[Amended 6-6-1978 by Doc. 103-C]
The Building Inspector is hereby appointed and
authorized to administer and enforce the provisions of this chapter
and shall be charged with the enforcement of this chapter and shall
withhold a permit for the construction, alteration or moving of any
building or structure if the building or structure, as constructed,
altered or moved would be in violation of this chapter. If the Building
Inspector, charged with enforcement of this chapter, is requested,
in writing, to enforce this chapter against any person allegedly in
violation of the same and declines to act, he shall notify, in writing,
the party requesting such enforcement of any action or refusal to
act and the reasons therefor within 14 days of receipt of such request.
A.
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.
(1)
Prior to the issuance of any permit, the Building
Inspector shall determine that the street or way which provides frontage
and access to a lot(s) has, for the entire length of the lot(s) frontage,
sufficient width, suitable grades/topography and adequate construction
to provide for the needs of vehicular traffic in relation to the proposed
use of the land and for the installation of municipal services to
safely and sufficiently serve such land and the buildings erected
or to be erected thereon. Any question as to the adequacy of a street
or way shall be referred to the Planning Board for the submission
of a plan to determine the adequacy of the street or way. Any improvements
approved by the Planning Board shall follow normal lot release procedures
relative to providing surety for the required improvements.
[Added 6-27-2000 by Doc. 79-E]
(2)
In addition to all other requirements herein, prior
to the issuance of any permit for a property located within the Watershed
Protection Overlay District shall provide to the Building Inspector
one of the following:
[Added 6-27-2000 by Doc. 79-E]
(3)
In addition to all other requirements herein, prior
to the issuance of any permit, the applicant shall file a written
report as part of the application detailing how compliance with each
of these requirements will be accomplished. The development shall
be integrated into the existing terrain. Building sites shall, to
the extent feasible:
[Added 6-27-2000 by Doc. 79-E]
(a)
Minimize use of wetlands, steep slopes, floodplains
and hilltops.
(b)
Reserve natural and historic features.
(c)
Maximize open space preservation.
(d)
Minimize obstructions of scenic views from publicly
accessible locations.
(e)
Minimize tree, vegetation and soil removal,
blasting and grade changes.
(f)
Screen objectionable features from neighboring
properties and roadways.
(4)
Prior to the issuance of any permit, the Building
Inspector must determine that the lot is a buildable lot (as defined
by this chapter).
[Added 6-27-2000 by Doc. 79-E]
B.
The following shall be exempt from this section:
(1)
Replacing copy. The changing of advertising copy or
message on an approved painted or printed sign or on theater marquees
and similar approved signs which are specifically designed for the
use of replaceable copy.
(3)
Structural improvements or changes that are exempted
by the Building Code and do not change the height, number of stories,
size, use or location of a structure.
(4)
Repairs as defined by this chapter.
C.
Phased development subdivisions and Form A lots.
[Amended 6-27-2000 by Doc. 79-D]
(1)
Building permits for the construction of single-family,
two-family and three-family dwellings in a subdivision or on contiguous
Form A lots held in common or related ownership on the effective date
of the provision shall not be granted at a rate per annum greater
than as permitted by the following schedule:
|
Number of Lots
|
Minimum Years of Development
|
Maximum Lots Developed per Year
| |
|---|---|---|---|
|
1 to 6
|
1
|
All
| |
|
7 to 20
|
2
|
50% of total
| |
|
21 to 34
|
3
|
33% of total
| |
|
35 to 50
|
4
|
25% of total
| |
|
51 to 75
|
5
|
20% of total
| |
|
76 to 125
|
6
|
16.7% of total
| |
|
126 or more
|
7
|
14.3% of total
|
(2)
Lots can be sold any time for the construction of
dwellings in the designated future years. However, any lots covered
by this provision hereafter sold or otherwise transferred to another
owner shall include in the deed the earliest date on which construction
may be commenced in accordance with these provisions.
(3)
If there is a proposed subdivision with any lots that are within 1,000 feet of lots in another subdivision held by common or related ownership, then both subdivisions shall be construed to be a single subdivision for the purpose of this Subsection C.
