A.
Enforcement. This chapter shall be enforced by a Zoning
Enforcement Officer appointed by the Town Manager. Said Zoning Enforcement
Officer shall withhold a permit for erection, construction, alteration
or moving of any building or structure if the building or structure,
as erected, constructed, altered or moved, would be in violation of
this chapter. No permit shall be granted for a new building or other
structure or use of land which would be in violation of this chapter.
[Amended 4-6-2015 ATM
by Art. 64, AG approval 8-5-2015
B.
Remedies.
(1)
If the Zoning Enforcement Officer is requested, in
writing, to enforce this chapter against any person allegedly in violation
of the same and the Zoning Enforcement Officer declines to act, said
Zoning Enforcement Officer 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.
(2)
A stop order shall be issued for any violation of
the provisions of this chapter in unauthorized sale or lease; construction
in deviation from approved permits; subsequent actions contrary to
the conditions of, or the activities and uses permitted by approved
permits; failure to adequately maintain common open space; or inadequate
or insufficient construction of improvements.
(3)
A stop order shall be issued by the Zoning Enforcement
Officer and delivered to the owner of any property or his agent. Delivery
shall be construed to include mailing of such order, postage prepaid,
to said owner or posting on the property. Copies of such order shall
be maintained by the Town. The stop order shall be in writing and
shall state the nature of the violation and conditions under which
work or use may continue.
(a)
A time limit, not to exceed five days, shall
be permitted to allow for the necessary correction of the violation.
(b)
Any person who shall continue in violation of
this stop order shall be in violation of this chapter and shall be
subject to the enforcement provisions of this chapter. The failure
of the Town to obtain a stop order for any reason whatsoever shall
not be interpreted as an estoppel against the Town from pursuing any
other legal remedy permitted under the law.
C.
Penalty.
(1)
Any person violating any of the provisions of this
chapter may be fined not more than $300 per violation, provided that
each day such violation continues shall constitute a separate offense.
[Amended 4-4-2006 ATM by Art. 50, AG approval 8-2-2006]
(2)
No action, suit or proceeding shall be maintained in any court, nor any administrative or other action taken to recover a fine or damages or to compel the removal, alteration or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of this chapter except in accordance with the provision of this § 139-25; provided, however, that if any real property has been improved and used in accordance with the terms of the original building permit issued by the Building Inspector, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the Nantucket County Registry of Deeds within six years next after the commencement of the alleged violation of law. Such notice shall include the names of one or more of the owners of record, the name of the person initiating the action and adequate identification of the structure and the alleged violation.
(3)
No action, criminal or civil, the effect or purpose
of which is to compel the removal, alteration or relocation of any
structure by reason of any alleged violations of the provisions of
this chapter, or the conditions of any variance or special permit
granted by a permit granting authority, shall be maintained unless
such action, suit or proceeding is commenced and notice thereof is
recorded in the Registry of Deeds of Nantucket County within 10 years
next after the commencement of the alleged violation.
D.
Any Massachusetts state court of competent jurisdiction
may enforce the provisions of this chapter and may restrain, by injunction,
violations thereof.
[Amended 4-4-2006 ATM by Art. 50, AG approval 8-2-2006]
A.
No building or structure shall be used, erected, constructed,
relocated, added to or otherwise subjected to alteration, or demolished
without a building or use permit having been issued by the Building
Commissioner or Local Inspector for any use or structure. No lot shall
be changed from its use preexisting the July 27, 1972, effective date
of this chapter, except to its natural condition allowed by § 139-7A(5)
above, without a use permit or a building permit permitting such use.
No such permit shall be issued until such construction, erection,
relocation, addition, alteration, demolition or use, as proposed,
shall comply in all respects with the provisions of this chapter as
determined by a Zoning Enforcement Officer or with a decision rendered
by the Board of Appeals, the Planning Board, or the courts in the
case of appeals.
[Amended 4-14-1997 ATM by Art. 40, AG approval
8-5-19974-10-2000 ATM by Art. 46, AG approval 8-2-2000; 6-25-2020 ATM by Art. 51, AG approval 10-27-2020]
(1)
Demolition delay.
(a)
Statement of purpose. The purpose of this section
is to establish a predictable process for reviewing requests to demolish
residential structures in order to:
[1]
Establish an appropriate waiting period during
which the Town and the applicant can propose and consider alternatives
to the demolition of a building of residential value;
[2]
Minimize the quantity of demolition debris ending
up in the landfill;
[3]
Create an incentive for reuse of residential
structures;
[4]
Give interested parties an opportunity to acquire
reusable residential structures.
(b)
Buildings subject to demolition delay. All residential
structures are subject to review by the Building Commissioner, Local
Inspector, or a registered design professional for the purpose of
determining whether such buildings have any residential reuse potential.
(c)
Issuance of demolition permit. The requirements set forth in this section are in addition to, and not in lieu of, the requirements of any other codes, ordinances, statutes, or regulations applicable to the demolition of buildings. No demolition permit shall be issued for a building that is subject to review, pursuant to Subsection A(1)(b) above, unless:
[2]
It is determined that said building has no residential
reuse potential due to the existing condition of the structure or
physical barriers to moving the structure such as significant trees,
bridges, etc.
(d)
Required demolition or repair.
[1]
Demolition. Nothing in this section shall restrict
any authority in the general laws for the Building Commissioner or
Building Inspector to order the building owner, or Town, to demolish
a building at any time if it is determined that the condition of a
building or part thereof presents an imminent and substantial danger
to the public health or safety.
