Town of Harvard, MA General and Administrative

An appeal to the Board of Appeals may be taken as provided in the Zoning Act, Sections 8 and 15:

By any person aggrieved by reason of his inability to obtain a permit, approval, or enforcement action from any administrative officer or board under the provisions of the Zoning Act or of this Bylaw; or

By any person aggrieved by an order or decision of the Building Commissioner or other administrative officer, in violation of the Zoning Act or of this Bylaw.

(c)

By any official or board of the Town of Harvard.

An appeal shall be taken within 30 days from the date of the refusal, order, or decision which is being appealed, by filing a notice of appeal, specifying the grounds thereof, with the Town Clerk, who shall record the date of filing thereon and at once transmit a copy to the Board of Appeals and a copy to the officer or board whose refusal, order, or decision is being appealed.[1]

Note: Eleven copies of a petition for variance (rather then three) are currently required by the Board of Appeals.

Variances.

The Board of Appeals may, as provided in the Zoning Act, Sections 10 and 11, authorize with respect to particular land or structures a variance from the terms of the Bylaw where the Board finds that:

Literal enforcement of the Bylaw provisions would involve substantial hardship, financial or otherwise, to the petitioner; and

There are circumstances relating to soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting the district generally; and

(c)

The hardship is owing to said circumstances; and

(d)

Desirable relief may be granted:

Without substantial detriment to the public good; and

[2]

Without nullifying or substantially derogating from the intent or purpose of the Bylaw.

No variance shall authorize a use or activity not otherwise permitted in the district in which the land or structure is located. The Board may impose conditions, safeguards, and limitations of time and of use, including those on continued existence of any particular structures, but excluding those based on continued ownership. It is the intent, if a variance is authorized:

That the variance be the minimum giving reasonable relief; and

That the Board shall impose as a part of such authorization such conditions, safeguards, and limitations as may be appropriate for protection of the neighborhood and the community.

Three copies of any petition for variance shall be filed with the Town Clerk, who shall record the date of filing thereon and at once transmit a copy to the Board of Appeals and a copy to the Planning Board.[2] Each copy shall include the site plan (see § 125-38, Site plans). If a site plan is required only by virtue of this provision, only § 125-39A(1) shall apply.

[2]

Note: Eleven copies of a petition for variance (rather then three) are currently required by the Board of Appeals.

(4)

If the rights authorized by a variance are not exercised within one year of granting of such variance, they shall expire.

§ 125-46 Special permits.

[Added 12-11-1967 STM by Art. 5; amended 3-22-1969 ATM by Art. 41; 3-6-1971 ATM by Art. 34; 3-25-1978 ATM by Art. 23]

(See Zoning Act, Sections 9 and 11, and also G.L. Chapter 41, Section 81I). Uses for which the Bylaw requires a special permit may be authorized only by one of the following special permit granting authorities, the Board of Appeals, the Planning Board, the Select Board, as specified in the Bylaw for the particular class of special permit, after application, notice, public hearing, and decision as specified in the Zoning Act and in such special permit rules as may be adopted by the individual special permit granting authorities. No other Town board may grant a special permit, or base an action on the assumption that a particular special permit will be granted.

[Amended 3-28-1981 ATM by Arts. 23 and 25; 3-27-1982 ATM by Art. 42; 11-7-1992 STM by Art. 3; 10-22-2018 STM by Art. 2]

Special permit applications.

[Amended 4-5-1986 ATM by Art. 35; 11-7-1992 STM by Art. 3; 3-25-1995 ATM by Art. 24]

Any application for special permit shall be addressed to the authorizing board, and at least three copies shall be filed by the applicant with the Town Clerk.[1] (A larger number may be required by the rules adopted by a particular board.) The Town Clerk shall record the date thereon and at once transmit a copy to the authorizing board and a copy to the Planning Board. Each copy shall include a site plan prepared in accordance with § 125-38, Site plans, and shall include such additional features as the authorizing board may require to show compliance with Bylaw requirements for the particular use.

Note: Eleven copies of an application for special permit (rather than three) are currently required by the Board of Appeals if it is the authorizing board.

Exception. Where, for a particular class of special permit, the Bylaw does not specify site plan approval or compliance with site standards, and where the authorizing board finds after a duly noticed public hearing that for such particular class a less extensive site plan is sufficient, it may incorporate such explicit lesser standards for that site plan into its rules of procedure.

The burden rests on the applicant to support the application by specific, detailed, clear and convincing evidence on each matter relevant to it under the Bylaw.

Advice from Planning Board or other Town boards. (See Zoning Act, Section 11, and G.L. Chapter 41, Section 81I.)

[Amended 11-7-1992 STM by Art. 3]

If the authorizing board is other than the Planning Board, after such other board accepts the application and receives supporting information, such other board shall transmit the application and information to the Planning Board for its advice. The authorizing board may not take final action on the application until after the Planning Board transmits its advice or has allowed 35 days to pass without doing so. If the application is substantially revised, the Planning Board shall have 35 days (after it is notified of the change) to give further advice, except that the time shall not extend beyond the close of evidence at a public hearing. If the decision differs from the advice of the Planning Board, the authorizing board shall state the reasons therefor in its decision.

The authorizing board may refer an application also to the Conservation Commission, the Historical Commission, the Director of Public Works, the Building Commissioner, or to any Town board for formal comment or advice; if such formal advice is sought in writing, the authorizing board shall not take final action on the application until such advice or comment is received or until 35 days have elapsed after the transmittal of the request.

[Amended 10-22-2018 STM by Art. 2]

Nothing in this section shall be interpreted so as to require a determination, or to set a thirty-five-day time limit, on a matter for which a separate approval is required under this Bylaw, nor on a matter for which the process for action is specified by other provisions of law.

