[Amended 6-11-2007 by Ord. No. 35]
The Board of Appeals in existence when this amendment shall
take effect shall continue, subject to its existing rules and procedures,
the authorities conferred thereon by Chapter 40A of the Massachusetts
General Laws, and the provisions of this chapter.
A.
There shall be a Board of Appeals consisting of five members who
shall be appointed by the Mayor and approved by the City Council.
The terms of the appointed members shall be such that one expires
on January 31 of each year. Any vacancy on the Board shall be similarly
filled for any unexpired term, and such Board shall annually elect
a Chairman from its own members.[1]
B.
There shall be five associate members of the Board of Appeals, who
shall be appointed by the Mayor and approved by the City Council;
and in case of a vacancy, inability to act, or interest on the part
of a regular member of the Board, his or her place shall be filled
by an associate member, who shall have all powers and duties of the
member whose place he or she fills.
[Amended 2-16-2016 by Ord. No. 013]
C.
Any person whose application has been refused may appeal therefrom
within 60 days. Such appeal shall be in writing and shall be filed,
together with a fee of $10, with the Building Inspector, who shall
transmit the appeal to the Board at once, and deposit the fee with
the City Collector. The fee for a special permit or variance application
shall be $150; the fee for an administrative appeal shall be $200;
or fees as set from time to time by the Board of Appeals.
[Amended 2-16-2016 by Ord. No. 013]
D.
The cost of advertising of the hearings shall be paid for by the
petitioner to the Clerk of the Board of Appeals.
E.
After such notice to the appellant, to the Inspector and to other
such parties as the Board may order, and after 14 days' published
notice, a hearing shall be had, and the Board may by a four-fifths
vote affirm, annul, or modify the proposal in harmony with the intent
and purpose of the chapter but not otherwise.
F.
The Board of Appeals shall keep a detailed record of its proceedings.
The record shall indicate the vote of each member upon each question,
including whether the member was absent or failed to vote; the reason
or reasons for the Board's decision; and the official action taken.
Upon appeal from the decision by an administrative official,
the Board of Appeals shall decide any question involving the interpretation
of any provision of this chapter.
[Amended 7-17-2013 by Ord. No. 57]
A.
The Board of Appeals may authorize the uses set forth in this chapter
by special permits, subject to the provisions of this article, except
the Planning Board, not the Board of Appeals, will be the special
permit granting authority for special permits in the CC, BHD or WDR
District (except for bed-and-breakfast establishments), the IR Overlay
or WSPOD District, and for special permits concerning floor area ratio
(FAR) bonus, pork-chop-shaped lots, deviations from the requirements
for off-street parking, congregate elderly housing and inclusionary
housing. The City Council, not the Board of Appeals, will be the special
permit granting authority for special permits concerning the residential
reuse of existing and former public buildings.
[Amended 7-23-2019 by Order No. 393]
B.
Before taking final action on applications for special permit uses,
the Board of Appeals and Planning Board shall consider whether the
following and other conditions are met:
(1)
That the specific site is an appropriate location for the proposed
use, and that the character of adjoining uses will not be adversely
affected.
(2)
That no factual evidence is found that property values in the district
will be adversely affected by such use.
(3)
That no undue traffic and no nuisance or unreasonable hazard will
result.
(4)
That adequate and appropriate facilities will be provided for the
proper operation and maintenance of the proposed use.
(5)
That there are no valid objections from abutting property owners
based on demonstrable fact.
(6)
That adequate and appropriate City services are or will be available
for the proposed use.
C.
In granting approval of an application for a special permit use,
the special permit granting authority may attach all reasonable and
necessary conditions to assure that the uses of surrounding properties
are adequately safeguarded and that the intent of the Comprehensive
Plan and this chapter are maintained.
D.
Construction or operations under a special permit shall conform to
any subsequent amendment of this chapter unless the use or construction
is commenced within a period of six months after the issuance of the
permit and, in cases involving construction, unless such construction
is continued through to completion as continuously and expeditiously
as is reasonable.
E.
A special permit shall lapse after two years, and including such
time required to pursue or await the determination of an appeal, from
the grant thereof, if a substantial use thereof has not sooner commenced
except for good cause or, in the case of permit for construction,
if construction has not begun by such date except for good cause.
F.
The special permit granting authority shall adopt rule and regulations
relative to the issuance of special permits. A copy of the rules and
regulations are filed with the City Clerk.
A.
The Board of Appeals may grant variances, including variances for
use in any nonresidential district (but no use variance may be granted
in any R Districts), to the strict application of any of the requirements
of this chapter only for reasons of practical difficulty and demonstrable
and substantial hardship, financial or otherwise, to the appellant,
and only where the Board finds that:
[Amended 6-26-1992]
(1)
There are special circumstances or conditions applying to the land
or building for which the variance is sought (such as, but not limited
to, the exceptional narrowness, shallowness or shape of the property
in question, or exceptional topographical conditions), which circumstances
or conditions are peculiar to such land or building but not affecting
generally the zoning district in which it is located, and the application
of the standards of this chapter would deprive the applicant of a
reasonable use of the property.
