Marlborough City Zoning Code
ARTICLE VIII
Administration
§ 650-56 Enforcement.
A.
This chapter shall be enforced by the enforcing officer, who shall be the Building Commissioner, who shall grant no permit for the construction, alteration, relocation, occupancy or use of any building, structure or premises in violation of any provisions of this chapter. No municipal officer shall grant any permit or license for the use of buildings, structures or land, which use would be in violation of any provision of this chapter. Whenever any permit or license is refused because of some provision of this chapter, the reason therefor shall be clearly stated in writing and a copy delivered in person or by registered mail to the applicant. No building shall be constructed, altered or relocated without a building permit, and no structure or land shall be occupied or used without an occupancy permit.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
B.
Every applicant for a permit for any construction, alteration or use of any building or land for which a permit is required by law shall, upon request of the Building Commissioner, file such written information, plans, specifications or other such data as shall be deemed necessary for the full and accurate exposition of the proposed construction, alteration or use. Such data shall be kept on file in the office of the Building Commissioner.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
C.
Site plan review and approval.
(1)
Purpose and applicability. For purposes of assuring protection of the public safety, convenience, health and welfare, the achievement of objectives and compliance with requirements of Chapter 650, Zoning, site plan review and approval shall be required as provided for under Chapter 270, Building and Site Development, as amended, of the Code of the City of Marlborough.
D.
The enforcing officer shall institute appropriate legal proceedings to enforce the provisions of this chapter or to restrain by injunction any violation thereof, or both, and shall do all further acts, revoke the permit for occupancy, institute and take any and all such action as may be necessary to enforce the provisions of this chapter.
E.
If the Building Commissioner is requesting, in writing, to enforce a provision or provisions of this chapter against any person allegedly in violation of the same and such officer declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act and the reasons therefor within 14 days of receipt of such request.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
F.
Construction or operations under a building or special permit shall conform to any subsequent amendment of this chapter, unless the use or construction authorized by the permit is commenced within a period of not more than 12 months after the issuance of the permit and, in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable.
[Amended 12-19-2016 by Ord. No. 16-1006734B]
§ 650-57 Continuation of Board of Appeals.
The Board of Appeals as presently existing under Appendix A of the Code of the City of Marlborough is expressly continued and designated as the Board of Appeals under this article.
§ 650-58 Provisions for Board of Appeals.
A.
Creation, appointment and organization. A Board of Appeals consisting of five members and five associate members shall be appointed as provided in MGL Chapter 40A, as amended, who shall all be residents or taxpayers of the City of Marlborough, which shall act on all matters within its jurisdiction under MGL Chapter 40A, as amended, and under this chapter in the manner prescribed in said section and subject always to the rule that it shall give due consideration to promoting the public health, safety, convenience and welfare, encouraging the most appropriate use of land and conserving property values, that it shall permit no building or use of land or building that is injurious, noxious, offensive or detrimental to a neighborhood and that it shall prescribe appropriate conditions and safeguards in each case.
B.
Powers and duties. The Board of Appeals shall act as a permit-granting authority and shall have all the powers and perform all the duties conferred or imposed upon it by the provisions of MGL Chapter 40A, and this chapter, as follows:
(1)
Appeals. To hear and decide an appeal taken by any person aggrieved by reason of his/her inability to obtain a permit or enforcement action from the Building Commissioner under the provisions of MGL Chapter 40A, or of this chapter, by the Metropolitan Area Planning Council or by any person, including an officer or board of the City of Marlborough or of an abutting municipality aggrieved by an order or decision of the Building Commissioner in violation of any provision of MGL Chapter 40A, or of this chapter.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
(2)
Variances. To hear and decide a petition with respect to particular land or structures for a variance from the terms of this chapter, where the Board specifically finds that owing to circumstances relating to soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise, to the petitioner or appellant and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter. The Board of Appeals may impose conditions, safeguards and limitations, both of time and use, including the continued existence of any particular structures, but excluding any condition, safeguards or limitation based upon the continued ownership of the land or structure to which the variance pertains by the applicant, petitioner or any owner. If the rights authorized by a variance are not exercised within one year of the date of the authorization, they shall lapse and may be reestablished only after a new notice and hearing.
