Framingham City Zoning Code
ARTICLE VI
Administration
§ 435-42 Enforcement. [1]
A.
This chapter shall be enforced by the Building Commissioner.
B.
Whoever violates any provision of this chapter or any of the conditions under which a permit is issued by the Building Commissioner, or any decision rendered by the Zoning Board of Appeals (ZBA) or the Planning Board under the provisions of this chapter shall be liable to a fine of not more than $300 for each violation. Each violation of this chapter shall constitute a separate offense. Each day that any such violation shall continue shall constitute a separate offense. Alternatively, the Building Commissioner may enforce this chapter using the noncriminal penalty method provided in MGL c. 40, § 21D, in which case the noncriminal penalty shall be $50 for each offense.
C.
If the Building Commissioner shall be informed or has reason to believe that any provision of this chapter or of any permit or decree thereunder has been, is being, or is likely to be violated, then the Building Commissioner shall make or cause to be made an investigation of the facts, including an inspection of the property where the violation may exist, and if he finds any violation, then the Building Commissioner shall give immediate notice, in writing, to the owner or their duly authorized agent and to the occupant of the premises, and shall order that any violation of the provision of this chapter shall immediately cease.
D.
If, after such notice and order, such violation continues; or if any owner, agent or occupant fails to obey any lawful order of the Building Commissioner with respect to any violation or any use contrary to the provisions of this chapter, the Building Commissioner may revoke any permit issued for the occupation of the premises, may make complaint to the Superior Court or any court of competent jurisdiction for an injunction or order restraining the further use of the premises, and may take such other action as is necessary to enforce the provisions of this chapter.
§ 435-43 Building permit and certificate of occupancy.
A.
No building permit for new building construction, excluding additions to existing structures, shall be issued until a grading plan prepared by a registered land surveyor and/or a registered professional engineer registered in the commonwealth has been submitted to the Building Commissioner as part of the application for said building permit and approved, in writing, by the Building Commissioner. The requirement for said grading plan may be waived by the Building Commissioner with the approval of the Planning Board, Board of Health and Department of Public Works. The property shall be graded as to prevent flooding, erosion, and low spots that will not drain and create a public nuisance. Where low spots cannot be avoided, they shall be drained by means of drainpipes no smaller than 12 inches diameter, and catch basins or other approved inlet structure, to the nearest street drains, or other approved drainage facility.
[Amended 4-30-2024 by Ord. No. 2024-025-001]
B.
A principal or accessory building, structure or use that is intended for occupancy and that requires a building permit to be erected, altered or in any way changed as to construction or use may not be occupied until a certificate of occupancy is issued by the Building Commissioner, certifying compliance with this chapter.
(1)
The Planning Board shall give its approval for certificates of occupancy for matters under its jurisdiction before a certificate of occupancy is issued by the Building Commissioner.
(2)
No certificate of occupancy for new building construction excluding additions to existing structures shall be issued until an as-built plan prepared by a registered land surveyor or registered professional engineer registered with the commonwealth shall have been filed with the Building Commissioner and approved, in writing, by the Building Commissioner. Said plan shall show the location of the structure, drainage patterns, location of drainage and sanitary sewerage structures above- and belowground, property lines, distances of the structure to lot lines and to other buildings on the lot, and such grades and other information as the Building Commissioner deems necessary. The construction shall conform to all setback requirements of this chapter.
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(3)
Upon completion of foundation(s), the holder of the building permit will file an updated plot plan signed by a registered professional engineer or registered land surveyor, showing that the foundation(s) has been located as specified on the approved plan. This subsection is not intended to include an addition to a privately owned single-family residence, provided said addition conforms to all other requirements of the State Building Code and this chapter. The holder of said permit may proceed at their own risk.
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(4)
The updated plot plan shall contain the following notation signed by the engineer or surveyor:
PLAN OF LAND |
FRAMINGHAM, MASSACHUSETTS |
I hereby certify that the lot corners, dimensions, elevations and offsets to the proposed building or structure as shown on this plan are correct and conforming to City of Framingham Zoning Ordinance. |
SIGNED: |
BY: |
DATE: __________ |
§ 435-44 Notification of public hearings.
[Amended 4-30-2024 by Ord. No. 2024-025-001]
In all cases where public hearings are required, notice of such hearings shall be given by the responsible board, committee, or commission. Such notice shall be given through publication in a newspaper of general circulation at the expense of the applicant once in each of two successive weeks, the first publication to be not less than 14 days before the day of the hearing, and by posting such notice in a conspicuous place in the City Hall for a period of not less than 14 days before the day of such hearing. The advertisement shall comply with the appropriate section of the Massachusetts General Laws for the type of application. Said notice shall be sent to interested parties by mail, which shall include the City Councilor in the respective district in which the project is located and the two City Councilors-at-large, petitioners, abutters, owners of land within 300 feet of the property line all as they appear on the most recent applicable tax list, the Planning Board, and the planning boards of abutting municipalities.
§ 435-45 Zoning Board of Appeals.
A.
Establishment, membership and rules.
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(1)
The Zoning Board of Appeals (ZBA), also referred to as the "Board of Appeals," shall consist of three members, appointed by the Mayor for terms of such length and so arranged that the term of one member shall expire each year. Members of the ZBA shall serve without compensation. Any member may be removed for cause by the Mayor upon written charges and after public hearing. Vacancies shall be filled for unexpired terms in the same manner as in the case of original appointments.
(2)
The Mayor shall also appoint at least four associate members annually. The Chair of the ZBA may designate any of the associate members to review a case under review by the ZBA because of the vacancy, inability to act, conflict of interest, or absence of a regular member. The ZBA shall adopt rules consistent with provisions of this chapter for the conduct of its business and the purposes of MGL c. 40A and shall file a copy of such rules with the City Clerk.
B.
Powers.
(1)
The ZBA shall have the following powers:
(a)
(b)
To hear and decide applications for special permits upon which the ZBA is empowered to act, in accordance with the provisions of § 435-46 of this chapter.
(c)
To hear and decide applications for special permits, in accordance with the provisions of § 435-46, for the establishment of temporary structures and uses that do not conform to the uses and regulations herein prescribed, with such conditions as will protect the community, provided that no such permit shall be for more than a one-year period.
§ 435-46 Special permits.
A.
Special permit granting authority. The SPGA shall be the Zoning Board of Appeals (ZBA), the Planning Board (PB), or other board/officer as specified in § 435-7, Table of Uses, other special permit ordinance, and/or designated herein.
B.
Procedure for special permit.
