[HISTORY: Adopted by the Zoning Board of Appeals of the Town of Erving. Amendments noted where applicable.]
Any person affected by a decision which he thinks violates state law or the local bylaw can appeal to the Board and the Board has the authority to reverse the decision and can then order the permit to be issued or issue one themselves. Similarly, if a permit is issued which is found, on application to the Board of Appeals by an aggrieved, not to be in conformity with the Zoning Bylaw,[1] the Board of Appeals can revoke the permit. Therefore, it follows that Function I is strictly an interpretation to the "letter of the law."
A.
Appeals shall be made on a form acquired from the Town Clerk, to be filled out in triplicate and filed with the Town Clerk.[2]
[2]
Editor's Note: See the Application for Hearing Form included as an attachment to this chapter.
B.
Public hearing.
(1)
Notice of hearing must be advertised for two successive weeks; the first advertisement to appear at least 14 days before the day of the hearing.
(2)
The Chairman presides. The petitioner and those in favor speak, identifying themselves and stating their reasons for favoring the petition. Those opposed are then heard, stating their reasons for their opposition. The hearing will then be closed following a statement that the Board will make its decision and will notify the petitioner and all others so requesting the results of its findings and decision.
C.
A full Board of three (members or associate members) will hear each case. The concurring vote of all members is necessary for a decision by the Appeals Board.
A.
Function II is to hear and decide applications for special permits for exceptions upon which, under the Zoning Bylaw,[1] the Board is required to pass. An exception is a stated use permitted by the Zoning Bylaw but contingent upon approval of the Board of Appeals and contingent upon such conditions as may be stated in the Zoning Bylaw.
B.
Format of appeal, hearing, decision and appeal to the Superior Court is the same as Function I.
A.
The granting of variances, which is the granting of permission to violate the Zoning Bylaw to a degree, subject to certain conditions stated in the Zoning Enabling Act. A variance may be authorized upon appeal under Function I or upon petition (under Function III) but not under Function II. The variance must be with respect to a particular parcel of land or to an existing building thereon.
B.
There must be conditions especially affecting such parcel or such building, but not affecting generally the zoning district in which it is located.
C.
Literal enforcement of the Zoning Bylaw must involve substantial hardship, financial or otherwise, to the applicant.
D.
Desirable relief may be granted if it can be done without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the Zoning Bylaw, but not otherwise.
E.
In granting the variance, 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 from time to time thereafter.
F.
Format of appeal, hearing, decision and appeal to the Superior Court is the same as Function I.
A.
A scale drawing (with measurements), in triplicate, signed by the applicant must accompany the application for a permit; also a map of the property in triplicate.
B.
A deposit must accompany the application for residential or for commercial or nonresidential in amounts as set forth on the list of fees available in the Town Clerk's office.
C.
All checks shall be made out to the Town of Erving.
D.
The Town Clerk will date and sign all applications as received and inform the Chairman and the Clerk of the Appeals Board.
E.
The Chairman, or the Clerk in his absence, of the Appeals Board will schedule all hearings. The Clerk will post and/or publish all notices.
F.
All immediate abutters to property in question and abutters to immediate abutters within 300 feet of the property line of the petitioner as they appear on the most recent, applicable tax list (includes owners of property across a street) will be furnished by petitioner. (Names and addresses are required.)
G.
The petitioner will carry the full burden to furnish the Board of Appeals with all information he wishes to have considered in his deliberations.
H.
Applications with incomplete information will be rejected and returned to the petitioner. An application will be re-dated upon return to Town Clerk.
A.
MGL c. 40A, § 10 requires the permit granting authority to make all the following findings before a variance can be granted:
(1)
That there are circumstances relating to the soil conditions, shape or topography which especially affect the land or structure in question, but which do not affect generally the zoning district in which the land or structure is located.
(2)
That due to those circumstances especially affecting the land or structure, literal enforcement of the provisions of the Zoning Bylaw would involve substantial hardship, financial or otherwise, to the petitioner or appellant.
(3)
That desirable relief may be granted without nullifying or substantially derogating from the intent or purpose of the Zoning Bylaw.
(4)
That desirable relief may be granted without substantial detriment to the public good.
B.
The permit granting authority cannot issue a variance unless all of the statutory findings are met. Failure to establish any one of the findings will be fatal to the decision. [See Blackman v. Board of Appeals of Belmont, Mass., 8 (1963)]
A.
MGL c. 40A, § 9 requires the special permit granting authority to make the following findings before a special permit can be granted:
(1)
That the use is in harmony with the general purpose and intent of the Zoning Bylaw.
(2)
That the use complies with the general or specific provisions set forth within the Zoning Bylaw. (Chapter 40A requires that special permits be subject to such general or specific provisions adopted as part of the local zoning ordinance or bylaw. Special permits cannot be granted unless such provisions are provided and are met.)
B.
Chapter 40A also lists classes of special permits which require a special finding in addition to those listed above. Examples of the types of special permits and additional findings required are:
(1)
Special permit to allow accessory uses to scientific development or related production, including such accessory uses which are not located on the same parcel as the principal use. Finding: That the proposed accessory use does not substantially derogate from the public good. (MGL c. 40A, § 9)
(2)
Special permit for multifamily use in nonresidential zoned areas. Finding: That the public good would be served, that such nonresidentially zoned area would not be adversely affected by such a residential use, and that permitted uses in such nonresidentially zoned area are not noxious to a multifamily use. (MGL c. 40A, § 9)