[2]
Repair. Nothing in this section shall restrict
any authority in the general laws for the Building Commissioner or
Building Inspector to require the applicant to take reasonable action
to prevent the need for required demolition, which may include securing
the building and making it safe so that it does not present an imminent
and substantial danger to the public.
(e)
Issuance of building, use, or occupancy permit.
[1]
If it has been determined that a building has re-use potential pursuant to Subsection A(1)(b) above, no building permits shall be issued for the erection of a new building on the site of such building subject to review before issuing a demolition permit for such building subject to review in compliance with this section.
[2]
If it has been determined that a building has
been voluntarily demolished in violation of this section, no building
permits shall be issued for new construction, or any use or occupancy
permit for any use other than a park or recreational open space, with
respect to the premises of such building for a period of two years
after the date of the determination. As used herein, "premises" includes
the parcel of land upon which the demolished building was located
and all abutting parcels under common ownership or control.
(f)
Procedure.
[1]
A request for review of reuse potential pursuant
to this section shall be made to the Building Commissioner or Local
Inspector. The request shall be made by letter, email or any other
method acceptable to the building official.
[2]
(Reserved)
[3]
(Reserved)
[4]
After its receipt of an application, pursuant to this Subsection A(1)(f), the following determinations shall be made:
[b]
Whether said structure has any residential reuse potential pursuant to Subsection A(1)(c)[2].
[5]
A determination shall be made within 20 days
after the request. If it is determined that the structure does not
require immediate demolition and that it does have reuse potential
the applicant shall place a public notice in a local newspaper.
[a]
Contents of public notice.
Subject to the Chapter 139 Section 26A(1) of the Code of the Town of Nantucket (the so-called "demolition delay bylaw"), a house located at INSERT ADDRESS is being made available to any interested party subject to the ability to move the structure within 60 days from the date of this publication, in addition to meeting any conditions imposed by the current owner. A letter of interest must be submitted to INSERT OWNER/CONTACT ADDRESS AND EMAIL with a copy provided to the Town of Nantucket Building Commissioner at 2 Fairgrounds Road or by e-mail at INSERT BUILDING COMMISSIONER E-MAIL within 30 days from the date of this publication. Letters of interest received after 30 days may be considered at the discretion of the property owner.
|
[6]
A published copy of said notice shall be presented
to the Building Department. From the date of publication of said notice,
any interested parties shall have 30 days to respond in writing. If
any bona fide letters of interest, as determined by the Building Commissioner
or Local Inspector, are received within the thirty-day period no demolition
permit shall be issued for a period of 30 days thereafter.
[7]
If no bona fide letters of interest are received
within the thirty-day period, a demolition permit may be issued.
B.
Form of application. The application for a building
or use permit shall be submitted in such form as shall be described
by the Building Inspector and shall be accompanied by the required
fee as hereinafter prescribed. Application for a permit shall be made
by the owner or lessee of any building or structure or the agent of
either. The application for the permit shall be accompanied by a plot
plan of the proposed building, structure or use drawn to scale with
sufficient clarity to show the nature and character of the work to
be performed, including off-street parking and loading space, if required,
the location of new and existing lot lines.
C.
Accompanying documents. The application for a building
or use permit shall be accompanied by the following documents, if
applicable:
(1)
Certificate of appropriateness issued by the Nantucket
Historic Districts Commission pursuant to Ch. 395, Acts of 1970, as
amended.
(2)
Sewer permit.
(a)
For on-site septic systems issued by the Nantucket
Board of Health pursuant to Title V, § 3.7, of the State
Environmental Code.
(b)
For hook-ups to the public sewage system issued
by the Superintendent of the Nantucket Department of Public Works
pursuant to the Wastewater Systems Regulations Governing the Use of
Common Sewers, of the Town and County of Nantucket, as amended.
(3)
Order of conditions issued by the Nantucket Conservation
Commission, pursuant to the State Wetland Protection Act (MGL c. 131,
§ 40), when a determination has been made that all or a
portion of the property included in the building permit application
is subject to the Wetland Protection Act. It is the responsibility
of the applicant to file a request to determine applicability of the
Wetland Protection Act if the applicant suspects that all or a portion
of his property may be subject to the Act.
(4)
Water well completion report establishing availability
of water on property, if public water supply is unavailable.
(5)
Certified copy of each Board of Appeals and Planning
Board decision, including minor and major site plan review approvals,
and of the plan approved by the Planning Board if the building permit
is for a secondary dwelling, whichever may be relevant to the proposed
project.
[Amended 4-14-1997 ATM by Art. 49, AG approval
8-5-1997]
D.
Issuance of permits. Upon receiving the application,
the Building Inspector shall examine the same within a reasonable
time after filing. The Zoning Enforcement Officer shall provide the
Building Commissioner with a certificate of compliance with this chapter.
If the application does not conform to the provisions of all pertinent
local laws, the Building Commissioner shall reject such application
in writing, stating the reasons therefor, within 30 days of the submission
of a complete application.
[Amended 4-10-2000 ATM by Art. 46, AG approval
8-2-2000]
(1)
He shall inform the applicant of his right of appeal
to the Board of Appeals in the event such application is rejected.
(2)
If satisfied that the proposed work and/or use conforms
to the provisions of this chapter and all laws and ordinances applicable
thereto, he shall issue a building or use permit thereto, within 30
days of the submission of a complete application.
E.
Any permit issued shall be deemed abandoned and invalid
unless the work authorized by it shall have been commenced within
six months after its issuance; however, for cause, one or more extensions
of time, for periods not exceeding six months each, may be granted
in writing by the Inspector of Buildings. Work under such permit,
in the opinion of the Inspector of Buildings, must proceed in good
faith continuously to completion so far as is reasonably practicable
under the circumstances.