(4)
Lot lines for Form A lots shall be defined when the Form A lots have been endorsed by the Planning Board. Subsequent changes in the shape or ownership of lots shall not render the provision of this Subsection C void.
(5)
The anniversary date of each subdivision or contiguous
Form A lots under this provision shall be no earlier than the date
on which all approvals required for the first building permit have
been obtained.
(6)
Each year in which any building permit is issued after the anniversary date as defined above and before the next and succeeding anniversary date shall be considered one year of development for purposes of Subsection C(1) hereof. Only those years during which a building permit is issued shall constitute a year of development. Intervening years in which no building permit is issued shall not constitute a year of development and shall not be considered when determining minimum years of development for purposes of Subsection C(1) hereof.
(7)
The Planning Board, in conjunction with the Building
Inspector, shall be responsible for administering this section of
the chapter.
(8)
The invalidity of one or more provisions or clauses
of this section shall not invalidate or impair the section as a whole
or any other part thereof.
D.
Growth management.
[Added 3-4-1997 by Doc. 21-B]
(1)
Intent and purpose. This Subsection D is adopted for the following purposes:
(a)
To ensure that growth occurs in an orderly and
planned manner, at a rate that can be supported by City services,
while avoiding large year-to-year variations in the development rate;
(b)
To provide the City with time to study the effect
of growth on the municipality's infrastructure, character and municipal
services, to install water transmission facilities and to address
required additional supply and distribution system improvements so
as to be able to achieve a positive safe yield capacity in order to
support additional new growth;
[Amended 6-27-2000 by Doc. 79-F]
(c)
To relate the timing of residential development
to the City's ability to provide adequate public safety, schools,
roads and municipal infrastructure and human services at the level
of quality which citizens expect and to the City's ability to pay
under the financial limitations of Proposition 2 1/2, as outlined
in the City's Master Plan of 1990;
(d)
To preserve and enhance the existing community
character and value of property; and
(e)
To allow departures from the strict application
of the growth rate measures herein in order to encourage certain types
of residential growth which address the housing needs of specific
population groups or which provide significant reductions in the ultimate
residential density of the City.
(2)
Applicability; effect; definitions.
(a)
Beginning on March 4, 1997, no building permit for a new dwelling unit or units shall be issued unless in accordance with the regulations of this Subsection D, unless exempted herein.
(b)
The provisions of this Subsection D shall expire on December 31, 2003.
[Amended 2-16-1999 by Doc. 162-B; 6-27-2000 by Doc. 79-F; 12-18-2001 by Doc. 156-B; 1-14-2003 by Doc. 189-B/02]
(c)
For the purposes of this Subsection D, the following terms shall have the following meanings:
- DEVELOPMENT
- A single parcel or set of contiguous parcels of land held in common ownership at any time on or after the date of adoption of this subsection, for which one or more building permits will be sought.
- DEVELOPMENT SCHEDULE
- A schedule authorized by the Planning Board in accordance with Subsection D(4).
- GROWTH RATE LIMIT
- The maximum number of building permits that may be authorized will be 100 permits per year. The growth rate limit is based upon an analysis of recent average growth rates and the 1990 Master Plan's policies and implementation strategies to manage the current high level of residential growth in the City. Units exempt under Subsection D(6) are included within the calculation of the growth rate limit.[Amended 6-27-2000 by Doc. 79-F]
(3)
Planned growth rate.
(a)
The growth rate limit shall be based on a growth
rate of 100 permits per year.
[Amended 10-26-1999 by Doc. 118-B; 6-27-2000 by Doc. 79-F]
(b)
Whenever the number of building permits issued for new dwelling units exceeds the applicable growth rate limit, the Building Inspector shall not issue building permits for any additional dwelling unit or units unless such unit or units are exempt from the provisions of this Subsection D.
(c)
The Planning Board shall not approve any development schedule under § 255-66C which would result in authorizations exceeding the applicable growth rate limit.
(d)
Building permits authorized by a development schedule, but not acquired during the scheduled period set forth in § 255-66C shall not be counted in computing the applicable growth rate limit. Building permits issued, but subsequently abandoned under the provisions of the State Building Code, shall not be counted in computing the applicable growth rate limit.
