Why “substantial hardship” to “practical difficulty” is a real change

Massachusetts had, by reputation and by case law, one of the most restrictive variance standards in the country. The old §10 required hardship owing to circumstances relating to soil conditions, shape or topography of the land or structure and especially affecting that parcel but not the district generally — a conjunctive test that Massachusetts courts applied strictly, to the point that a granted variance was frequently more vulnerable on appeal than a denied one.

“Practical difficulty” is the standard most other states use, and it is meaningfully lower. Coupled with an express balancing instruction and a permission to consider financial hardship, the replacement changes not just the threshold but the shape of the inquiry: from a near-categorical test about the land, to a weighing of benefits and detriments in which the land conditions are one of four listed factors.

The self-created difficulty factor cuts the other way

The fourth listed factor — whether the practical difficulty was self-created — is the one that will matter most to condominium associations, and it is not helpful to them.

An association seeking a variance for a condition arising from its own prior work, or from a subdivision or phasing decision made by the declarant, is on notice that the board may weigh that against it. In older Massachusetts condominiums, the nonconformity is frequently a product of how the property was carved up at conversion. Whether a decades-old declarant decision counts as “self-created” as to the current organization of unit owners is exactly the kind of question the first appellate decisions under the new §10 will have to answer — and we are describing an open question, not predicting how it resolves.

What the timing change is worth

The extension from one year to two, with tolling for appeals and other permits, is arguably as valuable to associations as the standard change.

The reason is funding. A condominium association cannot simply proceed on a granted variance; it has to fund the work first, and funding usually means either a special assessment collected over time or an association loan, both of which require an owner vote under the governing documents and, for an improvement, the 75 percent threshold of c. 183A §18. Under the old one-year rule, a variance granted in the spring could expire before the November owners' meeting produced an authorisation and the money.

Two years, plus a possible two more, plus tolling while an abutter's §17 appeal runs, is a timeline that matches how association capital decisions actually get made.

Operationally

• Diarise the extension deadline, not just the expiry. The application for extension must be filed before the two-year period expires; the board then has 30 days to act. An association that waits until month 23 to think about it has left itself no margin.
• Sequence the owner vote against the variance clock, not the other way round. With two years available, the sensible order is variance first, then authorisation and funding — the reverse of what the old one-year rule forced.
• Do not read the new standard as a grant. A lower threshold is still a threshold, and the balancing test gives a board more room to deny with reasons, not less. Local practice will vary widely until the case law develops.

What to watch next

The first appellate decisions construing the replaced §10 — particularly on the self-created factor and on how much weight “the interest in supporting the production of housing” carries against neighbourhood detriment. Until those land, the honest position is that the statutory text has changed decisively and the practice under it has not yet caught up.