(3)
Lawful preexisting nonconforming single-family dwellings and two-family houses.
[Added 3-18-2019 by Ord. No. 18/19-1007460C]
(a)
As of right. Lawful preexisting nonconforming single-family dwellings and two-family houses may be altered, reconstructed, extended or structurally changed as a matter of right upon a determination by the Building Commissioner that a proposed alteration, reconstruction, extension or change would not increase or intensify the existing nonconforming nature of the dwelling or house in question. Upon such a determination, an application to the Board of Appeals for a special permit need not be made, and the owner may apply to the Building Commissioner for a building permit.
(b)
By special permit. Upon a determination by the Building Commissioner that a proposed alteration, reconstruction, extension or structural change to a lawful preexisting nonconforming single-family dwelling or two-family house would increase or intensify the existing nonconforming nature thereof, the owner of such dwelling or house shall be required to apply to the Board of Appeals for a special permit to allow such alteration, reconstruction, extension or structural change. The Board may grant a special permit to allow such alteration, reconstruction, extension or structural change; provided, however, that the Board determines, by a finding under MGL c. 40A, § 6, that the proposed alteration, reconstruction, extension or structural change shall not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use; and provided, further, that any such special permit shall comply with the requirements of the Zoning Ordinance of the City of Marlborough, as may be amended from time to time, including but not limited to § 650-12, entitled "Nonconforming uses," as well as § 650-59A(1) pertaining to the powers and duties of special permit granting authorities. Application for a special permit to allow such alteration, reconstruction, extension or structural change shall be made to the Board pursuant to the procedures set forth in Subsection C(5) of this § 650-58.
(c)
By variance. Upon the determination by the Building Commissioner that a proposed alteration, reconstruction, extension or structural change to a lawful preexisting nonconforming single-family dwelling or two-family house would create a new nonconformity(ies), the owner of such dwelling or house shall be required to apply to the Board of Appeals for a variance to allow such alteration, reconstruction, extension or structural change; provided, however, that the Board shall decide upon a variance petition pursuant to the Board's powers and duties set forth in Subsection B(2), and pursuant to the procedure set forth in Subsection C(1) through (4), of this § 650-58.
C.
Procedure.
(1)
In the case of every appeal made to the Board of Appeals and every petition for a variance to said Board under the provisions of this chapter, the Board shall hold a public hearing thereon. Notice of the hearing shall be given by publication in a newspaper of general circulation in the City 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 said notice in the City Hall for a period of not less than 14 days before the day of the hearing. Notice shall be sent by mail, postage prepaid, to parties in interest, including the petitioner, abutters, owners of land directly opposite on any public or private street or way, owners of land within 300 feet of the property line, including owners of land in another municipality, all as they appear on the most recent applicable tax lists; the Planning Board; and the planning board of every abutting municipality. The Assessors shall certify to the Board the names and addresses of the parties in interest.
(2)
The decision of the Board, including all findings, conditions and safeguards, and a record of the public hearing shall be filed promptly with the City Clerk and at the same time copies transmitted to the Planning Board, Conservation Commission, Building Commissioner and other appropriate City agencies.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
(3)
An appeal from a decision of the Building Commissioner and a petition for a variance shall be filed with the City Clerk, who shall forthwith transmit it to the Board of Appeals. The Board shall hold a public hearing within 65 days of the receipt of the appeal or petition from the City Clerk and shall render a decision within 100 days from the date of filing.
[Amended 10-6-2014 by Ord. No. 14-1005921A; 1-9-2017 by Ord. No. 16/17-1006702C]
(4)
If the Board of Appeals shall fail to act within 100 days of the filing of the appeal or petition, as the case may be, then the appeal or petition shall be deemed approved subject to the following requirements:
[Amended 1-9-2017 by Ord. No. 16/17-1006702C]
(a)
The petitioner, after the expiration of the aforesaid periods, shall file with the City Clerk a copy of his petition and an affidavit stating the date of the public hearing or filing, as the case may be, and the failure of the Board of Appeals to render a decision within the required period.
