(a)

Zoning enforcement officer (ZEO). A zoning enforcement officer shall be appointed by the town council and have the minimum qualifications of familiarity with this chapter and prior experience in the enforcement of zoning regulations. It shall be the duty of the zoning official to enforce the provisions of this chapter and to keep a record of every identifiable complaint of a violation and of any action taken in response. The zoning enforcement officer shall have the responsibilities listed in G.L. §§ 45-24-54(1)—(8).

(b)

Zoning certificate. In order to provide guidance or clarification, the zoning enforcement officer or agency shall, upon written request, issue a zoning certificate or provide information to the requesting party as to the determination by the official or agency within 15 days of the written request. In the event that no written response is provided within that time, the requesting party has the right to appeal to the zoning board of review for the determination. The zoning enforcement officer may require that copies of the plans, specifications and such other information as he may deem necessary be filed with the application for such certificate.

(Ord. of 6-23-1994, art. XI, § 1; Ord. of 11-9-2023(2); Ord. of 4-11-2024(27); Ord. of 9-26-2024(1))

The town clerk shall be the custodian of this chapter and the zoning maps created thereunder. The planning board shall be responsible for the maintenance and update of the text and zoning map comprising this chapter. Changes which impact the zoning map shall be depicted on the map within 90 days of the authorized changes. The planning board shall be responsible for review of this chapter at reasonable intervals; and, whenever changes are made to the comprehensive plan of the town, for the identification of any changes necessary and for the forwarding of these changes to the town council.

(Ord. of 6-23-1994, art. XI, § 2)

(a)

Applications requiring public notice. Any application or appeal filed under this chapter or chapter 32 except for those reviewed administratively shall require public notice.

(1)

Notice requirements—Special use permits. For public notice of applications for a special use permit notice shall be given at least 14 days prior to the date of the hearing in a newspaper of local circulation in Foster. The same notice shall be posted in the town clerk's office and one other municipal building. The notice shall be made accessible on the home page of the town website at least 14 days prior to the hearing. For any notice sent by first-class mail, the sender of the notice shall submit a notarized affidavit to attest to such mailing. The cost of newspaper and mailing notification shall be borne by the applicant. Notice shall specify the date, time, place, and purpose of the hearing. Notice of the hearing shall be sent by first-class mail to the applicant and to at least all those who would require notice under G.L. § 45-24-53. The notice shall also include the street address of the subject property.

(2)

Notice requirements—Use and dimensional variances. For public notice of applications for use variances and dimensional variances notice shall be given at least 14 days prior to the date of the hearing in a newspaper of local circulation in Foster. The same notice shall be posted in the town clerk's office and one other municipal building. The notice shall be made accessible on the home page of the town website at least 14 days prior to the hearing. For any notice sent by first-class mail, the sender of the notice shall submit a notarized affidavit to attest to such mailing. The cost of newspaper and mailing notification shall be borne by the applicant. Notice shall specify the date, time, place, and purpose of the hearing. Notice of the hearing shall be sent by first-class mail to the applicant and to at least all those who would require notice under G.L. § 45-24-53. The notice shall also include the street address of the subject property.

(3)

Notice requirements—Unified development review. Notice for special use permit, development plan review, use variance and dimensional variance requests submitted under unified development review provisions shall indicate that development plan review(s), dimensional variance(s), use variance(s), and/or special use permits) are to be considered for the subdivision and/or land development project. A public hearing on the application, including any variance and special use permit requests that meets the requirements of G.L. § 45-23-50.1(d) shall be held prior to consideration of the first stage of land development and/or subdivision reviews by the planning board. The planning board shall conditionally approve or deny the requests for the development plan review(s), variance(s) and/or special use permit(s) before considering the first application stage of the land development or subdivision application pursuant to G.L. § 45-23-50.1(b).

(4)

Unified development review—Order of submissions. Requests for variances and/or requests for the issuance of special use permits related to subdivision or land development projects shall be submitted as part of the application materials for the first stage of reviews pursuant to G.L. § 45-23-50.1(b). All subdivision or land development applications submitted under the unified development review provisions of a zoning ordinance shall require a public hearing, which shall meet the requirements of G.L. § 45-23-50.1(d).

