The intent and purpose of this article is to provide the specific means by which this chapter is administered, enforced, varied and amended.
The duty of administering and enforcing the provisions of this chapter is hereby conferred upon the Building Inspector, who shall have such powers as are conferred upon him by this chapter and as reasonably may be implied. He shall be appointed as presently specified by the bylaws of the Town of Wakefield.
It shall be the duty of the Building Inspector, or his duly authorized agents, to cause any plans, buildings or premises to be examined or inspected to determine that they are not in violation of provisions of this chapter as provided by MGL c. 40A, § 7.
When the Building Inspector, in the course of his or her duties, determines that any plans, buildings or premises are in violation of the provisions of this chapter, he or she shall order the responsible party, in writing, to remedy such conditions. Said written order shall specify the nature of the violation found to exist, the remedy ordered, the time permitted for such action and the penalties and remedies which may be invoked by the Town and the violator's right of appeal, all as provided for by this chapter.
On the serving of notice by the Building Inspector to the owner for any violation of any provisions of this chapter, the certificate of occupancy shall be considered null and void, and a new certificate of occupancy shall be required for any further use of such building or premises unless the above written order provides otherwise.
The Building Inspector shall maintain a permanent public record of all matters considered and all action taken by him, and such records shall form a part of the records of his office.
An individual permanent file for each application by street address for a permit provided for by this chapter shall be established at the time the application is made. Said file shall contain one copy of the application and all supporting documents, maps and plans; notations regarding pertinent dates and fees and the like; as appropriate, one copy of the resolution of the special permit granting authority or the Board of Appeals in acting on the application; and the date the permit applied for was issued or denied by the Building Inspector.
If the Building Inspector is requested, in writing, to enforce this chapter against any person allegedly in violation of the same and the Building Inspector declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act and the reasons therefor within 14 days after such receipt.
The Building Inspector shall prepare a monthly report. Said report shall cite all actions taken by the Building Inspector, including all referrals made, all permits and certificates issued and denied, all complaints of violations received, all violations found and the action taken consequent thereon. A copy of this monthly report shall be transmitted by the Building Inspector to the Board of Selectmen, the Board of Assessors, the Planning Board and the Board of Appeals.
It shall be unlawful for any owner or person to erect, construct, reconstruct or alter a structure, including a sign, or change the use or lot coverage, increase the intensity of use or extend or displace the use of any building, other structure or lot without applying for and receiving from the Building Inspector the required building permit therefor. For purposes of administration, such permit and application procedure involving a structure may be made at the same time and combined with the permit required under the Building Code.
An application for a permit shall be accompanied by a plan, accurately drawn on a scale of one inch equals 40 feet, prepared and stamped by a registered engineer or land surveyor showing the actual shape and dimensions of the lot to be built upon, the exact location and size of all buildings or structures already on the lot, the location of new buildings or structures to be constructed, together with the lines within which all buildings or structures are to be erected, the existing and intended use of each building or structure and such other information as may be necessary to provide for the execution and enforcement of this chapter.
No permit shall be issued under this section if the building, structure or lot as constructed, altered, relocated or used would be in violation of any provision of this chapter. Whenever such permit or license is refused because of some provisions of this chapter, the reason therefor shall be clearly stated in writing. The Building Inspector shall taken action on an application for permit, either granting the permit or disapproving the application, within 30 days of receipt of the application.
Construction under a building permit shall begin within six months after the date of issuance and shall continue through to completion as continuously and expeditiously as is reasonable.
No building hereafter erected, altered substantially in its use or extent or relocated shall be used or occupied, and no change shall be made of the use of any building or of any parcel of land, unless a certificate of occupancy signed by the Building Inspector has been granted to the owner for occupancy of such land or building. Such certificate shall not be granted unless the proposed use of the land and building and all accessory uses comply in all respects with this chapter and if use shall be made of such land or building that is not authorized by such certificate of occupancy.
Fees shall be established from time to time for this chapter by the Town Meeting of the Town of Wakefield. These fees are set forth in Article XII of this chapter.
If the Building Inspector shall be informed in writing or have reason to believe that any provision of this chapter has been, is being or may be violated, he shall make or cause to be made an investigation of the facts and inspect the property where the violation may exist. If he shall find any such violation, he shall serve a notice of violation and order to any owner or person responsible for such violation of any approved plan, information or drawing pertinent thereto or in violation of a permit or certificate issued under the provisions of this chapter, and such order shall direct the discontinuance of the unlawful action, use or condition and the abatement of the violation within a reasonable time to be specified by the Building Inspector. Any owner having been served with a notice and who ceases any work or other activity shall not leave any structure or lot in such condition as to be a hazard or menace to the public safety, health or general welfare.
