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DRAFT #5
Town of Barnstable
Zoning Board of Appeals Rules and Regulations
Note: In the existing ZBA Rules & Regulations insert this Draft #5 (once
approved) in Section 3. Procedural: after “Public Hearings” paragraph
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Continuations & Withdrawals:
A. Purpose: The purpose of this section is: (1) to minimize inconvenience
to our citizens who attend a virtual or in-person meeting only to learn
that a withdrawal or continuance is being requested on a particular
agenda item of interest; (2) to minimize inconvenience to our citizens
who learn that material pertaining to a particular agenda item has been
submitted with insufficient time to be previewed prior to the hearing;
(3) to provide a comprehensive source of procedural information
pertaining to Withdrawals and Continuances to partitioners, and: (4) to
allow the ZBA sufficient time to consider all materials particular to an
agenda item prior to the meeting.
B. Administrative:
1. Representative: An Applicant may appear on his own behalf or may
be represented by an authorized agent or attorney. If an attorney, agent,
or other authorized party represents a petitioner, a signed letter of
authorization from the petitioner designating the representative to act
on his/her behalf must be provided for the public record.
2. Electronic & Video Communications: e-mail communications may be
accepted as written communications; video communications may be
considered “in-person” when official meetings are conducted virtually or
hybrid.
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3. Waive Compliance: The Board may in a particular case waive strict
compliance with the requirements of these Rules and Regulations
pertaining to Withdrawals and Continuances when in the judgement of
the Board such action is in the public interest and not inconsistent with
other ordinance or law.
4. Adoption and Amendment: These Rules and Regulations may be
adopted and from time to time amended by majority vote of the Board.
Prior to the initial adoption of these Rules and Regulations and any
subsequent revisions or amendments, they shall be presented in writing
at a regular meeting and action taken at a subsequent regular meeting.
5. Effective Date: These Rules and Regulations become effective when
voted on affirmatively by a majority of the Board and filed with the Town
Clerk.
C. Withdrawal of an Appeal:
Please note: "hearing" means that the hearing on the actual appeal is
opened by the Board (as compared to the “meeting”).
1. Prior To Notice: An Applicant may withdraw an application, without
prejudice, by written notice to the Board at any time prior to the first
publication of the notice of the public hearing.
2. Board Action: After publication of the notice of a public hearing an
application may be withdrawn only with the approval of the Board, in its
discretion, which may determine if it is with or without prejudice. A
dismissal without prejudice may allow the petitioner to initiate the
appeal process again at their convenience without waiting two full years.
3. 48 Hour Rule: If a request for a withdrawal, without prejudice, is
received either in-person or in writing from the petitioner or
representative – before 4:30 PM of the day that will leave two full
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working days (excluding Saturdays, Sundays, and official town holidays)
before the date of the hearing, the Board shall rule on the request
without an appearance by the petitioner or representative at the
hearing.
4. Less Than 48 Hours: If a request for a withdrawal, without prejudice, is
received either in-person or in writing from the petitioner or
representative – after 4:30 PM of the day that will leave two full working
days (excluding Saturdays, Sundays, and official town holidays) before
the date of the hearing the petitioner or representative must make the
request in person at the hearing.
5. When a full 5-member Board is not available for a hearing, a written
request may be substituted for an "in person" requirement.
6. During the Hearing: A request for a withdrawal, without prejudice, may
be made during the hearing by an in-person request by the petitioner or
representative - the Board shall rule on the request.
7. No Show: If a petitioner or its representative are not present at the
hearing to request a withdrawal, and they have not so requested a
withdrawal prior to the hearing, the Board shall decide the matter using
the information before it, continue the hearing to a future date certain
or dismiss without prejudice, at its discretion.
D. Continuance of an Appeal:
Please note: "hearing" means that the hearing on the actual appeal is
opened by the Board (as compared to the “meeting”).
1. Prior to Notice: An Applicant may withdraw an application, without
prejudice, by written notice to the Board at any time prior to the first
publication of the notice of the public hearing.
2. Board Action: After publication of the notice of a public hearing an
application may be continued only with the approval of the Board, in its
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discretion, which may allow or deny any request for continuance and
may determine if it is with or without prejudice. A dismissal without
prejudice may allow the petitioner to initiate the appeal process again at
their convenience without waiting two full years.
3. Supporting Information: Information provided less than one (1) week
prior to a public hearing by any party may result in a continuation;
should the Board determine that additional information is required, the
public hearing would be continued.
4. Time Requirements for Public Comments: Written public comments
must be submitted before 4:30 PM of the day that will leave two full
working days (excluding Saturdays, Sundays, and official town holidays)
before the date of the hearing.
5. First Request Appearance: An appearance by the petitioner or its
representative at the hearing is not required at the first request for a
continuance, without prejudice, but a written request must be
submitted which includes the reason for the request for the Board’s
consideration.
6. 48 Hour Rule for First Request: If a request for a continuance, without
prejudice, is received either in-person or in writing by the petitioner or
representative – before 4:30 PM at least two business days before the
date of the hearing of the first request, the Board should rule on the
request without an appearance by the petitioner or representative at
the hearing.
7. Less Than 48 Hours for First Request: If a request for a continuance,
without prejudice, is received either in-person or in writing by the
petitioner or representative – after 4:30 PM at least two business days
before the date of the hearing of the first request, the petitioner or
representative must make the request in person at the hearing; absent
the appearance of the petitioner or their representative the Board shall
rule on the request.
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8. When a full 5-member Board is not available for a hearing, a written
request may be substituted for an “in-person” requirement.
9. Second and Subsequent Requests: After the first request for a
continuance, any subsequent requests for a continuance, without
prejudice, requires an appearance by the petitioner or their
representative to formally submit and state the reason for the Board’s
consideration.
10. During the Hearing: A request for a continuation, without prejudice, may
be made during the hearing by an in-person request by the petitioner or
representative - the Board shall rule on the request.
11. No Show: If a petitioner or its representative are not present at the
hearing to request a continuance, and they have not so requested a
continuance prior to the hearing, the Board shall decide the matter using
the information before it, continue the hearing to a future date certain
or dismiss without prejudice, at its discretion.
12. If Granted: A continuance granted by the Board must include the date
and time of the continued hearing on the application by the Board.
13. Written Agreement to Extend: Any request for a continuance that would
extend the hearing beyond the required time to act shall be in writing,
regardless of the petitioner‘s attendance at the hearing. (If agreed to by
the Board, this continuance and extension request shall be filed with the
Town Clerk.)
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