Prospective buyers for a house want to operate a recycling center in their backyard. Local zoning laws do not allow this. What do they need to do…

When a proposed property use is not permitted by local zoning ordinances, the first step is to seek administrative relief from the local zoning authority. This is done by applying for a variance or a special exception (also known as a special permit or conditional use permit). A variance is a request to deviate from the zoning law due to a unique hardship imposed by the regulations on that specific property. A special exception is for a use that is conditionally allowed within the zone if specific criteria are met. This administrative process must be pursued before any legal action or construction can commence.

A. Obtain a building permit. A building permit authorizes construction, not land use. A permit cannot be issued for a use that violates the current zoning ordinance.

B. Obtain a modification to the local master plan. The master plan is a long-range community planning document. Changing it is a major political process, not the initial step for an individual property owner.

D. File an appeal with the local court. A court appeal is a legal remedy available only after administrative remedies, such as applying for a variance and being denied, have been exhausted.

1. Massachusetts General Laws (MGL) Chapter 40A, The Zoning Act.

Section 9: Details the process and authority for granting "special permits" (special exceptions) for specific uses that are conditionally allowed within a zoning district.

Section 10: Outlines the specific conditions under which a zoning board of appeals may grant a "variance" from the terms of the zoning ordinance, requiring a showing of substantial hardship.

2. Massachusetts Executive Office of Energy and Environmental Affairs, "A Citizen's Guide to Zoning" (2018).

Page 6, "Special Permits and Variances": This guide explicitly states, "If a proposed project does not comply with the zoning bylaw, the project proponent may be able to obtain a special permit or a variance from the permit granting authority... A variance is a request to be relieved from some of the requirements of the zoning bylaw." This confirms that applying for these is the standard procedure for non-conforming uses.

3. UMass Extension, Center for Agriculture, Food and the Environment, "The Zoning Act: An Overview" (2011).

Section "Variances and Special Permits": This document explains that variances and special permits are the two primary mechanisms for gaining approval for a use not normally allowed by-right under a local zoning ordinance. It clarifies that these are petitions made to the local Zoning Board of Appeals.