Town of Nantucket, MA Administration and Enforcement

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.

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.

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 time limit, not to exceed five days, shall be permitted to allow for the necessary correction of the violation.

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.

Penalty.

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]

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.

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.

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]

§ 139-26 Issuance of building and use permits.

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]

Demolition delay.

Statement of purpose. The purpose of this section is to establish a predictable process for reviewing requests to demolish residential structures in order to:

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;

Minimize the quantity of demolition debris ending up in the landfill;

Create an incentive for reuse of residential structures;

[4]

Give interested parties an opportunity to acquire reusable residential structures.

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.

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:

It is determined that demolition is necessary, pursuant to Subsection A(1)(d) below.

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.

The demolition delay period set forth in Subsection A(1)(f) below has expired.

(d)

Required demolition or repair.

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.

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.

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.

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.

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.

(Reserved)

(Reserved)

[4]

After its receipt of an application, pursuant to this Subsection A(1)(f), the following determinations shall be made:

[a]

Whether immediate demolition is required pursuant to Subsection A(1)(d); and

[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.

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.

Accompanying documents. The application for a building or use permit shall be accompanied by the following documents, if applicable:

Certificate of appropriateness issued by the Nantucket Historic Districts Commission pursuant to Ch. 395, Acts of 1970, as amended.

Sewer permit.

For on-site septic systems issued by the Nantucket Board of Health pursuant to Title V, § 3.7, of the State Environmental Code.

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.

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.

Water well completion report establishing availability of water on property, if public water supply is unavailable.

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]

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]

He shall inform the applicant of his right of appeal to the Board of Appeals in the event such application is rejected.

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.

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.

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.

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.

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.

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]

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.

§ 139-27 (Reserved)

§ 139-28 Occupancy permits.

Permanent occupancy.

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.

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.

No occupancy permit shall be issued unless and until the Building Inspector receives a written certification by the Nantucket Historic District Commission that:

Such building or structure has been constructed, moved, altered, or added to in compliance with the certificate of appropriateness issued by the Commission for such building or structure; or

A certificate of nonapplicability has been issued by the Commission for such building or structure.

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:

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.

The as-built plot plan shall be drawn to scale and shall be signed and sealed by a registered surveyor or engineer.

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]

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.

A written certification by the Nantucket Historic District Commission that:

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

Certificates of nonapplicability have been issued by the Commission for such buildings or structures; provided, however, that:

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.

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.

§ 139-29 Zoning Board of Appeals.

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]

Any member may be removed for cause by the Select Board upon written charges and after a public hearing.

Vacancies shall be filled for unexpired terms in the same manner as in the case of original appointments.

The Chairman of the Board of Appeals may designate any associate member to sit on the Board of Appeals in case of absence, inability to act or conflict of interest on the part of any member thereof or, in the event of a vacancy, until said vacancy is filled as provided in this § 139-29A.

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.

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.

(Reserved)[1]

Editor’s Note: Former Subsection B(2), regarding notice to abutting landowners, was repealed 4-2-2016 ATM by Art. 60, AG approval 7-12-2016.

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]

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.

Zoning Administrator.

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]

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.

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.

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.

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.

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 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.

The Zoning Administrator shall forthwith transmit to the Board of Appeals all documents and papers constituting the case in which the appeal is taken.

(Reserved)[2]

Editor’s Note: Former Subsection D, regarding employment of experts and clerical and other assistants, was repealed 4-2-2016 ATM by Art. 60, AG approval 7-12-2016.

Board of Appeals powers.

The Board of Appeals shall have the following powers:

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]

To hear and decide appeals from decisions of the Building Inspector.

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]

(e)

To hear and decide appeals from decisions of the Zoning Administrator.

[Amended 4-6-2015 ATM by Art. 64, AG approval 8-5-2015[3]]

Editor's Note: This enactment also repealed former Subsection E(1)(f), granting authority to the Chair to administer oaths, summon witnesses, and request evidence.

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.

§ 139-30 Special permits.

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]

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.

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.

Application for special permit.

Each application for a special permit shall be filed by the petitioner or applicant with the Town Clerk.

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.

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.

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.

Public hearing.

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.

Notice of said hearing shall be given as provided in MGL c. 40A, § 11, and in § 139-29B(2) above.

Review by other agencies.

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]

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.

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]

Action by the Board of Appeals or Planning Board.

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.

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.

Special permits issued by the special permit granting authority shall require the favorable vote of at least four members.

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.

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.

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]

Upon failure to act.

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.

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.

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]

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:

Issue a certificate stating the date of approval, the fact that the special permit granting authority failed to take final action and that the approval resulting from such failure has become final.

Such certificate shall be forwarded to the appellant.

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:

The special permit granting authority failed to act within the time prescribed; and

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

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.)

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.

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]

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]

(Reserved)[1]

Editor’s Note: Former Subsection J, Alternate members of Planning Board, as amended, was repealed 4-2-2016 ATM by Art. 60, AG approval 7-12-2016.

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.

§ 139-31 Appeals.

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]

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

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.

Filing of notice of appeal.

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.

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.

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.

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.

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.

Public hearing on appeals.

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.

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.

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.

Action by the Board of Appeals.

The decision of the Board of Appeals shall be made within 100 days after the date of filing of an appeal.

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.

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.

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.

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:

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

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.)

Upon failure to act.

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.

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.

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.

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.

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:

The Board of Appeals failed to act within the time prescribed; and

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

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.)

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.

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.

§ 139-32 Variances.

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.

Conditions and limitations upon variances.

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.

No variance may authorize a use or activity not otherwise permitted in the zoning district in which the land or structure is located.

Filing of application for a variance.

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.

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.

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.

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.

Review by other agencies.

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]

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.

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]

Public hearing for a variance.

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.

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]

Action on variances by Board of Appeals.

The decision of the Board of Appeals shall be made within 100 days after the date of the filing of a petition.

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.

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.

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.

[Amended 4-15-2003 ATM by Art. 26, AG approval 8-27-2003]

(7)

(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:

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

Upon failure to act.

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]

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.

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]

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.

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:

The Board of Appeals failed to act within the time prescribed; and

No court appeal has been filed, and that the grant of the petition resulting from such failure to act has become final; or