(1)
Determination by the Building Commissioner. Prior to filing an application for special permit, the petitioner shall submit plans to the Building Commissioner for project determination. The Building Commissioner shall have two weeks to make a project determination. Accordingly, plans should be submitted a minimum of two weeks prior to the expected filing date of a project. The Building Commissioner shall advise the petitioner, in writing, as to the pertinent sections of this chapter and the City Code and shall determine the appropriate SPGA.
(2)
Preapplication submission to Technical Review Team.
(a)
Special permits that require the Planning Board to be the SPGA. Prior to the filing of an application for a special permit, the petitioner shall also meet with the Technical Review Team (TRT) after having submitted to the TRT a cover letter enclosing site plans, colored renderings, and any other documentation prepared for the project, which shall be known as a "TRT preliminary review package," used to assist in the review of the project prior to the official filing. Within two weeks of having received the TRT preliminary review package, the TRT shall hold a preliminary project review meeting (PPRM) with the petitioner to review and discuss the proposed application. A TRT report shall be provided to the petitioner and the SPGA as determined in § 435-46B(1). The TRT report shall include, but shall not be limited to, a list of submitted documents, the minutes from the TRT PPRM, and comments/recommendations for the proposed project.
(b)
Special permits that require the Zoning Board of Appeals to be the SPGA.
[1]
Petitioners that only require special permits from the ZBA shall work with the ZBA Administrator to determine if a TRT meeting is necessary. In the event that a TRT meeting is determined to be necessary, the petitioner shall follow the requirements set forth in § 435-46B(2)(a).
[2]
Petitioners that require permits from both the Planning Board and the ZBA shall be required to comply with § 435-46B(2)(a).
(3)
Filing of an application(s). Once the requirements of § 435-46B(1) and (2) have been satisfied, the petitioner shall submit the following documentation to the SPGA:
(a)
One original copy of the application(s);
(b)
Full- and half-size paper site plans that have been prepared by a professional engineer and/or land surveyor registered in the Commonwealth of Massachusetts (plans must be signed and stamped);
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(c)
Full- and half-size paper architectural plans prepared by a professional engineer and/or professional architect registered in the Commonwealth of Massachusetts (plans must be signed and stamped). Architectural plans shall bear the seal of the registered design professional unless exempted by MGL c. 143, § 54A;
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(d)
Copies of supporting documentation (number determined by the SPGA);
(e)
Any other documentation specified in the SPGA rules and regulations; and
(f)
One electronic copy of all materials submitted, all of which shall be known as the "application package." If the submitted documentation has been deemed complete with the SPGA, the SPGA will file one copy of the application with the City Clerk.
(4)
Application distribution. The SPGA shall transmit copies of the application package that have been deemed complete to TRT departments, the Building Commissioner, and such other appropriate municipal departments, boards, and offices as determined by the SPGA, for review and comment.
(5)
Board and department comment.
(a)
Prior to the first public hearing, the TRT shall hold a second plan review meeting, if applicable. A TRT report shall be generated and submitted to the SPGA as part of the record.
(b)
When a petitioner provides revised/modified plans and/or documentation for a project, the petitioner shall provide the revisions to the SPGA a minimum of five business days prior to the next scheduled public hearing for the project. The petitioner shall provide either a written description highlighting the changes made to the plan and/or a marked-up version of the site plans to easily identify changes made since the last edition.
(c)
Questions, comments, and/or modifications from the TRT, Building Commissioner and other appropriate departments, boards, and offices shall be provided to the SPGA within 35 days. The SPGA shall not close a public hearing until all TRT departments have provided questions, comments, modifications, and/or statements of no comment, or until the thirty-five-day comment period has lapsed, whichever is sooner.
(6)
Public hearing procedures.
(b)
Notice and publication of public hearing. Notice of such hearings shall be published and mailed in accordance with MGL c. 40A,§ 11, and § 435-44 of this chapter, in addition to any other parties that the SPGA deems appropriate for notification, including the City Councilor in the respective district in which the project is located and the two City Councilors-at-large.
(c)
Audio/video recording of the public hearing. The SPGA shall make an audible audio and/or video recording of all its proceedings and deliberations. Such recordings shall be kept in the offices of the SPGA and/or by the City for a period of two years and shall be made available to any person for listening, viewing, and/or copying purposes during regular business hours in the offices of the SPGA.
(d)
Minutes. The SPGA shall also keep a detailed written record of the proceedings as required by law. Copies of the minutes shall be filed with the City Clerk within 14 days. A copy of the minutes shall be posted to the City's website upon filing them with the City Clerk.
(7)
Peer review consultant. If, in the discretion of the SPGA, a peer review of the application is required to evaluate the impacts of a proposed project, the SPGA may require the petitioner to retain a peer review consultant approved by the SPGA. In the event that the petitioner requires review by both the ZBA and the PB, the ZBA and PB may jointly contract a peer review consultant, at the petitioner's expense, for the project to ensure consistency and adequacy of review.
(8)
Decisions. The decision of the SPGA shall be made within 90 days following the close of a public hearing for a special permit, unless an extension is granted by the petitioner. A special permit issued by an SPGA shall require a two-thirds vote of boards with more than five members, a vote of at least four members of a five-member board and a unanimous vote of a three-member board.
(a)
Notice of decision.
[1]
Mailings. Notice of an SPGA decision shall be sent to interested parties as required in MGL c. 40A, § 9, and following the same procedure outlined in § 435-46B(6)(b) herein. Said notice of decision shall set forth the petitioner's name, the property address(es) of the project, special permits applied for, the date of the decision made by the SPGA, the nature and vote of the decision, the reasons therefor, and any conditions and safeguards prescribed by the SPGA in said decision, and the date the decision was filed with the City Clerk.
[2]
Publication. The notice of the SPGA's decision shall be published once in a newspaper of general circulation in the City, at the expense of the petitioner. Said publication shall occur no more than 12 calendar days after the filing of the decision with the City Clerk.
(9)
Failure to act. In accordance with MGL c. 40A, § 9, failure by the SPGA to take final action within 90 days following the public hearing and/or any granted extension of time, if applicable, shall be deemed to be a grant of the special permit. Such grant of a special permit by failure of the SPGA to act within 90 days shall be known as a "constructive approval." A petitioner who seeks such approval by reason of the failure of the SPGA to act within such time prescribed shall notify the City Clerk within 14 days, in writing, of the expiration of said 90 days or granted extension of time, if applicable, of such constructive approval. The petitioner shall also send notice of such constructive approval to parties in interest by mail, and each such notice shall specify that appeals, if any, shall be made pursuant to MGL c. 40A, § 17, and shall be filed within 20 days of the date the City Clerk received such written notice from the petitioner that the SPGA failed to act within the time prescribed.
