The Zoning Board of Appeals, consisting of five members as constituted
and empowered under § 267 of Article 16 of the Town Law, on the
effective date of this chapter shall be continued. Vacancies occurring in
such Board shall be filed in accordance with the Town Law. The Zoning Board
of Appeals shall have all the powers and perform all the duties prescribed
by statute and by this chapter.
A.
Appellate jurisdiction.
(1)
Appeals of interpretation. The Zoning Board of Appeals
shall hear and decide appeals where it is alleged that there is an error or
misinterpretation in any order, requirement, decision or determination by
an administrative official of the Town of Boston charged with the enforcement
of the provisions of this chapter. The Zoning Board of Appeals may reverse,
modify or affirm, in whole or in part, any such appealed order, requirement,
decision or determination appealed from and may make such order, requirement,
decision or determination as, in its opinion, ought to be made in strictly
applying and interpreting the provisions of this chapter and for such purposes
shall have all the powers of the officer from whom the appeal is taken.
(2)
Appeals for variance. On an appeal from an order, requirement,
decision or determination of any administrative official charged with the
enforcement of this chapter where it is alleged by the appellant that there
are practical difficulties or unnecessary hardship in the way of carrying
out the strict application of any provisions of this chapter, the Zoning Board
of Appeals may grant a variance in the strict application of such provisions,
provided that all of the following findings are made:
(a)
That there are unique circumstances or conditions peculiar
to the particular property and that the practical difficulties or unnecessary
hardships are not due to circumstances or conditions generally created by
the provisions of this chapter in the zoning district in which the property
is located.
(b)
That such circumstances or conditions are such that the
strict application of the provisions of this chapter would deprive the applicant
of the reasonable use of the property and that the granting of the variance
is therefore necessary to realize a reasonable use of the property.
(c)
That the variance, if granted, will be in harmony with
the general purpose and intent of this chapter, will not be injurious to the
neighborhood, will not impair the appropriate use or development of adjacent
property and will not be detrimental to the public welfare.
(d)
That such practical difficulties or unnecessary hardships
are not self-created by any person having an interest in the property through
disregard for or ignorance of the provisions of this chapter; provided, however,
that where all other required findings are made, the purchase of property
subject to a variance grant shall not itself constitute a self-created hardship.
(e)
That within the intent and purposes of this chapter the
variance, if granted, is the minimum variance necessary to afford relief.
B.
The following types of cases shall be construed as eligible
for consideration within the meaning of this chapter:
(1)
Unusual size of shape of lot: where, by reason of exceptional
narrowness, shallowness or shape of a specific piece of property at the time
of the effective date of this chapter or by reason of exceptional topographic
conditions or other exceptional physical difficulties in the development of
such piece of property, the literal enforcement of the requirements of this
chapter pertaining to yards or other space relationships would result in peculiar
practical difficulties or exceptional undue hardship upon the owner of such
property. No use variance shall be granted in such case.
(2)
Adjacent nonconforming uses: where, adjacent to a lot
on both sides, in the case of an interior lot, or on both the side and rear
of the lot or on all other corners of an intersection, in the case of a corner
lot, there are buildings or uses which do not conform to regulations prescribed
in this chapter for the district in which said lot is located. In considering
such appeal, the Zoning Board of Appeals shall give due regard to the nature
and conditions of all adjacent uses and structures; and, in granting any such
appeal, the Zoning Board of Appeals may impose special requirements and conditions
for the protection of conforming uses and ultimate removal of nonconforming
uses and structures. In any case, the variance as to the use or uses permitted
on any lot, whether principal or accessory, shall not allow a use or combination
of uses more intensive or less restricted than any use which is legally existing
on premises immediately adjacent on either side of said lot or of premises
on any corner of the intersection in the case of a corner lot.
(3)
Nonconforming building: where the principal building
on any premises was originally lawfully erected and intended for a principal
use and such building would now be a nonconforming use in the district in
which located and the right to continue or reestablish such nonconforming
use in such building is denied by the provisions of Article XXVII of this
chapter and where the literal enforcement of such provisions would result
in peculiar and exceptional practical difficulties or exceptional and undue
hardship upon the owner of such property. In considering such appeal, the
Zoning Board of Appeals shall give due regard to the age and condition of
such building and its adaptability for or convertibility to a conforming use.
In approving any such appeal, the Zoning Board of Appeals shall specify the
time limit during which such grant of a variance shall be effective, which
time limit shall in no case exceed the estimated useful life of such building.
In case the building has been condemned by the Code Enforcement Officer and
ordered to be demolished, the Zoning Board of Appeals shall not grant any
such variance.
(4)
Any other case involving practical difficulties or unnecessary
hardship in the way of carrying out any provision of this chapter pursuant
to and in accord with the intent and purpose of Subdivision 5 of § 267
of Article 16 of the Town Law.
C.
In granting a variance, the Zoning Board of Appeals may
vary or modify the provisions of this chapter so that the spirit of the law
shall be observed, public safety secured and substantial justice done. Toward
this end, the Zoning Board of Appeals may prescribe such conditions or restrictions
as it may deem necessary. Such conditions or restrictions shall be incorporated
in the building permit, the certificate of occupancy and/or the certificate
of zoning compliance.
D.
Original jurisdiction.
(1)
General provisions.
(a)
The Zoning Board of Appeals shall hear and decide, in
accordance with the provisions of this chapter, all applications for special
permits or for modifications of provisions of this chapter in all such cases
upon which the Zoning Board of Appeals is specifically authorized to pass
or to make any other determination required by this chapter.
