Townsend City Zoning Code
ARTICLE XI
Appeals, Special Permits and Variances
§ 145-63 Zoning Board of Appeals.
A.
Establishment. There shall be a Zoning Board of Appeals consisting of five members and three associate members appointed by the Board of Selectmen as provided in Massachusetts General Laws, Chapter 40A, Section 12 and the Town Charter. The Board shall adopt rules not inconsistent with the provisions of this bylaw for the conduct of its business, shall file said rules with the Town Clerk, and shall make said rules available to the public. Within this bylaw, the designations Zoning Board of Appeals and Board of Appeals shall be used interchangeably.
[Amended 5-2-2000 ATM by Art. 15]
B.
Powers. The Zoning Board of Appeals shall have the following powers:
§ 145-64 Appeals.
A.
An appeal to the Zoning Board of Appeals may be taken by the following parties:
(1)
Any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this bylaw or Chapter 40A.
(2)
Any person, including an officer or board of the Town of Townsend or of any abutting city or town, aggrieved by an order or decision of the Building Inspector or other administrative officer, in violation of any provisions of this bylaw or Chapter 40A.
(3)
The Montachusett Regional Planning Commission.
B.
Such appeal shall be initiated within 30 days from the date of the order or decision which is being appealed, by filing a notice of appeal, specifying the grounds thereof, with the Town Clerk.
D.
Any person or board aggrieved by a decision of the Zoning Board of Appeals or any special permit granting authority, whether or not previously a party to the proceeding, may appeal to the Superior Court or other court, under the provisions of MGL c. 40A, § 17.
§ 145-65 Special permits.
A.
Applicability. Whenever a special permit is required by other sections of the Townsend Zoning Bylaws, the Building Inspector shall issue a building permit and/or use permit only after the application has been approved by the special permit granting authority (SPGA) and the state, county or municipality, which approval is a prerequisite to the applicant's carrying out the proposed use of the premises. Each SPGA may require fees, to be paid by the applicant, to cover the cost of advertising, notification by mail, and the reasonable cost to the Town of processing a request. Said fees shall be published in the rules and regulations of each SPGA which shall be filed with the Town Clerk.
[Amended 5-7-2002 STM by Art. 18]
B.
Special permit granting authority (SPGA).
(1)
The SPGA shall be the Zoning Board of Appeals unless specifically designated in any section of this bylaw to another authorized board or authority as allowed under MGL c. 40A, § 1.
(2)
Where specifically designated herein, the Planning Board shall act as SPGA. Pursuant to the provisions of MGL c. 40A, § 9, the Planning Board and Board of Selectmen shall annually appoint, by majority vote, of each of the Boards, one associate member of the Planning Board for the purpose of acting upon special permit applications by designation of the Chairman of the Planning Board in the case of absence, inability to act or conflict of interest on the part of any member of the Planning Board or in the event of a vacancy on the Board.
[Added 11-13-2007 STM by Art. 18]
C.
Application. The SPGA's special permit application form together with the number of plans required in the rules and regulations of the appropriate SPGA shall be filed by the petitioner with the Town Clerk, who will certify the date and time of filing. (But in no case less than six sets of plans.) The Town Clerk will file one set of plans and will then forward the application form together with the remaining copies of plans to the appropriate SPGA. The effective date of filing is the date the application is filed with the Town Clerk.
[Amended 4-25-1995 STM by Art. 11; 9-24-1996 STM by Art. 38]
D.
Action. Special permits shall only be issued after a public hearing which must be held within 65 days after the effective date of filing of a special permit application in conformance with the requirements of Chapter 40A. SPGA's shall act within 90 days following a public hearing for which notice has been given. The issuing of special permits shall require a two-thirds vote of boards with more than five members, a unanimous vote of a three-member board and four concurring votes for a five-member board.
E.
Referral.
(1)
Before taking any action on an application for a special permit under this Zoning Bylaw, the SPGA shall refer the special permit application to the Planning Board, Board of Health, Conservation Commission, and Board of Selectmen for written comments and recommendations. In addition to the above-noted boards, a special permit granting authority (SPGA) may refer a special permit application to any other Town agency/board/department/officer for comments and recommendations if it so desires before taking final action on said special permit application. The decision of the SPGA to refer the matter to another Town agency/board/department/officer may be made without a public hearing.