F.
Revocation of permits. The Building Inspector may
revoke any permit issued under the provisions of this chapter in case
of any false statement or misrepresentation of fact in the application
on which the permit was based or for any other cause set forth in
this chapter.
G.
Posting of permit. A true copy of a permit placard
issued to the applicant with the permit shall be kept on the site
of operations open to public inspection during the entire time of
prosecution of the work or use and until the completion of the same
as defined on the application.
H.
Temporary permit. A temporary permit may, upon written
request of an applicant, be authorized by a favorable vote of at least
four members of the Board of Appeals for a nonconforming structure
or use which the Board of Appeals finds necessary to promote the proper
development of the community, provided that such nonconforming structure
or use shall be completely removed upon expiration of the permit (unless
previously made conforming or validated) without cost to the Town
(unless the Town is the applicant). Such permit may be renewed annually
for an aggregate period not exceeding three years.
I.
Payment of fees. No building or use permit shall be
issued until the fees prescribed by the Select Board shall be paid
to the Building Inspector.
[Amended 6-25-2020 ATM by Art. 70, approved 10-27-2020]
J.
Compliance with permit. All work or uses shall conform
to the approved application for which the permit has been issued as
well as the approved plot plan.
A.
Permanent occupancy.
(1)
No premises and no building or structure erected,
altered or in any way changed as to construction or use, under a permit
or otherwise, shall be occupied or used without an occupancy permit
signed by the Building Inspector. Such permit shall not be issued
until the premises, building or structure, and its proposed use and
accessory uses, comply in all respects with this chapter. A record
of all applications and occupancy permits shall be kept on file by
the Building Inspector.
(2)
An occupancy permit shall be conditional on the maintenance
of full compliance with the provisions of this chapter in effect at
the time of the issuance and with any decision of, or variance or
special permit granted by the Board of Appeals or the Planning Board,
and shall lapse if such compliance fails.
(3)
No occupancy permit shall be issued unless and until
the Building Inspector receives a written certification by the Nantucket
Historic District Commission that:
B.
Application; notification; as-built plot plan. Applications
for occupancy permits shall be filed with the applications for building
permits and shall be allowed or denied in writing, including the cause
of the action taken, within seven days after the Building Inspector
has been notified in writing that a construction or alteration of
such building or structure has been completed. Said notification shall
be accompanied by the following:
(1)
A plot plan showing the precise location of all structures
or buildings constructed, moved, altered or added to as a result of
the building permit.
(a)
The as-built plot plan shall be drawn to scale
and shall be signed and sealed by a registered surveyor or engineer.
(b)
In order to minimize the cost to the applicant
for preparing an as-built plot plan, the applicant may resubmit either
his original plot plan or his on-site sewage permit amended, if needed,
with a statement by a registered surveyor or engineer affixed thereto
certifying the location of the finally constructed improvements on
the lot.[1]
[1]
Editor's Note: Former Subsection B(1)(c),
regarding plot plans for buildings erected after 1990, which immediately
followed this subsection, was repealed 4-12-2004 ATM by Art. 40, AG
approval 9-3-2004.
(2)
A written certification by the Nantucket Historic
District Commission that:
(a)
Such buildings or structures have been constructed,
moved, altered, or added to in compliance with the certificates of
appropriateness issued for such buildings or structures; or
(b)
Certificates of nonapplicability have been issued
by the Commission for such buildings or structures; provided, however,
that:
(c)
The Historic District Commission or its designee
shall issue said certification within five working days of the receipt
of a written request to do so; failure to issue a certification within
this period shall be deemed approval thereof.
C.
Temporary occupancy. For use and occupancy of any
building or structure, or part thereof, during a period of construction
or alteration, the Building Inspector may issue temporary certificates
for periods not exceeding six months.
A.
Membership. The Select Board shall appoint the members
of the Board of Appeals, both regular and associate or alternate.
The Board of Appeals shall consist of five members and three associate
members serving staggered terms, respectively, of five and three years
each. The Board of Appeals shall elect officers annually from its
regular members, including a Chairman, a Vice Chairman and a Clerk.
[Amended 4-6-2011 ATM by Art. 64, AG approval 9-15-2011; 6-25-2020 ATM by Art. 70, approved 10-27-2020]
B.
Board of Appeals rules. The Board of Appeals shall
adopt rules, not inconsistent with the provisions of this chapter,
for the conduct of its business pursuant to this chapter and shall
file a copy of said rules with the Town Clerk.
(1)
Meetings of the Board shall be at the call of the
Chairman or when called in such other manner as the Board shall determine
in its rules.
(3)
The Board of Appeals may adopt rules requiring applicants
to pay fees into a special account, pursuant to MGL c. 44, §
53G, to be used for the engagement by the Board of consultants.
[Amended 5-5-1992 ATM by Art. 36, AG approval
8-3-1992]
(4)
In the event that the Board of Appeals has appointed
a Zoning Administrator, said rules shall set forth the fact of such
appointment, the identity of the persons from time to time appointed
to such position, the powers and duties delegated to such individual
and any limitations thereon.
C.
Zoning Administrator.
(1)
The Board of Appeals may request that the Town Manager appoint a
Zoning Administrator (not the Zoning Enforcement Officer).
[Amended 4-6-2015 ATM
by Art. 64, AG approval 8-5-2015]
(2)
The Board of Appeals may delegate to said Zoning Administrator
some of its powers and duties by a concurring vote of all except one
of the five members of the Board of Appeals.