(b)
In authorizing any specified special permit or specified
modification or in making any required determination, all required findings
shall be made, and, in the case of special permits or modifications, the Zoning
Board of Appeals may prescribe appropriate conditions to minimize adverse
effects on the character of the surrounding area and to safeguard the public
health, safety, convenience or general welfare.
(c)
No special permit or modification of the provisions of
this chapter shall be authorized by the Zoning Board of Appeals unless, in
addition to other findings specified in this chapter, it finds that such special
permit or modification:
[1]
Will be in harmony with the general purposes and intent
of this chapter.
[2]
Will not tend to depreciate the value of adjacent property.
[3]
Will not create a hazard to health, safety or the general
welfare.
[4]
Will not alter the essential character of the neighborhood
nor be detrimental to the residents thereof.
[5]
Will not otherwise be detrimental to the public convenience
and welfare.
(2)
Modification of regulations.
(a)
Reduction of parking spaces for places of assembly. The
Zoning Board of Appeals may authorize a reduction of not more than 50% in
the number of required off-street parking spaces for places of assembly when
located on the same lot with other uses, provided that the following findings
are made:
[1]
That, in accordance with times of operation and times
of peak demand, there will be no conflict in the joint use of such off-street
parking spaces.
(b)
Reduction of parking spaces where public off-street parking
facilities are available. Where public off-street parking facilities, other
than parking provided for a public building, are available, the Zoning Board
of Appeals may reduce, on a pro rata basis, the parking requirements for all
uses within 600 feet of any boundary of such parking facility.
(c)
Exception from exterior side yard requirements. The Zoning
Board of Appeals may modify the exterior side yard requirements for principal
buildings on deep corner lots, provided that the following findings are made:
(d)
Exception from fence height limitations. The Zoning Board
of Appeals may permit a fence up to eight feet in height in any rear yard,
not a front yard equivalent, or in any side yard, not a required side yard,
provided that such fence is at least 10 feet from any property line and that
the following findings are made:
A.
General provisions. The Zoning Board of Appeals, consistent
with this chapter, may adopt rules of conduct and procedure.
B.
Filing appeals. An appeal to the Zoning Board of Appeals
from any ruling of any administrative official charged with the enforcement
of this chapter may be taken by any person aggrieved or by any officer, department,
division, board or bureau of the Town of Boston. Such appeal shall be taken,
within such time as shall be prescribed by the Board by general rule, by filing
with the officer from whom the appeal is taken and with the Zoning Board of
Appeals a notice of appeal, specifying the grounds thereof. The officer from
whom the appeal is taken shall forthwith transmit to the Board all the papers
constituting the record upon which the action appealed from was taken.
C.
Filing applications. An application for any matter upon
which the Zoning Board of Appeals is required to pass may be made to the Code
Enforcement Officer by the owner, tenant of the property or a duly authorized
agent for which such appeal or application is sought.
D.
Meetings, witnesses and records.
(1)
Meetings of the Board shall be held at the call of the
Chairman and at such other times as the Zoning Board of Appeals may determine.
All meetings shall be open to the public.
(2)
The Chairman of the Zoning Board of Appeals, or in his
absence, the Acting Chairman, may administer oaths and compel the attendance
of witnesses.
(3)
The Zoning Board of Appeals shall keep minutes of its
proceedings, showing the vote of each member upon every question or, if absent
or failing to vote, indicating such fact, and shall keep records of its examination
and other official action. Every rule or regulation; every amendment or repeal
thereof; and every order, requirement, decision or determination of the Zoning
Board of Appeals shall immediately be filed in the office of the Town Clerk
and shall be a public record.
E.
Stay of proceedings. Any appeal to the Zoning Board of
Appeals shall stay all proceedings in furtherance of the action appealed from,
except as otherwise provided in Subdivision 4 of § 267 of the Town
Law.
F.
Public hearing. The Zoning Board of Appeals shall fix
a reasonable time for a hearing of an appeal, applications for special permits
or modifications of regulations or other matters referred to it and shall
give public notice thereof in accordance with the provisions of Subdivision
5 of § 267 of the Town Law.
G.
Decisions of the Zoning Board of Appeals.
(1)
The concurring vote of a majority of the members of the
Zoning Board of Appeals shall be necessary to reverse any order, requirement,
decision or determination of the Code Enforcement Officer or to decide in
favor of the applicant any matter upon which it is required to pass under
this chapter or to effect any variance of this chapter.
(2)
Every decision of the Zoning Board of Appeals shall be
by resolution. Where findings are required, the decision shall set forth each
required finding, supported by substantial evidence or other data considered
by the Zoning Board of Appeals in each specific case or, in the case of denial,
the decision shall include the findings which are not satisfied.
H.
Violation of conditions or restrictions. Failure to comply
with any conditions or restriction prescribed by the Zoning Board of Appeals
in approving any appeal for a variance of application for a special permit
or a modification of regulations shall constitute a violation. Such violation
may constitute the basis for revocation of a variance, special permit or modification
or for penalties and other applicable remedies.
I.
Lapse of authorization. Any variance, special permit
or modification of regulations authorized by the Zoning Board of Appeals shall
be automatically revoked, unless a building permit conforming to all the conditions
and requirements established by the Zoning Board of Appeals is obtained within
six months of the date of approval by the Zoning Board of Appeals and construction
is completed within one year of such date of approval.
J.
Rehearing. There shall be no rehearing of an appeal or
application by the Zoning Board of Appeals, except in accordance with Subdivision
6 of § 267 of Article 16 of the Town Law.
