State Eases Standards for Variances. ZBA Approves Reduced Setbacks for Berkshire Terrace Home
Photo: Town of Uxbridge, MA
Report on the Meeting of the Zoning Board of Appeals, August 27, 2026
This meeting was held over Zoom and was recorded.
Present
Everald Henry (Chair), David Ahlfeld, Sarah Morton, David Sloviter, and Francisco Botto (Associate Member). Absent: Craig Meadows
Staff: Steve McCarthy (Licensing Coordinator)
At the close of the meeting, Licensing Coordinator Steve McCarthy informed the Zoning Board of Appeals (ZBA) of a change in state law that may affect future variance requests. Previously, MGL chapter 40A, section 10, stated that to be granted a variance, an applicant must demonstrate that strict enforcement of the zoning bylaw presents unique hardship due to soil, shape or topography of a property, creates a substantial financial or other hardship and that relief causes no substantial detriment to the public good or derogation of the zoning intent—a high bar for an applicant to meet.
However, recent amendments have eased these strict requirements to prioritize housing production and require permit-granting authorities to balance public-interest benefits against neighborhood detriments, allowing variances to promote housing creation. The revised law pertains largely to residential development.
McCarthy said that the town and its legal counsel are still evaluating the implications of this change and will present more information at later meetings.
ZBA Approves Reduced Front Setback for Berkshire Terrace Screen Porch
The ZBA unanimously approved the request by Berkshire Terrace owner Rebecca Curzon to add a 10-by-16-foot screen porch to the front of her home at 34 Berkshire Terrace, even though the addition would reduce the front setback from 24 feet to 12 feet.
Curzon said that she purchased the home four years ago and plans to age in place. The house had previously been a student rental and was in poor condition. Curzon said that, according to neighbors, the house had been a problem house. Her application states, “The house had been a college rental with a Texas-based landlord, and it was in poor condition. The neighbors told me that it had been the ‘problem house’ in the neighborhood, centrally located, with long Sunday football parties, noise, cars and students everywhere”
She has made many improvements, but told the ZBA that the front door is around the corner from the driveway and garage and does not even have a walkway to it. Adding the screen porch would permit access to the driveway from the entrance without walking across the lawn. The lot is already nonconforming, as are many of the nearby properties.
ZBA members made a site visit and noted that several of the properties on the street had setbacks of less than 12 feet. ZBA member David Sloviter stated that “this is exactly the type of application we should be supporting. It is an intelligent and appropriate modification of the property.”
David Ahlfield agreed that the increase in the nonconforming element is trivial; he worried about what would happen if the property were sold in the future, but then realized that the special permit would transfer to a new owner, but the screen porch could not be turned into another bedroom without a new special permit being granted.
On-Site Security Guard Coverage No Longer Required at Aspen Heights
The Breckenridge Group, owners of the 115-unit apartment complex at 408 Northampton Road, requested that the requirement for 24/7 on-site security guard coverage be replaced by a resident manager for after-hours coverage when the business staff is no longer present. At the August 13 ZBA meeting, Attorney Tom Reidy of Bacon, Wilson LLC maintained that professional security was not needed, since there were very few disturbances at the property.
Planning staff reviewed the request and suggested replacing the security with an online complaint form that listed phone numbers for residents to contact after hours. No visitors will be allowed access to the interior of the building unless checked in by on-site staff or escorted by a resident.
ZBA members supported the change. Sarah Morton stated that it was consistent with what was done at similar locations in town. The modification to the special permit was approved unanimously.
What exactly is a zoning variance? “[B]y its very definition, a variance constitutes nonconformity, which the [zoning ordinance or] by-law forbids.” Lemieux v. Ramsey, 23 Mass.L.Rptr.647, 2008 WL 1799783 at *3 (Superior Ct. 2008) A zoning variance is required to do something with real estate that is prohibited, meaning it is “not lawful under the town’s zoning bylaw.… That is the textbook definition of a variance: ‘an administrative authorization to use property in a manner otherwise not allowed by the zoning ordinance.’ ” Hill v. Russe3ll, 2015 WL 2450627 at *6 (Land Ct. 2015).