(3)
Any person aggrieved by a decision or order of the
Zoning Administrator, whether or not previously a party to the proceeding,
or any municipal office or board, may appeal to the Board of Appeals
within 30 days after the decision of the Zoning Administrator has
been filed with the office of the Town Clerk.
(4)
Any appeal, application or petition filed with said
Zoning Administrator, as to which no decision has been issued within
35 days from the date of filing, shall be deemed denied as of the
date ending such thirty-five-day period and shall be subject to appeal
to the Board of Appeals.
(5)
Any appeal to the Board of Appeals from the order or decision of the Zoning Administrator shall be taken within 30 days from the date of the order or decision or within 30 days from the date on which the appeal, application or petition shall have been deemed denied in accordance with § 139-29C(4) above, as the case may be.
(6)
Any appeal pursuant to Subsection C(3) through (5) above shall be taken by having the petitioner file a notice of appeal, specifying the grounds thereof, with the Town Clerk.
(a)
A copy of said notice, including the date and time of filing certified by the Town Clerk, shall be filed forthwith in the office of the Zoning Administrator and, in the case of an appeal under § 139-31A and B below, with the officer whose decision was the subject of the initial appeal to the Zoning Administrator.
(b)
The Zoning Administrator shall forthwith transmit
to the Board of Appeals all documents and papers constituting the
case in which the appeal is taken.
E.
Board of Appeals powers.
(1)
The Board of Appeals shall have the following powers:
(a)
To hear and decide special permits, and special permits with major site plan review, with those exceptions noted below in § 139-30A as to which the Planning Board is the special permit granting authority.
[Added 4-14-1997 ATM by Art. 49, AG approval
8-5-1997]
(b)
To hear and decide appeals from decisions of
the Building Inspector.
(c)
To hear and decide petitions for variances.
(d)
To hear and decide appeals from decisions of
the Zoning Enforcement Officer.
[Amended 4-10-2000 ATM by Art. 46, AG approval
8-2-2000]
(2)
In exercising its power, the Board of Appeals may,
in conformity with the provisions of this chapter, make orders or
decisions, reverse or affirm in whole or in part, or modify any order
or decision, and to that end shall have all the powers of the officer
from whom the appeal is taken and may issue or direct the issuance
of a permit.
A.
The special permit granting authority shall be the Board of Appeals for all special permits, except those special permits for which the Planning Board is specifically designated by any provision of this chapter. In instances where any portion of a project involves a special permit application to the Planning Board for an apartment, apartment building, elder housing facility, medical marijuana treatment center, recreational marijuana establishment, neighborhood employee housing, secondary dwelling, or tertiary dwelling all pursuant to § 139-2, business commercial, commercial industrial, and industrial uses as categorized in the "Use Chart" pursuant to § 139-7A, residential development options pursuant to § 139-8, and for certain uses in the Public Wellhead Recharge District pursuant to § 139-12B, the Planning Board shall serve as the special permit granting authority for all other special permits required in connection with such project.
[Amended 4-14-1997 ATM by Art. 49, AG approval 8-5-1997; 4-9-2001 ATM by Art.
28, AG approval 8-2-2001; 10-10-2001 STM by Art. 5, AG approval 1-24-2002; 4-15-2003 ATM by Art.
35, AG approval 8-27-2003; 4-13-2005 ATM by Art. 47, AG approval 8-5-2005; 4-6-2011 ATM by Art. 64, AG approval 9-15-2011; 4-5-2014 ATM by Art. 68, AG approval 5-7-2014; 4-6-2015 ATM by Art. 68, AG approval 8-5-2015; 4-2-2016 ATM by Art. 58, AG approval 7-12-2016; 11-6-2017 STM by Art.
19, AG approval 2-26-2018]
(1)
The special permit granting authority shall issue
special permits for structures and uses which are in harmony with
the general purpose and intent of this chapter subject to the provisions
of such chapter.
(2)
Such permits may impose conditions, safeguards and
limitations intended to ensure that the use or structure is in harmony
with the general purpose and intent of this chapter.
B.
Application for special permit.
(1)
Each application for a special permit shall be filed
by the petitioner or applicant with the Town Clerk.
(2)
A copy of the application, including the date and
time of filing certified by the Town Clerk, shall be filed forthwith
by the petitioner with the special permit granting authority.
(3)
The special permit granting authority shall adopt
and, from time to time, amend rules relative to the form of the application
and the issuance of special permits and shall file a copy of said
rules in the office of the Town Clerk. Such rules shall prescribe
the size, form, contents, style and number of copies of plans and
specifications and the procedure for the submission and approval of
such permits.
(4)
Any application for a special permit which has been
transmitted to the special permit granting authority may be withdrawn
without prejudice by the petitioner prior to the publication of the
notice of a public hearing thereon. Thereafter, an application can
be withdrawn without prejudice only with the approval of the special
permit granting authority.
C.
Public hearing.
(1)
A public hearing on the application for a special
permit shall be held within 65 days from the date of filing the application
with the Town Clerk.
(2)
Notice of said hearing shall be given as provided in MGL c. 40A, § 11, and in § 139-29B(2) above.
D.
Review by other agencies.
(1)
Applications for special permits may be referred by
the special permit granting authority to any Nantucket boards, commissions,
departments, workgroups, and officers for their review and comment.
[Amended 4-6-2011 ATM by Art. 64, AG approval 9-15-2011]
(2)
Any such reviewing party shall make such recommendations
as it deems appropriate and shall send copies thereof to the special
permit granting authority and to the applicant; provided, however,
that failure of any such board or agency to make recommendations within
35 days of receipt by such board or agency of the application shall
be deemed lack of opposition thereto.