(10)
Change, extension or modification of a special permit. Any change, extension, corrections, additions, substitutions, alterations, or modification of a special permit that is deemed material by the SPGA shall require a two-thirds vote of a board with more than five members, a vote of at least four members of a five-member board and a unanimous vote of a three-member board at a public meeting in accordance with MGL c. 40A, § 11.
[Amended 4-30-2024 by Ord. No. 2024-025-001]
C.
Conditions of approval of special permit.
(1)
The SPGA shall not approve any application for a special permit unless it finds that, in its judgment, all of the following conditions are met:
(a)
The property and the neighborhood are appropriate for such a use and/or structure.
(b)
The use and property can support and/or will provide adequate and appropriate facilities for the proposed use, and that the special permit application meets the dimensional requirements set forth in § 435-27, unless a dimensional variance is granted. The use and property shall provide safe and viable access to and from the site, and be consistent with the Master Land Use Plan and other City plans.
(c)
The use and/or structure(s) as developed will not create a hazard to abutters, pedestrians, vehicles, and/or the environment.
(d)
The use and/or structure(s) are consistent with the intent of the zoning district as outlined in § 435-6, and with the purpose and intent of appropriate sections associated with the special permit application.
(e)
The utilities and other public services to the site are adequate.
(f)
The use and/or structure(s) will not create an undue burden on abutting properties, the neighborhood, and/or the City.
(g)
Traffic and pedestrians can access and circulate the project safely without conflict.
(h)
The use and/or structure will not have substantial adverse impacts to the natural environment, the historic character of the neighborhood, and/or the visual environment.
(i)
The petitioner provides proper mitigation for impacts to traffic, infrastructure, municipal services, and/or undue impacts created in § 435-46C(1)(f).
(2)
In approving a special permit, the SPGA may attach such conditions, safeguards, limitations, and/or requirements for performance guarantees as it deems necessary to serve the purposes of this chapter, to protect the City, and to maintain the character of the associated neighborhood. Such conditions may include, but are not limited to, the following:
(a)
Screening and buffering of the use, structures, and/or other parts of the premises for the purposes of safety, light and/or noise pollution, stormwater runoff/erosion, etc., through the use of fences, plantings, and/or other buffering techniques.
(b)
Requirements that front, side, and/or rear setbacks be greater than the minimum requirements as provided in § 435-27.
(c)
Modification of the exterior features, facade, and/or appearance of the structure.
(d)
Limitation of size, number of occupants, method or time of operation, and/or extent of facilities.
(e)
Regulation of number, design, and/or location of access drives or other traffic features.
(f)
Provision of a bond and/or other security to insure compliance with the conditions of authorization.
(g)
Mitigation of traffic and/or infrastructure mitigation to ensure that the petitioner properly mitigates its impacts on the City and/or neighborhood.
(h)
Inclusion of information and/or conditions prepared by a peer review consultant ensuring the project is consistent with this chapter, the requirements of the City, and that the petitioner mitigates its impacts on the City and/or neighborhood.
(3)
In the event that the petitioner is not the owner of the land, the petitioner shall provide an affidavit signed by the party, e.g., the petitioner and/or the landowner, who shall be responsible for mitigation measures and/or conditions contained within the decision. Such statement of responsibility shall be part of the decision as an exhibit/appendix that is recorded with Registry of Deeds or filed with Registry District of the Land Court, as applicable.
D.
Repetitive application. No appeal, application, and/or petition that has been unfavorably and finally acted upon by the SPGA shall be reconsidered within two years of the date of final unfavorable action unless the SPGA finds that there have been specific and material changes in the conditions upon which the previous unfavorable action was based. Such reconsideration of an application shall include:
(1)
The SPGA by a supermajority vote must consent to such reconsideration of the application.
(2)
Notice is given to interested parties of the time and place of the proceedings when the question of such consent is considered.
(3)
The application review procedure shall be in accordance with the procedures for all special permits specified in § 435-46B herein.
(4)
The SPGA shall weigh the reapplication to determine the specific and material changes that have occurred in the conditions upon which the unfavorable decision was based and shall describe such changes in the record of its proceedings.
E.
Expiration of special permit. Pursuant to MGL c. 40A, § 9, a special permit granted under this section shall lapse within three years, not including such time required to pursue or await the determination of an appeal as referred to in MGL c. 40A, § 17.
(1)
Request for an extension of time. Prior to the expiration of a special permit granted by a SPGA, a petitioner may request an extension of time. The petitioner must show good cause for such request and/or in the case of a permit for construction, if construction was not begun by such date except for good cause. A request for an extension of time shall follow the procedures outlined in § 435-46B(3) to (6), (8), and (9).
§ 435-47 Site plan review.
A.
Purpose and intent:
(1)
The purpose of site plan review is to protect the health, safety, quality of life, and general welfare of the community. Site plan review ensures that each project provides the following: accessibility for all users; site design that promotes shared facilities, where feasible; opportunities for the implementation of complete streets, pedestrian, and bicycle amenities; access to open or community space; and preservation of historic buildings and neighborhoods. Specifically, the Planning Board reviews project impacts on traffic, municipal services and utilities, as well as the natural and built environment.
(2)
The intent of site plan review is to:
(a)
Promote site design that is consistent with the Framingham Master Land Use Plan;
(b)
Create walkable and bicycle-friendly environments which are safe and accessible for all users, thereby decreasing dependency on the personal automobile;
(c)
Encourage and utilize the use of low-impact development techniques, alternative energy sources, and best management practices to create a sustainable site and neighborhood;
(d)
Minimize the impacts on traffic and municipal infrastructure;
(e)
Promote designs that create visual cohesiveness with the surrounding neighborhood while establishing a neighborhood community;
(f)
Protect historic buildings and neighborhoods; and
(g)
Establish and sustain a high-quality level of development throughout Framingham.
B.
Applicability. The Planning Board shall conduct site plan review and approval. Site plan review applies to all construction, reconstruction, and/or site redevelopment projects which include any increase in impervious surface except for single- and two-family detached dwelling on its own individual lot; multifamily residential dwellings requiring fewer than nine parking spaces; alterations that do not increase the required number of off-street parking spaces by more than five; or commercial construction, reconstruction, and/or site redevelopment projects that do not exceed 3,000 gross square feet.