(b)
Upon receipt of the petition and affidavit, the City Clerk shall give notice of the filing to those persons entitled to a notice of the decision under MGL c. 40A, § 15. The filing of a petition and affidavit in the office of the City Clerk shall be deemed the equivalent of the filing of a decision for purposes of the provisions of MGL c. 40A, §§ 11 and 17.
(c)
If no appeal is taken within the required statutory period, then the City Clerk shall furnish the petitioner with a certificate that no appeal has been filed, all of which shall be recorded in the manner prescribed under MGL c. 40A, § 11, in lieu of the documents required to be recorded under that section.
(5)
Special permit procedure. Except as set forth below, the provisions set forth in § 650-59B and C, pertaining to the procedures and rules applicable to special permit granting authorities, as such provisions may be amended from time to time, shall, so far as apt, be applicable to the Board of Appeals acting upon an application for a special permit proposing an alteration, reconstruction, extension or structural change which, per the determination of the Building Commissioner, would increase or intensify the existing nonconforming nature of a lawful preexisting nonconforming single-family dwelling or two-family house. In particular, each special permit application to the Board of Appeals filed under this subsection shall contain the information as itemized in § 650-59C(4), and shall be accompanied by a preliminary site plan which shall contain the information as itemized in § 650-59C(5).
[Added 3-18-2019 by Ord. No. 18/19-1007460C]
Each application filed under this subsection shall be filed with the Office of the City Clerk in accordance with MGL Chapter 40A, on a form provided by that Office, and shall be accompanied by a filing fee in the amount calculated to be the same as for special permit applications submitted to the City Council under § 650-59C(3). The application for the special permit shall be made in writing by the applicant or its duly authorized agent, who shall file the following number of sets of application materials at the Office of the City Clerk, which shall keep the original and forward all copies to the Board of Appeals, which shall distribute those copies as follows: |
Number of Sets | Office |
|---|---|
8 | Board of Appeals |
1 | Building Department |
1 | Office of the City Council |
1 | City Engineer |
1 | Legal Department |
1 | Conservation Officer (if wetlands are affected) |
The Board of Appeals shall hold a public hearing on each special permit application filed under this subsection. The procedures for the public hearing and for the notice thereof to parties in interest shall be in conformance with MGL c. 40A and the Zoning Ordinance of the City of Marlborough, as either or both may be amended from time to time; provided, however, that the Board shall hold the public hearing on a special permit application on the same evening as it would be holding the public hearing on any variance petition that may be associated with the same proposed work (alteration, reconstruction, extension or structural change) on the same dwelling or house. |
Within 90 days after the close of the public hearing on the special permit application filed under this subsection, the Board of Appeals shall take final action on a decision to grant or deny the requested special permit; provided, however, that no special permit shall be granted by the Board under this subsection if any variance petition that may be associated with the same proposed work (alteration, reconstruction, extension or structural change) on the same dwelling or house is denied by the Board. |
The Board may adopt rules and regulations for the issuance of special permits under this subsection in accordance with MGL c. 40A and the Zoning Ordinance of the City of Marlborough, as either or both may be amended from time to time. |
D.
Rules. The Board of Appeals shall adopt rules and procedures not inconsistent with this chapter and the provisions of MGL Chapter 40A for the conduct of its business in deciding on appeals and granting variances and shall file a copy thereof with the City Clerk. Such rules shall include provisions for submission of petitions in writing, for advertising and holding hearings, for keeping records of proceedings, for recording the vote of each member upon each question, for setting forth the reason or reasons of each decision and for notifying the parties at interest, including the Building Commissioner and the Planning Board, as to each decision. Wherever proceedings under this chapter require the giving of notice by publication in a newspaper, mailing or service by a civil officer, the costs thereof shall be borne by the applicant. The Board of Appeals shall require estimated costs to be advanced by the applicant in accordance with provisions in the rules.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
§ 650-59 Powers and procedures of special-permit-granting authorities.
A.
