Some public bodies by law engage in negotiations with applicants
(example: the Planning Board relative to the approval of a subdivision).
A hearing before such bodies is often merely the beginning of the
process. This is not the case with the ZBA. The role of the ZBA is
quasi-judicial, not interactive. The hearing is one of the last steps
in the process. The application is the first step. An application
asks that the ZBA reach a particular decision. It must include all
of the information appropriate to that decision.
A.
Since variances and special permits must be recorded and referenced
to the land in order to be valid and may contain conditions which
constrain the landowner, the general rule is that only the landowner
or his agent may apply for a variance, a special permit, or a M.G.L.
Chapter 40A, Section 6 finding. The ZBA may permit exceptions to this
rule if the application is accompanied by notarized unrestricted permission
from the owner to a lessee, optionee or purchaser to record.
B.
An appeal may be taken to the ZBA by any person aggrieved by a decision,
action or inaction of any public official, including the Zoning Enforcement
Officer or Zoning Administrator relative to the Bylaw or a variance
or special permit decision. The status to appeal is regulated by the
Zoning Act and by court decisions. The petitioner in an appeal must
assert aggrieved person status to appeal. Unless there is law otherwise,
the ZBA will presume that any party of interest described in the Zoning
Act, M.G.L. Chapter 40A Section 11, or any party accorded status to
appeal in M.G.L. Chapter 40A, Section 8 or Section 17 (these include,
among others, any elected Town officials, any Town board acting as
a board, the Planning Boards of Harvard and adjoining towns, the owner
of the locus in question, and abutters or abutters-to-abutters within
300 feet of the locus) has the status to appeal.
A.
All petitions to the ZBA shall include as a cover sheet an application
form available through the office of the Land Use Boards or online
at www.harvard.ma.us, which will include among other things:
B.
In addition, the application must include all of the other information
required by the ZBA, including, among other things:
(4)
Copy of Assessor's Field Card (available from the Assessor's
office).
(5)
M.G.L. Chapter 40A, Section 6 applications shall include a chart
illustrating or demonstrating the existing floor area and footprint,
proposed floor area and footprint and percentage increases that includes
all changes from the time the structure became non-conforming.
All petitions to the ZBA shall be accompanied by a list of abutters
and abutters-to-abutters within 300 feet of the locus in question,
certified by the Assessors as valid if obtained within six months
of the filing date. This list will be used as the basis for statutory
notices of the required public hearing.
All petitions shall be accompanied by plans sufficiently detailed
for the ZBA to assess the zoning issues involved, including, but not
limited to, building setbacks, lot lines, lot area, zoning, boundary
lines, existing and proposed setbacks, water course and septic areas.
A.
If the petitioner is appealing as an outside party and thus has no
reasonable means of providing site plans which conform to the requirements
of the site plans section of the Bylaw, a copy of the plan of the
land from the Assessors' maps will suffice. Otherwise, a site
plan conforming to the site plans section of the Bylaw is required,
prepared and signed by a registered professional, showing among other
things:
(1)
Lot lines.
(2)
Location of existing structures and proposed improvements.
(3)
Details required by the site plans section of the Bylaw.
(4)
Zoning district boundaries.
(5)
Building plans of any structure to which the applicant proposes improvements,
sufficient to satisfy the usual building permit requirements of the
Town Building Commissioner.
B.
The site plan shall be sufficiently complete and detailed so as to
explain the project in terms of Bylaw compliance.
Applicants who propose improvements, who object to denial of
or conditions placed on proposed work, or who request variances must
include with the initial application the complete record of submissions
to and actions by any other Town board having any jurisdiction over
the applicant's request, even if such action has not been completed
at the time of submission to the ZBA.
All petitions shall be accompanied by a brief written statement
specifying the relief being sought, referring to the specific sections
of the Bylaw, and subsections if any, which are involved and specifically
state any requested findings and permits.
A.
A check or money order payable to the Town of Harvard for the entire
fee or fees published by the ZBA for the actions sought must be submitted.
B.