(3)
Applications for special permits before the Board
of Appeals, together with supporting materials, shall be submitted
by the Board of Appeals, one copy to the Planning Board and one to
the Zoning Enforcement Officer for review and comment forthwith upon
receipt of the application.
[Amended 4-10-2000 ATM by Art. 46, AG approval
8-2-2000]
E.
Action by the Board of Appeals or Planning Board.
(1)
The special permit granting authority shall approve, conditionally approve or disapprove applications for special permits within 90 days following the public hearing held pursuant to Subsection C above.
(2)
The required time limits for such public hearing and for the action required in Subsection E(1) above may be extended by written agreement between the petitioner and the special permit granting authority. A copy of such agreement shall be filed in the office of the Town Clerk.
(3)
Special permits issued by the special permit granting
authority shall require the favorable vote of at least four members.
(4)
The special permit granting authority shall cause
to be made a detailed record of its proceedings, indicating the vote
of each member upon each question, or if absent or failing to vote,
indicating such fact, and setting forth clearly the reason for its
decision and its actions.
(5)
Copies of the decision made of record pursuant to Subsection E(4) above shall be filed within 14 days in the office of the Town Clerk, together with a notice of the decision, and shall be deemed a public record.
(6)
Notice of the decision shall be mailed forthwith to the petitioner, to the parties in interest designated in MGL c. 40A, § 11, and to persons included pursuant to § 139-29B(2) above, and to any person present at the hearing who requested that notice be sent to him or her and stated the address to which such notice was to be sent.
[Amended 4-15-2003 ATM by Art. 26, AG approval 8-27-2003]
(7)
Each
such notice shall specify that appeals, if any, shall be made pursuant
to MGL c. 40A, § 17, and shall be filed within 20 days after
the date of filin such notice of decision in the office of the Town
Clerk.
(8)
A special permit, or any extension, modification or
renewal thereof, shall not take effect until a copy of the decision
bearing the certification of the Town Clerk that 20 days have elapsed
after the decision has been filed in the office of the Town Clerk
and either that no appeal has been filed or the appeal has been filed
within such time, or if it is a special permit which has been approved
by reason of the failure of the permit granting authority or special
permit granting authority to act thereon within the time prescribed,
a copy of the application for the special permit accompanied by the
certification of the Town Clerk stating the fact that the permit granting
authority or special permit granting authority failed to act within
the time prescribed, and whether or not an appeal has been filed within
that time, and that the grant of the application resulting from the
failure to act has become final, is recorded in the registry of deeds
for Nantucket 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.
[Amended 6-25-2020 ATM by Art. 51; AG approval 10-27-2020]
F.
Upon failure to act.
(1)
Failure by the special permit granting authority to
take final action within said 90 days or extended time, if applicable,
shall be deemed to be a grant of the special permit.
(2)
The petitioner who seeks such approval by reason of
the failure of the special permit granting authority to act within
such time prescribed shall notify the Town Clerk, in writing, within
14 days from the expiration of said 90 days or extended time, if applicable,
of such approval and that notice has been sent by the petitioner to
the parties in interest.
(3)
The petitioner shall send such notice by mail to parties in interest and to those specified in § 139-29B(2), and each such notice shall specify that appeals, if any, shall be made pursuant to MGL c. 40A, § 17, and shall be filed within 20 days after the date the Town Clerk received such written notice from the petitioner that the special permit granting authority failed to act within the time prescribed.
[Amended 4-15-2003 ATM by Art. 26, AG approval 8-27-2003]
(4)
After the expiration of 20 days without notice of appeal to the Superior Court pursuant to § 139-30F(3) or, if appeal has been taken, after receipt of certified records of the Superior Court indicating such approval by reason of the failure of the special permit granting authority to act has become final, the Town Clerk shall:
(5)
If a special permit has been approved by reason of the failure of the special permit granting authority to act thereon within the time prescribed in § 139-30F above, it shall not take effect until a copy of the application for special permit accompanied by the certification of the Town Clerk stating the fact that:
(a)
The special permit granting authority failed
to act within the time prescribed; and
(b)
No court appeal has been filed and that the
grant of the application or petition resulting from such failure to
act has become final; or
(c)
If a court appeal has been filed, it has been
decided finally and favorably to the applicant; is recorded in the
Nantucket Registry of Deeds and indexed in the grantor index under
the name of the owner of record or is registered and noted on the
owner's certificate of title. (The fee for recording or registering
shall be paid by the owner or applicant.)
G.
Appeal to courts. Any person aggrieved by a decision
of the Board of Appeals or Planning Board (or by their failure to
take final action concerning any application for a special permit
within the prescribed time), whether or not previously a party to
the proceeding, or any municipal officer or board, may appeal to the
Superior Court for Nantucket County, or to the Land Court under MGL
c. 240, § 14A, by bringing an action within 20 days after
the decision has been filed in the office of the Town Clerk (or after
the date the Town Clerk received written notice from the petitioner
that the special permit granting authority failed to act within the
prescribed time). Procedures for appealing to the courts are found
in the State Zoning Act, MGL c. 40A, § 17.
H.
Effect of zoning amendments on special permits issued.
Construction or operation under a special permit shall conform to
any subsequent amendment of this chapter unless the use or construction
is commenced within a period of not more than 12 months after the
issuance of the special permit and, in cases involving construction,
is continued through to completion as continuously and expeditiously
as is reasonable.