Powers and duties. As provided for under MGL Chapter 40A, certain classes of special permits shall be issued by one special-permit-granting authority and others by another special-permit-granting authority as specified in this chapter for those uses and activities designated in Article V, Permitted Uses, and in other articles and sections of this chapter. Said special-permit-granting authorities shall each have all the powers and perform all the duties conferred or imposed upon them under MGL Chapter 40A, and shall act separately upon each application for a special permit submitted to them as follows:
(1)
Special permits. To hear and decide an application for a special permit, as provided in this chapter, only for uses in specified districts which are in harmony with the general purposes and intent of this chapter and which shall be subject to any general or specific rules prescribed herein and to any appropriate conditions, safeguards and limitations on time and use. A special permit shall lapse within a three-year period or a shorter period if so specified by the special-permit-granting authority, including any time required to pursue or await the determination of an appeal pursuant to MGL Chapter 40A if a substantial use thereof has not sooner commenced, except for good cause, or in the case of a permit for construction, if construction has not begun within the period, except for good cause.
[Amended 12-19-2016 by Ord. No. 16-1006734B]
B.
Procedures.
(1)
Each application shall be filed with the special-permit-granting authority and a copy transmitted forthwith to the City Clerk and to the Planning Board, Conservation Commission, Board of Health and other appropriate agencies. The special-permit-granting authority shall hold a public hearing within 65 days of the filing date and shall render a decision within 90 days from the date of the public hearing. Notice of the hearing shall be in accordance with the requirements in Article VIII, § 650-58C. Agencies sent copies may, in their discretion, investigate the proposed special permit use and report in writing recommendations to the special-permit-granting authority; provided, however, that if reports with recommendations are not received by the special-permit-granting authority at the time of the public hearing, the special-permit-granting authority may act without the submission of such reports and recommendations.
(2)
Failure to take action within said ninety-day period shall be deemed to be a grant of the special permit applied for subject to the requirements in Article VIII, § 650-58C(4)(a), (b) and (c).
C.
Rules. The special-permit-granting authority shall adopt rules and procedures not inconsistent with this chapter and the provisions of MGL Chapter 40A for the conduct of its business in granting a special permit, as authorized by Article VIII, § 650-59A, and shall file a copy thereof with the City Clerk. Said rules shall be similar to those required of the Board of Appeals under Article VIII, § 650-58D.
(1)
Submission of application:
(a)
Informal preapplication review. The applicant may request the Planning Department to schedule an informal preapplication review for the purpose of reviewing preliminary proposals and alternatives. By this means, the City may have the opportunity to have input into the planning and design process at its earliest level, and submission materials can be established.
(c)
Application materials. The application or petition for special permit shall be made in writing by the applicant or his duly authorized agent, who shall file the following number of sets of application materials at the offices set forth below:
[Amended 10-6-2014 by Ord. No. 14-1005921A]
Number of Sets | Office | |
|---|---|---|
3 | Office of City Clerk | |
1 | Police Chief | |
1 | Fire Chief | |
1 | City Engineer | |
1 | Director of Planning | |
1 | Conservation Officer (if wetlands affected) | |
1 | Building Commissioner | |
11 | Office of City Council |
(2)
Notice to City Council. Following the submission, the City Clerk shall promptly notify the City Council and forward one copy of the application to the City Council. The Clerk shall retain two copies in the City Clerk's office.
(3)
Fees. At the time of application, the applicant shall pay a filing fee at the office of the City Clerk in the amount set forth below:
[Amended 2-9-2004 by Ord. No. 04-9962C]
(b)
Nonresidential construction and use only:
[1]
For plans proposing construction containing not more than 34,999 square feet of floor area: $500.
[2]
For plans proposing construction containing from 35,000 square feet of floor area up to and including 49,999 square feet of floor area: $1,000.
[3]
For plans proposing construction containing 50,000 square feet of floor area up to and including 99,999 square feet of floor area: $1,500.
[4]
For plans proposing construction containing 100,000 square feet of floor area, or any greater amount: $2,000.
(c)
Residential and nonresidential use only without new construction:
[1]
Proposals of not more than 34,999 square feet of floor area: $250.