The applicant will be required to pay a local newspaper of general
circulation for the current cost of advertising the hearing. The applicant
will be billed directly by the newspaper for the cost of the advertised
hearing.
C.
If, after receiving an application, the Board determines that in
order to review that application it requires technical advice unavailable
from municipal employees, it may employ outside consultants pursuant
to M.G.L. c. 44, § 53G. The Board may, by majority vote,
require that the applicant pay a reasonable fee for the employment
of outside consultants. Whenever possible, it shall work cooperatively
with the applicant to identify appropriate consultants. The outside
consultant may be employed to review the application or request, to
evaluate it and to make recommendations to the Board regarding any
changes s/he would suggest to better effectuate the interests of the
Bylaw.
(1)
A review fee may be imposed only if:
(a)
The work of the consultant consists of review of studies and/or
plans prepared on behalf of the applicant or independent studies on
behalf of the Board, recommended changes to any such study and/or
recommendations as to any changes to the plans;
(b)
The work is in connection with the applicant's specific
project; and
(c)
All written results and reports are made part of the record
before the Board.
(2)
A review fee may be imposed only after the Board has complied with
the applicable provisions of the Uniform Procurement Act, M.G.L. c.
30B, §§ 1-19, except for professional services which
are exempt from the competitive procurement requirements of said M.G.L.
c. 30B.
(3)
All fees assessed pursuant to this paragraph shall be reasonable
in light of:
(a)
The complexity of the proposed project as a whole;
(b)
The complexity of particular technical issues;
(c)
The area or resource areas subject to protection to be affected;
(d)
The size and character of the site;
(e)
The projected construction costs; and
(f)
Fees charged by similar consultants in the area.
(4)
Any invitation for bids or request for proposals shall indicate that
award of the contract is contingent upon payment of a consultant review
fee by the applicant. If the applicant fails to pay the review fee
within 10 days of receiving written notification of selection of a
bidder or offeror, the Board may deny the application or request.
(5)
Prior to paying the consultant review fee, the applicant may appeal
the selection of the consultant to the Board of Selectmen.
(a)
The grounds for such an appeal shall be limited to claims that
the consultant selected has a conflict of interest or does not possess
the minimum, required qualifications.
(b)
The minimum qualifications shall consist either of an educational
degree in or related to the field at issue or three or more years
of practice in the field at issue or a related field.
(c)
The required time limits for action upon the application by
the Board shall be extended by the duration of the appeal. In the
event that no decision is made by the Board of Selectmen within 30
days following the filing the appeal, the selection made by the Board
shall stand.
(6)
Each consultant review fee shall be deposited in a special account
established by the Town Treasurer pursuant to M.G.L. c. 44, § 53G:
(a)
Funds from the special account may be expended only for the purposes described in § 135-11C(1), above, and in compliance with the Uniform Procurement Act, M.G.L.c. 30B, §§ 1-19, if applicable.
(b)
Within 30 days of the issuance of the decision or of such time
as the applicant formally withdraws the proposal, the applicant shall
receive a final report of funds in the special account and shall be
paid any unspent excess in the account, including accrued interest.
(c)
The Town Accountant shall submit annually a report of the special
account to the Board of Selectmen and the Town Administrator for their
review. This report shall be published in the Annual Town Report.
The requirements of these rules can be waived only by a recorded
formal vote of the ZBA at a posted public meeting. [Note: Incompleteness
of an application is sufficient cause for denial of the relief sought
if the Board concludes that a Board member or party of interest was
thereby obstructed or disadvantaged in timely access to and adequate
consideration of a material fact.]
A.
An application may be withdrawn, without prejudice, any time before
the first publication of the notice of public hearing thereon. In
such cases the fee will be returned, less a deduction for expenses
already incurred.
B.
If an application is withdrawn after first publication of notice,
no part of the fee will be returned. The applicant is prohibited from
reapplying within two years except by a four-fifths vote of the Planning
Board and a unanimous vote of all members of the ZBA, as provided
in M.G.L. Chapter 40A, § 16, unless the ZBA votes immediately
prior to withdrawal to permit the application to be withdrawn without
prejudice and so notifies the Town Clerk.
