Town of Harvard, MA Article IV Additional Rules Concerning Specific Types of Applications

§ 135-19 Intent.

The additional provisions below supplement but do not replace or overcome the general requirements set forth above. In order to minimize the number of pages that need to be distributed, these provisions are separated into three parts: variances, special permits, and appeals of zoning-based decisions of Town officers.

§ 135-20 Variances.

The procedures and rules set forth in this section are in addition to Articles II and III above.

A. Section 10 of the State Zoning Act, M.G.L. Chapter 40A provides in part: "(The ZBA) . . . shall have the power . . . to grant . . . a variance from the terms of the applicable zoning ordinance or by-law where . . . (the ZBA) . . . specifically 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 the . . . by-law would involve substantial hardship, financial or otherwise to the petitioner . . ., and that desirable relief may be granted without detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such . . . by-law."

B. These requirements for a variance are also stated in outline form in the variances section of the Bylaw. There exists a substantial body of case law interpreting the statute. Applicants for variances should take into account the following:

(1) Hardship. Applicants need to understand that the courts consider the variance to be "a disfavored form of relief" and read the requirements very narrowly. Among other things, the requirement of "hardship" is often misunderstood by applicants.

(a) The hardship precedent to the grant of a variance must arise out of the topography or shape or soil condition of the land or the nature and placement of existing buildings.

(b) A variance runs with the land, not to an individual. The Zoning Act, M.G.L. Chapter 40A permits making a grant of a variance subject to conditions or safeguards but prohibits "condition, safeguards, or limitation based on the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner, or any owner."

(c) Hardship cannot be self-created, the result of acts or even misjudgments by present or previous owners.

(d) Changes in the Bylaw do not create general hardships which can be cured by variance. In particular, hardship cannot arise because the Bylaw requirements no longer permit a "highest and best use" as distinct from any use at all.

(2) Use variances. Section 10 of the Zoning Act, M.G.L. Chapter 40A states: "Except where local by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or use is located." The Bylaw explicitly prohibits such variances.

(3) Site plan approval. Even though the variance process requires submission of a site plan, the variance will not result in actual formal site plan approval.

(4) Precedent. Each application for a variance is decided on its merits. In the granting or denial of variances the ZBA is not bound by precedent created from previous actions in similar cases.

§ 135-21 Special permits.

Special permit applications are also subject to rules in Articles II and III above and in Articles V and VI below.

A. The Zoning Act, M.G.L. Chapter 40A, Section 6 findings. For special permits for the expansion of lawful existing structures and uses, the ZBA will consider the special permit primarily as a vehicle for making the appropriate findings under Section 6 of the Zoning Act, M.G.L. Chapter 40A and § 125-3 of the Protective Bylaw, for deciding the impact on the neighborhood, and (if it permits the expansion) for imposing conditions suitable for the protection of the neighborhood.

B. Scope of decision. For all other special permits, the ZBA will examine the issuance of a permit both under the section in which it is authorized and under the general special permit provisions of the Bylaw. This examination may include broad evaluation of the specific case relative to the overall intent and purpose of the Bylaw.

C. Sewage disposal. The ZBA will not issue a special permit for a use or structure or use for which the arrangements for disposal of hazardous waste, including sewage disposal, are grossly inadequate, nor will the ZBA issue a special permit that will be in conflict with § 125-46C(1) and/or Title V. Where the Bylaw explicitly requires that the ZBA examine the nature and sufficiency of the arrangements for sewage disposal, the Board will consider carefully the advice of the Board of Health. However, the mere fact that a system meets Title V is not sufficient if such compliance is on the basis of exceptions which merely allow continued use of an existing site. (In particular, a so-called "tight tank" system is presumed to be an environmentally unsatisfactory basis for a special permit.) The Sewage Disposal System shall be compliant with Title V requirements as documented by the Board of Health.

D. Accessory apartments. If the amount of exterior work to be done in creating an accessory apartment is minimal, if the total number of bedrooms falls within the total already permitted by the Board of Health under Title V (however, see Subsection C above), and if the house and grounds comply in all respects with the current Bylaw, then the ZBA may accept a copy of a recent surveyor's tape plan (mortgage plan) of the property together with a copy of the Assessors' map of the locus as a site plan. However, floor and elevation plans of the proposed apartment and its relation to the use of the rest of the house are still required.

E. Site plan approval. Even though the special permit process requires submission of a site plan, the special permit will not result in actual formal site plan approval. The Planning Board is the local permitting authority for site plans.

F. Precedent. Each application for a special permit is decided on its merits. In the granting or denial of special permits the ZBA is not bound by precedent created from previous actions in similar cases.

§ 135-22 Administrative appeals.

These cases are usually an appeal from a decision of the Zoning Enforcement Officer or from his failure to act within the time specified by law. However, there can also be appeals from an action of the Planning Board in disapproving, or placing unreasonable restrictions on, a site plan submitted for site plan approval.

A. A zoning-based decision of a Town official will be overturned only by a unanimous vote of the ZBA.

B. While anyone can ask the Building Commissioner to enforce the Bylaw, only limited classes of persons have standing to appeal his decisions. Assertion of standing is essential to such appeals; although the ZBA will routinely infer such standing if it is obvious. (For example, the property owner denied a building permit.)

C. The ZBA may challenge the standing of a petitioner to appeal at any time, but if standing to appeal is questioned by someone else, the ZBA may choose to postpone its resolution of the issue until after it has heard evidence on the substance of the appeal.

D. The appeal of one facet or aspect of a decision opens up the entire decision to reexamination and revision by the ZBA, provided only that the final vote of the ZBA is unanimous.

E. If the time limit for appealing a decision expires, the matter cannot be reopened by making a new appeal. The substance of an initial decision cannot be changed by appealing a denied request for modification of that decision.