Special permit authorization.

[Amended 4-5-1986 ATM by Art. 35; 11-7-1992 STM by Art. 3]

A special permit shall be authorized only subject to applicable provisions of § 125-39, Site standards, and any special requirements for the particular class of special permit and only if, in addition, the authorizing board finds that the granting of the permit:

Will not result in substantial increase of volume or rate of surface water runoff to neighboring properties and streets, and will not result in substantial danger of pollution or contamination of the groundwater supply, a groundwater absorption area, a well, pond, stream, watercourse, W District, or inland wetland. Any and all surface water runoff resulting from development shall be retained within the lot in which it originates or shall be discharged into existing identifiable watercourses without material impact on abutting properties.

Will, if the use is not agricultural or residential, result in no substantial increase in traffic, compared to refusal of the permit, on any residential street where the premises have access; and

(c)

Will be in harmony with the general purpose and intent of the Bylaw, including each purpose stated in § 125-1, Purpose, which is pertinent to the particular application.

The applicant shall show satisfactorily that the use will comply with the Bylaw including in particular § 125-20. If a special permit is authorized, the authorizing board shall impose as a part of such permit conditions, safeguards, and limitations of time and use, in addition to any specifically provided in the Bylaw, as may be appropriate for protection of the neighborhood, the community, and the natural environment, including the groundwater supply, a groundwater absorption area, or other wetland resource.

Special permit validity.

[Amended 3-28-1987 ATM by Art. 61; 11-7-1992 STM by Art. 3]

A special permit shall lapse two years from the date the permit is issued (plus time required for making or resolving judicial appeals as provided in Section 17 of the Zoning Act) if substantial use under the special permit has not sooner commenced except for good cause, or, in the case of a permit for construction, if construction has not begun by such date except for good cause.

Construction or operations under a special permit shall conform to subsequent amendment of the Bylaw unless the use or construction is commenced within six months after issuance of the special permit, and in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable. (See the Zoning Act, Section 6.)

Associate member. An associate member of the Planning Board may be appointed by a majority vote of the Select Board to serve for a term of one year. The Chair of the Planning Board may designate the associate member to sit on the Board for the purposes of acting on the special permit application, in the case of absence, inability to act, or conflict of interest on the part of any member of the Planning Board or in the event of a vacancy on the Board.

[Added 4-6-1991 ATM by Art. 20; amended 10-22-2018 STM by Art. 2]

Comprehensive permits. Comprehensive permits are issued by the Board of Appeals under the provisions of G.L. Chapter 40B, Sections 20 to 23, to provide for low- and moderate-income housing. Comprehensive permits shall have also the status of special permits and variances under this Bylaw, authorized by majority vote of the Board of Appeals in accordance with the standards and procedures specified by law for comprehensive permits.

[Added 3-27-1993 ATM by Art. 27]

§ 125-47 Repetitive appeals, petitions and applications.

[Added 3-25-1978 ATM by Art. 23]

No appeal, petition for variance, or application for special permit which has been unfavorably and finally acted upon shall be favorably acted upon within two years unless the authorizing board describes and finds material changes in conditions, unanimously for a three-member board or by four-fifths vote for a five-member board, and the Planning Board, after due notice, consents by vote of all but one member, as provided in the Zoning Act, Section 16.

§ 125-48 Judicial appeals.

[Added 3-25-1978 ATM by Art. 23; amended 3-27-1993 ATM by Art. 30]

Whether or not previously party to the proceeding, any Town official or Town board, or any person aggrieved, may appeal a decision of the Board of Appeals or any special permit granting authority to the Trial Court by bringing action as pursuant to the Zoning Act, Section 17, within 20 days after the decision has been filed with the Town Clerk.

§ 125-49 Enforcement.

[Amended 12-11-1967 STM by Art. 5; 3-7-1970 ATM by Art. 47; 3-25-1978 ATM by Art. 23]

(See the Zoning Act, Section 7.)

This Bylaw shall be administered and enforced by the Building Commissioner, who shall take appropriate action in the name of the Town of Harvard to prevent, correct, restrain, or abate violations of this Bylaw. Each day any violation continues is a separate offense or, for earthmoving violations, each load of earth is a separate offense. Violators shall be subject to a fine not exceeding $100 for each offense. If the Building Commissioner is requested in writing to enforce the Bylaw against an alleged violation, he shall notify the requestor in writing of any action or refusal to act and the reasons therefor within 14 days of the request. When in doubt as to interpretation of the Bylaw, the Building Commissioner shall consult with the Planning Board, which may, with the approval of the Select Board, consult with Town Counsel.

[Amended 10-22-2018 STM by Art. 2]

Permits and licenses.

No officer, board, or other person shall grant a permit or license for a new use of a building, or other structure, or of land, which use would be in violation of the Bylaw. The Building Commissioner shall withhold a permit for the construction, including alteration or moving, of any building or other structure if such structure would be in violation of the Bylaw. The Commissioner shall issue a building permit only if such permit expressly states: "Any construction, including alteration and moving, and use of land or building or other structure under this permit shall be only in accordance with the terms of the Protective Bylaw and of any site plan and special permit and variance effective thereunder" and only if the permit also names the use or combination of uses, as described in the Bylaw, for which the permit and any associated site plan approval have been obtained.

Expiration.

Any building permit shall expire if any construction or use thereunder is not begun within six months after issuance of the permit, or, where construction preliminary to such use is required:

Such construction, even though begun within six months after issuance of the permit, is not continued through to completion as continuously and expeditiously as is reasonable; or

[2]

Substantial use under the permit is not begun within six months after completion of such preliminary construction.

Time under court prohibition of the construction or use as authorized by the permit is exempt from such periods, provided the person so prohibited actively defends against the court action.