Andover City Zoning Code
SECTION 9
ADMINISTRATION AND PROCEDURES
9.1.1 Administration.
This Bylaw shall be administered by the Building Commissioner (also referred to as the Inspector of Buildings).
9.1.2 Compliance.
Buildings, structures, or signs shall not be erected, substantially altered, moved or changed in use and land shall not be substantially altered or changed in principal use without review and certification of compliance with federal, state, or local law by the Building Commissioner. Issuance of a building permit or certificate of use and occupancy, where required under the Commonwealth of Massachusetts State Building Code, may serve as the required certification.
9.1.3 Commencement of Construction.
Construction or uses under a building permit or special permit shall conform to any subsequent amendment of this Bylaw unless the use or construction is commenced within six months after the issuance of the permit and in cases involving construction, unless the construction is continued through to completion as continuously and expeditiously as is reasonable.
9.1.4 Zoning Violations.
If the Building Commissioner is requested to enforce this Bylaw against any person allegedly in violation of it, the Building Commissioner shall respond to the aggrieved party within 14 days of receiving the complaint, identifying any action taken or a decision made not to act, and the reasons for the decision. If the Building Commissioner rules that a violation does exist, he shall inform the person or party against whom a violation is found and order the person or party to cease the violation.
9.1.5 Penalties.
If the violation is not stopped within an appropriate time following notification, the Building Commissioner shall notify the Town Manager for appropriate action. Any person violating any of the provisions of this Bylaw shall be fined not more than $300 for each offense. Each day that such violation continues shall constitute a separate offense.
9.2.1 Membership.
The Zoning Board of Appeals shall consist of five members and four associate members. The members of the Zoning Board of Appeals and the associates shall be appointed by the Select Board as provided in G.L. c. 40A. The Zoning Board of Appeals shall be organized and governed by the provisions of G.L. c. 40A and this Bylaw.
9.2.2 Powers.
The Zoning Board of Appeals shall have and exercise all the powers granted to it by Chapters 40A, 40B, and 41 of the General Laws and this Bylaw. The Board's powers are as follows:
1.
Special Permits. To hear and decide applications for special permits. Unless otherwise specified herein, the Zoning Board of Appeals shall serve as the Special Permit Granting Authority (SPGA), to act in all matters in accordance with the provisions of Section 9.4, or as otherwise specified.
2.
Variances. To hear and decide appeals or petitions for variances from the terms of this Bylaw, including variances for uses, all as set forth in G.L. c. 40A, § 10.
4.
Comprehensive Permits. To hear and decide comprehensive permits for construction of low- or moderate-income housing by a public agency or limited dividend or nonprofit corporation under G.L. c. 40B, §§ 20-23.
5.
Withheld Building Permits. Building permits withheld by the Building Commissioner acting under G.L. c. 41, s. 81Y as a means of enforcing the Subdivision Control Law may be issued by the Zoning Board of Appeals where the Board finds practical difficulty or unnecessary hardship, and if the circumstances of the case do not require that the building be related to a way shown on the subdivision plan in question.
9.2.3 Regulations.
The Zoning Board of Appeals shall adopt Rules and Regulations for the administration of its powers, including variances, administrative appeals, and applications for special permits and comprehensive permits. The Zoning Board Rules and Regulations may include reasonable administrative fees and procedures for engaging technical review consultants as provided under G.L. c. 44, § 53G. The Zoning Board Rules and Regulations shall be on file with the Town Clerk and the Community Development and Planning Department.
9.3.1 Authority.
The Planning Board shall have and exercise all the powers granted to it by G.L. c. 40A and c. 41 and by this Bylaw. The Board's powers are as follows:
9.3.2 Regulations.
The Planning Board may, from time to time, establish and amend Planning Board Rules and Regulations for the special permits and site plan reviews the Board has authority to grant. The Planning Board Rules and Regulations for Special Permits and Site plan Review may also include administrative fees and procedures for engaging technical review consultants as provided under G.L. c. 44, § 53G. The Planning Board Rules and Regulations for Special Permits and Site Plan Review shall be on file with the Town Clerk and the Community Development and Planning Department.
9.3.3 Planning Board Associate Member.
To assist in carrying out its duties as a special permit granting authority, there shall be one associate member of the Planning Board appointed by the Town Manager under authority of G.L. c. 40A, s.9. The associate member shall sit on the Planning Board for the purposes of acting at special permit application hearings in case of absence, inability to act, or conflict of interest on the part of any member of the Planning Board or in the event of a vacancy on the Board.