[Amended 4-27-1991 STM by Art. 12]
(2)
Any such board or agency to which applications are referred for comment shall make its recommendations and send copies thereof to the SPGA and the applicant within 35 days of receipt of the referral request by said board or agency or there shall be deemed no opposition or desire to comment. The SPGA shall not act upon said special permit until either comments from referred boards or agencies have been received or said 35 days have elapsed, whichever is sooner. Applications referred to more than one board or agency may be reviewed jointly by said boards or agencies.
F.
Decision.
[Amended 4-27-1991 STM by Art. 13]
(1)
In addition to any specific requirements elsewhere in this bylaw, or where no specific restrictions are made applicable to a use allowed by special permit, the SPGA may grant a special permit, but only upon its written determination that the proposed use will not have adverse effects which overbalance its beneficial effects on either the neighborhood or the Town, in view of the particular characteristics of the site. The SPGA may require the applicant to pay the costs of hiring independent experts chosen by the SPGA to review any information required by the board. The determination shall indicate that the proposed use will be in harmony with the general purpose and intent of this bylaw and shall include, but not be limited to, consideration of each of the following:
(a)
Adequacy of the site in terms of size for the proposed uses;
(b)
Suitability of the site for the proposed use;
(c)
Impact on traffic flow and safety;
(d)
Impact on neighborhood visual character, including views and vistas;
(e)
Adequacy of method of sewage disposal, source of water and drainage; and
(f)
Adequacy of utilities and other public services.
(g)
Impact on ground and surface water quality and other environmental and natural resource considerations.
(2)
Said special permit may impose conditions, safeguards and limitations on time and use.
G.
Duration. Special permits granted under this section shall lapse two years from date of issue, unless another period of time is identified for lapse in the Zoning Bylaw, not including any such time required to pursue or await the determination of an appeal pursuant to MGL c.40A, § 17, if substantial use thereof has not sooner commenced except for good cause as determined in a public meeting with written consent of the permit granting authority; or in the case of a permit for construction, if construction has not begun by such date, except for good cause as determined in a public meeting with written consent by the permit granting authority.
[Added 11-15-2011 STM by Art. 15]
§ 145-66 Variances.
A.
The Board of Appeals shall have the power after public hearing notice has been given by publication and posting, and by mailing to all parties in interest, in conformance with the requirements of Chapter 40A, to grant upon appeal or upon petition with respect to particular land or structures, a variance from the terms of the applicable zoning but only in cases where the Board specifically finds both the following:
(1)
Owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the bylaw would involve substantial hardship, financial or otherwise, to the petitioner or appellant.
(2)
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 bylaw.
B.
No variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located, provided, however, that such variance properly granted prior to the date of adoption of this bylaw, but limited in time, may be extended on the same terms and conditions that were in effect for such upon said effective date.
C.
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, safeguard or limitation based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner.
D.
If the rights authorized by a variance are not exercised within one year of the date of grant of such variance, they shall lapse and may be re-established only after notice and a new hearing pursuant to this section.
E.
Petition for a variance shall be made to the Town Clerk. Said application shall state the purpose of the variance applied for and the facts that the applicant believes warrants such a variance of Subsection A(1) and (2) above. The Board of Appeals may require fees, to be paid by the applicant, to cover the cost of advertising, notification by mail and the reasonable cost to the Town in processing a request. Said fee shall be published in the rules and regulations of the Board of Appeals.
F.
The Board of Appeals shall hold a hearing on any appeal, application or petition transmitted to it by the Town Clerk within 65 days from the transmittal to the Board of such appeal, application or petition. Notices shall be sent and published as required by MGL c. 40A, § 15.
G.
The concurring vote of four members of the Board of Appeals, consisting of five members, shall be necessary to reverse any order or decision of any Town official, or to effect any variance in the application of any bylaw.
H.
The decision of the Board of Appeals shall be made within 100 days after the date of the filing of an appeal.
[Amended 4-27-1991 ATM by Art. 14]
I.
No variance or any extension, modification or renewal thereof shall take effect until a copy of the decision bearing the certification of the Town Clerk that 20 days have elapsed and no appeal has been filed (or that if such appeal has been filed, that it has been dismissed or denied) is recorded in the Registry of Deeds for Middlesex County and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for recording or registering shall be paid by the owner or applicant.