[2]
Proposals of 35,000 square feet of floor area up to and including 49,999 square feet of floor area: $500.
[3]
Proposals of 50,000 square feet of floor area up to and including 99,999 square feet of floor area: $750.
[4]
Proposals of 100,000 square feet of floor area or more: $1,000.
(d)
Mixed or miscellaneous. The filing fee for the above shall be:
[1]
Proposals of not more than 34,999 square feet of floor area: $1,000.
[2]
Proposals of 35,000 square feet of floor area up to and including 49,999 square feet of floor area: $1,500.
[3]
Proposals of 50,000 square feet of floor area up to and including 99,999 square feet of floor area: $1,500.
[4]
Proposals of 100,000 square feet of floor area or more: $2,000.
(e)
Hotels and motels (only applicable where special permit is required):
[1]
Proposals of not more than 34,999 square feet of floor area: $500.
[2]
Proposals of 35,000 square feet of floor area up to and including 49,999 square feet of floor area: $1,000.
[3]
Proposals of 50,000 square feet of floor area up to and including 99,999 square feet of floor area: $1,500.
[4]
Proposals of 100,000 square feet of floor area or more: $2,000.
(f)
Fees for amendments to special permits and resubmittal of application. [See Subsection C(11) and (20).]
[1]
Substantial amendments: 75% of the above fees.
[2]
Minor amendments: 50% of the applicable fee above.
[3]
No amendment (resubmittal only): 25% of the applicable fee above.
The determination as to whether an amendment is substantial or minor shall be made at the time of certification of the application by the Director of Planning as required by Subsection C(7) of this section, prior to the submission to the City Clerk, in accordance with the criteria in Subsection C(20) herein. |
(4)
Application content. Application or petition must contain the following information on the form provided by the City Clerk.
(a)
The name and address of the petitioner or applicant.
(b)
Name and address of owner of land, if other than petitioner or applicant.
(c)
The location of the property for which a special permit is sought (street address, and plate and parcel number).
(d)
The zoning district in which the property lies.
(e)
The legal interest of the applicant or petitioner (owner, prospective owner, etc.).
(f)
The specific article, section and paragraph of the Zoning Ordinance which a special permit can be granted.
(g)
The specific reason for seeking the permit.
(h)
List of abutters, including:
[1]
Names and addresses of all abutters within 400 feet of each side line and rear line of said property in question.
[2]
Name and address of the owner of the property directly across the street.
[3]
Names and addresses of owners of property adjoining the land across the street and lying within 400 feet of the extended side lines of the land in question.
[4]
Name and property owner other than above which abuts in any way upon the land described in the petition or application.
Said list of abutters should be certified by the Office of the Board of Assessors of Marlborough prior to submission; said certification shall be evidence of compliance with this subsection. |
(5)
Preliminary site plan:
(a)
Where the application involves new construction, each application must be accompanied by a preliminary site plan as outlined below. Where the application is for new use not involving new construction, the application must be accompanied by the approved existing site plan for the existing building or use.
(b)
The preliminary site plan shall contain, among other things, the following information: (Note: Additional information is required for final site plan review and approval; see Chapter 270, Building and Site Development.)
[2]
General information on lot:
[a]
Locus map, showing location of lot and names of all surrounding streets within 1,000 feet of boundaries of lot. (See Subsection C(5)(b)[4][b] below concerning location of buildings on surrounding lots.) Identify on locus map all other parcels within 1,000 feet in which applicant has any financial interest.
[b]
North arrow.
[c]
Zoning district in which the property lies and any zoning district boundary lines which may cross the locus, including Floodplain and Wetland Protection Districts. Show zoning lines on locus map and on other plans if appropriate.
[d]
The lot, completely dimensioned.
[e]
Lot area, in acres and square feet.
[3]
Existing conditions. Buildings and structures, setback dimensions, parking, driveways, landscaped area, boundaries of wooded areas and wetlands, topography and easements. (Show on separate sheet if appropriate so as to distinguish from proposed uses.)
