Tucked into the $63.4 billion FY2027 budget, the Legislature bypassed decades of strict Supreme Judicial Court precedent, dismantled the notorious “substantial hardship” variance test, and legalized residential use variances almost everywhere in the Commonwealth. The doctrine changed overnight. Whether it produces more homes — or just bigger houses on the same lots — is a longer story.
For over half a century, developers, municipal planners, and Massachusetts homeowners shared a grim, widely acknowledged truth: if your project needed a zoning variance in the Bay State, it was a challenge.
Since the 1950s, Massachusetts maintained what land-use attorneys routinely described as one of the most demanding variance standards in the country. Under the legacy framework of G.L. c. 40A, § 10, a local Zoning Board of Appeals (ZBA) could grant a variance only under a rigid, three-part conjunctive test: an applicant had to prove a “substantial hardship” arising uniquely from the “soil conditions, shape, or topography” of the land, and prove that relief could be granted without derogating from the intent of the local bylaw. The Supreme Judicial Court (SJC) enforced this test with near-monastic rigor. Hardship was read so narrowly that ordinary dimensional deficiencies — a lot that was simply too small or too narrow — were legally insufficient to support a variance.
The practical result was a hypocritical system. Local boards, eager to permit sensible projects, granted variances fairly often. But because those variances almost never met the SJC’s strict statutory bar, they were instantly vulnerable to being overturned on appeal by a litigious neighbor. The result was a toxic mix of litigation risk, unpredictability, and land-use stagnation.
Then, on July 9, 2026, Governor Maura Healey signed the FY2027 budget — Budget Bill 5555, enacted as Chapter 137 of the Acts of 2026.
While the bill’s headline job was to serve as the Commonwealth’s roughly $63.4 billion Fiscal Year 2027 budget, it also contained a package of “outside sections” (Sections 40 through 49) that quietly executed a systematic overhaul of G.L. c. 40A. Because the changes rode inside a must-pass appropriations bill carrying an emergency preamble, they took effect immediately on signing — a rewrite of the variance rules that housing advocates had sought, and failed to win, for decades.
One important limit: these Chapter 40A changes do not apply in Boston, which zones under its own charter (Chapter 665 of the Acts of 1956). Everything below describes the law for the other 350 cities and towns.
Here is how the change happened, what actually changed, and how it realigns the balance of power between Massachusetts’s home-rule municipalities and the developers trying to build a way out of an acute housing crisis.
I. The History: The Iron Curtain of “Substantial Hardship”
To understand why land-use attorneys are calling these changes a “doctrinal earthquake,” it helps to look at the legal ruins they left behind.
The original Zoning Act established a regime of extreme municipal deference, and over decades SJC case law built a massive evidentiary wall against nearly any form of zoning relief. In Blackman v. Board of Appeals of Barnstable, 334 Mass. 446 (1956), the SJC set the baseline, holding that the power to vary a zoning ordinance “must be sparingly exercised and only in rare instances and under exceptional circumstances.” The companion principle that “no person has a legal right to a variance” runs through this same line of cases and is often quoted from Damaskos v. Board of Appeal of Boston, 359 Mass. 55 (1971).
By the 1980s, the appellate courts had cemented a brutal “conjunctive” checklist. In Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 (1984), and Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 (1985), the courts reiterated that a petitioner had to satisfy every statutory criterion under § 10. Fail even one factor — for instance, showing a hardship that was economic rather than physical — and the variance was legally void.
Subsequent rulings closed nearly every imaginable loophole:
The dimensional trap — Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 (1993): The SJC confirmed that ordinary dimensional deficiencies, such as inadequate frontage or lot area, do not satisfy the “shape” criterion. If your lot was simply too narrow, you did not qualify.
The profit rule — Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139 (2002): The court held that a developer’s desire to maximize profit did not constitute “substantial hardship,” and further found that a hardship that was self-inflicted could not support relief.
Dimensional, not shape — Whelan v. Zoning Board of Appeals of Norfolk, 430 Mass. 1009 (2000): Reinforcing Tsagronis, the SJC held that where a lot’s problem is insufficient frontage and area rather than genuinely unusual shape, no variance is warranted.
For decades this framework functioned as an attrition mechanism. It kept Massachusetts highly preserved, highly suburban, and increasingly unaffordable. Because the statutory bar was so high, almost any multi-family proposal needing even a minor dimensional variance was dead if an abutter chose to sue.
II. The Overhaul: Dismantling the Hardship Bar
Chapter 137 took a sledgehammer to this edifice. It deleted the old, restrictive variance language of G.L. c. 40A, § 10 and replaced it with a flexible “practical difficulty” balancing standard modeled on national land-use trends.
Under the new § 10, a ZBA is now required to grant a variance if it finds that strict enforcement of the local bylaw would result in a “practical difficulty.” The statute directs boards to discard the rigid conjunctive checklist and instead perform a holistic balancing test, weighing:
“…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…”
This is a structural shift. Crucially, the Legislature demoted the classic, near-impossible physical requirements — soil conditions, lot shape, and topography — from mandatory prerequisites to optional factors a board may consider. The new balancing test looks like this:
Weigh: the applicant’s private benefit + the public interest in housing production Against: the detriment to neighborhood health, safety, and welfare
Optional “may consider” factors: soil/shape/topography; financial hardship; whether feasible alternatives exist; and whether the difficulty was self-created.
By inserting “the interest in supporting the production of housing” directly into the balance, the state placed a pro-development thumb on the local scale. A board can no longer deny a variance merely by pointing to a checklist of missing physical anomalies. And by moving financial hardship into the mix, the statute provides a pragmatic baseline for dimensional relief that the old SJC jurisprudence rejected.
Just what "practical difficulty" requires, though, is left deliberately open — and that ambiguity may be the most consequential feature of the whole rewrite. "The legislation doesn't really define what that means, which I think was intentional," said Nick Giaquinto, Norwell’s Director of Planning and Community Development. "It leaves a lot of that judgment to local permitting authorities, at least initially. Over time, as different boards apply the standard and those decisions make their way through the courts, we'll get a much clearer understanding of what the Legislature intended." He called that one of the most interesting aspects of the reforms — a standard whose real meaning will be written, case by case, over years.
III. The Use-Variance Change: Overriding Local Vetoes
The relaxed dimensional standard is a major win for developers, but the budget carried an even bigger surprise: the legalization of residential use variances in almost every community in the state.
Historically, “use variances” — which allow an activity flatly prohibited in a zoning district, such as building apartments in a commercial or industrial zone — were illegal in Massachusetts unless a municipality’s own bylaws expressly opted to permit them. Very few towns did. So developers who wanted to convert obsolete strip malls or empty offices into housing had to win a formal zoning amendment, which in Massachusetts meant running the town-meeting or city-council gauntlet, historically at a two-thirds supermajority.
Chapter 137 bypassed that local bottleneck. The amended § 10 now provides that, except where local bylaws expressly permit use variances, no variance may authorize a non-conforming use other than residential. In other words, the state carved out residential use as a statewide default. Municipalities keep the right to prohibit or permit commercial and industrial use variances, but they can no longer block their ZBAs from granting residential ones.
As Dan Dain of Dain Torpy, the land-use attorney who chaired the Real Estate Bar Association (REBA) committee behind the reforms, put it: “Why are we prohibiting residential in so many places? … Why not encourage municipalities to allow residential use in nonresidential districts?”
Instead of spending a year lobbying town-meeting members for a commercial-to-residential rezoning, a developer can now walk into a ZBA hearing, present a site plan, and argue under the new “practical difficulty” standard that converting an obsolete office park into housing serves the public interest.