(2)
The specific variance as granted by the Board is the minimum variance
that will grant reasonable relief to the owner and is necessary for
a reasonable use of the land or building.
(3)
The granting of the variance will be in harmony with the general
purpose and intent of this chapter, and will not be injurious to the
neighborhood or otherwise detrimental to the public welfare. In addition
to considering the character and use of nearby buildings and land,
the Board, in determining its finding, shall take into account the
number of persons residing or working in such buildings or upon such
land and the present and probable future traffic conditions.
B.
In acting on any variance, the Board of Appeals shall consider one or more of those factors set forth under § 300-91B as appropriate, and shall prescribe any conditions and safeguards that it deems to be necessary or desirable. These conditions cannot require continued ownership of the land or structure by the application, petitioner, or owner.
A.
The Board of Appeals may grant a special permit for the removal of
topsoil, sand, gravel, or other natural materials for commercial purposes
as a temporary nonconforming use in an IR or IG District, provided
that the following conditions apply:
(1)
The Board of Appeals shall hold a public hearing after notifying
all interested parties, all as provided by Chapter 40A of the Massachusetts
General Laws.
(2)
The applicant shall furnish a plan showing present and proposed conditions
and state a time of completion.
(3)
The Board of Appeals shall consider the neighborhood and its future
development in passing on applications.
(4)
The applicant shall furnish a performance bond of an amount determined
by the Board of Appeals and surety satisfactory to the City Treasurer.
(5)
The applicant shall authorize the City to use the proceeds of the
bond to restore the property to a condition not detrimental to the
neighborhood or its future development if the work is not completed
within two years of the proposed time or within a granted extension
of time. An extension of time may be granted by the Planning Board.
(6)
Temporary use permits shall be granted for a period not to exceed
five years and may be annually at the discretion of the Board.
B.
The Board of Appeals may grant a variance for a nonconforming building,
structure, or use incidental to the development of a subdivision or
other construction project in any R District, including such accessory
uses as a construction office, real estate sales office, and storage
of materials and supplies located on the tract or lot to which such
use is accessory. A temporary use permit for such use or building
shall be issued only upon written agreement of the owner, or his or
her agent, to remove such building or structure within 30 days after
completion of construction or the issuance of a certificate of occupancy
for the last house of a subdivision. Such temporary permit shall be
issued for a period not to exceed three years and may be renewed annually
at the discretion of the Board.
[Amended 7-17-2013 by Ord. No. 57]
A.
Procedural requirements for special permits, findings and variances
shall be in accordance with Chapter 40A of the Massachusetts General
Laws, on file with the City Clerk. Optional procedural requirements
of Chapter 40A are not included in this chapter. The Zoning Board
of Appeals shall be the authority to grant special permits and variances,
except the Planning Board, not the Zoning Board of Appeals, will be
the special permit granting authority for special permits in the CC,
BHD or WDR District (except for bed-and-breakfast establishments),
the IR Overlay or WSPOD District and for special permits concerning
floor area ratio (FAR) bonus, pork-chop-shaped lots, deviations from
the requirements for off-street parking, Congregate elderly housing
and inclusionary housing. The City Council, not the Board of Appeals,
will be the special permit granting authority for special permits
concerning the residential reuse of existing and former public buildings.
[Amended 7-23-2019 by Order No. 393]
B.
Subsequent to a special permit, finding, or variance granted by the
Zoning Board of Appeals, minor modifications to the application and/or
plan may be made from time to time in accordance with applicable City
ordinances and regulations. The development approved under such special
permit, finding, or variance shall otherwise be in accordance with
the approved plans and such conditions, as may be included, in the
decision of the Zoning Board of Appeals.
C.
The applicant shall notify the Zoning Board of Appeals in writing
well in advance of any such modification, which shall not be effective
until approved by vote of the Zoning Board of Appeals. The developer
shall also submit a plan depicting such modification. Should the Zoning
Board of Appeals determine that such revisions are not minor, it shall
order that an application for modification of a special permit, finding
or variance be filed and a public hearing be held in the same manner
as set forth for such applications.
[Amended 6-11-2007 by Ord. No. 35; 2-16-2016 by Ord. No. 013]
All appeals and applications filed with the Board of Appeals
shall be accompanied by a fee to cover publication of hearing notices
and other administrative expenses, such fee to be in accordance with
the schedule adopted by the Board of Appeals and approved by the City
Council and payable to the City of Beverly.