9.4.1 Authority.
Unless designated otherwise in the Table of Uses, the Zoning Board of Appeals shall act as the Special Permit Granting Authority (SPGA).
9.4.2 Criteria.
Special permits may be granted when the SPGA has found that the proposed use will not be unreasonably detrimental to the established or future character of the neighborhood and Town and that it is in harmony with the general purpose and intent of this Bylaw. In addition to any specific factors that may be identified in this Bylaw, the SPGA's findings shall include consideration of each of the following:
1.
Social, economic, or community needs that are served by the proposal;
2.
Traffic flow and safety, including parking and loading;
3.
Adequacy of utilities and other public services;
4.
Neighborhood character and social structures; and
5.
Impacts on the natural environment, including, but not limited to, air and water pollution, noise, stormwater runoff, and aesthetics.
9.4.3 Application.
Applications shall be filed in accordance with SPGA's Rules and Regulations. An application shall not be deemed complete until all copies of required information and documentation have been filed with the SPGA. For any major non-residential project as defined in Section 10.0, the applicant shall also comply with Section 9.5.3.
9.4.4 Public Hearing.
The SPGA shall hold a public hearing in conformance with G.L. c. 40A, s.9 and with the provisions of this Bylaw. The hearing shall be held within 65 days after the filing of the application. Notice shall be given by publication and posting and by first class mailings to parties of interest as defined in G.L. c. 40A., s. 11.
9.4.5 Decision.
The written decision of the SPGA, and any extension, modification or renewal thereof, shall be filed with the Town Clerk within 90 days following the closing of the public hearing. Failure of the SPGA to act within 90 days shall be deemed a grant of the permit applied for.
9.4.6 Conditions.
Special permits may be granted with such reasonable conditions, safeguards, or limitations on time or use, including performance guarantees, as the special permit granting authority may deem necessary to serve the purposes of this Bylaw.
9.4.7 Lapse.
Special permits shall lapse if a substantial use thereof or construction thereunder has not begun, except for good cause, within three years following the filing of the special permit approval (plus the time required to pursue or await the determination of an appeal under G.L. c. 40A, s. 17) with the Town Clerk.
9.4.8 Major Non-Residential Projects.
For any Major Non-Residential Project as defined in Section 10.0:
2.
The Planning Board may require the applicant to submit more information about the proposed development within the purposes and guidelines of Section 9.5 or based on the comments of the reviewing boards and agencies. Additional information shall be submitted to the Planning Board within 10 days of written request by the Board.
3.
For projects in the LS, OP, and IG districts, the Planning Board may at its discretion require the applicant to submit to the Design Review Board (DRB), pursuant to Section 9.6.3, for the DRB Report. For DRB review in the GB and MU Districts, see Sections 9.6.2. and 9.6.3. For DRB review in the ID2 Districts, see Section 9.4.10.
4.
In reviewing the application, the Planning Board shall, at minimum, consider staff comments and the items in subsections 9.5.4.2. a through k.
9.4.9 Interdepartmental Review.
Unless otherwise specifically required under this Bylaw, the SPGA may require that an interdepartmental review be conducted on an application for a special permit.
9.4.10 Special Permit in the ID2 District.
In addition to the criteria contained in Section 9.4.2. and 9.4.8., the Planning Board may issue a special permit in the ID2 District for a Personal Service Establishment, Retail Sales Establishment, Convenience Store, Grocery Store, Dry-Cleaning Operation, Restaurant (sit-down) Restaurant (limited service), and Indoor Commercial Recreation Establishment (See Appendix A, Table 1) only after considering the additional special permit criteria outlined below:
1.
The proposed development shall have a positive economic benefit to Andover (including, but not limited to, fiscal impact, Town services, and employment), is in harmony with the general purpose and intent of the Master Plan and is not unreasonably detrimental to the overall General Business Districts, specifically Downtown Andover.
2.
The proposed development shall demonstrate that the scale, massing, and detailing of buildings are compatible with the character of the community. The Planning Board may at their discretion require the applicant to submit to the Design Review Board under Section 9.6.3. for the Design Review Board Report.
3.
The proposed development shall provide landscape plans for the site, the parking areas, and internal landscaped islands. The parking areas should service adjacent structures when possible. The Planning Board may at their discretion require additional landscaping.
4.