(1)
The following types of activities and uses require minor site plan review by the Planning Board unless the activity or use also falls into a category which requires major site plan review, in which case major site plan review shall prevail:
(a)
All expansions of existing nonresidential or multifamily structures which result in a total floor area between 3,000 gross square feet and 8,000 gross square feet;
(b)
All modifications to properties with prior site plan approval that have not been determined to be an insignificant field change;
(c)
Construction or expansion of a parking lot that results in a total of more than five parking spaces for a nonresidential or multifamily structure or purpose;
(d)
All new construction or expansion, alteration, or enlargement of only a parking facility, off-street loading facility, and/or a facility for the storage or sale of any type of new or used vehicles, including construction vehicles, truck trailers and/or any vehicle that requires licensing by the Commonwealth of Massachusetts; or
(e)
Any new structure or alteration of an existing structure or change of use in any structure for an entity claiming exception under MGL c. 40A, § 3. Site plan review shall be limited in such circumstances to the imposition of reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements;
(f)
All marijuana retailers, marijuana cultivators, and marijuana product manufacturers.
(2)
All construction, reconstruction, and/or site redevelopment projects which are subject to site plan review and are not listed in Subsection B(1) above require major site plan review by the Planning Board, including but not limited to the following types of activities and uses:
(a)
All construction of a new nonresidential or multifamily structure or group of new structures;
(b)
All expansion of an existing nonresidential or multifamily structure which results in a total greater than 8,000 gross square feet of floor area;
(c)
All projects with new or existing drive-thru facilities;
(d)
Commercial ground-mounted solar photovoltaic renewable energy installations; or
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(3)
The following types of activities or uses in the Central Business (CB) District require site plan review by the Planning Board. The following shall apply to both as-of-right uses and uses allowed by grant of a special permit within the Central Business (CB) Zoning District, including new construction of buildings and structures, additions to existing buildings and structures, and any increase in area for on-site parking and loading. All activities and uses within the CB District shall meet the design standards set forth in this chapter and in Chapter 525, Planning Board Rules and Regulations. Any activity and use that does not meet the following thresholds is exempt from site plan review.
(a)
Threshold for minor site plan review.
[1]
All substantial alterations of existing structures or expansions of existing structures that result in a total floor area between 3,000 gross square feet and 30,000 gross square feet.[1]
[1]
Municipal staff, through the permitting preview process, will ensure projects meet design standards and design guidelines in cases where substantial alterations of existing structures or expansions of existing structures result in a total floor area of less than 3,000 square feet.
[2]
All construction of a new structure or group of new structures resulting between 3,000 square feet and 30,000 square feet of gross floor area.
[3]
Change of use less than 30,000 square feet of gross floor area that results in more than five additional required off-street parking spaces.
[4]
Construction, alteration, or expansion of a parking lot greater than five parking spaces.
[5]
Modifications to a site plan previously approved by the Planning Board.
(b)
Threshold for major site plan review.
[1]
All construction of a new structure or group of new structures resulting in greater than 30,000 square feet of gross floor area;
[2]
All substantial alterations of an existing nonresidential structure, resulting in a total of 30,000 square feet or more of gross floor area;
[3]
All new mixed use and new mixed-use complex projects.
C.
Application and review procedure.
(1)
Prior to the filing of an application pursuant to site plan review, the applicant shall submit preliminary plans and appropriate documentation to the Technical Review Team (TRT), for the Building Commissioner's determination of major or minor site plan review.
(2)
Once the Building Commissioner determines major or minor site plan review is required for the project, the applicant shall submit to the Planning Board the application for site plan approval, conforming to the requirements of this § 435-47.
(3)
The Planning Board staff shall review submitted applications for completeness to determine if all application submittal requirements have been met. Once the application is deemed complete, the Planning Board shall transmit one copy of the complete application to the City Clerk. The Planning Board shall transmit copies thereof to the Building Commissioner and other appropriate municipal boards, departments and commissions, as determined by the Planning Board.
(4)
The Building Commissioner and other appropriate municipal boards, departments, and commissions as denoted in Subsection C(3) herein shall have 35 days to provide comments and reports to the Planning Board. The Planning Board shall not render a decision on said application until it has received and considered all reports requested from municipal boards, departments and commissions, or until the thirty-five-day period has expired, whichever is earlier. Where circumstances are such that the thirty-five-day period is insufficient to conduct an adequate review, the Planning Board may, at the written request of the applicant, extend such period to 60 days. Comments and reports shall be based on the following criteria:
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(a)
The adequacy of the data and the methodology used by the applicant to determine impacts of the proposed project;
(b)
The effects and impacts of the project on Framingham, neighborhood, and within the purview of the commenting municipal board, department, and/or commission; and
(c)
The municipal department, board, and/or commission's recommended conditions or remedial measures to accommodate or mitigate the expected impacts of the project.
(5)
The Planning Board shall hold a public hearing within 65 days of the filing of a complete application with the City Clerk. The Planning Board at the expense of the applicant shall properly advertise notice of the first public hearing in accordance with MGL c. 40A, § 11, and § 435-44 of this chapter. The Planning Board shall render a decision within 90 days of closing the public hearing.
(a)
For minor site plan review in the CB District, the Planning Board shall review and render a decision within 60 days of receiving a complete application package as required. Through the mutual consent of the Planning Board and the applicant, the Planning Board may grant extensions of time.
(b)
For major site plan review in the CB District, the Planning Board shall review and render a decision within 90 days of receiving a complete application package as required. Through the mutual consent of the Planning Board and the applicant, the Planning Board may grant extensions of time.
(c)
If a project receives a variance from the Zoning Board of Appeals after Planning Board approval, the project shall be resubmitted to the Planning Board for amendment of the approved site plan.
(6)
In reviewing the impacts of a project, the Planning Board shall consider the information presented in the application for site plan approval, including all items specified in § 435-47E; all reports of municipal boards, departments, and commissions submitted to the Planning Board pursuant to § 435-47C(4); and any additional information submitted or referenced during the public hearing. The Planning Board may, at the applicant's expense, retain a peer review consultant to review any aspect of the project as deemed necessary by the Planning Board.
(7)
If the applicant's project is located within 200 feet of a residential district or residential use, the applicant shall coordinate at least one informational meeting with residents to solicit neighborhood input prior to the opening of the public hearing.
D.
Contents and scope of applications. An application for site plan review and approval shall be prepared by qualified professionals registered in the Commonwealth of Massachusetts as follows: a professional land surveyor and/or engineer shall prepare all site plans; a professional landscape architect shall prepare all landscape plans; and an architect shall prepare all renderings for building elevations and building plans. The Planning Board shall review projects based on major and minor site plan review as outlined in § 435-47B.
(1)
Applicants for both major and minor site plan review shall submit the following technical documents for review with the site plan application, unless noted herein:
(a)
A written statement outlining the estimated time required to complete the proposed project, expected start of construction, and all phases thereof.