(5)

Appeals. Notice requirements for appeals made to the zoning board of review are set forth in G.L. § 45-24-66. The timeframe for appeal by an aggrieved party is set forth in section 38-91. Notice requirements for appeals made to the superior court are set forth in G.L. § 45-24-69.1.

(b)

Notice area.

(1)

Notice distances. Public notice of the hearing shall be sent to all property owners within a minimum of 200 feet of the subject property.

(c)

Notice cost. The cost of all newspaper and mailing notices shall be borne by the applicant. Any party may appear at the hearing in person, by agent or by attorney.

(d)

Severability. Where this section is in conflict with another section of this chapter or chapter 32, this section shall apply.

(Ord. of 1-11-2024(2); Ord. of 9-26-2024(3))

The zoning board of review shall consist of five members appointed by the town council from among the qualified electors of the town, each for a term of five years. One member shall be appointed each year at the December meeting of the town council. No member shall be an elected official of the town nor shall any member be an employee of the town. Any vacancy which may occur in the membership of the board shall be filled by the town council for the remainder of the unexpired term. The town council shall, each year at its December meeting, name two alternate members of such board to be designated as first and second alternate and who shall sit and actively participate in hearings. The first alternate shall vote if a member is unable to serve, and the second alternate shall vote if two members are unable to serve.

(Ord. of 6-23-1994, art. XI, § 3A.)

(a)

Election of officers. At its December meeting and at intervals of the year thereafter, the zoning board of review shall organize by electing from its membership a chairperson and a vice-chairperson. The board may engage the services of a secretary within the limit of the funds available to it or it may appoint one of its members as secretary.

(b)

Meetings. Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine. The chairperson, or in his absence the vice-chairperson, may administer oaths and compel the attendance of witnesses and the submission of data. An alternate member of the board shall sit in as an active member upon the request of the chairman when and if a member of the board is unable to serve at any hearing. All hearings of the board shall be open to the public.

(c)

Conducting hearings. In conducting hearings and arriving at its decision, the board shall consist of five participating members. The concurring vote of three members shall be necessary to reverse any order, requirement, decision or determination of the zoning official. The concurring vote of four members shall be required to decide in favor of an application on any matter concerning a special use permit or variance, upon which it is required to pass under this chapter.

(d)

Recordkeeping. The board shall make a record of all its proceedings and actions, indicating its reasons for its decisions, the vote of each member participating therein, and the absence of a member or his failure to vote. This record shall be filed immediately in the files of the zoning board and shall be available for review by the public.

(Ord. of 6-23-1994, art. XI, § 3B.)

The zoning board of review shall have the following powers and duties:

(1)

To hear and decide appeals within 65 days of the filing of the appeal where it is alleged there is an error in any order, requirement, decision or determination made by an administrative officer or agency in the enforcement or interpretation of this chapter or of any ordinance adopted pursuant hereto.

(2)

To authorize, upon application, in specific cases, special use permits pursuant to G.L. § 45-24-42, where the zoning board of review is designated as the permitting authority.

(3)

To authorize, upon application, in specific cases of hardship, variances in the application of the terms of the zoning ordinance pursuant to G.L. § 45-24-41.

(4)

To refer matters to the planning board or to other boards or agencies of the town, as the zoning board of review may deem appropriate, for findings and recommendations.

(5)

To provide for the issuance of conditional zoning approvals where a proposed application would otherwise be approved except that one or more state or federal agency approvals that are necessary are pending. A conditional zoning approval shall be revoked in the instance where any necessary state or federal agency approvals are not received within a specified time period.

(6)

To hear and decide other matters, according to the terms of the ordinance or other statutes, and upon which the board may be authorized to pass under the ordinance or other statutes.

(Ord. of 6-23-1994, art. XI, § 3C.; Ord. of 2-22-2024(27); Ord. of 9-26-2024(4))

The zoning board of review shall be required to vote as follows:

(1)

Four active members, which may include alternates, are necessary to conduct a hearing. As soon as a conflict occurs for a member, that member shall recuse himself or herself, shall not sit as an active member, and shall take no part in the conduct of the hearing. A maximum of five active members, which may include alternates, are entitled to vote on any issue.