[Amended 11-6-2017 STM
by Art. 17, AG approval 2-26-2018; 6-5-2021 ATM
by Art. 47, AG approval 10-7-2021]
I.
Expiration of special permits. Special permits shall
expire after three years from the date of issuance if a substantial
use thereof has not commenced, except for good cause, or, in the case
of construction, if construction has not begun by such date except
for good cause. Such expiration date shall be automatically extended
to include time required to pursue or await the determination of an
appeal from the action of the special permit granting authority.
[Amended 5-7-1991 ATM by Art. 32, AG approval
9-6-1991; 11-6-2017 STM by Art.
17, AG approval 2-26-2018]
K.
Special permit rehearing limit. No special permit
which has been unfavorably and finally acted upon by the Board of
Appeals shall be acted favorably upon within two years after the date
of final unfavorable action unless the Board of Appeals finds, by
the favorable vote of at least four members, specific and material
changes in the conditions upon which the previous unfavorable action
was based and describes such changes in the record of its proceedings
and unless all but one of the members of the Planning Board consent
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.
A.
An appeal to the Board of Appeals (or to the Zoning
Administrator if authorized to hear such appeal) may be taken:
[Amended 4-10-2000 ATM by Art. 46, AG approval
8-2-2000]
(1)
By any person aggrieved by reason of his inability to obtain a permit or enforcement action from the Building Commissioner [see § 139-25B(1) above], the Zoning Enforcement Officer, or from any other administrative officer under the provisions of this chapter; or
(2)
By the Nantucket Planning and Economic Development
Commission or by any person, including an officer or board of the
Town, aggrieved by an order or decision of the Building Commissioner,
Zoning Enforcement Officer, or other administrative official, in violation
of any provision of this chapter or of the Zoning Act of Massachusetts,
MGL c. 40A.
B.
Filing of notice of appeal.
(1)
Any appeals under this § 139-31 to the Board of Appeals (or the Zoning Administrator if authorized to hear such appeal) shall be taken within 30 days from the date of the order or decision which is being appealed.
(2)
The appellant or petitioner shall file a notice of
appeal, specifying the grounds thereof, with the Town Clerk, and a
copy of said notice, including the date and time of filing certified
by the Town Clerk, shall be filed forthwith by the petitioner with
the officer or board whose order or decision is being appealed, and
with the Board of Appeals, specifying in the notice the grounds for
such appeal.
(3)
Such officer or board (e.g., the Building Commissioner)
shall forthwith transmit to the Board of Appeals (or to the Zoning
Administrator if authorized) all documents and papers, or true copies
thereof, constituting the record of the case in which the appeal is
taken.
(4)
The Board of Appeals shall adopt and, from time to
time, amend rules relative to the form of the notice of appeal and
its decision thereon and shall file a copy of said rules in the office
of the Town Clerk.
(a)
Such rules shall prescribe the size, form, contents,
style and number of copies of papers including the record appealed
from and the procedure for the submission and approval of such appeal.
C.
Public hearing on appeals.
(1)
The Board of Appeals shall hold a public hearing on
any appeal within 65 days from the receipt by the Board of Appeals
of notice of such appeal.
(2)
The Board of Appeals shall cause notice of such hearing to be published and sent to parties in interest as provided in MGL c. 40A, § 11 and in § 139-29B(2) above.
D.
Review by other agencies. The Board of Appeals shall
notify the Planning Board of each such appeal and may notify any other
municipal agency or officer. The Planning Board may forward recommendations
with respect to said appeal for the consideration of the Board of
Appeals.
E.
Action by the Board of Appeals.
(1)
The decision of the Board of Appeals shall be made
within 100 days after the date of filing of an appeal.
(2)
The required time limits for a public hearing and
said action may be extended by written agreement between the applicant
and the Board of Appeals. A copy of such agreement shall be filed
in the office of the Town Clerk.
(3)
The concurring vote of at least four members of the
Board of Appeals shall be necessary to reverse any order or decision
of any administrative official under this chapter.
(4)
The Board of Appeals shall cause to be made a detailed
record of its proceedings, indicating the vote of each member upon
each question, or if absent or failing to vote, indicating such fact,
and setting forth clearly the reason for its decision and its official
actions.
(5)
Copies of the decision made of record pursuant to Subsection E(4) above shall be filed within 14 days in the office of the Town Clerk, together with a notice of the decision, and shall be a public record.
(6)
Notice of the decision shall be mailed forthwith to the petitioner, to the parties in interest designated in MGL c. 40A, § 11, and to persons included pursuant to § 139-29B(2) above, and to every person present at the hearing who requested that notice be sent to him or her and stated the address to which such notice was to be sent.
(7)
Each such notice shall specify that appeals, if any,
shall be made pursuant to MGL c. 40A, § 17, and shall be
filed within 20 days after the date of filing such notice of decision
in the office of the Town Clerk.
(8)
No decision granting an appeal shall take effect until
a copy of the decision has applied to it the certification of the
Town Clerk that:
(a)
Twenty days have elapsed after the decision
has been filed in the office of the Town Clerk and no court appeal
has been filed; or
(b)
If such court appeal has been filed, it has
been acted upon finally and favorably to the applicant, and the decision
copy with such certification is recorded in the Nantucket Registry
of Deeds and indexed in the grantor index under the name of the owner
of record or is registered and noted on the owner's certificate of
title. (The fee for recording or registering shall be paid by the
owner or applicant.)
F.
Upon failure to act.
(1)
Failure by the Board of Appeals to act within said
100 days or extended time, if applicable, shall be deemed to be the
grant of the appeal.