(4)
Development scheduling.
(b)
In addition to the types of development described in Subsection D(4)(a), the Planning Board is authorized, upon request, to approve a development schedule for any other building lot or dwelling unit, specifying the month and year in which such lot/unit shall be eligible for a building permit.
(c)
Dwelling units shall be considered as part of a single development for purposes of development scheduling in accordance with § 255-66C.
(e)
Where the applicable growth rate limit does
not allow development consistent with the table set forth above, the
Planning Board shall establish a development schedule which allows
fewer than the maximum number of dwelling units per year. However,
the Planning Board shall not establish any development schedule which
phases development for longer than a ten-year period.
(5)
Procedures for development schedules.
(a)
In order to facilitate review, the developer
may submit a written proposed development schedule to the Planning
Board as part of any application for a preliminary or definitive subdivision
approval or any application for approval of a plan subject to MGL
c. 41, § 81P.
(b)
In cases where the developer has elected not to submit a development schedule in accordance with Subsection D(5)(a) above, the Building Inspector shall refer any application for a building permit on a lot within these types of plans to the Planning Board for development scheduling.
(c)
The developer shall submit a written proposed
development schedule as part of any application for a special permit
or use variance. In the case of a use variance, the Board of Appeals
shall forthwith refer said document to the Planning Board.
(d)
The Planning Board shall approve a development
schedule which is consistent with the provisions of this subsection.
(e)
Approved development schedules for the types of development described in Subsection D(4)(a) shall be incorporated, where appropriate, as part of the decision filed with the City Clerk, whether inscribed on the plan and/or filed as a separate, attached document. In the alternative, development schedules pertaining to plans subject to MGL c. 41, § 81P, shall be separately recorded if the developer does not elect to use the procedures of Subsection D(3)(b).
(f)
No approved development schedule shall take
effect for the purposes of obtaining building permits until recorded
separately or as part of the decision.
(g)
After approval of a development schedule by the Planning Board in accordance with Subsection D(4), an application for a building permit in conformance with the approved schedule shall be approved and the permit issued even if the applicable growth rate limit calculated pursuant to Subsection D(3)(b) has been reached.
(h)
If applications for building permits are made
at a slower rate than authorized in a development schedule, applications
for the unused permits from one period may be made in a later period;
and such applications shall be approved and the permits issued even
if the applicable growth rate limit has been reached in the later
period.
(i)
Upon transfer of any lot or unit in the types
of development subject to development scheduling, the deed shall reference
the development schedule and state the earliest date on which construction
may be commenced in accordance with the provisions of this subsection.
(6)
Exemptions. The following developments are specifically
exempt from the planned growth rate and development scheduling provisions
of this subsection:
[Amended 6-27-2000 by Doc. 79-F]
(a)
Dwelling units in the types of development set forth in Subsection D(4)(a) which are exempt by virtue of the provisions of MGL c. 40A, § 6.
(b)
An application for a building permit for the
enlargement, restoration or reconstruction of a dwelling in existence
as of the effective date of this subsection, provided that no additional
residential unit is created.
(c)
Dwelling units for low- and/or moderate-income
families or individuals, where all of the following conditions are
met:
[1]
Occupancy of the units is restricted to households
qualifying under the Local Initiative Program as administered by the
Executive Office of Communities and Development.
[2]
The affordable units are subject to a properly
executed and recorded deed restriction running with the land which
shall limit each succeeding resale price to an increase of 10%, plus
any increase in the consumer price index, plus the cost of any improvements
certified by the Building Inspector.
(d)
Any single- or two-family dwelling in the RH
and RU Zone which is otherwise properly allowed by this chapter.
[Added 1-14-2003 by Doc. 189-B/02]
(e)
Any tract of land existing and not held in common ownership with an adjacent parcel on the effective date of this Subsection D shall receive a one-time exemption from the Planned Growth Rate and Development Scheduling provisions for the purpose of constructing one single- or two-family dwelling, which is otherwise allowed by this chapter, on the parcel.
[Amended 1-14-2003 by Doc. 189-B/02]
(7)
Zoning change protection. Any protection against zoning
changes provided by MGL c. 40A, § 6, shall be extended to
the earliest date on which the final unit in the development could
be authorized under this subsection.
