2026-09-10 · Massachusetts · Legislation

What happened. Massachusetts has, for the first time in decades, changed the test a zoning board applies to a variance. Section 47 of Chapter 137 of the Acts of 2026 strikes G.L. c. 40A §10 and replaces it. The act was signed on 9 July 2026 and its zoning sections are in force.¹

The old standard required a “substantial hardship.” The new one requires a “practical difficulty.”

What the board now weighs

Under the replaced section, the board weighs the benefits to the petitioner and to the public — “including the interest in supporting the production of housing” — against detriment to the neighbourhood, and may consider:

1. soil conditions, shape or topography
2. financial hardship
3. feasible alternatives
4. whether the practical difficulty was self-created

Two of those four are new in kind rather than degree. A statutory instruction to weigh the interest in supporting the production of housing puts a thumb on the scale that the old §10 did not contain. And listing financial hardship as a permissible consideration reverses a long-standing feature of Massachusetts practice, in which economic hardship alone was generally insufficient.

Variances now last twice as long

• Rights lapse if not exercised within two years (previously one)
• The two years exclude time spent pursuing other entitlements or awaiting a c. 40A §17 appeal
• The board may extend for up to two additional years (previously six months) on written application filed before the two-year period expires
• The board has 30 days to act on an extension request

1. Chapter 137 of the Acts of 2026, section 47 (replacement of G.L. c. 40A §10) ↩
2. H.5555, 194th General Court — enactment and signing date ↩
3. Moriarty Bielan & Malloy, practitioner analysis of the c. 40A amendments for condominium associations ↩