It shall be the duty of the Building Commissioner to administer
and enforce the provisions of this chapter.
A.
It shall be unlawful for any owner or person to erect, construct,
reconstruct or alter a structure 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 Commissioner 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.
B.
An application for any permit shall be accompanied by a plan, accurately
drawn, 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. A record of all applications,
plans and permits shall be kept on file by the Building Commissioner.
The Building Commissioner shall take action on an application for
a permit, either granting the permit or disapproving the application,
within 14 days of receipt of the application.
The status of previously approved permits shall be as determined
by the Zoning Act, Section 6.[1]
[1]
Editor's Note: See MGL c. 40A, § 6.
A.
It shall be unlawful to use or occupy any structure or lot hereafter
erected or altered unless the Building Commissioner has issued a certificate
of occupancy and has specified thereon the use to which the structure
or lot may be put. Applications for certificates of occupancy and
compliance shall be filed coincident with the application for building
permits and shall be issued or refused in writing for cause within
five days after the Building Commissioner has been notified, in writing,
that the erection or alteration of such buildings has been completed.
A record of all certificates shall be kept on file in the office of
the Building Commissioner. Buildings accessory to dwellings when completed
at the same time shall not require a separate certificate of occupancy.
B.
Pending the issuance of a regular certificate, a temporary certificate
may be issued for a period not exceeding six months during the completion
of alterations or during partial occupancy of a building, pending
its completion. No temporary certificate shall be issued prior to
its completion if the building fails to conform to the provisions
of the building ordinances and state laws or of this chapter to such
a degree as to render it unsafe for the occupancy proposed.
Any work for which any permit has been issued by the Building
Commissioner shall be actively prosecuted within 90 days and completed
within one year of the date of the issuance of the permit. Any permit
issued for a project which is actively prosecuted for one year may
be extended for an additional year at the discretion of the Building
Commissioner. Additional time extensions may be granted only by a
special permit approved by the Board of Appeals. Any project not completed
within the applicable time limits shall be in violation of this chapter.
[Amended 9-16-2013 by Ord. No. 2013-200]
A.
The Building Commissioner shall serve a notice of violation and/or
order to any owner or person responsible for the erection, construction,
reconstruction, extension, repair, removal, demolition, conversion
or alteration of a structure or change in use, increase in intensity
of use or extension or displacement of use of any structure or lot
in violation of the provisions of this chapter or in 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 or in violation of any provision 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 time
to be specified by the Building Commissioner.
B.
Any owner who having been served with a notice of violation and/or
order and who ceases any work or other activity as a result shall
not leave any structure or lot in such condition as to be a hazard
or potential hazard, nuisance or menace to the public safety, health,
morals or general welfare.
C.
If the Building Commissioner is requested in writing to enforce this
chapter against any person allegedly in violation of the same and
such officer declines to act, the Building Commissioner 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.
[Amended 9-16-2013 by Ord. No. 2013-200]
If the notice of violation and/or order by the Building Commissioner
is not complied with in the time specified in the order, then the
Building Commissioner shall institute fines of $100 per day, per violation.
Each section of the Code of Melrose cited shall constitute a separate
violation. In the event any party fails to comply with an order, the
Building Commissioner may seek to enforce said order, at law or in
equity, in a court of competent jurisdiction.
[Amended 5-1-1995 by Ord.
No. 95-189; 2-19-2002 by Ord. No. 02-066C]
B.
Powers.
(1)
Under this chapter the Board shall have the following powers:
(b)
Except as provided in § 235-61B, to hear and decide applications for special permits and conditions and to impose conditions thereon.
(c)
To authorize upon appeal, or upon petition in cases where a
particular use is sought for which no permit is required, with respect
to a particular parcel of land or to an existing building thereon
a variance from the terms of this chapter.
(2)
In exercising the powers under Subsection B(1)(c) above, the Board 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 hereafter.
(3)
In exercising these powers, the Board 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.
C.
Board of Appeals procedures.
(1)
Appeals.
(a)
An appeal to the Board may be taken by any person aggrieved
by reason of his/her inability to obtain a permit from this chapter,[3] by the Metropolitan Area Planning Agency or by any person,
including an officer or board of the City or of an abutting city or
town, aggrieved by an order or decision of the Building Commissioner
or other administrative official in violation of any provision of
this chapter.
[3]
Editor's Note: So in original. See MGL c. 40A, § 8,
which reads "inability to obtain a permit or enforcement action from
any administrative officer under the provisions of this chapter."
(b)
Any such appeal 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 ground thereof, with the City Clerk who
shall forthwith transmit copies thereof to such officer or board whose
order or decision is being appealed and to the members of the Board.
Such officer or board shall forthwith transmit to the Board of Appeals
all documents and papers constituting the record of the case in which
the appeal is taken.
(2)
Meetings of the Board shall be held at the call of the Chair or when
called in such other manner as the Board shall determine in its rules.
(3)
The Board of Appeals shall hold a hearing on any appeal, application
or petition transmitted to it by the City Clerk within 65 days from
the date of filing with the City Clerk of such appeal, application
or petition.