(8)
Severability. The provisions of this subsection are
hereby declared separable and if any provision shall be held invalid
or unconstitutional, it shall not be construed to affect the validity
or constitutionality of any of the remaining provisions of this subsection
or act in relation thereto.
Where authorization of a use of land or of a structure is required by the Board of Appeals or City Council, a copy of such written authorization shall be sent by the Clerk of the Board or Council to the Building Inspector within 14 days of granting of approval and shall be received by the Building Inspector prior to the issuance of a permit. In addition, the Building Inspector in such cases where the Board or Council has granted a limited or conditional zoning variance or special permit shall not issue a permit until the applicant submits an affidavit from the Essex County Registry of Deeds that the authorization of the Board or Council is recorded. Furthermore, the Building Inspector shall not issue a permit where approval under the Subdivision Control Law by the Planning Board is required; and/or approval by the Mayor, State Department of Natural Resources and the State Department of Public Works for the filling of wetlands; and/or a certificate of appropriateness from the Historic District Commission, if and when required; and/or a covenant or offer for acceptance of open space under §§ 255-93 and 255-94 of this chapter, until these requirements are met in writing. Authorization for a permit shall be null and void if the applicant has not obtained his permit from the Building Inspector after one year from the date of approval of his application by the City Council or the Board.
[Amended 7-8-1997 by Doc. 73-B; 6-27-2000 by Doc. 79-F]
A.
Site plan required; contents.
(1)
In addition to plans and drawings required for submission
under regulations of the Building Code, all applications for permits
shall be accompanied by seven copies of a site plan. One copy of such
plan shall be returned to the applicant if approved by the Building
Inspector. Such site plan shall be drawn to scale showing all detail
and plan level information on approved plans and, in the absence of
any other plan, approval shall include the actual dimensions of the
lot to be built upon, the exact size and locations on the lot of any
existing building and those buildings to be erected, location and
design of off-street parking and loading spaces, signs and such other
information as may be necessary to determine and provide for enforcement
of this chapter. Clear reference shall be made on any site plan to
any other plans affecting the subject site, including, but not limited
to, Planning Board plans and approvals, conservation plans and approvals,
Board of Appeals plans and approvals and Board of Health plans and
approvals. In addition to the above information, if the property is
located in the Watershed Protection Overlay District, the site plan
shall contain the following:
B.
Site plan review.
(1)
Prior to the issuance of any permit for new construction
of units, the applicant shall file a plan containing all of the above
information with the Planning Department for a coordinated review
of the site plan by City departments. The purpose of this review is
to ensure, prior to actual construction, that the plans are in compliance
with all prior approvals from various boards and commissions as applicable
and fully incorporate the requirements of those approvals. If, in
the opinion of the relevant City departments, the work proposed deviates
from the approved plans or the review indicates that what is depicted
in the plan may cause changes to the topography and/or vegetation
on the site such that stability of the earth on the site or natural
flow of water or drainage on the site may be affected in such a way
as to cause adverse impact to the adjoining land or streets or ways,
then the Building Inspector shall require the applicant to provide
a modified plan for abatement of such an adverse effect(s), and failure
by the applicant to implement all work in conformance with such a
site plan shall be a violation of this chapter subject to all enforcement
provisions of this chapter.
(2)
Prior to the issuance of any permit which is for construction other than new construction, if, in the opinion of the Building Inspector, the work proposed may cause changes to the topography and/or vegetation on the site such that stability of the earth on the site or natural flow of water or drainage on the site may be affected in such a way as to cause adverse impact to the adjoining land or streets or ways, then the Building Inspector shall require the applicant to provide a site plan containing all information outlined in Subsection B(1) above, to the Planning Department for review. Such site plan shall detail all mitigation methods proposed to abate such an adverse effect, and failure by the applicant to implement such a site plan shall be a violation of this chapter subject to all enforcement provisions of this chapter.
(3)
The Planning Department shall seek the review and
approval of all applicable City departments as is deemed necessary,
prior to approval of any such site plan.
