Swansea City Zoning Code
ARTICLE XIII
Board of Appeals
§ 265-13.1 Membership.
A.
There shall be a board of appeals consisting of three persons, inhabitants of the Town. The members shall be appointed by the board of selectmen. They shall hold office for a term of three years, except that, when the board is first established hereunder, one member shall be appointed for a term of one year, one member appointed for a term of two years, and one member appointed for a term of three years.
B.
Associate members. The board of selectmen shall also appoint three persons, inhabitants of the Town, as associate members of said board of appeals, who shall hold office for a term of three years, except that when associate members are first appointed hereunder, one shall be appointed for a term of one year, one appointed for a term of two years, and one member shall be appointed for a term of three years. In case of vacancy or inability to act or interest on the part of any member of the board of appeals, his place shall be taken by an associate member who shall be designated by the chairman of the board of appeals.
C.
Powers and duties. The board of appeals established above shall act as the permit and special permit granting authority under the zoning bylaw, in accordance with the provisions of the Massachusetts Zoning Act, General Laws, Chapter 40A, as amended. The board shall have the following powers and duties:
(1)
To hear and decide administrative appeals from any decisions of the Building Inspector and Zoning Enforcement Officer;
(2)
To hear and decide petitions for variances from this bylaw;
(3)
To hear and decide applications for special permits upon which the board is empowered to act under this bylaw.
(4)
To hear and decide applications for comprehensive permits under MGL Chapter 40B.
§ 265-13.2 Procedures for action by Board of Appeals.
A.
Filing petitions for a variance or special permit. A petition for a variance or a special permit shall be filed with the town clerk, who shall forthwith transmit such petition to the board of appeals. Petitions shall be in the form and accompanied by supporting materials required under the rules and regulations of the board of appeals.
B.
Filing appeals.
(1)
Appeals shall also be filed with the town clerk and shall specify the grounds for the appeal.
(2)
An appeal to the board of appeals may be taken by any person aggrieved because of an inability to obtain a permit or enforcement action from the building inspector by the regional planning agency in whose area Swansea is situated, or by any person, including an officer or board of Swansea who is aggrieved by an order or decision of the building inspector in violation of any provision of the Massachusetts Zoning Act, as amended, or any bylaw adopted thereunder, within 30 days from the date of the order or decision which is being appealed.
C.
Public hearings. Prior to taking any action on an appeal or petition for a variance or special permit, the board of appeals shall hold a public hearing as provided by law.
D.
Decisions
(1)
Actions of the board of appeals shall be by unanimous concurring vote of the three members or associate members acting on a case. Decisions shall be made and conveyed to the petitioner, the town clerk, and others as required by law, within 100 days of the receipt of the petition for a variance and notice of an appeal, and within 90 days following the date of the public hearing for a special permit. Failure to act within these time periods shall be deemed to be approval or grant of a variance, special permit, or appeal. (Acts of 1988, c. 498)
(2)
A decision of the board of appeals shall not take effect until both the town clerk certifies on a copy of the decision that 20 days have elapsed without the filing of an appeal or that any appeal filed has been dismissed or denied, and that the certified decision has been recorded at the owner's expense in the applicable registry of deeds, indexed in the grantor index under the name of the record owner, and noted on the owner's certificate of title.
(3)
Repetitive petitions. If an appeal, petition or application has been unfavorable and finally acted upon by the board of appeals, the applicant may re-petition within two years from said decision only if the board unanimously votes to allow re-petition after making findings of specific and material changes in the conditions upon which the unfavorable action was based and a description of such changes is included in the record of its proceedings, and if all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered.
(4)
Withdrawal of petitions or applications. Any petition for a variance or application for a special permit which has been transmitted to the board of appeals may be withdrawn, without prejudice by the petitioner prior to the publication of the notice of a public hearing thereon, but thereafter be withdrawn without prejudice only with the approval of the board of appeals.
§ 265-13.3 Criteria for and conditions on variances.
A.
Variances may be granted only if the board of appeals finds that all of the following requirements are met:
(1)
That there are unique circumstances relative to the soil conditions, shape or topography which specifically affect the land or structure in question, but not affecting generally the zoning district in which the land or structure is located;
(2)
That literal enforcement of the bylaw would involve substantial hardship, financial or otherwise to the petitioner;
(3)
That desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of this bylaw; and
(4)
That any variance permitting buildings for human or animal occupancy shall be conditional or [on] the subsequent board of health approval of the means of water supply and sewage disposal.
B.
Conditions.
(1)
A grant of variance may include conditions and limitations on time and use, but not on continued ownership by the petitioner of the premises in question.
(2)
If the rights authorized by a variance are not exercised within one year of the date of such variance, they shall lapse and may be re-established only after notice and a new public hearing as provided by law.
§ 265-13.4 Criteria for and conditions on special permits.
A.
Special permits may be granted only when the board of appeals finds that the following requirements are met:
(1)
That the use or building petitioned for is socially and economically desirable, that it would satisfy an existing need, that the advantages of the proposal outweigh by far any detrimental effects, and that such effects on the neighborhood and the environment shall not be significantly greater than could be expected from development if the special permit were denied, that the applicant has no reasonable alternative available to accomplish this purpose, and that the specific conditions to minimize detrimental effects and protect the neighborhood have been imposed and, if necessary, secured by bond or otherwise; and
(2)
That adequate provisions are made to ensure traffic safety, convenient access and egress, sufficient off-street parking, water supply, wastewater disposal including storm drainage to minimize erosion and water pollution, suitable landscaping and screening, and that any harmful, hazardous or unpleasant effects are minimized.
B.
Conditions.
(1)
The board of appeals shall adopt rules regarding the contents, form, size and number of copies of the petition and the required supporting materials and maps. These rules may provide for referral of petitions to other boards and officials for an advisory review.
(2)
Special permits may be granted in specific zoning districts for particular uses specified by other sections of this bylaw as requiring special permits in such districts and only when the applicable general and specific conditions and requirements of the bylaw will be met.
(3)
A special permit shall lapse after two years, including the time required to pursue or await the determination of an appeal, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun by such date except for good cause.
§ 265-13.5 Appeal of Board of Appeals decision.
Any person aggrieved by a decision of the board of appeals whether or not previously a party to the proceeding, or any municipal officer or board may appeal to the superior court by bringing an action within 20 days after the decision has been filed in the office of the town clerk. Notice of the action with a copy of the complaint shall be given to the town clerk so as to be received within such 20 days. The complaint shall allege that the decision exceeds the authority of the board and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled. There shall be attached to the complaint a copy of the decision appealed from, bearing the date of the filing thereof, certified by the town clerk with whom the decision was filed.