(a)
The Board shall cause notice of such hearing to be published
and sent to parties in interest as provided for herein and shall notify
the Planning Board and the planning boards of adjacent cities and
towns, which may forward recommendations with respect to said matter
for the consideration of the Board of Appeals.
(b)
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 City or town once in each of two successive weeks, the first
publication to be not less than 14 days before the day of the hearing,
and by posting such notice in a conspicuous place in City Hall for
a period of not less than 14 days before the day of the hearing.
(c)
"Parties in interest" as used herein 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.
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 in his/her stead
any successor owner of record[4] who may not have received a notice by mail and may order
special notice to any such person, giving not less than five nor more
than 10 additional days to reply.
[4]
Editor's Note: So in original. See MGL c. 40A, § 11,
which reads "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."
(d)
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 action 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 such City. The Board of Appeals shall notify
the Planning Board and the planning boards of every adjacent city
or town, which may forward recommendations with respect to said matter
for the consideration of the Board of Appeals. At the hearing, any
party, entitled to notice thereof or not, may appear in person, by
agent or by attorney.
(e)
The Chair of the Board or, in his/her absence, the Acting Chair
may administer oaths, summon witnesses and call for the production
of papers. All hearings of the Board shall be open to the public.
(4)
The decision of the Board on any appeal or application for a variance
shall be made within 100 days after the date of the filing of such
appeal or application. The decision on any petition for special permit
shall be made within 90 days after the public hearing thereon. Failure
of the Board to act within said time constraints shall be deemed to
be the grant of the relief, application, appeal or petition, as the
case may be, subject to an additional judicial appeal as provided
for in the Zoning Act.
(a)
The Board 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 City 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 as defined in Subsection C(3)(c) above and to every person present at the hearing who requested that notice be sent to him/her 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 Section 17 of the Zoning Act[5] and shall be filed within 20 days after the date of filing
of such notice in the office of the City Clerk.
[5]
Editor's Note: See MGL c. 40A, § 17.
(b)
Upon the granting of a variance or special permit or any extension,
modification or renewal thereof, the Board shall issue to the owner,
and to the applicant if other than the owner, a copy of the decision,
certified by the Chair or Clerk, containing the name and address of
the owner, identifying the land affected, setting forth compliance
with the statutory requirements for the issuance of such variance
or permit and certifying that copies of the decision and all plans
referred to in the decision have been filed with the Planning Board
and City Clerk. No variance or special permit, or any extension, modification
or renewal thereof, shall take effect until a copy of the decision
bearing the certification of the City Clerk that 20 days have elapsed
and no appeal has been filed or, if such appeal has been filed, that
it has been dismissed or denied is recorded in the Middlesex County
Registry of Deeds 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.
(c)
If the rights authorized by a variance are not exercised within
one year of the date of grant of such variance such rights shall lapse;
provided, however, that the Board of Appeals in its discretion and
upon written application by the grantee of such rights may extend
the time for exercise of such rights for a period not to exceed six
months; and provided, further, that the application for such extension
is filed with such Board prior to the expiration of the one-year period.
If the Board of Appeals does not grant such extension within 30 days
of the date of application therefor, and upon the expiration of the
original one-year period, such rights may be reestablished only after
notice and a new hearing pursuant to the provisions of this chapter
and MGL c. 40A, § 10.
(5)
No appeal, application or petition which has been unfavorably and
finally acted upon by the Board shall be acted favorably upon within
two years after the date of final unfavorable action unless said Board
finds, by a concurring vote of all except one member of the Board,
specific and material changes in the record of its proceedings,[6] 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.
[6]
Editor's Note: So in original. See MGL c. 40A, § 16,
which reads "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."
(6)
Any person aggrieved by a decision of the Board of Appeals or any
special permit granting authority, whether or not previously a party
to the proceedings, or any municipal officer or board may appeal to
the Superior Court or to the Land Court or to the District Court as
provided in MGL c. 40A, § 17, by bringing an action within
20 days after the decision has been filed in the office of the City
Clerk. Notice of the action with a copy of the complaint shall be
given to such City Clerk so as to be received within such 20 days.
The complaint shall allege that the decision exceeds the authority
of the Board or authority 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 office of the
City Clerk with whom the decision was filed.
(7)
The City may provide any officer or board of the City with independent
legal counsel for appealing, as provided in this section, a decision
of the Board of Appeals or special permit granting authority and for
taking such other subsequent action as parties are authorized to take.
D.
Adoption of rules. The Board shall adopt rules 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 City Clerk.
Meetings of the Board shall be held at the call of the Chair and also
when called in such other manner as the Board shall determine in its
rules.
E.
Other requirements. The granting of any appeal by the Board shall
not exempt the applicant from any provision of this chapter not specifically
ruled upon by the Board or specifically set forth as excepted in this
particular case from a provision of this chapter. It shall be unlawful
for any owner or person to reconstruct, convert or alter a structure
or change the use, increase the intensity of use or extend or displace
the use of any building, other structure or lot or change any required
limitations or special conditions imposed by the Board in authorizing
a special permit or variance without appealing to the Board as a new
case over which the Board shall have complete administrative power
to deny, approve or modify.