(4)
The Building Inspector, shall issue a cease-and-desist
order for a violation of the site plan, then the Building Inspector
shall require the applicant to post a bond sufficient for compliance
with the site control plan and any requirements thereof as a condition
prerequisite to the lifting of the cease-and-desist order.
It shall be unlawful to use or occupy any structure
or lot for which a permit is required herein without the owner applying
for and receiving from the Building Inspector a certificate of use
and occupancy. Such certificate may be combined with the one which
may be issued under the Building Code. The Building Inspector shall
take action within 14 days of receipt of an application for a certificate
of use and occupancy. Failure of the Building Inspector to act within
the 14 days shall be considered approval.
Fees shall be as established by the City Council.[1]
[1]
Editor's Note: Current fees are on file in
the office of the City Clerk.
Any work for which a permit has been issued
by the Building Inspector shall be actively prosecuted in accordance
with the Building Code.
A.
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.
B.
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.
[Added 6-6-1978 by Doc. 103-C]
[Amended 3-29-1983 by Doc. 30-C; 3-26-1985 by Doc. 69]
Any owner or person who violates or refuses
to comply with any of the provisions of this chapter may, upon conviction,
be fined a sum of a minimum of $25 or 1% of the property value as
stated on the building permit, up to $300 per day, for each offense.
Each day, or portion of a day, that any violation is allowed to continue
shall constitute a separate offense.
A.
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.
[Amended 6-6-1978 by Doc. 103-C; 3-29-1983 by Doc. 29-C]
B.
Chairman; removal of members; associate members; rules
and regulations.
[Added 6-6-1978 by Doc. 103-C]
(1)
Each Zoning Board of Appeals shall elect annually
a Chairman from its own number and a Clerk and may employ experts
and clerical and other assistants.
(2)
Any member may be removed for cause by the appointing
authority upon written charges and after a public hearing.
(3)
The Chairman of the Board may designate any such associate
member to sit on the Board in case of absence, inability to act or
conflict of interest on the part of any member thereof, or in the
event of a vacancy of the Board until said vacancy is filled.
(4)
The Board of Appeals shall adopt rules, not inconsistent
with the provisions of this Zoning Ordinance for the conduct of its
business and shall file a copy of said rules with the City Clerk.
C.
Powers and duties.
[Added 6-6-1978 by Doc. 103-C]
(1)
(2)
In exercising the powers granted by this subsection,
the Board of Appeals may make orders or decisions, reverse or affirm
in whole or in part, or modify any order or decision and to that end
shall have all the powers of the officer from whom the appeal is taken
and may issue or direct the issuance of a permit.
[Amended 6-6-1978 by Doc. 103-C]
Appeals to the Board shall be taken in accordance with the rules of the Board and the Zoning Act and may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from the Building Inspector under the provisions of this chapter, by the Merrimack Valley Planning Commission or by any person including an officer or board of this City, or of an abutting City or town aggrieved by an order or decision of the Building Inspector or other administrative official in violation of any provision of this chapter. Further appeals shall be taken in accordance with § 255-84 of this chapter. Any appeal under this section shall be taken within 30 days from the date of the order or decision which is being appealed by filing a notice of appeal, specifying the grounds thereof, with the City Clerk, who shall forthwith transmit copies thereof to such officer or board whose order or decision is being appealed and to the Board of Appeals. Such officer or board shall forthwith transmit to the Board of Appeals all documents and papers constituting the record of the case in which the appeal is taken.
[Amended 6-6-1978 by Doc. 103-C]
Written application for authorization for a
permit by action of the Board shall be made on forms provided by the
Board and shall include a copy of all information submitted to the
Building Inspector in the application for a permit and four copies
of the required plot plan. Applications for appeals shall be filed
by the petitioner with the City Clerk, who shall forthwith transmit
them to the Clerk of the Board of Appeals for administration. The
official date of filing shall be the date recorded by the City Clerk
upon receipt of the executed forms.
[Amended 6-6-1978 by Doc. 103-C]
A.
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.
B.
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.
C.
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.
D.
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.
[Amended 3-13-1979 by Doc. 299-C]
E.
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.
