10D-017 TACEY (11) �1
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Therefor, within fourteen (14) days of receipt of such request.
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Section 10.8 - Prosecution of Violation. If the notice of VIOLATION
and ORDER is not complied with promptly, the Administrative Officer, i
upon written request to the City Solicitor, shall have available the
services of the City Solicitor in instituting the appropriate action
or proceeding at law or in equity to prevent any unlawful action,
use or condition and to restrain, correct or abate such violation.
If the Administrative Officer shall refuse or fail to so request the
services of the City Solicitor, the City Council may require him to
do so. Delay by the Administrative Officer in instituting said
proceedings shall not be imputed to the City of Northampton. Penal-
ties for violations may upon conviction, be affixed in an amount not
to exceed one hundred dollars ($100.00) for each offense. Each day
or portion of a day, that any violation is allowed to continue shall
constitute a separate offense.
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Section 10.9 - Zoning Board of Appeals , Variances, and Appeals.
1 . Membership. There shall be a Zoning Board of Appeals of
three (3) members and two ( 2) associate members, appointed
as provided in Chapter 40A of the Massachusetts General Laws.
2. Powers. The Board of Appeals shall have the following
powers: i
a. To hear and decide appeals, as provided in Chapter 40A
of the Massachusetts General Laws. (See sub-section 3
below. )
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b. To hear and decide applications for special permits,
as provided in Chapter 40A of the Massachusetts General
Laws. (See Section 10.10. )
c. To authorize upon appeal, or upon petition in cases
where a particular use is sought for which no permit
is required, with respect to a particular parcel of
land or to an existing building thereon, a variance
from the terms of this Ordinance, as provided in
Chapter 40A of the Massachusetts General Laws. (See
sub-section 3 below. )
3. Variances and Appeals. Applications for variances and
appeals shall be heard by the Zoning Board of Appeals
subject to the provisions of Chapter 40A of the Massachu-
setts General Laws. A variance which has the effect of
allowing a use not specifically permitted for the district
in question under the Table of Use Regulations (ed. note:
so called "use variance" ) may be permitted, subject to the
provisions of said Chapter 40A.
10-3
4. Time Limitations. No appeal or petition for a variance 2
from the terms of this Ordinance with respect to a
particular parcel. of land or the building thereon, and '
no application for special permit which has been unfavo
bly acted upon shall be again considered within two (2)' `
years after the date of such unfavorable action, except
as provided in Chapter 40A of the Massachusetts General`
Laws.
5. Zoning Administrator. The Board of Appeals, subject to 3
confirmation by the City Council, may appoint a zoning ',
administrator. The Board of Appeals may delegate to s
zoning administrator some of its powers and duties by a
concurring vote of all members of the Board of Appeals
consisting of three members. Any person aggrieved by
decision or order of the zoning administrator, whether,
not previously a party to the proceeding, or any munici
office or board, may appeal to the Board of Appeals, as
provided in Section Fourteen, within thirty (30) days ,
after decision of the zoning administrator has been fil
in the Office of the City Clerk. Any appeal, applicati
or petition filed with said zoning administrator for w
no decision has been issued within thirty-five (35) day
from the date of filing shall be deemed denied and shal
be subject to appeal to the Board of Appeals as provid
in Section Eight.
Section 10.10 - Special Permits. Certain uses, structures, or
conditions are designated within the Table of Use Regulations as ;
requiring a special permit. Such permit shall be granted only
after application to a hearing by the special permit granting au
and subject to the provisions of Chapter 40A of the Massachusett
General Laws and this Ordinance. The special permit granting au
responsible for hearing a particular proposal shall be that boar
other entity designated by the coding in the Table of Use Regula
(Ed. note: these designations are given at the beginning of Sec `
5.2, Table of Use Regulations. ) In situations where there is no
fic board indicated as having the authority to issue a special
the special permit granting authority shall be the Board of Appe
1 . Application for a special permit shall be made to the
istrative Officer on forms provided for that purpose,
accompanied by the required fee. Specific rules govern
application and fee shall be adopted by each special pe
granting authority along with its rules of procedure an
be applicable to those special permits which are under i
jurisdiction. When the application has been received ii
completed form as defined by said rules, a copy shall
warded to the City Clerk. The stamp of the City Clerk,
designate the date of filing. Copies shall also be deli
to the special permit granting authority, to the PlanniA
Department, and to such other departments and boards as
be determined in the rules of the special permit grantin
authority.
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M 40A § 7 CITIES, TOWNS AND DISTRICTS
Note 32
Issue whether trial judge, in stilt by Zoning bylaw is subject to review by
town to enforce zoning bylaw, abused the court to determine whether it repre-
his discretion in ordering defendant to gents a lawful exercise of the police
remove garage addition which was alleg- power; the question is whether the
edly violative of bylaw could not be de- court can pronounce the bylaw an un-
cided until the trial,judge, on remand, reasonable exercise of power having no
resolved fact question as to whether any rational relation to the public safety, `
portion of the structure could be used health or morals. Maider v. Town of €R
for any permitted purpose. Board of Dover (1974) 306 N.E.2d 274, 1 Mass.
