Why is it so difficult to rebuild a home?

Property owners are often struck by how difficult it is to build or rebuild a home in Massachusetts, especially if the lot or building is “nonconforming” (e.g., the lot is too small or does not have enough frontage, the house is too close to the property line, there is too much lot coverage, etc.). Even if a home has existed for decades without any “problems”, it can be very difficult (and expensive) to obtain approvals for additions or rebuilding to create present day amenities like energy efficiency, larger space and improved views.


If a city or town has tightened its zoning code over the years, the home falls into the category of “preexisting nonconforming structure” with challenging permit requirements regulating alterations. All of a sudden, a “team” of professionals may be needed to help obtain the necessary approvals. (However, to paraphrase Seinfeld, not that hiring professionals is a bad thing!) Although “mansionization” grabs the media attention, even modest reconstructions can face this challenge.

The Legal Standards

The challenge originates primarily in the State Zoning Act, General Laws Chapter 40A, Section 6, which provides that a preexisting nonconforming single family structure may be altered or reconstructed provided that it “does not increase the nonconforming nature” of the structure. To determine if a home’s nonconforming nature would be increased, one needs to identify the existing nonconformity (e.g., area, setback, frontage, coverage, etc.) and then determine if the new home would intensify the nonconformity or create new ones.

If the municipality determines that the home’s nonconforming nature would be increased, the rebuilding is allowed only if it is not “substantially more detrimental” than the existing home to the neighborhood. This is often called the “Section 6 Finding”, after its location in Section 6 of the Zoning Act.

As you likely sense, these are vague, subjective standards. Ultimately, the determination is typically made by the volunteer members of the local zoning board of appeals, who are often subject (and receptive) to neighbors’ claims that they are “aggrieved” by the proposal. (One maxim applies here: very few neighbors like change.)

Adding to this challenge is the authority granted to each municipality to adopt its own local zoning code to customize provisions of the Zoning Act. For instance, each municipality is allowed to implement different procedures, standards, prohibitions, and voting requirements for the Section 6 Finding and determining whether an alteration is substantially more detrimental to the neighborhood.

What Is “Substantially More Detrimental” to the Neighborhood?

Prior court decisions may not be too helpful in clarifying these issues because the other decisions are often tailored to a municipality’s specific code and project. The Supreme Judicial Court (SJC) attempted to facilitate approval of certain “small scale” alterations in its 2008 decision titled “Bjorklund vs. Zoning Board of Appeals of Norwell”. However, the SJC’s list of small scale projects was so limited as to have little practical effect for owners proposing even modest additions or reconstructions. For example, the SJC’s list of small projects included adding one dormer, enclosing a porch or sunroom, constructing a 2-car garage, and installing a storage shed for gardening or pool equipment.

Some municipalities handle the Section 6 Finding as an “administrative finding”, usually by the zoning board of appeals (ZBA) based upon a simple majority vote. However, some municipalities have made the Finding subject to a discretionary “Special Permit”, with all the strict requirements imposed by Section 9 of the Zoning Act, such as written notice to all “interested parties”, legal advertisements in the newspaper, long time frames for opening the public hearing and issuing a decision, and, very importantly, a “supermajority” vote (e.g., four affirmative votes of a five member board).

In addition, a municipality may seek to impose a detailed list of “Special Permit criteria” to the statutory test of whether the proposal is substantially more detrimental to the neighborhood. Of course, because “substantial detriment” is not susceptible of a fixed measure, the public hearing often delves into amorphous issues like, is it too big, is it in harmony with the neighborhood, does it impact views, etc.

This complex process begs a simple question: If other homes in the neighborhood are roughly similar to the proposed house, is it possible for the new home to be “substantially more detrimental” to the neighborhood?

As if the discretionary Section 6 Finding was not challenging enough, some municipalities have also adopted a discretionary “site plan review” requirement (or, even more onerous, a “site plan special permit” requirement), or wetland regulations with strict “no build” zones, or sewage disposal restrictions more stringent than the State standards. These all have their own complexities, often necessitating a team to navigate them. However, apropos of Seinfeld, not that hiring a team of experts is a bad thing!

Please contact me if you or a colleague has a question on permit requirements for building a home or other real estate issues.