HomeMy WebLinkAboutZoning Board of AppealsZoning Board of Appeals
Actions under 40A & 40B
Land Use Regulation in Massachusetts
•Zoning Boards: Zoning Act (40A)
Comprehensive Permit Statute (40B §§20-23)
•Planning Boards: Master Plans, Subdivision Control
(Ch 41, §§81A-81GG), Zoning Amendments (40A)
•Building Officials: Zoning Enforcement, Permits,
State Building Code, Site Plan Review
•Conservation Commissions: Wetlands Act
•Boards of Health: Subdivision Review (Ch 41, §81U),
Nuisances
•Cape Cod Commission (Cape Cod Commission Act)
Zoning Board of Appeals
•One Body making quasi-judicial decisions
▫Board has rights to hold hearings, conduct investigations
into disputes and alleged infractions and to make decisions
•Decision required to be made in Open Public Hearing
Members should not discuss pending appeals or application
outside of the public hearing.
ZBA Actions
•Special Permits
•Variances
▫Use variances
•Appeals of Administrative Officials
•Comprehensive Permits (40Bs)
Special Permits
•“Flexible & sensitive administration of zoning
based on facts & circumstances of a specific site
and development proposal.”
•Contemplated by the Zoning Ordinance
•Conditional Use Special Permits
•Extend/Alter & Change Nonconformities
•Others (ex family apartments, accessory uses)
Special Permit Findings
•Application accepted in the ordinance for a special
permit
•Evidence supports it fulfills the spirit and intent of the
ordinance without substantial detriment to the public
good or the neighborhood affected
•Site plan found approvable (when applicable)
•Others as required by specific section
Variances
•“Extraordinary” form of relief intended to
accommodate unusual characteristics of a particular
structure or parcel that causes hardship to the
property owner if the ordinary zoning requirements
are applied
•“To be sparingly exercised only in rare instances”
•“No one has legal right to a variance”
Variance Findings
Three statutory prerequisites:
•Circumstances of soil, shape, or topography of
the land or structures affecting that land or
structures generally not found in district
•Enforcement of zoning is a substantial hardship,
financial or otherwise; and
•Not substantial detriment to public and
neighborhood, does not nullify or substantially
derogate from intent/purpose of Zoning
Modifications
•As time and conditions change, it may be justifiable
to consider changes in permits and variances issued
in the past
•Process and vote as a new permit or variance
•Should not be an “untimely appeal of the permit
issued”
Appeals of Admin Officials
•Issuance/denial of building permits;
enforcement actions; other orders/decisions
adversely affecting a party
•Uphold or overturn
•Findings in support
Findings
•All findings must be met for grant of relief
•“The specific findings necessary to satisfy the
requirements for granting a decision are not
met by a ‘mere repetition of the statutory
words’”
Conditions
•ZBA has authority to “impose conditions, safeguards
and limitations on time or use”
•Variance conditions may be tied to existence of
structures, but not on ownership of land or
structures
•Must have “rough proportionality”
•No “further determinations of substance” or
delegation to another board
Procedures
•Application/Petition filed
•Notice to abutters & in newspaper
•65 days to hold a public hearing
•90/100 days to make a decision
•14 days to file a written decision
•20 day appeal period