Key words in the statute quoted below are “shall” and “practical difficulty” which appear as follows in the first sentence: “The permit granting authority shall … grant … a variance from the terms of the applicable zoning ordinance or by-law if the permit granting authority specifically finds that a strict enforcement of the ordinance or by-law would result in a practical difficulty.”
Mass. General Laws, Chapter 40A, Section 10 (G.L. c. 40A, § 10) as amended July, 2026, governs the granting of zoning variances by municipal zoning boards of appeals, as follows (line breaks, and numbers and letters in brackets, added as an aid in parsing the statutory language):
[1] The permit granting authority shall, after a public hearing for which notice has been given by publication and posting as provided under section 11 and by mailing to all parties in interest,
[a] grant upon appeal or upon petition with respect to particular land or structures a variance from the terms of the applicable zoning ordinance or by-law
[b] if the permit granting authority specifically finds that a strict enforcement of the ordinance or by-law would result in a practical difficulty.
[2] In making its determination, the permit granting authority
[a] shall weigh benefits to the appellant or petitioner and to the public interest, including
[i] the interest in supporting the production of housing
[ii] against the detriment to the public health, safety and welfare of the neighborhood,
[b]and may also consider:
(i) whether the practical difficulty relates to soil conditions, shape or topography of such land or structures;
(ii) whether the strict enforcement would impose a financial hardship on the appellant or petitioner;
(iii) whether the benefit sought by the appellant or petitioner can be achieved by some other method feasible for the appellant or petitioner to achieve; and
(iv) whether the practical difficulty was self-created.
[3] Except
[a] where local ordinances or by-laws expressly permit variances for use,
[b] no variance may authorize a use or activity other than residential, not otherwise permitted in the district in which the land or structure is located;
[c] provided, however, that such variances properly granted prior to January 1, 1976, but limited in time, may be extended on the same terms and conditions that were in effect for such variance when it was originally granted.
[4] If the rights authorized by a variance are not exercised within 2 years after the variance was granted,
[a] which shall not include
[i] the time required to pursue other entitlements necessary to construct the project authorized by the variance or
[ii] await the determination of an appeal referred to in section 17,
[b] such rights shall lapse;
[i] provided, however, that the permit granting authority, in its discretion and upon written application by the grantee of such rights, may extend the time for exercise of those rights for a period not to exceed 2 years;
[ii] and provided further, that the application for an extension shall be filed with the permit granting authority prior to the expiration of the 2-year period.
[c] If the permit granting authority does not grant an extension within 30 days of the date of application therefor and, upon the expiration of the original 2-year period, such rights shall only be reestablished after notice and a new hearing pursuant to this section.
the arguments that variances SHALL be given because it’s a hardship to develop a problem property (that the developer knowingly bought) belongs in this list of absurdities
– I bought a constrained lot, or a property with known zoning limits, and now those predictable limits are a “hardship.”
– I bought the property expecting to obtain the variance that would make my project more profitable, so denying it is unfair.
– The ZBA is not exercising judgment; it is supposedly required to give me the relief I seek.
– Our substantive case may be weak, but a missed deadline or denied extension should make us the winner anyway.
– We support “more housing”—meaning the kind of housing that produces the greatest return for our clients.
– Abutters say the project harms their homes, privacy, safety, drainage, traffic conditions, or quiet enjoyment. But what about the applicant’s preferred project?
– Name one reason that the zoning bylaw should actually be enforced when enforcement makes an applicant redesign, reduce, relocate, or abandon a profitable proposal.
A variance should be a narrow remedy for a genuine, property-specific difficulty—not a routine escape valve for a project designed around maximizing units, revenue, or resale value. Housing policy matters, but it does not mean every dimensional rule, neighborhood impact, or abutter concern becomes disposable whenever a developer invokes “housing.”