It shall be unlawful for any owner or person to erect, construct, reconstruct, convert or alter a structure or change the use, or extend the use of any building, sign or other structure or lot without applying for on the forms provided for and receiving from the Building Inspector the required 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. Where the application does not involve a structure but only a lot, a permit shall be applied for and may be issued.

The following shall be exempt from this section:

Phased development subdivisions and Form A lots.

Growth management.

Site plan required; contents.

Site plan review.

The Building Inspector shall serve a notice of violation and order to any owner or person responsible for the erection, construction, reconstruction, conversion or alteration of a structure or change in use, or extension of use of any building, sign or other structure or lot 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, and such order shall direct the immediate discontinuance of the unlawful action, use or condition and the abatement of the violation. Any owner or person responsible who has been served with a notice and ceases any work or other activity, shall not leave any structure or lot in such a condition as to be a hazard or menace to the public safety, health, morals or general welfare.

No action, suit or proceeding shall be maintained in any court, nor any administrative or other action taken, to recover a fine or damages or to compel the removal, alteration or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of this chapter except in accordance with the provisions of this section, §§ 255-75 and 255-84; provided, however, that if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of Chapter 40A, or of this chapter adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the Essex County Registry of Deeds within six years next after the commencement of the alleged violation of law. Such notice shall include names of one or more of the owners of record, the name of the person initiating the action and adequate identification of the structure and the alleged violation.

Creation; membership; vacancies; advisor. There is hereby created a Board of Appeals of five members and two associate members. Members of the Board in office at the effective date of this chapter shall continue in office. Hereafter, as terms expire, the Mayor shall make appointments in the month of December for a term of office commencing on the following first day of January, for a term of five years for the five regular members and for a term of one year for the two associate members, so that the term of one regular member and the two associate members shall expire each year. If a vacancy should occur during the course of the year, the Mayor shall fill such vacancy within 45 days in the same manner as an original appointment; the appointee shall serve for the unexpired term remaining for the position. The Administrator of the Department of Planning and Development or his designee shall act as an ex officio adviser (sharing all the responsibilities of a regular Board member except not the voting privilege) to the Board.

Chairman; removal of members; associate members; rules and regulations.

Powers and duties.

Meetings of the Board (or City Council, where applicable) shall be held at the call of the Chairman (or Council President, where applicable), or when called in such other manner as the Board (or City Council, where applicable) shall determine in its rules.

The Board of Appeals (or City Council, where applicable) shall hold a hearing on any appeal, application or petition transmitted to it by the City Clerk within 65 days from the transmittal to the Board (or City Council, where applicable) of such appeal, application or petition. The Board (or City Council, where applicable) 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 all adjacent cities and towns which may forward recommendations with respect to said matter for the consideration of the Board of Appeals (or City Council, where applicable). The Chairman (or Council President, where applicable), or in absence the Acting Chairman (or Council Vice President, where applicable), may administer oaths, summon witnesses and call for the production of papers.

A vote of four members of the Board consisting of five members or a vote of six members of a Council consisting of nine members shall be necessary to reverse any order or decision of any administrative official under this chapter or to effect any variance in the application of this chapter.

All hearings of the Board of Appeals (or City Council, where applicable) shall be open to the public. The decision shall be made within 75 days after the date of filing of an appeal, application or petition (except in regard to special permits, where such decision shall be made within 90 days after the date of public hearing, for which notice has been given, as provided in § 255-101 of this chapter). Failure by the Board (or City Council, where applicable) to act within said 75 days (or 90 days, where applicable) shall be deemed to be the grant of the relief, application or petition sought, subject to an applicable judicial appeal as set forth in § 255-84. The Board (or City Council, where applicable) 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 designated in § 255-101 and to every person present at the hearing who requested that notice was to be sent. Each notice shall specify that appeals, if any, shall be made pursuant to § 255-84 and shall be filed within 20 days after the date of filing of such notice in the office of the City Clerk.

Upon the granting of a variance or special permit on any extension, modification or renewal thereof, the Board of Appeals (or City Council, where applicable) shall issue to the owner, and to the applicant if other than the owner, a copy of its decision, certified by the City 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.

Determination of the meaning of any provision of the text of this chapter.