(b)
A written summary, where appropriate, detailing the following:
[1]
The number of dwelling units to be built and the acreage in residential use;
[2]
The number of seats and/or number of employees;
[3]
Evidence the project is in compliance with Framingham's off-street parking and off-street loading requirements;
[4]
The forms of ownership of the property; and
[5]
A summary of the provisions for ownership and maintenance thereof, identification of all land that will become common or public land, and any other evidence necessary to indicate compliance with this chapter.
(c)
Drainage calculations prepared by a professional engineer registered in the Commonwealth of Massachusetts. Storm drainage design must conform to the requirements set forth by the MassDEP Stormwater Management Standards and Department of Public Works, using best management practices. Furthermore, the report may include City, state, and federal requirements or established standards for implementing best management practices for stormwater management.
(d)
A written summary containing the urban design objectives narrative which provides a description of how the project will be designed to encourage complete streets, including transit access and pedestrian and bicycle amenities, and their potential connections to Framingham's bicycle and pedestrian system.
(e)
A written summary which outlines proposed best management practices, low-impact development (LID) features, and energy-efficient features utilized on-site.
(f)
A written summary of the design and location of proposed mechanical equipment, including HVAC equipment; noise levels related to mechanical equipment; information regarding possible future expansion, if relevant; location and operation of trash storage and removal systems; location and operation of loading facilities, measures taken to minimize the negative visual and noise impacts of such facilities on abutters; and hours of operation for each proposed use.
(g)
A written report of the existing and/or proposed sewer service infrastructure on-site and connection points. The report shall include a detailed description of the conditions of the pipes; a video inspection where appropriate and/or necessary; a detailed description of the anticipated impact of the project on the City's sanitary, stormwater, and sewer infrastructure. Where such determinations cannot be made at the time of application, the report shall indicate what investigations must be undertaken by the applicant to make such determinations; also, a time line for completion of the report shall be submitted for review by the Department of Public Works.
(h)
A written report of any proposed blasting or soil compaction activities that will take place during construction activities. The report shall include methods of abutter notification, methods for testing and data collection, and a summary of how real property damage will be investigated.
(i)
A written summary of water service infrastructure detailing the anticipated impact of the project on the City's water delivery infrastructure and supply. The summary shall indicate the likely improvements to infrastructure that are necessary to accommodate the identified impacts. Where such determinations cannot be made at the time of application, the report shall indicate what investigations must be undertaken by the applicant to make such determinations; a time line for completion of the report shall be also submitted for review by the Department of Public Works.
(j)
A written parking impact report shall be submitted, detailing the existing and proposed parking for the project, including the following:
[1]
Existing off-site neighborhood parking conditions, including identification of streets likely to be affected by the project;
[2]
Projected impact of project; and
[3]
Proposed methods to mitigate the estimated adverse impacts caused by the project related to parking such as promoting the use of bicycles, public transportation, or other appropriate means.
(k)
A written traffic impact report shall be submitted for all projects requiring major site plan review. This report shall include existing pedestrian and vehicular traffic volume, composition, peak-hour levels, existing street and sidewalk capacity, and analysis of existing and resulting level of services (LOS) for the following:
[1]
The nearest and/or most impacted public roadway intersection;
[2]
The estimated average daily traffic generation, including composition and peak hour levels;
[3]
The directional flows resulting from the project;
[4]
Any proposed methods to mitigate the estimated traffic impact such as promoting the use of public transportation, roadway improvements, or other appropriate means;
[5]
The methodology and sources used to derive existing data and estimations; and
[6]
The feasibility of traffic calming measures such as textured crosswalks, bike lanes, roundabouts, rumble strips, street trees, or bulb-outs.
(l)
A written environmental impact report, including a stormwater report, and a stormwater management system maintenance report, shall be submitted for projects requiring major site plan review, new construction of a building of any size, and/or installation of a stormwater management system. The report should include:
[1]
Information regarding the impact of stormwater runoff on adjacent and downstream water bodies, subsurface groundwater, and water tables.
[2]
Information regarding the potential erosion and sedimentation caused by the operation and maintenance of the project and the mitigation efforts proposed. To this end, high-intensity soil mapping, i.e., test borings and analysis, may be required.
[3]
For projects with significant environmental impacts to wetlands, floodplains, or other sensitive resources, the applicant shall include a report detailing the relationship of the project to the natural and human-made environment, and compatibility of the project with adjacent or surrounding land uses and neighborhoods. an environmental impact report (EIR) required through the Massachusetts Environmental Policy Act (MEPA)[2] process, which addresses the Planning Board's concerns, may be substituted in lieu of this report.
[4]
Proposed methods to mitigate the estimated environmental impacts such as promoting the use of LID, best management practices, and other methods of design.
(2)
Applicants for both major and minor site plan review shall submit plan sets in accordance with the requirements set forth in Chapter 525, Planning Board Rules and Regulations, related to site plan review, as may be amended from time to time.
(3)
Waiver. The Planning Board, at its discretion, may waive technical and/or submittal requirements of § 435-47E for a project where such technical and/or submittal requirements are not appropriate or relevant to the project. All applicants seeking waiver request shall provide a detailed description of the need for relief from the technical and/or submittal requirement.
E.
Design standards.
(1)
Site circulation and site design.
(a)
Bicycle infrastructure shall be incorporated into the site design when deemed necessary by the Planning Board. The site plan shall provide for safe vehicular and pedestrian movement within the site and to adjacent ways, including sidewalks, crosswalks and the like.
(b)
All pedestrian walkways on-site shall abide by regulations prescribed in the Americans With Disabilities Act regarding handicapped access.
(c)
A pedestrian walkway having a minimum width of six feet shall be integrated into, and shall be in addition to, any required landscaped areas adjacent to buildings.
(d)
The design of the project shall minimize the visibility of visually degrading elements such as trash collectors, loading docks, etc. All utilities within the property boundaries that are intended to serve the project shall be placed underground. If waste or refuse disposal areas are located outside of any existing or proposed building, the waste and refuse shall be placed in a container kept fully closed. Such containers shall be surrounded entirely by solid fencing or other material as approved by the Planning Board and incorporated into the site design and landscaping. Adequate waste and refuse facilities shall be provided for all proposed uses and shall not impede pedestrian or vehicular circulation.
(e)
Where possible, public amenities shall be incorporated into the site design.
(f)
The snow storage area(s) shall be located so as not to encroach upon or obstruct any sidewalks or walkways or parking spaces, interior travel lanes or lot ingress/egress, inhibit site visibility, reduce the recommended minimum stopping sight distances or turning radii at any point on the site, or obstruct or encroach upon fire lanes or emergency access points.
(2)
Building placement and design.
