Important Amendments to the Zoning Act, G.L. c. 40A, are Enacted as Emergency Legislation

On July 9, 2026, Governor Healy signed House Bill No. 5555, which is the Commonwealth’s Fiscal Year 2027 budget legislation. Included in the legislation are a number of amendments to the state Zoning Act, G.L. c. 40A, which, due to a retroactive effective date, became effective as of July 1, 2026. These amendments make changes to Sections 5, 6, 10, and 11 of Chapter 40A, and will result in significant changes to the day-to-day administration of municipal zoning. This short article highlights changes to the treatment of certain nonconforming structures and uses by G.L. c. 40A, §6, and the standard for the issuance of zoning variances found in G.L. c. 40A, §10.

By-right changes to certain preexisting nonconforming structures and residential uses:

A newly inserted provision to the first paragraph of G.L. c. 40A, § 6, supplements the protections afforded to nonconforming structures and uses such that for “nonconforming structures or residential uses that do not conform to zoning because of lot size or shape, frontage, lot coverage or floor area ratio requirements,” extensions or alterations that comply with current dimensional regulations regarding height, stories and setbacks, are permitted as of right. Thus, in these particular cases the familiar “Section 6 finding” is no longer required.

Revised zoning variance standard:

Zoning variances have historically been subject to a demanding standard that rendered entitlement to such relief uncommon. As amended, G.L. c. 40A, §10, now provides for a new and less stringent variance standard where a variance shall be granted upon a finding “that a strict enforcement of the ordinance or by-law would result in a practical difficulty.”

The amended Section 10 does not define “practical difficulty” but provides that when making a determination the permit granting authority “shall weigh the benefits to the appellant or petitioner and to the public interest, including the interest in supporting the production of housing against the detriment to the public health, safety and welfare of the neighborhood.”

Section 10 further provides that the permit granting authority may also consider:

       (i)          whether the practical difficulty relates to soil conditions, shape or topography of such land or structures;

       (ii)         whether strict enforcement would impose a financial hardship on the petitioner;

       (iii)        whether the benefit sought by the petitioner can be achieved by some other feasible method feasible; and

       (iv)        whether the practical difficulty was self-created.

Additional amendments include:

• Providing that notices required by Sections 5 and 11 may be sent electronically.

• Providing that zoning amendments will not apply to any permits that were applied for, not just issued, prior to the notice of a Planning Board’s public hearing.

• Increasing the period of time for the commencement of construction under a building permit from 12 to 24 months and tolling this period while other necessary permits are being sought.

• Increasing the minimum period for abandonment of a nonconforming use or structure from 2 years to 4 years. 

• Removing the limitation previously applicable only to lots for single and two-family residential uses for undersized lots never held in common ownership.

• Allowing the issuance of use variances for residential uses without the requirement to adopt a bylaw expressly authorizing the same.

• Deleting the paragraph of Section 10 permitting variances to impose conditions, safeguards, and limitations. 

• Increasing the lapse period for a variance from 1 year to 2 years and permitting extensions of up to 2 years.

These amendments will result in substantial changes to previously established practices for evaluating nonconforming uses and structures, variance petitions, questions relating to the applicability of zoning bylaw amendments, and the lapse of permits and variances. In many cases these amendments will also require zoning bylaw updates to ensure conformity with this newest version of Chapter 40A.