On appeal from an order or decision made by
the Building Inspector, or on request by any officer or board of the
City, the Board shall have the power to decide any of the following
questions:
A.
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.
[Amended 6-6-1978 by Doc. 103-C; 3-13-1979 by Doc. 299-C]
B.
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.
[Added 3-13-1979 by Doc. 299-C; amended 6-9-1981 by Doc. 79-C; 5-22-1984 by Doc. 60-B; 6-10-1992 by Doc. 52-C]
(1)
When a variance is requested to subdivide a parcel
of land, the dimensions and areas of the surrounding lots may be taken
from the deed or site plan for comparison of the size of lots in the
neighborhood, noted on the plan as such and marked "approximate."
Any plans presented with the petition shall remain a part of the record
of the Board of Appeals.
(2)
When a petition is filed for a sign variance, the
accompanying plan shall show, in addition to the location of the sign,
the sign area and height in relation to the respective building height,
size or length.
(3)
If living quarters are to be remodeled or areas to
be converted into living quarters, in addition to the required site
plan, nine copies of the following described plan shall be furnished:
(a)
A floor plan of each floor on which remodeling
is to be done or area converted into living quarters;
(b)
A floor plan showing the stairways, halls, doors
opening into the halls and exit doors of each floor or floors where
remodeling or converting is to be done; and
(c)
An elevation of the parts of the building where
outside stairways or fire escapes are to be located. The plans and
elevations shall be clearly illustrated. The size of each plan shall
be 11 inches by 17 inches or 22 inches. It shall be drawn to scale
1/4 inch equals one foot.
(4)
An application for a dimensional variance or use variance
that requires the recording of a plan must be accompanied by a recordable
linen or Mylar plan, and said plan must contain a registered land
surveyor's seal and signature and must comply with all other recording
rules of the Registry of Deeds.
(5)
All plans and elevations presented with the application
shall remain a part of the records of the Board of Appeals. The provision
of the plan and the application form shall be the sole responsibility
of the applicant.
(6)
The Building Inspector, at the time of initial application
review, shall confirm to the Board that all site/building plans submitted
are in total compliance with the Board's rules and regulations.
C.
Before any variance is granted, the Board must find
all of the following conditions to be present:
(1)
Conditions and circumstances are unique to the applicant's
lot, structure or building and do not apply to the neighboring lands,
structures or buildings in the same district.
(2)
Strict application of the provisions of this chapter
would deprive the applicant of reasonable use of the lot, structure
or building in a manner equivalent to the use permitted to be made
by other owners of their neighborhood lands, structures or buildings
in the same district.
(3)
The unique conditions and circumstances are not the
result of actions of the applicant taken subsequent to the adoption
of this chapter.
(4)
Relief, if approved, will not cause substantial detriment
to the public good or impair the purposes and intent of this chapter.
(5)
Relief, if approved, will not constitute a grant of
special privilege inconsistent with the limitations upon other properties
in the district.
D.
The following circumstances may be construed as establishing
a basis for determining that a hardship exists within the meaning
of this section:
(1)
Where by reason of exceptional narrowness, shallowness
or unusual shape of a specific site at the time of the effective date
of this chapter or to which this is amended, or by reason of exceptional
topographic conditions or other extraordinary and exceptional physical
situations or condition of such site of property, the literal enforcement
of the requirements of this chapter pertaining to yards or other space
relationships or total land area would result in exceptional practical
difficulties or exceptional and undue hardship upon the owner of such
property.
(2)
In the case of corner lots where on all other corners
of the intersection there are buildings or uses that do not conform
to the regulations prescribed by this chapter for the district in
which said lot is located and where said lot faces one or more of
said other uses, or in the case of an interior lot there are buildings
on the lots which adjoin it on both sides or on the lot which adjoins
it on one side plus the lot which adjoins it on the rear and the lot
or lots which immediately face it across the street, which buildings
do not conform to the regulations prescribed by this chapter for the
district in which the said lot is located.
E.
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:
(1)
The applicant with or without knowledge of the provisions
of this chapter has acquired the site subsequent to the effective
date of this chapter.
