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What authority does the Board of Appeals have?
The Board of Appeals obtains its authority under the Massachusetts
General Laws Chapter 40A Section 14 and the Town of
Hopkinton's Zoning By-law 210-146 to 152 to hear and
decide appeals, to hear and decide applications for
Chapter 40A special permits, and to hear and decide
petitions for variances. The Board of Appeals also
hears and decides applications for special permits for low
and moderate income housing under Massachusetts General
Laws Chapter 40B Sections 20,
21,
22,
and 23.
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Who appoints members to the Board of Appeals?
The Board
of Selectmen appoint members to the Board of Appeals
to five year terms. The members of the Board of
Appeals do not stand for election.
The Members of the Board of Appeals have been designated
as “Special
Municipal Employees” by votes of the Board of
Selectmen on January 4, 2000 and July 11, 2006.
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What type of appeals does the Board of Appeals
hear?
Pursuant to Massachusetts
General Laws Chapter 40A Section 8 and Hopkinton
Zoning By-law 210-146(B)(1), the Board of Appeals hears
and decides appeals by any person aggrieved by any written
order or decision of the Zoning
Enforcement Officer or other administrative official
in violation of any provision of Massachusetts
General Laws Chapter 40A or the Hopkinton Zoning
By-laws. The Director
of Municipal Inspections is the Zoning Enforcement
Officer for the Town of Hopkinton.
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Does the Board of Appeals have jurisdiction
to hear appeals of the decisions of the Planning Board
under Site Plan Review?
Decisions by the Planning
Board under Site Plan Review under
Hopkinton Zoning By-law 210-135 are appealable only to
the Board of Appeals. Whereas the
Planning Board is acting as an "administrative
official" under the Zoning By-laws when rendering
such decisions, any person aggrieved by a decision
containing a violation of any provision of Massachusetts
General Laws Chapter 40A or the Hopkinton
Zoning By-laws may appeal said decision by
the Planning Board to the Board of Appeals pursuant to Massachusetts
General Laws Chapter 40A Section 8 and
Hopkinton Zoning By-law 210-146(B)(1).
Whereas the Planning Board does not
issue a Special Permit under Site Plan Review,
appeal is not to a court
of competent jurisdiction pursuant to Massachusetts
General Laws Chapter 40A Section 17.
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Does the Board of Appeals have jurisdiction to hear
appeals of the decisions of the Historic Commission
and Director of Municipal Inspections under the
Demolition Review Procedure?
Decisions by the Historic Commission and
the Director
of Municipal Inspections under the Demolition
Review Procedure pursuant to Chapter
125 of the Hopkinton By-laws are appealable only to
the Board of Appeals. Any person
aggrieved by a decision issued under Chapter
125 of the Hopkinton By-laws may appeal said decision by
the Historic
Commission or the Director
of Municipal Inspections to the Board of Appeals
pursuant to Hopkinton By-law 125-5 E.
Decisions that may be appealed include, without
limitation, initial determinations issued pursuant to
By-law 125-3 C prior to public hearings stating that a
structure is or is not of significant historical value,
and final decisions issued pursuant to By-law 125-3 E
after public hearings by the Historic
Commission. Appeals must be filed with the
Office of Town Clerk within thirty days of the date of the
decision pursuant to By-law 125-5 E, on the same forms and
in the same manner that as appeals are filed pursuant to
Hopkinton Zoning By-law 210-146(B)(1). A
$300.00 filing fee must accompany the appeal.
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When is the deadline for the filing of an Appeal?
Appeals from the written decisions of the Zoning
Enforcement Officer or other administrative official
must be filed with the Office
of the Town Clerk pursuant to Massachusetts
General Laws Chapter 40A Section 15 within thirty
(30) days from the date of the written order or
decision which is being appealed. Failure
to file a timely appeal is fatal.
The Board of Appeals has no discretion to hear an appeal
that is not timely filed.
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What if the Zoning Enforcement Officer does not issue a
written decision or order?
The Board of Appeals will not hear the appeal. The
Appeal will be dismissed for lack of jurisdiction and the
parties will be left to other legal remedies. You
should consult with an attorney regarding your
rights. The law is clear. The
written decision required of a building inspector under Massachusetts
General Laws Chapter 40A Section 7 is the
operative event for the purposes of appeal. Section 7 is
unambiguous in requiring a response "in writing"
with "the reasons therefor" when a building
inspector "declines to act" on a request for
enforcement. The language of Massachusetts
General Laws Chapter 40A Section 8, which confers
the right to appeal upon a "person aggrieved by
reason of his inability to obtain …. enforcement"
contemplates, as a precondition to the right to appeal,
the written response declining enforcement described in
Section 7. The fourteen day period in Section 7 is
designed to encourage promptness. In some cases, however,
a building inspector may not be able to act on a request
within fourteen days for legitimate reasons, such as (for
example) the inspector’s need to consult with other
municipal boards or officers having an interest in the
matter. The fourteen day requirement in Section 7
"relates only to the time of performance of a duty by
a public officer and does not go to the essence of the
thing to be done; therefore it is directory and not
mandatory. The date on which a zoning enforcement
officer responds in writing to a Section 7 request for
enforcement creates the appealable decision contemplated
by Section 8 and becomes the date for measuring the
thirty-day appeal period set forth in Section 15.