(a)
Building placement for new construction. The placement of buildings shall reinforce the street wall where applicable, maximize visibility, and facilitate pedestrian access and circulation. The first floor of buildings shall be situated as close to a roadway as possible, while conforming to the dimensional regulations set forth in § 435-27 of this chapter. The area between the building and the front lot line shall include amenities such as landscaping, tables and seating, and/or other pedestrian amenities. Buildings shall be oriented so that at least one principal entrance faces the public street rather than the interior of the site.
(b)
The site design and building design shall relate harmoniously to the historical character, unique physical characteristics, and natural resources of the surrounding neighborhood.
(c)
Historic, traditional, or significant uses, structures, or architectural elements on an existing building shall be preserved where possible and any removal or disruption shall be minimized.
(d)
The structures shall be designed to be free from light shadows that would otherwise impact existing structures adjoining the project. Any project within the Central Business District shall be exempt from this standard.
(e)
Building design shall provide visual interest and avoid monotony and repetition relative to adjacent or nearby structures. The architecture shall be designed to provide variation and interest through the use of color, building material, detail, breaks in roof and wall lines, windows, porches, detailed cornices, substantial roof overhangs, dormers, screenings and/or other architectural elements. Windows and exterior doors shall be consistent and compatible with the materials, style, and color of the building, and shall be designed to give the facade a sense of balance, proportion, and significance. For residential projects, traditional materials such as wood and masonry are strongly encouraged for exterior facades.
(f)
Parking facilities shall be located behind buildings where possible.
(3)
Sidewalks.
(4)
Stormwater system, utilities, and infrastructure.
(a)
Stormwater drainage systems shall incorporate LID techniques and best management practices to achieve sustainability objectives outlined in the Master Land Use Plan.
(b)
The utilities shall employ energy-efficient devices and techniques in accordance with the State Building Code, which may include but is not limited to Energy Star®, LED lighting, LEED both for individual residences and development to achieve sustainability.
(c)
Electric, telephone and other utility lines and equipment, such as water, sewer or gas, shall be coordinated together and placed underground and located to eliminate all adverse impacts on the groundwater levels. The proposed method of sanitary sewage disposal and solid waste disposal from all buildings shall be precisely indicated on the plans.
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(5)
Landscaping.
(a)
In any district where a front setback is required, landscaped open space a minimum of 10 feet in depth shall be provided along the entire width of the lot at the front lot line. On corner lots located in any district where a front setback is required, landscaped open space a minimum of 10 feet in depth shall be provided along the entire width of the lot at the front lot line for both frontages. Said strip may be interrupted by necessary vehicular and walkway entrances and exits.
(b)
In any district where a nonresidential use abuts or faces a residential zoning district or a single-family or two-family use, a landscaped open space buffer at a minimum depth of 15 feet shall be provided and maintained in order to separate, both physically and visually, the residential use from the nonresidential use, except in the Central Business (CB) or Neighborhood Business (B-1) District, where such minimum open space depth shall be 20 feet. The landscaped open space buffer strip shall be continuous except for required vehicular access and pedestrian circulation.
(c)
The buffer strip shall include a combination of deciduous or evergreen trees and lower-level elements such as shrubs, hedges, fences, and/or brick or stone walls. When necessary for public safety or to prevent adverse impacts on neighboring properties, the Planning Board may require that the buffer strip contain opaque screening.
(d)
The minimum distance between trees (trunk-to-trunk) shall be 20 feet to 30 feet, depending upon the tree species and other local conditions.
(e)
Arrangement may include planting in linear, parallel, serpentine, or broken rows, as well as the clustering of planting elements.
(f)
When used in required landscaping or buffers, mulch shall be limited to bark mulch and decorative stone, or equivalent materials. No more than 25% of the coverage of the landscaped area shall be mulch or nonliving material.
(g)
Landscaped areas at least 10 feet in depth shall be provided adjacent to buildings on every side of such building that has a public access point. However, in no case shall any parking space or vehicle travel lane be located less than five feet from the building.
(h)
Landscape buffers should, to the greatest extent possible, serve as usable open space, providing an environment for pedestrian access between uses. Therefore, buffers shall be designed to include appropriate means of pedestrian access and crossing, both along the landscape area and across the buffer. Buffers and screens shall provide for appropriate hardscape pedestrian access points and walkways where property lines abut roadways.
(i)
The design of the project shall minimize the area over which existing vegetation is to be removed. Tree removal shall be minimized and, if established trees are to be removed, special attention shall be given to the planting of replacement trees.
F.
Site plan review criteria. In reviewing and evaluating the site plan and in making a final determination regarding site plan approval, the Planning Board shall require that the site plan promote the objectives set forth in § 435-47G(1) herein, and comply with the project and design standards contained in § 435-47E herein. These standards embrace the following goals and criteria which strive to:
(1)
Retain community character:
(a)
Minimizes obstruction of scenic views from publicly accessible locations;
(b)
Minimizes impacts to important natural or historical features;
(c)
Screens objectionable features such as large blank walls, open dumpster, loading or storage areas, from neighboring properties and roadways;
(d)
Blends and harmonizes with the architectural style of the adjacent buildings and immediate neighborhood;
(e)
Provides consistency with the architectural style, scale, density, massing and setbacks if located within a National Historic District and/or local historic district;
(f)
Promotes architectural consistency using general design that is relevant to the significance of the site, building or structure, arrangement and texture, materials and color of the features involved and the relation of each feature to similar features of building and structures in the immediate neighborhood and surrounding area; and
(g)
Demonstrates appropriateness relative to the size and shape of the buildings or structures both in relation to the land area upon which the building or structure is situated and to the adjacent buildings and structures within the neighborhood.
(2)
Traffic, parking, and public access:
(a)
Minimizes vehicular traffic and safety impacts of the project on adjacent highways and roads;
(b)
Provides adequate and appropriate facilities for the proper operation of the proposed use, including adequate off-street parking. Adequacy of proposed off-street parking facilities shall be determined by the Planning Board, in accordance with the provisions of §§ 435-23, 435-24, and 435-25 of this chapter;
(c)
Maximizes the convenience and safety of vehicular, bicycle, and pedestrian movement within the neighborhood and site;
(d)
Minimizes adverse impacts on neighborhood on-/off-street parking and includes incentives for the use of alternatives to single-occupant vehicles; and
(e)
Reviews all intersections and roadways projected to receive at least 5% of the expected traffic generated by the project, either based upon the total anticipated peak-hour traffic generated by the proposed project or based upon the total anticipated average daily traffic counts generated by the proposed project, to ensure that said intersections and roadways shall operate at a Level of Service of "B" or better for rural, scenic and residential streets and for all new streets and intersections to be created in connection with the project and Level of Service (LOS) "D" or better for all other streets and intersections. The applicant shall mitigate all derogation in LOS caused by the project through traffic improvements or cash payment for mitigation procedures to be conducted by the City. The applicant shall provide an itemized list of necessary traffic improvements to bring the LOS as stated herein. For projects that cannot adequately mitigate their impacts on the LOS due to the size of the project, the applicant shall contribute a cash payment determined by the Planning Board, to be used for future reconstruction and/or construction of the impacted roadway(s).
