Brewster City Zoning Code
ARTICLE X
Administration and Enforcement
§ 179-43 Enforcement.
[Amended 11-13-2006 FYTM, Art. 30]
This chapter shall be enforced by the Building Commissioner, assisted by a Zoning Agent appointed by the Selectmen. Buildings, structures or signs may not be erected, substantially altered, moved or changed in use, and land may not be changed in principal use without certification by the Building Commissioner that such action is in compliance with then-applicable zoning, or without review by him regarding whether all necessary permits have been received from those governmental agencies from which approval is required by federal, state or local law. Issuance of a building permit or certificate of use and occupancy, where required under the Commonwealth of Massachusetts State Building Code, may serve as such certification.
§ 179-44 Action by Zoning Agent.
[Amended 11-13-2006 FYTM, Art. 30]
Materials submitted in application for such certification shall, upon receipt, be forwarded by the Building Commissioner to the Zoning Agent, who within three weeks of receipt by him shall determine whether the proposal is eligible to proceed, requires a special permit or is not in compliance with this chapter. The Zoning Agent shall also take such action as may be necessary to secure full compliance with the provisions of this chapter and of permits and variances issued hereunder, including notification of noncompliance and request for legal action through the Building Commissioner and Selectmen to Town Counsel.
§ 179-45 Previously approved permits.
The status of previously approved permits shall be determined in this article.
§ 179-46 Establishment of fees.
Fees shall be established by the Selectmen.
§ 179-47 Conformance to subsequent amendments.
Construction or operations under a building or special permit shall conform to any subsequent amendment of this chapter unless the use or construction is commenced within a period of six months after the issuance of the permit and, in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable.
§ 179-48 Notice of violation and order.
[Amended 11-13-2006 FYTM, Art. 30]
The Building Commissioner or Zoning Agent shall serve a notice of violation and order to any owner or person responsible for the erection, construction, reconstruction, conversion, alteration of a structure or change in use, increase in intensity of use or extension or displacement of use of any structure or lot in violation of any approved plan, information or drawing pertinent thereto; or in violation of a permit or certificate issued under the provisions of this chapter and such order shall direct the immediate discontinuance of the unlawful action, use or condition and the abatement of the violation. Any owner who has been served with a notice and ceases any work or other activity shall not leave any structure or lot in such a condition as to be a hazard or menace to the public safety, health, morals or general welfare.
§ 179-49 Violations and penalties.
[Amended 1-13-1986 STM, Art. 15; 11-17-2003 FYTM, Art. 20; 5-3-2004 ATM, Art. 23]
A.
Any person, trust or other enterprise who violates or refuses to comply with any of the provisions of this chapter, any of the conditions under which a permit is issued or any decision rendered by the Board of Appeals may be fined by the Inspector of Buildings a sum of up to $300 for each offense, unless otherwise noted in this chapter. Failure to respond to a properly issued citation within 21 days will make the person, trust or other enterprise not in compliance with the pertinent Zoning Bylaw, unless afforded protection under Article VIII of this chapter, and subject to the following penalty:
B.
Any Zoning Bylaw of the Town of Brewster enforceable by the Inspector of Buildings or his designee may, as an alternative to initiating criminal proceedings, be enforced by the Inspector of Buildings or his designee by the method provided in MGL c. 40, § 21D.
C.
For zoning violations of building permits, special permits, variances, certificates of occupancy, orders, bylaws, and statutes, or the conditions of any other permit or certificate issued under this chapter, the Building Commissioner may impose fines and institute enforcement actions, either criminal or civil, either legal or equitable or both. Each day the violation continues shall be a separate offense.
[Added 11-13-2006 FYTM, Art. 26]
§ 179-50 Board of Appeals.
A.
Membership. There shall be a Board of Appeals of five members and four associate members.
[Amended 8-27-1984 STM, Art. 67]
B.
Appointment. Members of the Board in office at the effective date of this chapter shall continue in office. Hereafter, as terms or vacancies occur, the Select Board shall make appointments pursuant to the Zoning Act.
[Amended 11-13-2017 FYTM, Art. 13]
C.
Powers. The Board shall have those powers granted under the Zoning Act.
D.
Adoption of rules. The Board shall adopt rules to govern its proceedings pursuant to the Zoning Act.
E.
Appeals. Appeals to the Board shall be taken in accordance with the rules of the Board.
§ 179-51 Special permits.
A.