(2)

The concurring vote of a majority of members of the zoning board of review sitting at a hearing is necessary to reverse any order, requirement, decision or determination of any zoning administrative officer from whom an appeal was taken.

(3)

The concurring vote of a majority of members of the zoning board of review sitting at a hearing is required to decide in favor of an applicant on any matter within the discretion of the board upon which it is required to pass under this chapter, including variances and special use permits.

(Ord. of 6-23-1994, art. XI, § 3D.; Ord. of 2-22-2024(19); Ord. of 9-26-2024(5))

Application procedures for the filing of appeals, request for variances, special use permits, development plan reviews, and other applications, with the applicable permitting authority, consistent with G.L. ch. 45-24 are specified in this chapter. Application forms and provisions for submission and resubmission requirements, for each type of application required are provided for in this chapter and have been published for use and review.

(Ord. of 6-23-1994, art. XI, § 3E.; Ord. of 2-22-2024(20); Ord. of 9-26-2024(6))

The application fee shall be $100.00.

(Ord. of 6-23-1994, art. XI, § 3F.)

(a)

Following a public hearing, the zoning board of review shall render a decision within 15 days. The board shall include in its decision all findings of fact and conditions, showing the vote of each participating member, and the absence of a member or his or her failure to vote. Decisions shall be recorded and filed in the office of the town clerk within 30 days from the date when the decision was rendered, and is a public record. The board shall keep written minutes of its proceedings, showing the vote of each member on each question, or, if absent or failing to vote, indicating that fact, and shall keep records of its examinations, findings of fact, and other official actions, all of which shall be recorded and filed in the office of the administrative officer in an expeditious manner upon completion of the proceeding. For any proceeding in which the right of appeal lies to the superior or supreme court, the zoning board of review shall have the minutes taken either by a competent stenographer or recorded by a sound-recording device.

(b)

Any decision by the board, including any special conditions attached to the decision, shall be mailed within one business day of recording, by any method that provides confirmation of receipt to the applicant, to any objector who has filed a written request for notice with the zoning enforcement officer, and to the zoning enforcement officer. Any decision evidencing the granting of a variance, modification, or special use shall also be recorded in the land evidence records of the city or town and mailed within one business day of recording, by any method that provides confirmation of receipt, to the applicant, to any objector who has filed a written request for notice with the zoning enforcement officer, and to the administrative officer. A copy of the recorded decision shall be mailed within one business day of recording, by any method that provides confirmation of receipt, to the applicant, and to any objector who has filed a written request for notice with the zoning enforcement officer, as well as a copy to the zoning enforcement officer.

(Ord. of 6-23-1994, art. XI, § 3H.; Ord. of 2-22-2024(21); Ord. of 9-26-2024(7))

All members including alternate members, of the zoning board of review shall be required to participate in continuing education courses promulgated pursuant [to] G.L. ch. 45-70 entitled "Continuing education for local planning and zoning boards and historic district commissions."

(Ord. of 9-26-2024(8))

An appeal to the zoning board of review from a decision of the zoning enforcement officer may be taken by an aggrieved party. Such appeal shall be taken within 20 days of the date of the recording of the decision of the officer by filing a with the zoning enforcement officer from whom the appeal is taken and with the zoning board of review a notice of appeal, specifying the ground of the appeal. The zoning enforcement officer from whom the appeal is taken shall immediately transmit to the zoning board of review all the papers, including any transcript or audio tapes, constituting the record upon which the action appealed from was taken. Notice of the appeal shall also be transmitted to the planning board.

(Ord. of 6-23-1994, art. XII, § 1; Ord. of 10-26-2023(1); Ord. of 9-26-2024(9))

An appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning enforcement officer from whom the appeal is taken certifies to the zoning board of review, after an appeal has been filed, that by reason of facts stated in the certificate a stay would in the officer's opinion cause imminent peril to life or property. In that case, proceedings shall not be stayed other than by a restraining order, which may be granted by a court of competent jurisdiction on application and upon notice to the officer from whom the appeal is taken on due cause shown.