[Amended 4-30-2024 by Ord. No. 2024-025-001]
(3)
Environmental impact:
(a)
The project shall not create any significant emission of noise, dust, fumes, noxious gases, radiation, or water pollutants, or any other similar significant adverse environmental impact. The applicant may be required to submit data, reports, or other information sufficient to demonstrate compliance with this requirement.
(b)
The project shall not increase the potential for erosion, flooding or sedimentation, either on-site or on neighboring properties; and shall not increase rates of runoff from the site to the satisfaction of the City Engineer and Department of Public Works. Provision for attenuation of runoff pollutants and for groundwater recharge shall be included in the proposal. The project shall comply with Massachusetts Department of Environmental Protection's (DEP's) Stormwater Management Standards, 310 CMR 10.00.
(5)
Public services and utilities:
(a)
Is served with adequate water supply, wastewater systems, and solid waste disposal systems;
(b)
Is within the capacity of the City's infrastructure as defined by the water, sewer and Department of Public Works infrastructure;
(c)
Includes measures to prevent pollution of surface water or groundwater, minimizing erosion and sedimentation, as well as measures to prevent changes in groundwater levels, increased runoff, and potential for flooding; and
(d)
Demonstrates an effort to conserve energy and water.
(6)
Land use planning:
(a)
Demonstrates consistency with the land-use goals of the municipal Master Land Use Plan.
(7)
Open space and environmental protection:
(a)
Minimizes adverse impacts to open space usage and retention and is integrated into the natural landscape. Minimizes adverse environmental impacts to such features as wetlands, floodplains, and aquifer recharge areas and minimizes tree, vegetation, and soil removal, and grade changes; and
(b)
Proposes a landscape design that favors native and drought-tolerant species and avoids invasive plants.
G.
Decision.
(1)
Specific findings required. Prior to granting approval or disapproval, the Planning Board shall make written findings with supporting documentation as specified below. Such findings shall pertain to the entire proposed development, including any site plan or design modifications imposed by the Planning Board as a condition of its approval, and any off-site improvements proposed by the applicant or required by the Planning Board as a condition of its approval.
(2)
Approval. The Planning Board shall approve an application, based on its review of the projected development impacts and the proposed methods of mitigating such impacts, if said Planning Board finds that the proposed development is in conformance with this section, after considering whether the proposed development will comply, to the extent feasible, with the standards set forth herein.
(3)
Disapproval.
(a)
The Planning Board may reject a site plan that fails to furnish adequate information required by this section;
(b)
The Planning Board may reject a site plan where, although proper in form, the plan depicts a use or structure so intrusive on the needs of the public in one regulated aspect or another that rejection by the Planning Board would be tenable.
(4)
Expiration. A site plan review approval granted under this section shall lapse within two years, not including such time required to pursue or await the determination of an appeal as referred to in MGL c. 40A, § 17, from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of a permit for construction, if construction was not begun by such date except for good cause.
H.
Conditions, limitations and safeguards. In granting approval of an application, the Planning Board may impose conditions, limitations and safeguards which shall be in writing and shall be a part of such approval. Such conditions may include, among other matters and subjects:
(1)
Controls on the location and type of access to the site;
(2)
Controls on the number of vehicles that arrive or depart during the morning and/or evening peak hours (including controls on the maximum number of vehicles which may use the off-street parking areas during said periods);
(3)
Requirements for off-site improvements up to a maximum value of 6% of the total development cost of the proposed project to improve the capacity and safety of roads, intersections, pedestrianways, water, sewer, drainage and other public facilities which are likely to be affected by the proposed development;
(4)
Requirements for donation and/or dedication of land for right-of-way to provide for future roadway and/or intersection widenings or improvements;
(5)
Requirements for securing the performance of all proposed work, including proposed off-site improvements, by any of the following methods as determined by the Planning Board: a performance bond, a deposit of money, or letter of credit in an amount determined by the Planning Board to be sufficient to cover the cost of all or any part of the improvements required as conditions of approval; or a covenant running with the land, executed and duly recorded by the owner of record, whereby the required improvements shall be completed before the property may be conveyed by other than a mortgage deed.
(6)
Conditions to minimize off-site impacts on traffic and environmental quality during construction.
(7)
Requirements for reductions in the scale of the proposed development, including reductions in height, floor area, or lot coverage; provided, however, that any such reduction be limited to that which is reasonably necessary to reduce the level of impact of the proposed development to a level that will permit the Board to make the written findings required under § 435-47G(1) herein.
(8)
Requirements for screening parking facilities from adjoining premises or from the street by walls, fences, plantings, or other devices to mitigate adverse impacts;
(9)
Conditions to mitigate adverse impacts to the neighborhood and abutters, including but not limited to adverse impacts caused by noise, dust, fumes, odors, lighting, headlight glare, hours of operation, or snow storage.
(10)
The applicant, when other than the owner(s), and the owner(s) of land will be responsible for mitigation measures or conditions which are required as part of a favorable decision for issuance of site plan approval.
I.
Administration.
(1)
The Planning Board shall establish and may periodically amend rules and regulations relating to the administration of this section, including additional regulations relating to the scope and format of reports required hereunder.
(2)
The Planning Board shall establish and may periodically amend a schedule of fees for all applications under this section. No application shall be considered complete unless accompanied by the required fees.
(3)
The Planning Board shall be responsible for deciding the meaning or intent of any provision of this section which may be unclear or in dispute.
(4)
Any person aggrieved by a decision of the Planning Board with regard to site plan review may appeal such decision to a court having jurisdiction, in accordance with MGL c. 40A, § 17.
(5)
No building permit shall be issued for, and no person shall undertake, any use, alteration or improvement subject to this section unless an application for site plan review and approval has been prepared for the project in accordance with the requirements of this section, and unless such application has been approved by the Planning Board.
(6)
No certificate of occupancy shall be granted by the Building Commissioner until the Planning Board has given its approval that the project and any associated off-site improvements conform to the approved application for site plan review and approval, including any conditions imposed by the Planning Board.
J.