(2)
The petitioner who seeks such approval by reason of
the failure of the Board of Appeals to act within the time prescribed,
shall notify the Town Clerk, in writing, within 14 days from the expiration
of said 100 days or extended time, if applicable, of such approval
and that notice has been sent by the petitioner to the parties in
interest.
(3)
The petitioner shall send such notice by mail to parties in interest and to those specified in § 139-29B(2), and each such notice shall specify that appeals, if any, shall be made pursuant to MGL c. 40A, § 17, and shall be filed within 20 days after the date the Town Clerk received such written notice from the petitioner that the Board of Appeals failed to act within the time prescribed.
(4)
After the expiration of 20 days without notice of appeal to the Superior Court pursuant to § 139-31F(3) or, if appeal has been taken, after receipt of certified records of the Superior Court indicating such approval by reason of the failure of the Board of Appeals to act has become final, the Town Clerk shall issue a certificate stating the date of approval, the fact that the Board of Appeals failed to take final action and that the approval resulting from such failure has become final. Such certificate shall be forwarded to the appellant.
(5)
If an appeal has been granted by reason of the failure of the Board of Appeals to act thereon within the time prescribed in § 139-31F above, it shall not take effect until a copy of the application for grant of an appeal accompanied by the certification of the Town Clerk stating the fact that:
(a)
The Board of Appeals failed to act within the
time prescribed; and
(b)
No court appeal has been filed and that the
grant of the application or petition resulting from such failure to
act has become final; or
(c)
If a court appeal has been filed, it has been
decided finally and favorably to the applicant, is recorded in the
Nantucket Registry of Deeds and indexed in the grantor index under
the name of the owner of record or is registered and noted on the
owner's certificate of title. (The fee for recording or registering
shall be paid by the owner or applicant.)
G.
Appeal to courts. Any person aggrieved by a decision
of the Board of Appeals (or by its failure to take final action upon
an appeal within the prescribed time), whether or not previously a
party to the proceeding, or any municipal officer or board may appeal
to the Superior Court for Nantucket County or to the Land Court under
MGL c. 240, § 14A, by bringing an action within 20 days
after the decision has been filed in the office of the Town Clerk
(or after the date the Town Clerk received written notice from the
petitioner that the Board of Appeals failed to act within the prescribed
time). Procedures for appealing to the courts are found in the Zoning
Act of Massachusetts, MGL c. 40A, § 17.
H.
Appeal rehearing limit. No appeal which has been unfavorably
and finally acted upon by the Board of Appeals shall be acted upon
favorably within two years after the date of final unfavorable action,
unless the Board of Appeals finds, by the favorable vote of at least
four members, specific and material changes in the conditions upon
which the previous unfavorable action was based and describes such
changes in the record of its proceedings and unless all but one of
the members of the Planning Board consent 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.
A.
The Board of Appeals shall have the power to grant
upon appeal or upon petition, with respect to particular land or structures,
a variance from the terms of this chapter where the Board of Appeals
specifically finds that 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 this chapter would involve substantial hardship, financial
or otherwise, to the petitioner or appellant, and the desirable relief
may be granted without substantial detriment to the public good and
without nullifying or substantially derogating from the intent or
purpose of such bylaw.
B.
Conditions and limitations upon variances.
(1)
The Board of Appeals may impose conditions, safeguards
and limitations, both of time and of 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 structures to which the variance pertains by the applicant,
petitioner or any owner.
(2)
No variance may authorize a use or activity not otherwise
permitted in the zoning district in which the land or structure is
located.
C.
Filing of application for a variance.
(1)
A petition for a variance over which the Board of
Appeals or the Zoning Administrator, as the case may be, exercises
original jurisdiction shall be filed by the petitioner with the Town
Clerk.
(2)
A copy of said application or petition, including
the date and time of filing certified by the Town Clerk, shall be
transmitted forthwith by the petitioner to the Board of Appeals or
to the Zoning Administrator.
(3)
The Board of Appeals shall adopt and, from time to
time, amend rules relative to the form of the application or petition
and the grant of variances and shall file a copy of said rules in
the office of the Town Clerk. Such rules shall prescribe the size,
form, contents, style and number of copies of plans and specifications
and the procedure for the submission and approval of such petitions.
(4)
Any petition for a variance 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. Thereafter, a petition can be withdrawn without prejudice
only with the approval of the Board of Appeals.
D.
Review by other agencies.
(1)
Applications for variances may be referred by the
Board of Appeals to any Nantucket boards, commissions, departments,
workgroups, and officers for their review and comment.
[Amended 4-6-2011 ATM by Art. 64, AG approval 9-15-2011]
(2)
Any such reviewing party shall make such recommendations
as it deems appropriate and shall send copies thereof to the Board
of Appeals and to the applicant.
(3)
Applications for variances before the Board of Appeals,
together with supporting materials, shall be submitted by the Board
of Appeals, one copy to the Planning Board, one copy to the Zoning
Enforcement Officer for review and comment forthwith upon receipt
of the application.
[Amended 4-10-2000 ATM by Art. 46, AG approval
8-2-2000]
E.
Public hearing for a variance.
(1)
The Board of Appeals shall hold a public hearing on any application or petition for a variance within 65 days from the receipt by the Board of Appeals of notice pursuant to Subsection C(2) above of such petition.
(2)
The Board of Appeals shall cause notice of such hearing to be published and sent to parties in interest as provided by the Zoning Act of Massachusetts, MGL c. 40A, § 11, and to others pursuant to § 139-29B(2) above.
[Amended 4-15-2003 ATM by Art. 26, AG approval 8-27-2003]
F.