(2)
The applicant has caused a self-imposed hardship by
changing his circumstances after adoption of this chapter. (Example:
The applicant, in selling a portion of a larger site, has either created
a new lot which is deficient in total area or has rendered the existing
larger segment on which a structure is located insufficient in yard
space).
(3)
The applicant would realize financial advantage from
a change to the site, the structure or the use.
F.
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.
G.
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.
H.
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.
I.
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.
[Amended 6-6-1978 by Doc. 103-C]
A.
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.
[Amended 6-10-1980 by Doc. 89-C]
B.
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.
[Added 6-6-1978 by Doc. 103-C]
B2.
Permit applications.
[Added 3-13-1979 by Doc. 299-C; amended 6-9-1981 by Doc. 79-C; 5-22-1984 by Doc. 60-B; 6-10-1992 by Doc. 52-C]
(1)
Site plan.
(a)
All applications for a special permit before
the Board of Appeals shall be accompanied by a reproducible original
and 30 copies of the following described site plan:
[Amended 6-25-2002 by Doc. 97-B]
[1]
The plan shall be 8 1/2 inches by 11 inches
or larger, drawn at a scale of one inch equals 40 feet or such smaller
scale as may be necessary, indicating zoning districts, north points,
names of streets, names of property owners who abut the subject property
and existing property lines, and the exact location of existing buildings
and any proposed additions and distances from adjacent buildings and
property lines shall be shown on the plan, which shall accurately
be drawn in ink on Mylar or linen and signed and stamped by a registered
land surveyor.
[2]
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 special permit shall
also be shown.
(b)
All of the above must be certified as to accuracy
of the lot lines, placement of original buildings and of proposals
to provide additions to buildings, alterations to lot lines and/or
parking, etc.
(3)
All plans and facade elevations presented with the
application shall remain a part of the records of the Board of Appeals.
The provision of the plan and the application form shall be the sole
responsibility of the applicant.
(4)
If living quarters are to be remodeled, or areas to
be converted into living quarters, in addition to the required site
plan, nine copies of the following described plan shall be furnished:
(a)
A floor plan of each floor on which remodeling
is to be done or areas converted into living quarters;
(b)
A floor plan showing the stairways, halls, door
openings into the halls and exit doors of each floor or floors where
remodeling or converting is to be done; and
(c)
An elevation of the parts of the building where
outside stairways or fire escapes are to be located. The plans and
elevations shall be clearly illustrated. The size of each plan shall
be 11 inches by 17 inches or 22 inches, it shall be drawn to scale
1/4 inch equals one foot.
(5)
All plans and elevations presented with the application
shall remain a part of the records of the Board of Appeals. The provision
of the plan and the application shall be the sole responsibility of
the applicant.
(6)
An application for a special permit that requires
the recording of a plan must be accompanied by a recordable linen
or Mylar plan, and said plan must contain a registered land surveyor's
seal and signature and must comply with all other recording rules
of the Registry of Deeds.
(7)
The Building Inspector, at the time of initial application
review, shall confirm to the Board that all site/building plans submitted
are in total compliance with the rules and regulations of the Board
of Appeals.
C.
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:
[Added 6-10-1992 by Doc. 52-C]
(1)
The perimeter dimensions of the lot; Assessors Map,
lot and block numbers.
(2)
All existing and proposed buildings, structures, building
setbacks, parking spaces, driveway openings, distance between buildings,
plan view exterior measurements of individual buildings, driveways,
service areas and open areas.
(3)
Internal roads, sidewalks and parking areas (width
dimensions of paving and indication of number of parking spaces).
(4)
All facilities for sewage, refuse and other waste
disposal and for surface water drainage.
(5)
All proposed landscaping features, such as fences,
walls, planting areas and walks on the lot and tract.
(6)
Existing major natural features, including streams,
wetlands and all trees six inches or larger in caliper (caliper is
girth of the tree at approximately waist height).
(7)
Zoning, scale and North arrow (minimum scale of one
inch equals 100 feet).
(8)
Total site area in square footage and acres and area
to be set aside as public open space, if appropriate.
(9)
Percentage of lot coverage (including the percentage
of the lot covered by buildings) and percentage of open space, if
appropriate.