(Ord. of 6-23-1994, art. XII, § 2; Ord. of 9-26-2024(10))

The zoning board of review shall hold the hearing of the appeal, within 60 days of receipt of the appeal and shall give public notice, at least 14 days prior to the date of the hearing in a newspaper of general circulation. Notice of the hearing, which shall include the street address of the subject property shall be sent by first class mail, postage prepaid, to the appellant and to those requiring notice under G.L. § 45-24-53. The zoning board of review shall decide the appeal within 15 days of the hearing. Upon the hearing, any party may appear in person or by agent or by attorney. The cost of any notice required for the hearing shall be borne by the appellant.

(Ord. of 6-23-1994, art. XII, § 3; Ord. of 10-26-2023(2); Ord. of 9-26-2024(11))

In exercising its powers the zoning board of review may, in conformity with the provisions of this chapter, reverse or affirm wholly or partly and may modify the order, requirement, decision or determination appealed from and may make any orders, requirements, decisions or determinations that ought to be made, and to that end has the powers of the officer from whom the appeal was taken. All decisions and records of the board of review respecting appeals shall conform to the provisions of G.L. § 45-24-61.

(Ord. of 6-23-1994, art. XII, § 4; Ord. of 10-26-2023(3); Ord. of 9-26-2024(12))

(a)

An aggrieved party may appeal a decision of the zoning board of review to the county superior court by filing a complaint stating the reasons of appeal within 20 days after the decision has been recorded and posted in the office of the town clerk. The decision shall be posted in a location visible to the public in the town hall for a period of 20 days following the recording of the decision in the office of the town clerk. The zoning board of review shall file the original documents acted upon by it and constituting the record of the case appealed from, or certified copies, together with other facts that may be pertinent, with the clerk of the court within 30 days after being served with a copy of the complaint. When the complaint is filed by someone other than the original applicant or appellant, the original applicant or appellant and the members of the zoning board of review are made parties to such proceedings. The appeal shall not stay proceedings upon the decision appealed from, but the court may, in its discretion, grant a stay on appropriate terms and make any other orders that it deems necessary for an equitable disposition of the appeal.

(b)

If, before the date set for the hearing in the superior court, an application is made to the court for leave to present additional evidence before the zoning board of review and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for the failure to present it at the hearing before the zoning board of review, the court may order that the additional evidence be taken before the zoning board of review upon conditions determined by the court. The zoning board of review may modify its findings and decision by reason of the additional evidence and file that evidence and any new findings or decisions with the superior court.

(c)

The review shall be conducted by the superior court without a jury. The court shall consider the record of the hearing before the zoning board of review and, if it appears to the court that additional evidence is necessary for the proper disposition of the matter, it may allow any party to the appeal to present that evidence in open court, which evidence, along with the report, constitutes the record upon which the determination of the court is made.

(d)

The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:

(1)

In violation of constitutional, statutory, or ordinance provisions;

(2)

In excess of the authority granted to the zoning board of review by statute or ordinance;

(3)

Made upon unlawful procedure;

(4)

Affected by other error of law;

(5)

Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or

(6)

Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(Ord. of 6-23-1994, art. XII, § 5; Ord. of 9-26-2024(13))

(a)

An appeal of the enactment of or an amendment to this chapter may be taken to the county superior court by filing a complaint within 30 days after the enactment or amendment has become effective. The appeal may be taken by an aggrieved party or by any legal resident or landowner of the town or by any group of residents or landowners of the town whether or not incorporated. The appeal shall not stay the enforcement of the zoning ordinance, as enacted or amended, but the court may, in its discretion, grant a stay on appropriate terms, which may include the filing of a bond, and make other orders that it deems necessary for an equitable disposition of the appeal.

(b)

The complaint shall state with specificity the area or areas in which the enactment or amendment does not conform with the comprehensive plan and/or the manner in which it constitutes a taking of private property without just compensation.

