Town counsel briefs Tyngsborough ZBA on major changes in state zoning law

Town counsel delivered a 50-minute advisory explaining how recent amendments to Chapter 48 will change local practice for variances, vesting and nonconforming properties.

Adam Costa walked members through four major areas: vested rights (the application date now triggers protection, and the exercise window was increased to 24 months); expanded protections for preexisting nonconforming lots (the previous single- and two-family limitation was removed); new exemptions allowing many dimensional nonconforming alterations to proceed "as of right" if they comply with current height and setback; and a rewritten variance provision that requires boards to weigh benefits to the proponent and the public interest against detriment to neighborhood health, safety and welfare. Costa quoted the new balancing language: "weigh the benefits to the proponent and to the public interest against the detriment to the public health, safety, and welfare of the neighborhood."

He warned that courts will need time to develop case law on what "practical difficulty" means in practice and recommended administrative changes: update application forms to require applicants to identify their practical difficulty, explain benefits to the proponent, and describe potential detriments. Costa advised adding a checklist or form so decisions record the board's weighing of the new factors and to guard against inconsistent rulings that could be vulnerable on appeal.