Special Permits and Variances

Variances

Types of Variances
Variances from the terms of the local ordinance or bylaw, such as:

• Setbacks
• Frontage
• Buffering
• Dwelling Units Per Acre
• Phased Growth regulations

Types of Variances
Use variance authorizes a use which is not permitted, such as:

• Commercial use in a residential zone
• Multi-family use in a single-family zone

Zoning Ordinances and Bylaws Must Specifically Authorize the Zoning Board of Appeals to Entertain Petitions or Appeals for Use Variances

The Three Required Findings For Granting A Variance:

Finding #1: Soil, Shape, Topography
Owing to circumstances relating to soil conditions, shape or topography of the land or structure and especially affecting such land or structure but not generally affecting the zoning district in which it is located.

• The board must also find that the peculiarity is unique to the zoning district where the parcel is located.
• The peculiarity must not be found in the district as a whole.

Finding # 2: Hardship
A literal enforcement of the provisions of the ordinance or bylaw would involve substantial hardship, financial or otherwise.

Finding # 3: Public Good
Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the ordinance or bylaw.

Conditional Variances

The permit granting authority may impose conditions, safeguards and limitations both of time and use, including the continued existence of any particular structures 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.

Special Permits

Zoning ordinances or bylaws shall provide for specific types of uses which shall only be permitted in specified districts upon the issuance of a special permit. Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or bylaw, and shall be subject to the general or specific provisions set for therein; and such permits may impose conditions, safeguards and limitations on time or use.

Statutorily Authorized Special Permits

• Increase in density
• Multi-family in non-residentially zoned areas
• Cluster and open space developments
• Planned unit and mixed use developments
• Shared elderly housing
• Accessory Uses in connection with scientific research
• Adult entertainment
• TDR

Adequate Standards

Local ordinances or bylaws must provide adequate standards for guidance of the board to grant or withhold special permits.

Special Permit Decision

• Limited to criteria detailed in bylaw.
• Board may not refuse to issue permit for reasons unrelated to the standards of bylaw.
• Board may not base decision on reputation or character of applicant.

When granting a special permit, the SPGA must make an affirmative finding as to the existence of each condition of the statute or bylaw required for granting the special permit.

Typical Criteria

• adequacy of vehicular and pedestrian traffic on and off site
• adequacy of parking and loading
• adequacy of utilities and other public services
• impact on the neighborhood and natural environment
• impact on town services

If the board finds any permissible reason to deny the application, its decision will be sustained.

Special Permit Conditions

The Zoning Act specifically authorizes imposing conditions, safeguards and limitations on time or use in the issuance of a special permit.

Types of Conditions

• Private disposal of waste
• Deadline to commence construction
• Limits on vehicles, noise, landscaping etc.
• Dust control
• Hours of operation and police details
• Performance bond
• Time limitations and renewals

Condition of Ownership

A special permit, unlike a variance, may be conditioned by limiting its duration to the term of ownership or use by the applicant.

Plan Conditions

When a special permit application is accompanied by plans or specifications detailing the work to be undertaken, the plans and specifications become conditions of the issuance of the permit.

Delegation of Authority
Procedural Requirements for Special Permits and Variances
Filing the Application

• All applications must be filed by the applicant with the municipal clerk
• Clerk must certify date and time of filing
• Copy of application, including certification, filed with the reviewing board
• Application that has been transmitted to reviewing board may be withdrawn prior to publication of the notice of the public hearing. After notice, can be withdrawn with approval by board

Public Hearing

• Reviewing board must hold a public hearing within 65 days from the date the application is filed.
• Required time limit may be extended by written mutual agreement between the petitioner and the reviewing board. A copy of the agreement must be filed with the municipal clerk.

Public Notice Requirements

Notice of a Public Hearing

• Name of petitioner
• Description of area or premises
• Street address or other means of identifying the location
• Date, time and place of the public hearing
• Subject matter of the hearing, and
• Nature of the relief requested

Notice in Newspaper

Notice must be advertised in "a newspaper of general circulation in the city of town once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing."
Posting Notice in Town Hall
The notice must be posted " in a conspicuous place in the city or town hall for a period of not less than fourteen days before the hearing."
Notice to Parties in Interest

• Notice must be mailed to all parties in interest:
• Petitioner
• Abutters
• Owners of land directly opposite on any public or private street or way, and
• Abutters to the abutters within three hundred feet of the property line of the petitioner.

Voting Requirements

• 3 of a 3-Member Board
• 4 of a 5-Member Board
• 2/3 of a Board of more than 5
• Members who miss any of the hearings on a petition are ineligible to vote on that petition.

Decision Time Limits

• Special Permits
  90 days after close of hearing
• Variances
  100 days from application filing

Extending Time Limits

• Time limit may be extended by mutual agreement.
• Copy of agreement must be filed with the municipal clerk.

Notice of Decision to Parties in Interest

The board is required to send by mail a notice of the decision to:

• the applicant
• parties in interest
• every person present at the hearing who requested that notice be sent

Decision Recording

• Approved variance or special permit must be recorded at the registry of deeds.
• No variance or special permit can take effect until it is recorded at the registry of deeds.

Special Permit Lapse

Special Permit will lapse:

• After two years, unless a shorter time period is specified locally;
• if substantial use has not commenced except for good cause or
• in the case of a permit for construction, construction has not begun except for good cause

Variance Lapse

A Variance will lapse:

• After one year if the rights are not exercised (unless the board extends this period for not more than six months more)