Action on variances by Board of Appeals.
(1)
The decision of the Board of Appeals shall be made
within 100 days after the date of the filing of a petition.
(2)
The required time limits for such public hearing and for the action required in Subsection F(1) above may be extended by written agreement between the petitioner and the Board of Appeals. A copy of such agreement shall be filed in the office of the Town Clerk.
(3)
The concurring vote of four members of the Board of
Appeals shall be necessary to effect any variance in the application
of any zoning bylaw.
(4)
The Board of Appeals shall cause to be made a detailed
record of its proceedings, indicating the vote of each member upon
each question, or if absent or failing to vote, indicating such fact,
and setting forth clearly the reason for its decision and its actions.
(5)
Copies of the decision made of record pursuant to Subsection F(4) above shall be filed within 14 days in the office of the Town Clerk, together with a notice of the decision, and shall be deemed a public record.
(6)
Notice of the decision shall be mailed forthwith to the petitioner, to the parties in interest designated in MGL c. 40A, § 11, and to persons included pursuant to § 139-29B(2) above, and to any person present at the hearing who requested that notice be sent to him or her and stated the address to which such notice was to be sent.
[Amended 4-15-2003 ATM by Art. 26, AG approval 8-27-2003]
(7)
Each such notice shall specify that appeals, if any,
shall be made pursuant to MGL c. 40A, § 17, and shall be
filed within 20 days after the date of filing such notice of decision
in the office of the Town Clerk.
(8)
No variance, or any extension, modification or renewal
thereof, shall take effect until a copy of the decision shall have
had affixed to it the certification of the Town Clerk that:
(a)
Twenty days have elapsed after the decision
has been filed in the office of the Town Clerk and no court appeal
has been filed; or
(b)
If such court appeal has been filed, it has
been acted upon finally and favorably to the applicant, and the decision
copy with such certification is recorded in the Nantucket Registry
of Deeds and indexed in the grantor index under the name of the owner
of record or is registered and noted on the owner's certificate of
title. (The fee for recording or registering shall be paid by the
owner or applicant.)
G.
Upon failure to act.
(1)
Failure by the Board of Appeals to take final action
within said 100 days or extended time, if applicable, shall be deemed
to be a grant of the petition.
[Amended 5-5-1992 ATM by Art. 36, AG approval
8-3-1992]
(2)
The petitioner who seeks such approval by reason of
the failure of the Board of Appeals to act within such time prescribed
shall notify the Town Clerk, in writing, within 14 days from the expiration
of said 100 days or extended time, if applicable, of such approval
and that notice has been sent by the petitioner to the parties in
interest.
(3)
The petitioner shall send such notice by mail to parties in interest and to those specified in § 139-29B(2), and each such notice shall specify that appeals, if any, shall be made pursuant to MGL c. 40A, § 17, and shall be filed within 20 days after the date the Town Clerk received such written notice from the petitioner that the Board of Appeals failed to act within the time prescribed.
[Amended 4-15-2003 ATM by Art. 26, AG approval 8-27-2003]
(4)
After the expiration of 20 days without notice of appeal to the Superior Court pursuant to § 139-32G(3) or, if appeal has been taken, after receipt of certified records of the Superior Court indicating such approval by reason of the failure of the Board of Appeals to act has become final, the Town Clerk shall issue a certificate stating the date of approval, the fact that the Board of Appeals failed to take final action and that the approval resulting from such failure has become final. Such certificate shall be forwarded to the appellant.
(5)
If a variance has been approved by reason of the failure of the Board of Appeals to act thereon within the time prescribed in § 139-32F above, it shall not take effect until a copy of the petition for the variance accompanied by the certification of the Town Clerk stating the fact that:
(a)
The Board of Appeals failed to act within the
time prescribed; and
(b)
No court appeal has been filed, and that the
grant of the petition resulting from such failure to act has become
final; or
(c)
If a court appeal has been filed, it has been
decided finally and favorably to applicant, is recorded in the Nantucket
Registry of Deeds and indexed in the grantor index under the name
of the owner of record or is registered and noted on the owner's certificate
of title. (The fee for recording or registering shall be paid by the
owner or applicant.)
H.
Appeal to courts. Any person aggrieved by a decision
of the Board of Appeals (or by its failure to take final action upon
an appeal within the prescribed time), whether or not previously a
party to the proceeding, or any municipal officer or board may appeal
to the Superior Court for Nantucket County or to the Land Court under
MGL c. 240, § 14A, by bringing an action within 20 days
after the decision has been filed in the office of the Town Clerk
(or after the date the Town Clerk received written notice from the
petitioner that the Board of Appeals failed to act within the prescribed
time). Procedures for appealing to the courts are found in the Zoning
Act of Massachusetts, MGL c. 40A, § 17.
I.
Expiration of variances. Variances not exercised within
one year of the date of grant shall lapse. Variances shall be renewable
prior to expiration, as provided in MGL c. 40A, § 10, for
a period not to exceed six months, without the filing of a new application
and without a new public hearing and public notice. Any further renewal
of a variance shall require a new application, public notice, and
public hearing thereof.
[Amended 5-7-1991 ATM by Art. 31, AG approval
9-6-1991]
J.
Variance rehearing limit. No application for a variance
which has been unfavorably and finally acted upon by the Board of
Appeals shall be acted upon favorably within two years after the date
of final unfavorable action unless said Board of Appeals finds by
favorable vote of at least four members, specific and material changes
in the conditions upon which the previous unfavorable action was based
and describes such changes in the record of its proceedings and unless
all but one of the members of the Planning Board consent 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.