Determination of the exact location of any district boundary shown on the Zoning Map.

The Board, after public hearing notice has been given by publication and posting as provided for in § 255-101 and by mailing to all parties of interest, may and is authorized to grant, upon appeal or upon petition with respect to particular use, land or existing structures, a variance from the terms and requirements of this chapter where the Board specifically finds that, owing to circumstances relating to the soil conditions, site shape or topography of such land or structures, and, especially affecting such land or structure, but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter. A use variance may only be granted to existing nonconforming structures for the particular or similar type of use requested, as determined by the Board.

With the exception of petitions where no exterior alterations of structures and no increase in existing conforming parking are required, all applications for variances, including dimensional variances, shall be accompanied by a reproducible original and nine copies of the following described site plan: The plan shall be 8 1/2 inches by 11 inches or larger, drawn to a scale of one inch equals 40 feet or such smaller scale as may be necessary, indicating zoning districts, names of properties which abut the subject property, existing property lines and the exact location of existing buildings and any proposed additions, which shall accurately be drawn, signed and stamped by a registered land surveyor. Cited exceptions must be accompanied by a site plan showing the above relevant items but need not be drawn, signed and stamped by a registered land surveyor. The dimensions of the lot, percentage of the lot covered by the principal and accessory buildings, the required parking spaces, entrances, exits, driveways, planting strips, signs, etc., that are pertinent to the granting of the variance shall also be shown.

Before any variance is granted, the Board must find all of the following conditions to be present:

The following circumstances may be construed as establishing a basis for determining that a hardship exists within the meaning of this section:

The following types of cases shall not be construed as eligible for consideration as hardship cases within the site subsequent to the adoption of this chapter:

Unless otherwise specified at the time the variance is granted, the variance pertains to the subject property and not the individual who applied. Consequently, the variance is transferable to any future owner of the subject property, but cannot be transferred by the applicant to a different site should he move to another location.

Unless otherwise specified at the time the variance is granted, it pertains to the subject property for an indefinite time. However, in the case where work has not been commenced and diligently prosecuted within one year after the date of granting of a variance, then without further action such variance shall become null and void.

Where the Board finds the zoning classification of a particular property to be conducive to the deprivation of all reasonable use of the land or building by the owner thereof, and where such Board deems the same condition to apply generally to other land or buildings in the same neighborhood and/or district, the Board shall deny a variance on the grounds that the conditions and circumstances are not unique and shall call this condition to the attention of the Planning Board accompanied by a recommendation that this chapter be amended.

In all cases where the Board grants a variance from the strict application of the requirements of this chapter, it shall be the duty of such Board to attach conditions and safeguards as may be required in order that the result of its action be as nearly as possible in accordance with the intent and purposes of this chapter, but excluding any condition, safeguards or limitation based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner.

The Board unless herein specified shall have power to hear and decide on applications for special permits for exceptions. The City Council shall have the power to hear and decide on special permit applications for cluster residential development, planned unit development and multifamily dwellings, except that an application to expand an existing residential dwelling up to, and not to exceed, a total of six dwelling units, where no exterior structural changes are required, shall be made before the Board of Appeals in compliance with this and all other applicable regulations of this chapter. In so deciding, the City Council must adhere to the conditions as herein stated as if it were the Board and also with relative conditions stated in Article XI.

Unless otherwise specified at the time the special permit is granted, the special permit pertains to the subject property and not the individual who applied. Consequently, the special permit is transferable to any future owner of the subject property but cannot be transferred by the applicant to a different site should he move to another location.

Permit applications.

All applications for a special permit before the City Council shall be accompanied by a reproducible original and 18 copies of the following described certified site plan prepared by a registered professional engineer and registered land surveyor. The certified site plan shall show the following:

The City Council shall require all petitions for special permits for cluster residential development, multifamily dwellings, residential developments in the Watershed Protection Overlay District or planned unit development to meet the certified site plan requirements of Subsection D above, and attached to said plan shall be exterior facade elevation plans and interior unit plans prepared by a registered architect. The architectural plans shall show the following:

In applying for a special permit, the applicant need not demonstrate hardship since the basis for the action is of general benefit to the City as a whole. In granting a special permit, the Board and Council, with due regard to the nature and condition of all adjacent structures and uses, and the district within which the same is located, shall find all of the following general conditions to be fulfilled:

In addition, the Board and Council shall find that all the special conditions set forth in Article XI, Table 1: Table of Use and Parking Regulations and Table 2: Table of Dimensional and Density Regulations[1] for a particular use are complied with.