(c)

The review shall be conducted by the court without a jury. The court shall first consider whether the enactment or amendment of the zoning ordinance is in conformance with the comprehensive plan. If the enactment or amendment is not in conformance with the comprehensive plan, then the court shall invalidate the enactment or the amendment, or those parts of the enactment or amendment which are not in conformance with the comprehensive plan. The court shall not revise the ordinance to conform with the comprehensive plan, but may suggest appropriate language as part of the court decision.

(d)

In the case of an aggrieved party, where the court has found that the enactment or amendment of the zoning ordinance is in conformance with the comprehensive plan, then the court shall next determine whether the enactment or amendment works as a taking of property from the aggrieved party. If the court determines that there has been a taking, the court shall remand the case to the legislative body of the municipality, with its findings that a taking has occurred, and order the municipality to either provide just compensation or rescind the enactment or amendment within 30 days.

(e)

The superior court retains jurisdiction, in the event that the aggrieved party and the municipality do not agree on the amount of compensation, in which case the superior court shall hold further hearings to determine and to award compensation. The superior court retains jurisdiction to determine the amount of an award of compensation for any temporary taking, if that taking exists.

(f)

The court may, in its discretion, upon the motion of the parties or on its own motion, award reasonable attorney's fees to any party to an appeal, including a municipality.

(Ord. of 6-23-1994, art. XIII; Ord. of 9-26-2024(14))

State Law reference— Procedure for adoption or amendment, G.L. 1956, § 45-24-51.

(a)

Whenever an aggrieved party appeals a decision of a zoning board of review to the superior court pursuant to the provisions of G.L. § 45-24-69, the aggrieved party shall also give notice of the appeal to those persons who were entitled to notice of the hearing set by the zoning board of review. The persons entitled to notice are set forth and described in G.L. § 45-24-53.

(b)

Notice of the appeal shall be mailed to those parties described in G.L. § 45-24-53 within ten business days of the date that the appeal is filed in superior court not counting Saturdays, Sundays, or holidays. Notice shall be sent by first class mail, postage prepaid, and the cost of the notice shall be borne by the aggrieved party filing the appeal in superior court.

(c)

The notice sent for an appeal to the superior court as described in this section shall include and contain:

(1)

The caption and civil action number of the case;

(2)

The date the case was filed in the superior court;

(3)

The county in which the appeal to superior court was filed;

(4)

The name, address and telephone number of the attorney filing the appeal on behalf of the aggrieved party, or, the name, address, and telephone number of the aggrieved party if the aggrieved party is not represented by counsel;

(5)

Language in bold type notifying the person(s) receiving the notice that an appeal has been filed in the superior court;

(6)

Language indicating that the aggrieved party will serve the named defendants;

(7)

Language indicating that the persons receiving the notice may retain counsel and/or participate in the appeal insofar as the law allows;

(8)

Language indicating that an appeal of a decision of a zoning board to the superior court is governed by G.L. § 45-24-69 and this section; and

(9)

The date of the notice shall be contained on the notice.

(d)

Within 20 days after a notice as described in this section is sent, the aggrieved party shall file an affidavit with the court indicating and/or containing:

(1)

A complete list of all the names and addresses of the intended recipients of the notice of the hearing;

(2)

The date the notice was sent;

(3)

An affirmative statement verifying the notice was sent by first class mail, postage prepaid;

(4)

An affirmative statement verifying that each notice was sent in an envelope containing a return address and indicating the return address on the envelope;

(5)

A statement identifying all notices that were returned to the return address or not delivered for whatever reason and/or an affirmative statement indicating that all other notices have not been returned as of the date and time of the affidavit; and

(6)

A copy of the form of the notice shall be attached to the affidavit.

(Ord. of 9-26-2024(15))

Participation in a zoning hearing or other proceeding by a party is not a cause for civil action or liability except for acts not in good faith, intentional misconduct, a knowing violation of law, transactions where there is an improper personal benefit, or malicious, wanton, or willful misconduct.

(Ord. of 9-26-2024(16))

Upon the entry of any case or proceeding brought under the provisions of this chapter, including pending appeals and appeals subsequently taken to the court, the court shall, at the request of either party, advance the case, so that the matter is afforded precedence on the calendar and shall be heard and determined with as little delay as possible.

(Ord. of 9-26-2024(17))