Accessibility in zoning

Disability rights in local zoning and land use

State law prohibits local zoning bylaws and ordinances from discriminating against people with disabilities. For example, municipalities may not impose health and safety laws or land-use requirements that apply to people with disabilities and not to other groups. M.G.L. c. 40A, §3.

Under the Federal Fair Housing Act (FHA), Title II of the Americans with Disabilities Act (ADA), and the ADA’s implementing regulations, municipalities must make reasonable accommodations to their zoning laws and other land use regulations to allow people with disabilities an equal opportunity to use and enjoy homes in their communities.

This means that if a person with a disability needs an exemption from a local bylaw or ordinance because of their disability, they can ask for a reasonable modification to the municipality’s zoning bylaw or ordinance. A reasonable modification is a change to a municipal policy or procedure (including local bylaws or ordinances) that a person with a disability might need to have equal access.

However, certain types of modifications are allowed by right, and do not require a person with a disability to request a reasonable modification. For example, Massachusetts state law says that setback requirements (which specify how far buildings must be from the road) in zoning bylaws and ordinances do not apply to access ramps on private property if they are solely used for a person with a disability to enter and exit a building. M.G.L. c. 40A, §3. 

Examples of reasonable accommodations to local zoning bylaws

Reasonable accommodations to local zoning bylaws may include:

• Setback requirements: A resident needs to add a first-floor bedroom to her home because she is unable to use the stairs due to her disability. The proposed addition would encroach on the minimum side yard setback. She may ask for a reasonable modification to build within the side yard setback.

Frequently asked questions

I am a resident with a disability and I need a reasonable modification to a local zoning bylaw or ordinance. What can I do?

Contact your local ADA Coordinator to ask for a reasonable modification to the local zoning bylaw. You should be prepared to provide information about your disability-based limitation that requires the modification to the local zoning bylaw, and to explain how the modification is necessary because of your disability. For more information, please see MOD’s page on disability rights in government services.

I am a local building inspector and a resident has applied for a building permit that would require a modification to a local zoning bylaw because of their disability. What are my responsibilities?

Refer the individual to their local ADA Coordinator to make a formal request for a reasonable modification. You may need to work with the individual and the ADA Coordinator to determine whether the requested reasonable modification or an alternative one should be allowed. The person may need to go before the planning or zoning board to approve the reasonable modification, but any burden on the applicant should be minimized. You can let the individual know that the request will be assessed under the ADA, not under chapter 40A and/or your local zoning bylaw.

If you are also the ADA Coordinator, please see the paragraph below.

I am a local ADA Coordinator and a resident has asked for a reasonable modification to a local zoning bylaw. What are my responsibilities?

Let the person know that they may need to go to the planning or zoning board. However, the request will be assessed under the ADA, not under chapter 40A and/or your local zoning bylaw.

You will need to inform the local zoning enforcement officer. You may need to work with the individual and the local zoning enforcement officer to determine whether the requested reasonable modification or an alternative one should be allowed.

You may also need to inform the planning or zoning board of the request, and you will probably need to provide them with some training about how to make their assessment under the ADA. Please see below for more information.

I am a local planning or zoning board member and am hearing a request for a reasonable modification to a local zoning bylaw that may need to go to the planning or zoning board. What are my responsibilities?

You may need to grant the request as a reasonable modification for a person’s disability.

You will need to determine two things in the course of your hearing(s):

1. Whether the person has a disability-based need for the modification, and
2. Whether the modification requested is reasonable.

A modification may only be found to be unreasonable if it:

1. Causes undue hardship or fiscal or administrative burden to the municipality or
2. Undermines the basic purpose that the zoning bylaw was set out to achieve.

For example, a court has found that it was reasonable to modify a zoning bylaw’s definition of “family” so as not to discriminate against group home residents under the FHA. Oxford House, Inc., v. Town of Babylon, 819 F.Supp. 1179, 1185 (E.D.N.Y.1993).

During the course of your hearing(s), you may ask about alternatives that might meet the person’s needs. You do not have to approve the exact modification requested if an alternative would provide equal access.

You do not need to review medical documentation for the individual and you do not need the individual to provide their diagnosis. It may be appropriate in limited circumstances to request limited documentation from the individual’s medical provider if their disability or their need for the requested modification is not obvious or known. In the limited circumstances when you might request medical records, you should not request medical records beyond a letter from a medical provider confirming the existence of the disability-based limitation and explaining the need for the requested modification.

The requested modification does not need to be transferrable. It can expire when the person with the disability no longer needs it. You may want to specify in your decision whether the requested modification will be transferrable or whether it will terminate when the person with the disability moves or no longer needs the modification.

Do requests for reasonable modification to zoning bylaws need to be considered at a public meeting?

Not necessarily. Municipalities should not put a burden on people with disabilities that is not imposed on other land-use applicants. See, Massachusetts Attorney General’s Office Municipal Law Division Erving Case #11114 (December 22, 2023).

Therefore, the local ADA Coordinator should accomplish as much as they can through an interactive process in which they involve the applicant and the zoning enforcement officer. If, for example, the zoning enforcement officer has a question about whether the modification would undermine the basic purpose of the zoning bylaw that they cannot resolve on their own, then the matter could go before the zoning appeals board and certain aspects may need to be discussed at an open meeting. Information about the applicant’s disability should not be discussed at the open meeting. 

Last updated:	August 12, 2024