By Brian Glaser
law briefs
In zoning law, the concept of a “variance” suggests something unusual, a deviation from the legal norm. But as Suffolk Law Professor John Infranca and Ronnie Farr, JD ’23, point out in their paper for Pepperdine Law Review, “Variances: A Canary in the Coal Mine for Zoning Reform?,” zoning boards are granting a large number of exceptions through variances, which, they argue, makes variances the norm and spotlights a clear need for reforming zoning laws.
“Variances are supposed to be a safety valve,” Infranca said, “but instead, everyone gets a variance instead of actually thinking about the underlying zoning.” Their paper focuses on a study of zoning variances in Boston, in comparison to three neighboring jurisdictions: Cambridge, Brookline, and Somerville. Boston grants thousands of variances a year, at a much higher rate than the other jurisdictions, and the paper notes that the decision-making rarely focuses on the legal requirements for the variance. “Instead, decisions are shaped by a desire to help individual applicants, a willingness to permit development consistent with the neighborhood, and the policy preferences of Board members,” they write.
Infranca says that this “somewhat lawless process, with its high degree of discretion” is having a negative impact on housing in Boston, both slowing development and raising housing costs. But the analysis he and Farr provide offers a roadmap for reform: updating zoning laws to allow more development without variances/discretionary approval and seeking community input earlier in the process rather than at the approval of individual projects. This would allow Boston to be more thoughtful about development across the city and in individual neighborhoods, they argue.
“I’m a proponent of dramatically increasing zoning density in cities to allow more development,” Infranca says, adding that Boston’s mayor has started to express concerns about the role that variances play in the city’s approach to development. “That suggests to me some hope that there may be variance reform down the road.”
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Photograph by Michael J. Clarke
winter 2024