[4]
Proposed buildings and structures:
[a]
Location of all proposed structures on the lot and those to remain. Show all buildings and yard dimensions.
[b]
For proposed nonresidential and multifamily developments, show approximate location of all existing buildings on all abutting lots. (Information may be shown on locus map if appropriate.)
[c]
Stories and elevations, number of stories.
[d]
Floor area: building floor areas for each floor and in total.
[5]
Parking, driveways and exterior features.
[6]
Lot coverage and landscaping.
[7]
Topography: Existing and proposed topography at two-foot contour intervals (NGVD datum preferred)
[8]
Easements: Location and type of any easements and any existing and proposed drainage system (natural or otherwise) within the site.
[9]
Utilities: Location of all existing utilities within 100 feet in any direction of the proposed work, unless waived by the City Engineer. Also show the location and all pertinent data relating to the proposed services.
[10]
Wetland: Boundaries of wetland and floodplain areas as defined under MGL c. 131 § 40, Massachusetts Wetlands Protection Act, and MGL c. 131 § 40A, Massachusetts Inland Wetlands Restriction Act.
Note: Applicants proposing new buildings should refer to City Code Ch. 270, Building and Site Development, for additional information which will be required later at the final site plan and review and approval. |
(6)
Special studies.
(a)
All projects: All applications for all projects requiring special permits shall include a summary impact statement on the form provided by the Director of Planning.
(b)
Projects of large size or impact.
[1]
For projects as specified in Subsection C(6)(b)[2] below, which have not been required to file an environmental impact report in connection with obtaining any state or federal approvals, the applicant shall submit with the application the following studies, which shall include appropriate measures to mitigate any impacts and which shall be prepared by qualified consultants according to a scope as determined by the City Engineer and Director of Planning:
[2]
This requirement shall apply to:
[a]
All projects over 50 housing units or 25,000 square feet nonresidential floor area or 50 hotel rooms, where a special permit is required, except where not appropriate in the opinion of the City Engineer and Director of Planning; and
[b]
Other projects if required by the City Engineer and Director of Planning as being necessary due to existing or projected problems in the vicinity of the project.
[3]
The applicant may request a waiver from Subsection C(6)(b)[2] [a] and [b] by submitting a written request to the City Council to waive the above requirements prior to submission.
(7)
Certification of completeness of application. The applicant shall submit, with the application, a form signed by the Director of Planning certifying that:
(a)
The preliminary site plan being filed with the application meets all prior referenced informational requirements.
(b)
The plan(s) conform in all respects to City Code and that any necessary zoning variances have been already granted by the Marlborough Zoning Board of Appeals, and any applicable appeal periods concerning said variances have ended.
(c)
The application is complete and conforms to these rules and regulations.
Note: Said certification shall not imply that the application will be approved by the City Council, nor limit the conditions or the changes that may be required by the City Council or subsequently at site plan review and approval. |
(8)
Date for public hearings. The President of the City Council shall, upon receipt of applications or petitions, set a date for a public hearing and direct the City Clerk to advertise at the expense of the applicant notice of said hearing and give notice to all abutters in conformance with MGL Chapter 40A, as amended.
[Amended 9-12-2005 by Ord. No. 05-100863B]
(9)
Public hearing. The City Council shall hold a public hearing on the properly completed application, as provided in MGL Chapter 40A, within 65 days after the filing of an application, and, except as hereinafter provided, the City Council shall take final action on an application within 90 days after the hearing. The hearing may be recessed and continued at a specified date as mutually agreed upon by the City Council and applicant.
(10)
City Department reports:
(a)
The Director of Planning, City Engineer, Building Commissioner, Conservation Officer, Police Chief and Fire Chief, Board of Health and any other board, department or commission, if appropriate, shall review and make written recommendations on the proposal, either at the public hearing held before the City Council or at any subsequent City Council committee meetings, as appropriate. The City Council shall not make a final decision on an application for a special permit until the appropriate departments have submitted reports or recommendations thereon or, if no reports have been received, within 60 days since the date of filing of an application which has been certified to be complete in accordance with this section.
