect to the Specific Permit
   • The Old Way: If a developer went to town hall to get a simple permit—for example, a minor exception to add a few extra parking spaces—neighbors could sue and complain about the entire project, like the height of the building or traffic on the main road.
   • The New Way: The lawsuit must strictly focus only on what the permit is for. If the developer is only asking for a parking permit, a neighbor can only sue over parking. They cannot use a minor permit as an excuse to complain about the whole building.

The Big Picture:

Overall, these changes by making it harder for neighbors to sue to block renovations or developments, giving a major victory to housing developers. It remains to be seen how courts will rule on appeals on the law.

Because these changes were effective immediately, local boards must be prepared to make their decisions in compliance with legal advice to comply with the changes in reviewing permit applications under the provisions now in effect.

Editor’s note: 1. Outside sections of the fiscal budget are legislative provisions included in appropriations bills that may not directly relate to the budget itself. These sections can introduce new policies or amend existing laws, often influencing various state programs and services. 2. Christine wants us to know she is not an attorney, and that her article is background information on what is occurring in land use policy in the state and should not be construed as legal advice. For legal advice, seek legal counsel.