Certain uses, structures or conditions are designated as permitted on special permit in § 179-11, Table of Use Regulations, and elsewhere in this chapter. Upon application duly made to the Board of Appeals or other designated Special Permit Granting Authority (SPGA), in appropriate cases and subject to appropriate conditions and safeguards, such special permits and no others may be granted. If an applicant needs a special permit from the Planning Board acting under either Article IX, Special Regulations, § 179-40.1, Personal Wireless Services and Communication Facilities Bylaw, or Article XII, Site Plan Review, and another special permit from the Board of Appeals, the applicant may file a single, combined, special permit application with the Planning Board, and in those instances, the Planning Board is authorized to grant all special permit relief in one proceeding and decision. The applicant shall comply with all requirements, and the Planning Board shall apply the appropriate criteria, including the criteria of § 179-51, to the various components of such an application.
[Amended 5-11-1992 ATM, Art. 33; 11-15-1993 FYTM, Art. 16; 5-3-1999 ATM, Art. 32; 5-3-2004 ATM, Art. 22; 11-13-2006 FYTM, Art. 21; 5-5-2008 ATM, Art. 21; 5-2-2011 ATM, Art. 32; 5-2-2011 ATM, Art. 31]
(1)
Applications. Written application shall be made to the SPGA for such permit containing a statement of the proposed use or uses, a site plan showing the proposed site development and, in the case of a multifamily development, plans in accordance with § 179-34 and such other related information concerning the proposed use of the premises as the SPGA shall require.
(2)
Hearing action. Within 65 days of the receipt of such application, the SPGA shall hold a public hearing. The notice of the time and place of such hearing and of the subject matter, sufficient for identification, shall be published in a newspaper of general circulation in the Town once in each of two successive weeks, the first publication to be not less than 14 days before the day of the hearing. The SPGA shall send notice by mail, postage prepaid, to all parties in interest as specified in MGL c. 40A § 11. At the hearing, any party whether entitled to notice thereof or not may appear in person or by agent or by attorney. Thereafter, the SPGA shall grant the permit, grant the permit upon specific conditions, or deny the permit within 90 days of the date of said hearing. The SPGA shall cause to be made a detailed record of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact and setting forth clearly the reason or reasons for its decisions and of its official actions, copies of all of which shall be immediately filed in the office of the Town Clerk and shall be a public record, and notice of decisions shall be mailed forthwith to the parties in interest as designated above, to the Planning Board and to every person present at the hearing who requests that notice be sent to him and states the address to which such notice is to be sent. Upon the granting of a limited or conditional zoning variance or special permit, the SPGA shall issue to the landowner a notice, certified by the Chairman or Clerk, containing the name and address of the landowner, identifying the land affected and stating that a limited or conditional variance or special permit has been granted, which is set forth in the decision of the SPGA on file in the office of the Town Clerk of the Town in which the land is located. No such variance or permit shall take effect until such notice is recorded in the Barnstable County Registry of Deeds. The fee for recording such notice shall be paid by the owner, and the notice shall be indexed in the grantor index under the name of the owner of record.
(3)
Conditions. Special use permits shall be granted upon the concurring vote of four or more members of the Board of Appeals or by the concurring vote of five or more members of the Planning Board and only after the following considerations, where applicable: written reports from the Inspector of Buildings and the Zoning Agent with regard to the specific site as an appropriate location for the use or structure; written reports from the Brewster Board of Health and, where applicable, the Massachusetts Department of Environmental Quality Engineering with regard to the adequacy of public sewerage and water systems; written reports from the Planning Board with regards to any roads or subdivision of land within any multifamily development; written reports from the Police and Fire Departments with the regard to the safety and convenience of travel on ways within and adjacent to any multifamily development and with regard to any possible adverse effect on the neighborhood; written reports from the Town Engineer with regard to the proper construction of ways and drainage within any multifamily development; written reports from the Architectural Advisory Committee with regard to their findings relative to any multifamily development; and, after consideration, that there are adequate and appropriate facilities to ensure the proper operation of the proposed use (structure, condition or development). The SPGA shall authorize such special permit only when it finds that, in view of these considerations and subject to the special regulations stated in Article XI, such permit is consistent with the intent of this chapter and generally in conformity with the Brewster Master Plan, as last revised.
(4)
Expirations. Construction or operations under a special permit shall conform to any subsequent amendment of this chapter unless the use or construction is commenced within a period of six months after the issuance of the permit and, in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable.
(5)
Findings.