Selectmen of Blackstone v. Tellestone App. 683.
(1976) 348 N.E.2d 110, 4 Mass.App. 810.
§ 8. Appeals to permit granting authority
An appeal to the permit granting authority as the zoning ordi-
nance or by-law may provide, may be taken by any person aggrieved
by reason of his inability to obtain a permit or enforcement action
from any administrative officer under the provisions of this chapter, '
by the regional planning agency in whose area the city or town is
situated, or by any person including an officer or board of the city or
town, or of an abutting city or town aggrieved by an order or decision
of the inspector of buildings, or other administrative official, in viola-
tion of any provision of this chapter or any ordinance or by-law
adopted thereunder.
Added by St.1975,c.808,§ 3.
Historical Note
Prior Laws:
St.1920,c.601,§9. St.1941,c.198,§§1,2.
St.1922, c. 40. St.1945, c. 167.
St.1926, c. 59. St.1951, c. 205.
St.1926, c. 216. St.1953, c. 102.
St.1929, c. 39. G.L. c. 40A, § 13, as added by St.1954,
G.L.1932 (Ter.Ed.) c. 40, § 30. c. 368, § 2.
St.1933, c. 269, § 1. St.19559 c. 325, § 1.
St.1935,c.388,$§1,2. St.1963,c.207,§ 1.
Cross References
Conveyance provisions, cluster development permits, see § 2 of this chapter.
Definition of permit granting authority,see§lA of this chapter.
Powers of boards of appeal, see§14 of this chapter.
Law Review Commentaries
Aggrieved landowners as intervenors. Proceedings before boards of appeals.
k�
Richard G. Huber, 5 Annual Survey of Kenneth B. Bond.(1959) 3 Boston Bar J.
I Mass. Law, Boston College, p. 146 No. 5, p. 25.
(1958). Review in Massachusetts zoning and
Modification of findings. John P. subdivision control cases. William E.
Clair, 9 Annual Survey of Mass. Law, Ryckman, Jr. (1967) 52 Mass.L.Q. 297;
Boston College,p.138(1962). (1968) 53 Mass.L.Q. 23.
Powers, duties and jurisdiction. Time of appeal. Richard G. Huber,
L� Francis J. Quirico and William J. Cur- 10 Annual Survey of Mass. Law, Boston
ran, 2 Annual Survey of Mass. Law, College, p. 152 (1963).
Boston College,p.192(1955). Zoning in New England. (1956) 36
Procedure in zoning cases. Richard Boston U.L.Rev. 354.
G. Huber, 7 Annual Survey of Mass.
Law,Boston College,p.138(1960).
158
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waterfront district, where there was no evidence ing that proposed construction in flood plain forthwith in the office of the zoning administrator and in the case of an
that the owner of the restaurant had complied district would not endanger the health and safe- I section eight with the officer whose decision was the subject of the initial
with the applicable zoning bylaw relating to ty of the district's residents and such finding, zoning administrator. The zoning administrator shall forthwith transmit t,
parking. Howland v. Board of Appeals of Plym- supported by evidence before trial judge, was a appeals all documents and papers constituting the record of the case in wl'
outh (1982) 434 N.E.2d 1286, 13 Mass.App. 520. sufficient ground to deny the special permit. is taken. An application for a special permit or petition for variance over w
Zoning board of appeals was without authority Subaru o. New England, Inc. v. Board of Ap- of appeals or the zoning administrator as the case may be, exercise origii
to grant application for special permit to do peals of Canton (1979) 395 N.E.2d 880, 8 Mass. shall be filed by the petitioner with the city or town clerk, and a copy c
construction work in watershed protection dis- App. 483. application or petition, including the date and time of filing, certified by th
trict,where applicant failed to satisfy his burden 17. Variances—In general clerk shall be transmitted forthwith b the etitioner to the board of a a
of demonstrating that his proposed use would Y P pp
! not endanger health and safety of district's resi- Although city board of appeals lacked authori- zoning administrator.
dents or other land within district and failed to ty to allow proposed balconies on apartment Meetingsof the board shall be held at the call of the chairman or when
satisfy qualifying criteria for permit which ap- building by virtue of zoning bylaw which permit
peared in zoning bylaw. Stivaletta v.Zoning Bd. ted exceptions to front yard setback require- other manner as the board shall determine in its rules. The board of appea
ments for ground story bas and orches which hearing on an appeal, application or petition within sixty-five days from
of Appeals of Medfield (1981) 429 N.E.2d 66, 12 �' j'Y Y P ; g Y PP , PP P tY- Y
Mass.App. 994. may project into any front yard three and one- notice by the board of such appeal, application or petition. The board shal
half feet, Superior Court properly declined to of such hearing to be published and sent to parties in interest as provii
No one has absolute right to a special permit g P
for certain use of land, but, rather, city's board annul the board's decision granting the variance eleven. The chairman, or in his absence the acting chairman, may adn
of appeals has power to deny a permit as long as from the front yard setback requirements, since summon witnesses, and call for the production of papers.
