ALMOST NOTHING in Boston is built without a zoning variance. Yet few of the thousands of individual variances granted annually satisfy the relevant legal standard.
There is perhaps no area of law where practice departs from legal doctrine more than zoning variances. Casebooks and court decisions frequently note that they are intended to be granted sparingly. Zoning draws in broad strokes and sometimes an oddly shaped lot or one marked by unique geographic features is impossible to develop in any reasonable fashion. Variances provide a safety valve, allowing departure from strict application of the zoning code upon a showing of unique or special circumstances that impose practical difficulty or a substantial hardship and deny reasonable use of the land.
As my coauthor and I reveal in a forthcoming study of approximately 200 variance applications, Boston’s Zoning Board of Appeals rarely makes factual findings regarding uniqueness or hardship. Attend any ZBA meeting or the community meeting that precedes it and you are unlikely to here mention of these requirements. Instead, decisions are shaped largely by an inclination to help individual applicants burdened by Boston’s overly restrictive zoning, a willingness to permit development consistent with the neighborhood, and policy preferences of board members. As prior study of the ZBA suggests the restrictive nature of Boston’s zoning leads to an overreliance on variances and pressure to ignore legal criteria.
During our study period, the ZBA granted around 90 percent of variance applications. While this rate is consistent with other jurisdictions, the volume of applications in Boston stands out. The city saw 1,096 variance applications in 2019, with 948 granted (many contained requests for multiple variances, but the ZBA tends to grant all or none of the individual variances requested).
New York City, which has roughly 13 times the population and over six times the land area, saw 50 variance applications in fiscal year 2018. Los Angeles, with nearly six times the population and 10 times the land, saw 138 applications in 2019 and 2020 combined. San Diego had only three in 2019 and two in 2020. Most of the 25 most populated cities see fewer than 150 applications annually. The only significant exception is the much larger city of Philadelphia. In Philly, when a neighbor raised (correctly) that the variance standard requires a showing of hardship, the board chair shut the conversation down, declaring “don’t go there . . . you’ve been given some bad information.”
Things are not at that point in Boston, and for those who consider variances a vehicle for community participation in land use decision making these numbers may not be disturbing. However, recent empirical research suggests those who participate in local land use processes are not representative of the general population. There is a need for reconsidering and redesigning these processes.
In Boston, public participation occurs largely through the practice of neighborhood associations reviewing (and often suggesting revisions to) variance applications before they reach the ZBA. While the board considers this process, its effect on their decisions is questionable. The board granted relief in 11 of the 12 cases where we identified only opposition, and no support, from neighbors. City councilor opposition was identified in seven of these, and in all seven the relief was granted unanimously (in all seven the mayor’s Office of Neighborhood Services supported the request).
Discretionary review of individual projects is not the most efficient mechanism for community participation. A better option, consistent with Mayor Michelle Wu’s recommendations in her report on the BPDA, would involve citywide planning followed by rezonings that lead to clearer rules and greater consistency. Such zoning should make possible more and denser as-of-right development, rendering lots on which development is not permitted truly unique.
Writing in 1979, two prominent zoning experts declared that “[i]n Boston the variance has all but replaced the [zoning] amendment, which seems to have been relegated to a device used only by neighborhood groups seeking to downzone their community.” Nothing has changed in the over four decades since.
Overreliance on variances granted with scant attention to legal niceties enables the city to permit development without confronting needed reforms. It does so at the expense of predictability. Most problematically, it imposes unnecessary costs and delays that further exacerbate our city and region’s housing supply and affordability crisis.
John Infranca is a professor of law at Suffolk University Law School.