The development shall provide for adequate traffic mitigation and improvements if the proposed use negatively affects current traffic flow conditions. At a minimum, the applicant shall be required to join the local transportation management association.
9.5.1 Purpose.
9.5.2 Applicability.
Except as provided in Section 10.0 for major non-residential projects and for new multifamily construction under Section 7.5, no building permit shall be issued for new construction or enlargement of a building in which commercial, industrial, institutional, or multifamily use or uses are located unless and until a site plan review certificate of approval has been issued in conformance with this section.
9.5.3 Submission Requirements.
Submission requirements shall be in accordance with the Planning Board Rules and Regulations for Special Permits and Site Plan Review, on file with the Community Development and Planning Department and the Town Clerk.
9.5.4 Procedure for Site Plan Certificate of Approval.
1.
An interdepartmental review of the application materials shall be conducted by staff of the Departments of Community Development and Planning, Assessors, Public Works, Police and Fire. Comments of the staff shall be submitted in writing to the Planning Board.
2.
Following receipt of staff comments, the Planning Board shall conduct a site plan review during a regularly scheduled meeting. The Planning Board may approve the site plan only if it determines that the proposed development meets the intent and provisions of this Bylaw and will not result in detriment to the town or the neighborhood in which it is located. In approving or disapproving the site plan, the Planning Board shall, as a minimum, consider staff comments and the following:
a.
The proposed placement of buildings;
b.
Major topographical changes;
c.
Surface and ground water drainage and erosion control;
d.
Protection against flooding and inundation;
e.
Prevention of water and pollution and environmental damage;
f.
Provision for adequate utility services;
g.
Provisions of off-street parking and loading;
h.
Location of intersections of driveways and streets;
i.
The effect of additional traffic created by the development on intersections and streets likely to be affected by the proposed development;
j.
Provision for pedestrian/bicycle accessways connecting to adjacent open space, neighborhoods, schools, recreation areas or transportation facilities and for alternative transit programs; and
k.
Provisions for landscaping and adequate screening and buffering.
3.
The Planning Board shall vote to either approve or deny the site plan or notify the applicant of deficiencies to be addressed in a follow-up site plan review prior to rendering a decision. A written approval of the site plan by the Planning Board shall be sent to the applicant and Building Commissioner, shall constitute a site plan review certificate of approval, and may include conditions to be enforced by the Building Commissioner. Such certification of approval shall be filed with the Town Clerk.
4.
Once approved, a site plan may be modified only upon written approval of the Planning Board.
9.5.5 Lapse.
Site plan approval shall lapse after one year from the date of approval if a substantial use thereof has not sooner commenced except for good cause. The Planning Board may extend its approval in writing, for good cause, upon the written request of the applicant.
9.5.6 Appeal.
9.6.1 Design Review Board.
A Design Review Board (DRB) is hereby established, consisting of five members appointed by the Town Manager, including one nominee of the Planning Board, one nominee of the Preservation Commission, one nominee of the Chamber of Commerce, and two others. Members shall, if possible, include an architect, a landscape architect, and a resident from within or near a General Business or Mixed Use Districts. Members shall serve for three years or until their successors are appointed, except that, of the five members first appointed, one shall serve for three years, two shall serve for two years, and two shall serve for one year.
9.6.2 Pre-application Review.
1.
A permit applicant for any of the following shall consult with the DRB prior to seeking a permit:
a.
A new building, exterior alteration affecting an elevation visible from the public way (excluding ordinary repair and maintenance with similar materials, landscape elements, storm windows and doors, air conditioners, reconstruction after natural disasters, paint, and traffic control devices), or sign within any area zoned for GB and MU Use District; or
b.
A new structure built by or for the use of the Town in any district.
2.
The DRB shall provide assistance in relating the proposal to the guidelines for the district. This may involve explaining these and other applicable guidelines, reviewing proposals, suggesting good examples of how others have responded in similar cases and maintaining information regarding other sources of design assistance.
3.
In the case of exterior alterations and new structures built by or for the use of the Town, Building Commissioner will refer all requests to the chairperson or designated individual for a determination of applicability. The applicant will be notified within five business days if the request requires the review of the DRB or is granted a waiver.