[Amended 6-5-1989 ATM by Art. 48; 4-5-1999 ATM by Art. 23]
If the notice of violation and order is not complied with promptly, the Building Inspector shall institute the appropriate action or proceeding at law or in equity to prevent any unlawful action, use of condition and to restrain, correct or abate such violation. Penalties for violations shall, upon conviction, be affixed in the sum of $100 for each offense. Each day, or portion of a day, that any violation is allowed to continue shall constitute a separate offense. Any alleged violation of any of the provisions of this chapter may, in the sole discretion of the Building Inspector or his designee, be made the subject matter of proceedings initiated by the Building Inspector pursuant to the provisions of MGL c. 40, § 21D, that is disposition. If the Building Inspector so elects to proceed under MGL c. 40, § 21D, all the terms and provisions of such chapter and section shall thereafter govern said action.
Membership. There shall be a Zoning Board of Appeals (hereafter called "Board of Appeals") consisting of five members and three associate members. All members of said Board of Appeals shall be registered voters in the Town of Wakefield. The Board of Appeals shall annually elect a Chairman and a Clerk from its membership.
[Amended 12-15-1997 STM by Art. 8]
Appointment. Members of the Board of Appeals in office at the effective date of this chapter shall continue in office for the duration of their appointed terms. However, as terms expire or vacancies occur, the Board of Selectmen shall make appointments pursuant to MGL c. 40A (the Zoning Act) and the bylaws of the Town of Wakefield.
Under this chapter, the Board of Appeals shall have the following powers:
To hear and decide appeals.
To hear and decide applications for certain special permits referred to in this chapter.
In exercising the powers under Subsection C(1) above, the Board of Appeals may impose limitations both of time and use, and a continuation of the use permitted may be conditioned upon compliance with regulations to be made and amended from time to time thereafter.
In exercising these powers, the Board of Appeals may, in conformity with the provisions of this chapter and the Zoning Act, reverse or affirm, in whole or in part, or may modify any order or decision and may make such order or decision as ought to be made 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.
Adoption of rules. The Board of Appeals shall adopt rules, pursuant to the Zoning Act and not inconsistent with the provisions of the bylaws of the Town, for conducting its business and otherwise carrying out the purposes of this chapter. A copy of such rules shall be filed in the office of the Town Clerk.
Editor's Note: See MGL c. 40A.
Meetings of the Board of Appeals shall be held at the call of the Chairman or when called in such other manner as the Board of Appeals shall determine in its rules. The Board of Appeals shall hold a hearing on any appeal, application or petition. The Board of Appeals shall cause notice of such hearing to be published and sent to parties in interest as provided for in MGL c. 40A and shall notify the Planning Board of Wakefield and the Planning Board of adjacent cities and Towns which may forward recommendations with respect to said matter for the consideration of the Board of Appeals. The Chairman or, in his absence, the Acting Chairman may administer oaths, summon witnesses and call for the production of papers. The vote of at least four members of the Board of Appeals shall be necessary to reverse any order or decision of the Building Inspector or Zoning Administrator, if any, under this chapter.
[Amended 5-17-1993 ATM by Art. 37; 4-4-2002 ATM by Art. 19]
Any person, as defined by MGL c. 40A, § 8, aggrieved by reason of his inability to obtain a permit from the Building Inspector under the provisions of this chapter or by order or decision of the Building Inspector may take an appeal to the Board of Appeals.
Appeals pursuant to MGL c. 40A, § 8 shall be taken within 30 days from the date of the order or decision which is being appealed by filing a notice of appeal, specifying the grounds thereof, with the Town Clerk, who shall forthwith transmit copies thereof to such officer whose order or decision is being appealed and to the Board of Appeals. The Building Inspector shall forthwith transmit to the Board of Appeals all documents and papers constituting the record of the area in which the appeal is taken.
All hearings of the Board of Appeals shall be open to the public. The decision of the Board shall be made within 75 days after the date of the filing of an appeal, application or petition, except in regard to special permits, when the decision shall be made within 90 days after the public hearing. Failure by the Board to act within said 75 days shall be deemed to be grant of the relief, application or petition sought, subject to an applicable judicial appeal. 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 or reasons for its decision and of its official actions, copies of all of which shall be filed within 14 days in the office of the Town Clerk and shall be a public record, and notice of the decision shall be mailed forthwith to the petitioner, applicant or appellant, to the parties in interest designated in MGL c. 40A, § 11 and to every person present at the hearing who requested that notice be sent to him and stated the address to which such notice was to be sent. Each 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 of such notice in the office of the Town Clerk.