Comprehensive permit applications shall include certified site and architectural plans, as required by Subsections D and E of this section and any other information as deemed necessary by the City Council as the City Council as special permit granting authority, as described in Subsection I of this section.

The Board of Appeals or City Council as the special permit granting authority may also impose, in addition to any applicable conditions specified in this chapter, such additional conditions as it finds appropriate to safeguard the neighborhood or otherwise serve the purpose of this chapter. Such conditions shall be imposed in writing, and the applicant may be required to post bond or other security for compliance with said conditions in an amount satisfactory to the City Council as special permit granting authority.

On application for a special permit before the City Council, the Fire, Building, Health, Water, Police, Wastewater, Engineering, Planning, School and Conservation Departments, and other organizations at the selection of the City Council as special permit granting authority (SPGA), will be requested to review the special permit and provide comments and recommendations. If such comments are not received by the hearing date, the SPGA shall act on the application in the normal manner.

No appeal, application or petition which has been unfavorably and finally acted upon by the Board of Appeals (City Council, where applicable) shall be acted favorably upon within two years after the date of final unfavorable action, unless the Board of Appeals finds by a vote of 4/5 of its members (the City Council, where applicable, finds by a vote of 2/3 of its members) 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, and unless all but one of the members of the Planning Board gives written consent thereto, prior to consideration by the Board of Appeals (City Council, where applicable), and after public notice as set forth in § 255-101 is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered.

A filing fee in the amount of $150 shall accompany the application and shall cover the costs for advertising both the City Council and Planning Board public hearings and processing of the petition.

Any person aggrieved by a decision of the Board of Appeals, Planning Board or City Council, whether or not previously a party to the proceedings, or any municipal officer or board may appeal to the Superior Court Department for the county in which the land concerned is situated, or to the division of the District Court Department within whose jurisdiction the land is situated, by bringing an action within 20 days after the decision has been filed in the office of the City Clerk. If said appeal is made to said division of the District Court Department, any party shall have the right to file a claim for trial of said appeal in the Superior Court Department within 25 days after the service on the appeal is completed, subject to such rules as the Supreme Judicial Court may prescribe. Notice of the action with a copy of the complaint shall be given to the City Clerk so as to be received within such 20 days. The complaint shall allege that the decision exceeds the authority of the Appeals Board, Planning Board or City Council 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 City Clerk with whom the decision was filed.

If the complaint is filed by someone other than the original applicant, appellant or petitioner, such original applicant, appellant or petitioner and all members of the Board of Appeals, Planning Board or City Council shall be named as parties defendant with their addresses. To avoid delay in the proceedings, instead of the usual service of process, the plaintiff shall, within 14 days after the filing of the complaint, send written notice thereof, with a copy of the complaint, by delivery or certified mail to all defendants, including the members of the Board of Appeals, Planning Board or City Council and shall within 21 days after the entry of the complaint file with the Clerk of the Court an affidavit that such notice has been given. If no such affidavit is filed within such time, the complaint shall be dismissed. No answer shall be required but an answer may be filed and notice of such filing with a copy of the answer and an affidavit of such notice given to all parties as provided above within seven days after the filing of the answer. Other persons may be permitted to intervene, upon motion. The Clerk of the Court shall give notice of the hearing as in other cases without jury to all parties whether or not they have appeared. The Court shall hear all evidence pertinent to the authority of the Board of Appeals, Planning Board or City Council and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such Board of Appeals, Planning Board or City Council or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive, notwithstanding any defect of procedure or of notice other than notice by publication, mailing or posting as required by this chapter, and the validity of any action shall not be questioned for matters relating to defects in procedure or of notice in any other proceedings except with respect to such publication, mailing or posting and then only by a proceeding commenced within 90 days after the decision has been filed in the office of the City Clerk, but the parties shall have all rights of appeal and exception as in other equity cases. All appeals shall be taken in compliance with this chapter and the MGL c. 40A, § 17.