(10)
The proposed residential density in terms of
dwelling units per acre and types of proposed commercial uses in terms
of the respective floor area, and recreation areas, and number of
units proposed by type: number of one-bedroom units, two-bedroom units,
etc., if appropriate.
(11)
Location sketch map (indicate surrounding streets
and properties and any additional abutting lands owned by the applicant).
(12)
Developer's (or his representative's) name,
address and phone number.
(13)
Any other information which may include traffic,
school, utilities and impact studies deemed necessary by a 2/3 vote
of the City Council as the special permit granting authority (SPGA)
in order to adequately evaluate the scope and potential impacts of
the proposed project.
D.
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:
[Added 6-10-1992 by Doc. 52-C; amended 6-27-2000 by Doc. 79-H]
(1)
Representative elevation sketches of buildings (indicate
height of building and construction material of the exterior facade).
(2)
Typical unit floor plan for residential uses. (Floor
plan should be indicated for each type of unit proposed: either one
bedroom, two bedrooms or more.) The area in square feet of each typical
unit should be indicated.
E.
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:
[Amended 6-10-1992 by Doc. 52-C]
(1)
The use requested is listed in Table of Use and Parking
Regulations as a special permit in the district for which application
is made.
(2)
Where pertinent, the use requested also meets the special permit conditions listed in Article XI.
(3)
The requested use is essential or desirable to the
public convenience or welfare.
(4)
The requested use will not impair the integrity or
character of the district or adjoining zones, nor be detrimental to
the health, morals or welfare and will be in conformity with the goals
and policies of the Master Plan.
(5)
The requested use provides for convenience and safety
of vehicular and pedestrian movement within the site and in relation
to adjacent streets, properties and improvements to be demonstrated
by a traffic study where pertinent.
(6)
The requested use provides for adequate methods of
disposal for sewage, refuse and other wastes, and adequate methods
for surface and storm water drainage.
(7)
The requested use provides for adequate off-street
loading and unloading of service vehicles.
(8)
The requested use preserves historical buildings and
sites.
F.
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.
[Amended 6-10-1992 by Doc. 52-C]
[1]
Editor's Note: Said tables are included at
the end of this chapter.
G.
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.
[Added 6-10-1992 by Doc. 52-C]
H.
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.
[Added 6-10-1992 by Doc. 52-C]
I.
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.
[Added 6-10-1992 by Doc. 52-C]
[Amended 6-10-1980 by Doc. 89-C]
The granting of any appeal, application or petition
by the Board shall not exempt the applicant from any provision of
this chapter not specifically ruled upon by the Board or specifically
set forth as excepted in this particular case by a provision of this
chapter. It shall be unlawful for any owner or person to reconstruct,
convert or alter a structure; or change the use, increase the intensity
of the use or extend or displace the use of any building, other structure
or lot; or change any required limitations or special conditions imposed
by the Board in authorizing a special permit or variance without appealing
to the Board as a new case over which the Board shall have complete
administrative power to deny, approve or modify.
[Added 6-6-1978 by Doc. 103-C]
No variance or special permit, or any extension,
modification or renewal thereof, shall take effect until a copy of
the decision bearing the certification of the City Clerk that 20 days
have elapsed and no appeal has been filed or that, if such appeal
has been filed, that it has been dismissed or denied, is recorded
in the Essex County Registry of Deeds and indexed in the grantor index
under the name of the owner of record or is recorded and noted on
the owner's certificate of title. The fee for recording or registering
shall be paid by the owner or applicant.
[Added 6-6-1978 by Doc. 103-C]
A.
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.
B.
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.
[Added 5-24-1983 by Doc. 70-B]
[Added 6-6-1978 by Doc. 103-C; amended 12-18-1979 by Doc. 270-C]
A.
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.
B.
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.
[Added 6-6-1978 by Doc. 103-C]
Any petition for a variance or application for
a special permit which has been transmitted to the Board of Appeals,
Planning Board or City Council may be withdrawn, without prejudice,
by the petitioner prior to the publication of the notice of a public
hearing thereon, but thereafter be withdrawn without prejudice only
with the approval of the Board of Appeals, Planning Board or City
Council.