Further appeals. Any person aggrieved by a decision of the Board of Appeals, whether or not previously a party to the proceeding, or any municipal officer or board may appeal to the Superior Court or to the Land Court under MGL c. 240, § 14A for the county in which the land concerned is situated by bringing an action within 20 days after the decision has been filed in the office of the Town Clerk. Notice of the action with a copy of the complaint shall be given to the Town Clerk so as to be received within such 20 days. The complaint shall allege that the decision exceeds the authority of the Board of Appeals, and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled. There shall be attached to the complaint a copy of the decision appealed from, bearing the date of filing thereof, certified by the Town Clerk with whom the decision was filed.
The Board of Appeals shall have the power, after giving appropriate public hearing notice as described in § 190-68 hereof and after holding said hearing within 65 days after the Board of Appeals receives the petition from the Town Clerk, to grant upon appeal or upon petition a variance from the terms of this chapter where the Board of Appeals 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 that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter.
A request for a variance from the provisions of this code shall be filed with the Zoning Board of Appeals in accordance with § 190-73D. An appeal of a decision of the Zoning Board of Appeals regarding a variance shall be filed in the same manner as described under § 190-65D hereof.
[Amended 4-8-2002 ATM by Art. 39]
The decision of the Board of Appeals shall be made within one hundred days of the filing of the petition. The time period for holding of the public hearing is inclusive of the one-hundred-day period.
[Amended 4-4-2002 ATM by Art. 20]
No variance shall be granted unless there is a concurring vote of at least four members of the Board of Appeals.
[Amended 4-4-2002 ATM by Art. 21]
If the Board of Appeals fails to act within the specified time period, the petition shall be deemed to be granted for the relief sought.
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 conditions, safeguards or limitations based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner.
If the rights authorized by a variance are not exercised within one year of the date of grant of such variance they shall lapse and may be reestablished only after notice and a new hearing pursuant to this section.
The decision regarding the variance shall contain:
The name and address of the owner.
An identification of the land and/or structure affected.
Description of how the variance complies with the statutory requirements for issuing a variance.
Certification that copies of the decision have been filed with the Planning Board and the Town Clerk.
Specification that appeals, if any, shall be made pursuant to MGL c. 40A, § 17 and shall be filed within 20 days after the date the notice of decision was filed with the Town Clerk.
No appeal, application or petition which has been unfavorably and finally acted upon by the Board of Appeals or by another Town agency or board shall be acted favorably upon within two years after the date of final unfavorable action unless the acting board or agency finds, by a unanimous vote, specific and material changes in the conditions upon which 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 (as defined in § 190-68B hereof) of the time and place of the proceedings when the question of such consent will be considered.
Any petition for a variance or application for a special permit 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 but thereafter may be withdrawn without prejudice only with the approval of the Board of Appeals.
In all cases where notice of a public hearing is required, notice shall be given by publication in a newspaper of general circulation in the Town once in each of two successive weeks, the first publication to be not less than 14 days (not including the date of the hearing) before the day of the hearing, and by posting such notice in a conspicuous place in the Town Hall for a period of not less than 14 days before the day of such hearing (not including the date of the hearing). In all cases where notice to individuals or specific boards or other agencies is required, notice shall be sent by mail, postage prepaid.
"Parties in interest," as used in this chapter, shall mean the petitioner; abutters; owners of land directly opposite on any public or private street or way and owners of land within 300 feet of the property line, all as they appear on the most recent applicable tax list, notwithstanding that the land of any such owner is located in another city or Town; and the Planning Board of the Town and the Planning Board of every abutting city or Town. The Assessors maintaining any applicable tax list shall certify to the Board of Appeals the names and addresses of parties in interest, and such certification shall be conclusive for all purposes. The Board of Appeals may accept a waiver of notice from or an affidavit of actual notice to any party in interest or, in his stead, any successor owner of record who may not have received a notice by mail and may order special notice to any such person, giving no less than five nor more than 10 additional days to reply.
Publications and notices required by this section shall contain the name of the petitioner, a description of the area or premises, street address, if any, or other adequate identification of the location of the area or premises which is the subject of the petition, the date and place of the public hearing, the subject matter of the hearing and the nature of the section or relief requested, if any. No such hearing shall be held on any day on which a state or municipal election, caucus or primary is held in Wakefield.