Change, extension or modification of a site plan review permit. Any change, extension, material corrections, additions, substitutions, alterations, or modification to a site plan review permit that is not deemed a minor field change by the Planning Board or its designee shall require a majority vote at a public meeting in accordance with MGL c. 40A, § 11.
§ 435-48 Variances.
A.
Limitation of use variances.
(1)
A variance authorizing a use or activity not otherwise permitted in the district in which the land is located shall be prohibited in Geriatric Care/Elderly Housing Districts, Central Business (CB) Zoning District, Nobscot Village District (B-4), Single-Family Residential and General Residence Districts, but may be allowed by the Board of Appeals in other zoning districts in accordance with MGL c. 40A, § 10, except as otherwise prohibited in § 435-8 of this chapter.
(2)
A variance authorizing a marijuana retail establishment outside of the Marijuana Retail Overlay Zoning District shall not be permitted by the Zoning Board of Appeals, nor shall a variance for the locating of a marijuana cultivator and marijuana product manufacturer outside of the identified areas specified in the Table of Uses, Row 6C, of this chapter.[1]
[1]
Editor's Note: The Table of Uses is included as an attachment to this chapter.
B.
Procedure for variance.
(1)
Application.
(a)
Prior to the filing of a petition for a variance, the applicant shall submit a building permit application and plans to the Building Commissioner, who shall advise the applicant, in writing, as to the sections of this chapter with which the application and plans are not in compliance. The applicant shall then file six copies of an appeal or petition for a variance with the City Clerk, who shall forthwith transmit copies of the application and accompanying plans to the ZBA, Planning Board, and Building Commissioner. The Planning Board may, within 21 days of the date of filing with the City Clerk, submit a report to the ZBA containing recommendations and reasons therefor to aid the ZBA in judging the application. The ZBA shall not hold a hearing or render a decision on any appeal or petition for a variance until said report has been received and considered or until the twenty-one-day period has expired, whichever is earlier. Failure of the Planning Board to submit said report within the specified time period shall be deemed lack of opposition thereto.
(3)
Decisions.
(a)
The decision of the ZBA shall be made within 100 days of the date of filing of any petition for a variance with the City Clerk. The concurring vote of all of the members of the Board shall be necessary to render a decision on any petition for a variance.
(b)
The Board shall make an audible audiotape recording of all its proceedings and deliberations. Such recordings shall be kept in the offices of the ZBA for a period of two years, and shall be made available to any person for listening or copying purposes during regular business hours in the offices of the ZBA.
(c)
The ZBA shall also keep a detailed written record of the proceedings as required by law, copies of which shall be filed within 14 days with the City Clerk, and notices of decisions sent to the appropriate persons as required in MGL c. 40A, § 15. Said notices shall set forth the nature and vote of the decision, the reasons therefor, and any conditions and safeguards prescribed by the ZBA in said decision. Notice of the nature and vote of the decision shall also be published once by the ZBA in a newspaper of general circulation in the City, at the expense of the applicant, said publication to occur no more than 12 calendar days after the filing of the decision with the City Clerk. Said notices shall also be mailed to the City Councilor in the respective district in which the project is located, and the two City Councilors-at-large.
(4)
Failure to act. As provided in MGL c. 40A, § 15, the decision of the ZBA shall be made within 100 days of the date of the filing of any petition for variance. The required time limit may be extended by written agreement between the applicant and the ZBA. A copy of such agreement shall be filed in the office of the City Clerk. Failure by the ZBA to act within said 100 days or extended time, if applicable, shall be deemed to be the grant of the petition. The petitioner who seeks such approval by reason of the failure of the ZBA to act within the time prescribed shall notify the City Clerk, in writing, within 14 days from the expiration of said 100 days or extended time, if applicable, of such approval and that notice has been sent by the petitioner to parties in interest. The petitioner shall send such notice to parties in interest, by mail and each notice shall specify that appeals, if any, shall be made pursuant to MGL c. 40A, § 17, and shall be filed within 20 days of the date the City Clerk received such written notice from the petitioner that the Board failed to act within the time prescribed.
C.
Conditions of issuance of variances. The ZBA may authorize a departure from terms of this chapter, except as limited above, provided that each of the following conditions is met:
(1)
There are circumstances relating to the soil conditions, shape, or topography of the land or structures for which the variance is being sought.
(2)
Such circumstances especially affect such land or structures but do not affect generally the zoning district in which the land or structures are located.
(3)
Owing to such circumstances, a literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise, to the petitioner or appellant.
(4)
The desired relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the purpose and intent of this chapter or from the intent of the district in which the variance is being sought.
D.
Variances in floodplain districts.
(1)
The ZBA may grant a variance from § 435-17C(5) and (6) (floodplain management regulations) in the following circumstances:
(a)
A variance may be issued for new construction and substantial improvement to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing buildings constructed below the base flood level, in conformance with Subsection C above and in conformance with Subsections D(1)(b), (c), and (d) below.
(b)
The granting of the variance shall not result in increased flood heights, additional threats to public safety, or extraordinary public expense; create nuisances; cause fraud on or victimization of the public; or conflict with state or local laws or ordinances.
(c)
A variance may only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(d)
The ZBA shall notify the applicant, in writing, that the issuance of a variance to construct a building below the base flood level and/or lacking adequate floodproofing will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage and that such construction increases risks to life and property.
(2)
A variance may be granted for construction on a lot that does not comply with Subsection D(1)(a) above, but only in extraordinary and exceptional circumstances. In such cases the ZBA should be aware that the Federal Insurance Administrator may review the findings justifying the granting of such variances, and if that review indicates a pattern inconsistent with the objectives of sound floodplain management, the City's participation in the Flood Insurance Program may be jeopardized.
(3)
Variances may be issued by the ZBA for the reconstruction, rehabilitation, or restoration of buildings listed on the National Register of Historic Places, or the State Inventory of Historic Places, without regard to the procedures set forth in this section.
(4)
Variances shall not be granted by the ZBA within any designated regulatory floodway under any circumstances.
E.
Repetitive petition. No petition for a variance which has been unfavorably and finally acted upon by the ZBA shall be reconsidered within two years after the date of final unfavorable action unless said Board finds specific and material changes in the conditions upon which the previous unfavorable action was based, subject to consent of four out of five members of the Planning Board, and only after notice is given to interested parties of the time and place of the proceedings when the question of such consent is considered.
§ 435-49 Severability.
[Amended 4-30-2024 by Ord. No. 2024-025-001]
Should any section or provision of this chapter be decided by the courts to be unconstitutional or invalid, such decision shall not affect the validity of this chapter as a whole or any part thereof other than the part so decided to be unconstitutional or invalid.