9.6.3 Application Review.
Whether or not requested by the applicant, the DRB shall review all applications for building permits, special permits, or variances for proposals located in areas zoned for General Business and Mixed Use if involving new construction, exterior alteration or a sign larger than four square feet, or a new structure built by or for the use of the Town in any district; provided, however, that the lack of a report from the DRB shall not be sufficient reason to delay action on a proposal that otherwise could be acted upon by the Building Department, SPGA, or Zoning Board of Appeals. In addition, the DRB shall review applications for outdoor dining in GB and MU districts, private property on Town sidewalks on or near Main Street, special permits for attached clusters, development projects in the Historic Mill Overlay District, and older adults housing. At the discretion of the Planning Board, the DRB shall also review applications for special permits in the ID2 district as well as major nonresidential projects in LS, OP, and IG districts. An extra copy of all usual submittals required for these proposals shall be provided to the DRB through the Building Department. The DRB review shall preferably be done in consultation with the applicant and his designer. The DRB shall provide a report in writing to the applicant and as follows:
9.6.4 Design Review in the General Business District and the Mixed Use District.
The following shall be considered by the SPGA in acting upon special permits and by the Zoning Board of Appeals in acting upon variances:
1.
Promote safety by avoiding pedestrian or vehicular hazards within the site or egressing from it. Facilitating access by emergency vehicles and facilitating visual surveillance by occupants, neighbors, and passersby.
2.
Serve functional needs by avoiding inconvenience to pedestrians by assuring accessibility by the handicapped and by providing microclimate control.
3.
Promote a pedestrian-oriented business area by applying the following:
a.
To provide continuous visual interest and accessibility to the pedestrian, a major portion of the building facade at the street level which faces the street should be transparent. Bay windows and recessed doorways are particularly encouraged;
b.
To maintain visual continuity, the entire lot width should be fully occupied by a building wall, fence, gate, shrubs or other landscape elements or as a pedestrian connection;
c.
Building detailing should provide small-scale elements of interest from a pedestrian viewing distance.
4.
Promote enhancement of the established visual character of Andover's General Business Districts by the following:
a.
Buildings need not conform to any specific style of architecture. Enhancement of the districts' diversity of styles is welcomed. On the other hand, new efforts should avoid the removal, obscuring or disruption of existing structures of historic value.
b.
The appearance of materials characteristic of the area is preferred. These materials include brick and other unit masonry (painted or unpainted), granite and other cut stone and painted clapboard. Uncharacteristic materials include rough, imitation or reflective materials such as unpainted wood, field stone, stucco, exposed metal, imitation materials (e.g., false brick siding), mirror glass, porcelain enamel or polished stone. Such appearance should generally be avoided; however, variation within the range of characteristic materials, colors and textures is encouraged when they are compatible with surrounding buildings.
c.
To retain the small-scale character of Andover and to promote diversity of design, a single building with a width of more than 40 feet facing a public way should, where feasible, be divided visually into sub-elements, preferably expressing the functional diversity within the building.
d.
To provide visual relief from buildings and hard materials, landscape treatment using shrubs, trees, flower boxes, and other greenery around buildings or in recessed places is encouraged.
e.
Major visual exposure comes not only from the building front; therefore, full attention should be given to the treatment of sidewalks, landscaping, parking areas, and the building wall at the rear and sides.
5.
For signs: refer to Sections 5.2.3.2 and 5.2.14 for additional design criteria.
9.6.5 Rules and Regulations.
The DRB may promulgate, after due notice and public hearing, Rules and Regulations to effectuate the purposes of this Section 9.6. The DRB Rules and Regulations shall be on file with the Community Development and Planning Department and the Town Clerk.
9.7.1 General.
The following procedures shall apply to repetitive petitions, appeals, or applications pursuant to G.L. c. 40A, s. 16.
9.7.2 Permit or Special Permit Granting Authority.
No appeal, application, or petition that has been unfavorably and finally acted upon by the SPGA or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless the SPGA or permit granting authority finds specific and material changes in the conditions upon which the previous unfavorable action was based.
9.7.3 Planning Board Action.
Upon a finding of specific and material changes in the conditions upon which the SPGA's or permit granting authority's previous unfavorable action was based, the matter shall be referred to the Planning Board. All but one of the members of the Planning Board shall find, after public hearing, specific and material changes in the conditions upon which the previous unfavorable action was based. The Planning Board shall submit written findings and a decision to the Town Clerk and transmit a copy of same to the SPGA or permit granting authority forthwith.
9.7.4 Decision on the Merits.
Upon a finding by the Planning Board concurring that there are specific and material changes in the conditions upon which the previous unfavorable action was based, the matter shall be remanded to the SPGA or permit granting authority for a decision on the merits of the appeal, application, or petition.