(b)
The reports shall be pertinent to each department and may include, if appropriate, a review of: the adequacy of on-site facilities and design; the adequacy of the data and the methodology used by the applicant to determine off-site impacts of the proposed development; the effects of the projected impacts of the proposed development; and the adequacy of the off-site mitigation proposed, if any is needed. Said departments may recommend conditions or remedial measures to accommodate or mitigate the expected impacts of the proposed development.
(11)
Extension of time for action; leave to withdraw.
(a)
The period within which final action shall be taken may be extended for a definite period by mutual written agreement of the Council and the applicant, pursuant to MGL c. 40A, § 9, as amended. For purposes of timely administration of special permit applications and in order to avoid constructive grants thereof, the Urban Affairs and Housing Committee may, by simple majority vote at a duly noticed public meeting, authorize the following Council members to sign the written extension agreement on behalf of the full Council: a) the Chairman of Urban Affairs; or, b) in his or her absence or incapacity, its Vice Chairman; or, c) when a quorum of Urban Affairs is otherwise not present, the President or Vice President sitting for that meeting as an ex officio member of Urban Affairs. A copy of the signed extension agreement shall be timely filed in the office of the City Clerk, and a copy of that filing shall be submitted for informational purposes on the agenda for the next regular Council meeting.
[Amended 3-19-2018 by Ord. No. 18-1007150B]
(b)
The City Council may, in its sole discretion, grant leave to withdraw without prejudice so that the applicant may submit a revised application which will not be considered as a repetitive petition. Such revised application shall be treated as a new application, but shall be subject to the fee schedule under Subsection C(3)(f).
(12)
Findings and conditions by City Council.
(a)
In acting on applications for special permits, the City Council may make such findings as provided herein or called for by the subject matter and may impose such conditions, safeguards or limitations on matters relating to the proposal as may affect the public health, safety, welfare and convenience, including conditions on time and use. No special permit shall be issued, except upon a general finding that the use sought and its impact and characteristics shall not be in conflict with public health, safety, convenience and welfare and shall not be detrimental or offensive, provided the conditions, safeguards or limitations imposed, if any, are met.
(b)
No right to special permit. An applicant is not entitled by right to a special permit, and the City Council, in its discretion, may decline to grant said special permit.
(13)
Draft findings required by applicant. Within 21 days following the public hearing, the applicant or petitioner shall submit a draft of the proposed findings and reasons for the approval of the special permit to the applicable City Council committee and to all City departments listed under Subsection C(10) for their review and comment, as appropriate. Said findings shall have been certified by the City Solicitor as being in proper legal form prior to vote by the City Council.
(14)
Vote. In conformance with the General Laws of the Commonwealth of Massachusetts, a 2/3 vote of the entire City Council shall be required to grant a special permit.
(15)
Notice of decision. Notice of decision shall be rendered pursuant to the provisions of MGL Chapter 40A, as amended.
(16)
Recording of decision granting special permit. The applicant shall be responsible for filing in the Registry of Deeds or, where applicable, in the Land Court of the Commonwealth, a copy of the decision granting a special permit. Prior to the issuance of a building permit, the applicant shall present to the Building Commissioner evidence of such recording.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
(17)
Lapse and abandonment. A special permit shall lapse in accordance with the provisions of MGL Chapter 40A, as amended.
(18)
Permits for use and construction. No permit for the construction or alteration of any structure or for any new use of the site or of a structure on the site shall be granted by the Building Commissioner if the special permit has lapsed or the project has been abandoned in accordance with the previous paragraph and Chapter 650, Zoning, or if evidence of recording of a copy of the decision of the City Council granting the special permit has not been given to the Building Commissioner.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
(19)
Construction in conformity with application. In the event that the City Council approves a special permit, any use, construction, subsequent reconstruction, or substantial exterior alterations shall be carried out only in conformity with all conditions and limitations included in the decision of the City Council and only in essential conformity with the application on the basis of which of the finding and determination was made.
(20)
Revision of special permit.
