Zoning and the Property Owner
/Third of three articles
Whether or not you plan to make any changes to property you own, understanding zoning compliance is important. Property owners are responsible even if a nonconforming change was made by a previous owner. If it is determined that a property does not comply with zoning rules, intentionally or unintentionally, fines and expenses may be incurred. If a new building or a renovation of an existing building does not conform to zoning codes, the structure may have to be altered or even removed to meet those requirements.
How can you ensure that a property conforms to local zoning? Visit your city or town offices to review documents or hire a surveyor to check that a property is compliant, ideally before purchasing it.
Ensuring compliance for renovations and new construction
When an owner decides to renovate an existing structure or build a new one, they first need to determine if zoning will permit changes to the property. If you are working with an architect, they will be able to advise you about zoning-related issues that may affect your project. If you’re handling a renovation yourself, the first step is to find out the zoning requirements before making plans.
Illustration by Claudia Martin
If permission is needed to deviate from a specific requirement of the zoning code, the owner must file a request for a special permit or a variance with the local Zoning Board of Appeal (ZBA). Common examples of changes to a residential property that may require a special permit or a variance include:
Adding dormers or bumping out an exterior wall to increase living space
Extending or building a deck or a fence
Installing a new driveway
Constructing a garage or shed
In many municipalities, in addition to the city zoning code and the ZBA, there are specific regulations that apply to each neighborhood district, as well as neighborhood councils that review plans. When applying for a variance or proposing a new project, a property owner is advised to send a copy of their application or project to the local neighborhood council and/or civic association.
Test your knowledge: JP attic renovation
Homeowners in Jamaica Plain want to renovate their attic. The home is located in a neighborhood zoned for one- and two-family residences. The building is a one-family structure on a 3,600-square-foot lot with 1,700 square feet of usable living space. (1) What is the current floor area ratio?
The attic renovation would add 700 square feet of living space to the home, bringing the total to 2,400. In the Jamaica Plain Neighborhood District, where there is a .6 maximum FAR, (2) would the renovation require a variance?
The homeowner’s contractor applies for a building permit through Inspectional Services. (3) If the permit is rejected, does that mean the project cannot be built?
If the project is expected to require a variance, (4) what other group should receive a copy of the proposed plans?
Answers
(1) .4722 (1,700÷3,600). (2) Yes, because the new FAR would be .6666 (2,400÷3,600), more than the .6 maximum. (3) No, the initial rejection of a building permit triggers an appeal process with the Zoning Board of Appeal, which may or may not grant a variance. (4) The local neighborhood association—in this case, the Jamaica Plain Neighborhood Council.
Obtaining a building permit
Anyone seeking to construct, alter, repair, or demolish a structure must first obtain a building permit, which must be obtained before the start of work and prominently posted at the job site. In Boston, the Inspectional Services Department (ISD) issues permits for construction projects, including building, electrical, plumbing, and gas. ISD provides an online portal with forms for a variety of projects and instructions for uploading required documents. Permits for minor projects can be processed entirely online, while applications for permits for major renovations can be started online and then completed in person at the ISD offices at 1010 Mass. Ave. ISD will review plans for major projects to ensure that they comply with zoning.
Requesting a special permit or variance
What’s the difference between a special permit and a variance? A variance is required when a proposed change violates the dimensional requirements or use provisions of the zoning ordinance. A special permit is required for those cases where a particular use is permitted, but only after certain conditions are met. Criteria for obtaining a variance are more stringent than for a special permit. In either case, a property owner has to file an appeal with their local ZBA.
The ZBA will generally publish notice of the appeal and notify abutters who live near the property, and will also hold a public hearing about the request. The agency will then issue a written decision denying or granting the variance, or granting it with conditions.
In Boston, if the ZBA denies an appeal, a property owner needs to wait one year before they can appeal again. An appeal can be filed sooner, however, if an owner makes major changes to plans or if they were “dismissed without prejudice” (i.e., an owner can request a dismissal without prejudice if they decide not to continue with the appeal after a notice was sent out by the ZBA). The Massachusetts Citizen Planner Training Collaborative created a useful zoning variance checklist that provides detailed steps on the general process/timeline for obtaining a variance from a Zoning Board of Appeals.
Conclusion
We have barely scratched the surface of zoning and all its complexities, but its importance cannot be overstated. We all benefit from zoning laws that ensure our safety in our communities and in our homes, proper management of development, and adequate provision of infrastructure. Zoning ordinances contribute to our quality of life, and they can help to channel growth so that it reflects community requirements for affordable housing, public spaces, and preparation for climate change.
Additional information
City of Boston Inspectional Services Department, “What Building Permit Do I Need?”
City of Cambridge Inspectional Services, “Variance or Special Permit?”
Commonwealth of Massachusetts, Chapter 40A, laws on zoning
City of Boston, How to File an Appeal with the Zoning Board
Details on the zoning code are available online for Massachusetts and the City of Boston as well as various municipalities throughout the Commonwealth.
This Old House: How to Make Sense of Zoning
Boston Planning and Development Agency http://www.bostonplans.org/zoning
Handbook of Massachusetts Land Use and Planning Law: Zoning, Subdivision Control, and Nonzoning Alternatives by Mark Bobrowski. New York: Wolters Kluwer Law & Business, Aspen Publishers, 2011.
Zoning Practice: Procedures for Obtaining Variances and Special Permits [Massachusetts]
Decision Making Requirements of the Zoning Act
—Kathy Brown