What is By-Right, Special Permit, or Variance

This is the fourth educational article published in The Cricket by the Manchester Planning Board to inform voters about the Board’s recommended changes to the Zoning Bylaw at the November 14 Special Town Meeting.

To understand Zoning regulations, it is helpful to understand what kind of improvements are allowed on private property.  Some projects are allowed By-Right.  Some require a Variance.  Some require a Special Permit. 

 By-Right

“By-right” allows a property owner to obtain a building permit to construct or alter a building without having to go through any kind of public review or approval process and without appeal to land court.  However, but such permits can be appealed to the Zoning Board of Appeals with cause.  Construction or renovation of a single-family home is currently allowed by-right in any residential district in town as long as the lot and building comply with Zoning and Board of Health requirements. 

Variance

For proposed projects that would not comply with zoning, the only alternative is a variance from the Zoning Board of Appeals.  Variances require a formal notification to abutters and public hearing.  The ZBA must make two findings.  First, granting the variance will not be detrimental to the neighborhood or the public interest.  Second, there must be some specific condition of the land such as topography that has created a financial hardship that can be remedied by granting the variance.  An aggrieved abutter may initiate a legal action to appeal a variance.

Special permits

Some uses may be allowed with a Special Permit.  This is a useful tool for the town as it allows a broader range of opportunities that serve the public interest while providing oversight of site use, building design and public amenities.  Factors to be considered include compliance with the performance standards listed in the zoning regulations, suitability of the site, impact on traffic safety, neighborhood visual character, adequacy of utilities and other public services including drainage and sewage disposal; and impact on the environment including wildlife habitat.  Sometimes an impact study is required to assess the possible consequences of the project on the neighborhood and on town services as well as potential tax revenue. 

Special Permit review is undertaken by the Planning Board or Zoning Board of Appeals and includes a public hearing where neighbors can express their opinions.  The approval of a special permit is usually conditioned with detailed requirements to protect the public interest.

Examples of developments that could be allowed by special permit include clustered housing arrangements, medical offices. and day care programs. Special permits are also required for alterations to non-conforming buildings and for swimming pools and tennis courts.

Proposed Zoning Changes

The proposed modifications to the Zoning Bylaw include:

• a table that clearly lists each zoning district with allowed uses for each, simply clarifying, but not changing the current uses.
• allow annually up to 20 new small (under 900 sf) accessory dwelling units by-right if they meet criteria such as located within an existing home, owner occupied, and leased for a minimum of six months.  Accessory dwelling units that do not meet those criteria would be subject to the special permit process.
• Non-conforming lots and structures in one- and two-family houses may undertake alterations by right as long as the proposed alterations conform to all dimensional requirements, up to 100 % increase in the building area.  If those criteria are not met, a special permit or variance may be required.
• Stronger review criteria for special permits. 
• One important new use, senior housing facilities. Currently senior housing is not allowed in any district.  Allowing senior housing by special permit will serve the aging population of the town, helping to further one of the most important goals outlined in Manchester’s Master Plan.