(a)
After the grant of a special permit by the City Council, minor revisions in the approved preliminary site plan may be made from time to time in accordance with applicable law, ordinances and regulations, but the use or development approved under such special permit shall otherwise be in accordance with the plans referred to and such conditions as may be included in the decision of the City Council.
(b)
If a preliminary site plan for a shopping mall shows thereon a "permissible building area," revisions to the buildings and other improvements located within the permissible building area may be made without the approval of the City Council as long as the plan showing such revisions are submitted and approved by the Building Commissioner prior to the commencement of the construction of such revisions.
[Amended 10-6-2014 by Ord. No. 14-1005921A]
(c)
The determination as to whether a change is a minor modification shall be made by the Director of Planning at final site plan review and approval and by the City Building Commissioner at issuance of building permit. In general, a minor modification shall not produce more than a material increase in the scale of a project nor produce more than a material increase in impact on City services, the environment or the neighborhood. If it is determined that such revisions are not minor, an application for a revised special permit shall be filed, and a public hearing shall be held in the same manner as required for a new application, subject to the fee schedule under Subsection C(3)(f).
[Amended 10-6-2014 by Ord. No. 14-1005921A]
(21)
Subsequent site plan review.
(a)
Where applicable, special permits for use or construction shall also be subject to later approval by applicable City departments, as provided under Chapter 650, Zoning, or Chapter 270, Building and Site Development. However, nothing shall preclude an applicant from applying for site plan review and approval prior to approval of a special permit. The preliminary site plan submitted with the special permit application may be subject to modification by said City departments through subsequent site plan review and approval to the extent under Subsection C(20) above. In addition, other conditions and limitations may be imposed at the time of the final site plan approval by said City departments, which are not inconsistent with any term or condition attached to said special permit by the City Council.
(b)
Should the City Council impose conditions in the special permit requiring a modification to the preliminary site plan submitted with the application, the plan shall be revised to comply with the conditions prior to receiving final site plan approval.
(22)
Maintenance of the special permit.
(a)
The holder of the special permit shall provide status reports to the Office of the Building Commissioner during construction of a project and after completion of a project. The status reports shall identify the level of compliance achieved for each special permit condition and must be submitted at intervals determined by the City Council. On completion of the project, reports shall be submitted six months after completion and then annually, due on January 1 of each year, unless waived by the City Council.
(b)
The Building Commissioner shall report annually to the City Council, due on March 1 of each year, the status of special permits granted by the City Council.
§ 650-60 Amendments.
This chapter may be amended from time to time at a City Council meeting. An amendment may be initiated by the submission to the City Council of a proposed change by the City Council, the Board of Appeals, an individual owning land in the City to be affected by the amendment, 10 registered voters in the City, the Planning Board and the Metropolitan Area Planning Council. Within 14 days of the receipt of a proposed change, the City Council shall submit it to the Planning Board. A public hearing shall be held by the Planning Board within 65 days after the proposed change is submitted to the Board.
§ 650-61 Reconsideration of decisions.
A.
To the City Council. No proposed change in this chapter which has been unfavorably acted upon by the City Council shall be considered by the City Council within two years after the date of such unfavorable action, unless adoption of the proposed change has been recommended in the report of the Planning Board to the City Council.
B.
To the Board of Appeals and City Council. No appeal or petition for a variance which has been unfavorably and finally acted upon by the Board of Appeals or no application for a special permit which has been unfavorably and finally acted upon by the City Council shall be acted favorably upon within two years after the date of final unfavorable action, unless all but one of the members of the Planning Board consent to a repetition after notice is given to parties in interest of the time and place of the proceedings to consider consent and the Board of Appeals or City Council, as the case may be, finds specific and material changes in the conditions upon which the previous unfavorable action was based, describes such changes in its records and similarly consents.
§ 650-62 Validity of provisions.
A.
The invalidity of any section or provision of this chapter shall not invalidate any other section or provision thereof.
B.
When this chapter imposes a greater restriction of the use of buildings, structures or premises, or on height of buildings, or requires larger yards, or open spaces are imposed or required by any regulations or permits, or by any restrictions, easements, covenants or agreements, the provisions of this chapter shall control.[1]