(a)
No special permit shall be granted unless the SPGA finds that the proposed uses are in harmony with the purpose and intent of this chapter and will not be detrimental or injurious to the neighborhood in which it is to take place, or to the public, and that all requirements, standards and conditions for the granting of the special permit have been satisfied. No special permit shall be granted unless the SPGA determines that the proposed use will not be detrimental to the surrounding neighborhood and Town in light of each of the following conditions:
[1]
The proposed use is consistent with the purpose and intent of the Town of Brewster's Comprehensive Plan.
[2]
The location, type, character and size of the use/ building, or other structure in connection therewith, will be in harmony with the visual character of the neighborhood, including views and vistas and, where applicable, the historic character of the neighborhood.
[3]
The site is suitable for the proposed use.
[4]
Adequate access will be provided for the purpose of fire protection, police protection and other emergency equipment.
[5]
The streets serving the proposed use are adequate (width, grade, construction, overall safety and design capacity) to carry all prospective traffic and adequate provision is made for entering and leaving the proposed site such that no undue hazard to traffic congestion will be created.
[6]
The proposed use/development has incorporated applicable trip reduction measures, where possible, in order to minimize vehicular trips to and from the site. These include company sponsored carpooling/vanpooling, bicycle and pedestrian incentives and/or variable work-hour or flextime programs.
[8]
The site will be suitably landscaped to protect the character of the neighborhood and adjacent property.
[9]
The proposed use has an adequate method of sewage disposal, source of water and drainage.
[10]
Adequate utilities and other public services will be provided.
[11]
The proposed use will not result in the degradation of groundwater quality or coastal water quality off site.
[12]
The location and design of buildings, roads, parking and loading areas will not cause avoidable damage to wildlife habitats or corridors or to any plant species listed as endangered, threatened or of special concern by the Massachusetts Natural Heritage and Endangered Species Program.
[13]
The proposed use complies with all applicable provisions of this Zoning Bylaw.
(b)
It shall be the responsibility of the applicant, at the time an application for the special permit is made, to provide plans and reports which describe the proposed development's conformance with the required findings of this section. Any data, plans and reports submitted in support of an application may be used to identify additional conditions and stipulations of approval of a special permit.
(c)
The SPGA shall also make such further findings as may otherwise be required by this chapter and may attach such conditions or safeguards or limitations on the grant of the special permit as it finds to be appropriate and reasonable to protect the surrounding neighborhood and town.
(6)
Referral.
(a)
The SPGA shall refer all special permit applications to the Board of Health and, where applicable, to the Building and Zoning Commissioner, Massachusetts Department of Environmental Protection, Conservation Commission, Planning Board, Police and Fire Departments, Department of Public Works and Brewster Historic District Committee for written comments and recommendations before taking action on said special permit application. In addition to the above noted Boards, the SPGA may refer a special permit application to any other board/committee/department for comments and recommendations if it so desires before taking final action on said special permit application. A public hearing on said referral shall not be required.
(b)
Any such board/committee/department to which applications are referred for comment shall make its recommendations and send copies thereof to the SPGA and the applicant within 35 days of receipt of the referral request by the SPGA, or there shall be deemed no opposition or desire to comment. The SPGA shall not act upon said special permit until either comments from each referred board/committee/department have been received or said 35 days have elapsed, whichever is sooner. Applications referred to more than one board or agency may be reviewed jointly by said boards or agencies.
B.
Not counting the period of an appeal, special permits shall lapse 24 months after they are available to the applicant unless 1) a substantial use of the special permit has begun 2) construction has started and has proceeded as reasonably practical, or 3) the special permit holder demonstrates to the special permit granting authority good cause for not complying with 1) or 2). Special permits may specify a date or dates by which events must occur or construction must be completed in order for the special permit holder to avoid the lapse of that special permit.
[Amended 11-13-2006 FYTM, Art. 27]
§ 179-52 Variances.
A.
The Board of Appeals may hear and decide appeals or petitions for variances from the terms of this chapter, including variances for use, with respect to particular land or structures. Such variance shall be granted only in cases where the Board of Appeals finds all of the following:
(1)
A literal enforcement of the provisions of this chapter would involve a substantial hardship, financial or otherwise, to the petitioner or appellant.
(2)
The hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located.
B.
In authorizing a variance, the Board may impose conditions, safeguards and limitations, both of time and use, including the continued existence of any particular structures but excluding any conditions, safeguards or limitations based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner.
[Amended 11-13-1989 STM, Art. 31]