New state law imposes more zoning changes

The Planning Board this week heard a summary of sweeping statewide changes to zoning laws signed into law on July 9 aimed at easing the housing crisis. And because the amendments were contained in the FY2027 budget bill that contained an emergency preamble, the changes take effect immediately, overriding any conflicting local community zoning rules.

At the board’s Aug. 11 meeting, KP Law attorney Amy Kwesell outlined changes that will substantially loosen restrictions in Lincoln’s zoning. 

Extension or alteration of preexisting nonconforming structure or residential uses

Such structures may now be altered as of right (i.e., without a special permit) as long as they conform to height, setback, and story regulations. This also means owners of such properties can build accessory dwelling units (ADUs), provided the new ADU construction itself complies with current setback, height, and story requirements.

Variances

Variances may now be issued if failure to do so would cause “practical difficulty” to the property owner, a lower standard than the former “substantial hardship” requirement.

“This sort of puts the [Zoning Board of Appeals] in a corner,” board chair Lynn DeLisi remarked.

“Most definitely,” Zwesell replied.

To determine what constitutes “practical difficulty,” the ZBA must weigh the benefits to the petitioner and the public interest, “including the interest in supporting the production of housing,” according to the amendment, against the potential detriment to the public health, safety and welfare of the neighborhood.

“This is going to be very difficult for ZBAs,” Kwesell said, noting that those boards are trained not to grant variances except in “very unusual circumstances.” ZBAs will need to evaluate the facts of each case and it will probably take some time to get more clarity as the courts interpret this language through variance appeals, she added.

Expansion of lot merger zoning protection

Under the old rules, if someone owned two 1.5-acre adjacent lots in Lincoln (less than Lincoln’s two0acre minimum for building a home), the lots were protected from being “merged” into a single lot for zoning purposes and the owner could therefore still build a single-family house on each adjacent lot. However, if the owner wanted to build small multi-family housing on each lot, the anti-merger protection did not apply; the town could treat them as one parcel to bring the land closer to current dimensional requirements, limiting the developer to only one structure instead of two separate projects.

Because anti-merger protection now covers all residential uses, the two lots maintain their separate “grandfathered” status regardless of whether the proposed homes are single-family, two-family, triplexes, or multi-family townhomes. So a buyer who acquires two adjacent non-conforming lots can now build multifamily housing or townhomes on each lot (assuming they each met septic and other requirements) without the town forcing them to collapse the lot lines into a single, less dense parcel.

“This is a huge change,” Kwesell said.

Earlier zoning freezes and construction windows

Projects are protected from subsequent zoning amendments starting from the moment when a property owner files their application for a building permit or special permit, rather than from when the permit is actually issued. (Also, building permits also now allow owners 24 months to start construction rather than 12 months.) 

Electronic notices

Cities and towns may now use electronic mailing of notices for public hearings for zoning amendments, special permits, and variances.

Abandonment

Towns cannot declare a nonconforming structure abandoned unless it has sat unused for four years (increased from two).

Although the new rules take effect immediately, Lincoln will still have to update its zoning bylaw to conform — probably at Annual Town Meeting in March 2027. This affects sections 4.1(a), (c), (d) and (e)(iii) having to do with nonconforming uses, section 14.4.2 (ADUs), and sections 20(d) and (e) concerning powers of the ZBA over variances.

This is the second major state-mandated zoning change intended to make it easier to build more housing. The 2020 Housing Choice Act encouraging development of multifamily housing near public transportation stations led to months of wrangling and a contentious Town Meeting in 2024 where Lincoln made the required amendments before a state deadline. There’s no deadline for changing local zoning bylaw this time, because the changes immediately override them.

And more changes are coming. Under terms of a pending economic development bill:

• Duplexes and accessory dwelling units would be allowed in all zoning districts
• Conversion of commercial uses or structures to multifamily residential uses would be encouraged. Under current law, if a developer wants to convert an underutilized office building, strip mall, or factory into housing, they must apply for local rezoning, a variance, or a special permit. Instead of forcing developers to fight for one-off zoning variances for a single parcel, a municipality can pre-designate entire commercial zones where adaptive reuse into housing or mixed-use development is permitted via streamlined local approvals.
• Religious institutions could build multifamily housing on their property if it’s already in a residential zone. Under the Dover Amendment, they are currently exempt from certain local zoning laws, but only for strictly religious or educational purposes. 
• Site plan review procedures would be standardized statewide to provide developers with predictable timelines and objective criteria.

The House and Senate have passed different versions of the bill that must be reconciled before it can be signed and enacted.

“I’m sorry I don’t have better news for you,” Kwesell said.