board's decision is neither based on legally un- more stringent findings than were necessary to
tenable grounds and is not unreasonable, whim- justify the granting of the variance had been The concurring vote of all members of the board of appeals consis
! sical,capricious or arbitrary. S.Kemble Fischer made by both board and Superior Court in con- members, and a concurring vote of four members of a board consisting of
Realty Trust v. Board of Appeals of Concord nection with a height variance granted to the shall be necessary to reverse any order or decision of any administrative
t
developers. Wolfman v. Board of Appeals of this chapter(1980}402 N.E.2d 100, 9 Mass.App.477,certiora- per or to effect any variance in the application of any ordinar
ri denied 101 S.Ct.566,449 U.S. 1011,66 L.Ed.2d Brookline (1983) 444 N.E.2d 943, 15 Mass.App.
468. 112, review denied 447 N.E.2d 670, 388 Mass. All hearings of the board of appeals shall be open to the public. The c
1104. board shall be made within one hundred days after the date of the filing
16. — Findings, special permits application or petition, except in regard to special permits, as provided for i!
i Unless use significantly detracts from zoning PP P , P g P P
Finding of town board of appeals that stan- plan for the district, local discretionary grant of The required time limits for a public hearing and said action, may be extend
dards for issuing a special permit for a commer- variance, all other statutory elements having agreement between the applicant and the board of appeals. A copy of sub
cial parking lot in a residentially zoned area been satisfied, must be upheld; the requirement shall be filed in the office of the city or town clerk. Failure by the boar
n were met was not in excess of board's authority of substantial derogation recognizes that effect said one hundred days or extended time if applicableshall be deemed to b
under zoning bylaw and was not the result of of a variance is to.give a landowner a license or Y PP '
whim or caprice and did not permit a use not permit to use his property in a manner otherwise the appeal, application or petition. The petitioner who seeks such approv
the failure of the board to act within the time prescribed shall notify th
contemplated by the bylaw. Garvey v. Board of violative of the zoning ordinance and that a use
Appeals of Amherst (1980) 400 N.E.2d 880, 9 variance in particular permits a use which the clerk, in writing, within fourteen days from the expiration of said one hu
Mass.App. 856. ordinance prohibits. Cavanaugh v. DiFlumera extended time, if applicable, of such approval and that notice has bee
Finding by board of appeals that it could not (1980) 401 N.E.2d 867, 9 Mass.App. 396. petitioner to parties in interest. The petitioner shall send such notice
be determined that construction of building in interest, by mail and each notice shall specify that appeals, if any, shall.be
flood plain district would not adversely affect 21. — Findings,variances s to section seventeen and shall be filed within twenty days after the date tf
preservation of flood control characteristics and Boyajian v. Board of Appeal of Wellesley clerk received such written notice from the petitioner that the board faile
water storage capacity of district was in sub- (1978) 374 N.E.2d 1237 tmain volume] 6 Mass. the time prescribed. After the expiration of twenty days without notice o
stance equivalent to a determination that special, App. 282. superior court, or, if appeal has been taken, after receipt of certified
superior court indicating that such approval has become final, the city or tc
§ 15. Appeals to permit granting authority; notice; time; boards of appeal hearings; issue a certificate stating the date of approval,the fact that the board fail
II Ij! procedure action and that the approval resulting from such failure has become f
Any appeal under section eight to a permit granting authority shall be taken within certificate shall be forwarded to the petitioner. The board shall cause
thirty days from the date of the order or decision which is being appealed. The petitioner detailed record of its proceedings, indicating the vote of each member upon
I or if absent or failing to vote,indicating such fact,and setting forth clearly
shall file a notice of appeal specifying the grounds thereof, with the city or town clerk,
and a copy of said notice, including the date and time of filing certified by the town clerk, its decision and of its official actions, copies of all of which shall be filed
shall be filed forthwith by the petitioner with the officer or board whose order or decision days in the office of the city or town clerk and shall be a public record, an
1 specifying grounds decision shall be mailed forthwith to the petitioner,applicant or appellant
is being appealed, and to the permit granting authority, specif ' in the notice interest designated in section eleven, and to every person present at th
for such appeal Such officer or board shall forthwith transmit to the board of appeals or requested that notice be sent to him and stated the address to which such n
zoning administrator all documents and papers constituting the record of the case in
l which the appeal is taken. sent. Each notice shall specify that appeals, if any, shall be made pure
seventeen and shall be filed within twenty days after the date of filing of
Any appeal to a board of appeals from the order or decision of a zoning administrator, the office of the city or town clerk.
if any, appointed in accordance with section thirteen shall be taken within thirty days of
,the date of such order or decision or within thirty days from the date on which the appeal, Amended by St.1987, c. 498, § 3*
application or petition in question shall have been deemed denied in accordance with said
section thirteen, as the case may be, by having the petitioner file a notice of appeal,
specifying the grounds thereof with the city or town clerk and a copy of said notice
A0 43