The failure of the building inspector to act is of
no legal consequence. Vokes v. Avery W.
Lovell, Inc., 18 Mass.App.Ct. 471, 468 N.E.2d 271 at
276-277 (1984), Elio v. Zoning Board of Appeals of
Barnstable, 55 Mass.App.Ct 424 (2002). An
interpretation of Section 7 which provides for
constructive denial would likely spawn litigation to
determine whether fumbling lay inquiries and protests
addressed to the building inspector were in fact
definitive requests for enforcement, sufficient to start
the running of the fourteen-day decision period. Vokes,
FN10
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What is a Chapter 40A Special Permit?
Certain uses of property are permitted as a
matter of right. However, the Hopkinton
Zoning By-laws provide that other uses are not
allowed in certain zoning districts, and that
specific types of uses shall only be permitted in
specified zoning districts upon the issuance of a
Special Permit from the Board of Appeals pursuant to Massachusetts
General Laws Chapter 40A Section 9, 9A, and 9B.
Special Permits may be issued only for uses which are in
harmony with the general purpose and intent of the
By-law, and may be subject to general or specific
provisions set forth therein, and such permits may also
impose conditions, safeguards and limitations on time or
use. A Special Permit, unlike a Variance,
may be conditioned by limiting its duration to the term
of ownership or use by the Applicant.
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. Therefore,
once a Special Permit is granted, modification of the
plans or specifications require as a prerequisite,
modification of the Special Permit through the filing of
a successive Special Permit application.
No building permit may be issued
by the Director
of Municipal Inspections for a use or structure that
requires a Special Permit until 1) a Special Permit has
been granted by the Board of Appeals, 2) the expiration
of the twenty (20) day appeal period pursuant to Massachusetts
General Laws Chapter 40A Section 11, and 3) the
Special Permit has been recorded at the Middlesex
South District Registry of Deeds. The Director
of Municipal Inspections may require proof of
recording at the Registry of Deeds prior to issuance of
a building permit. No party is
entitled "as a matter of right" to a Special
Permit. The Board of Appeals,
in the proper exercise of its discretion, is free to
deny a Special Permit even if the facts show that such a
permit could be lawfully granted.
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Does a Chapter 40A Special Permit lapse?
Pursuant to Massachusetts
General Laws Chapter 40A Section 9 and Hopkinton
Zoning By-law 210-146B(2), Special Permits lapse within two
years of the grant thereof, unless good cause is
shown why substantial use thereof, or related
construction, has not begun. The issue of whether a
Special Permit has lapsed and/or "good cause"
exists is determined by the Zoning
Enforcement Officer. This determination may
occur at the time of his review of an
application for a building permit. Persons aggrieved
by the Zoning Enforcement Officer's written decision may
appeal to the Board of Appeals. Technically, there
is no provision in the law for the Board of Appeals
to "extend" an existing Special Permit;
however, an Application for a new Special Permit may be
filed with the Office
of the Town Clerk at any time.
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What is a Chapter 40B Special Permit?
Chapter 40B is a state statute, which enables
local Boards of Appeals to approve affordable housing
developments under flexible rules if at least 25% of the
units have long-term affordability restrictions.
Also known as the Comprehensive
Permit Law, Chapter 40B was enacted in 1969 to help
address the shortage of affordable housing statewide by
reducing unnecessary barriers created by local approval
processes, local zoning, and other restrictions. Its goal
is to encourage the production of affordable housing in
all communities throughout the Commonwealth. Links:
Overview
of the Massachusetts Comprehensive Permit Law.
Frequently
Asked Questions.
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What is a "Grandfathered Use"?
Certain uses and structures are protected from
subsequent zoning changes if they were lawfully in
existence prior to first publication of notice of adoption
or change in an applicable zoning by-law. These
are called "protected pre-existing non-conforming
uses". The right to continue the nonconforming
use is not confined to the existing user, but the right
runs with the land. Derby Refining
Co. v. City of Chelsea, 407 Mass. 703, 555 N.E.2d
534 (1990). However, such protection is not
unlimited. Any change, alteration, or
expansion of a protected use or structure requires a
Special Permit from the Board of Appeals pursuant to the
Hopkinton Zoning By-laws and Massachusetts
General Laws Chapter 40A Section 6.
The Board of Appeals is free to allow or prohibit such
modification. In all matters concerned
with nonconformities, the burden of proof is on the
property owner to show "the requisite similarity
between the current use and the original nonconforming
use". The test
for determining whether the current or proposed use of the
property fits within the exemption granted to
nonconforming uses is found in the leading case of Powers
v. Building Inspector of Barnstable, 363 Mass 648
(1973): 1) whether the use reflects the "nature
and purpose" of the use prevailing when the zoning
by-law took effect; 2) whether there is a difference in
the quality or character, as well as the degree, of use;
and 3) whether the current use is "different in kind
in its effect on the neighborhood." This
is an extremely complicated area of the law and it is
strongly recommended that any owner seeking to assert
"grandfathered" rights consult with an attorney
before filing any pleading with the Board of Appeals.
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How can a Grandfathered Use be altered or changed?
A protected use can only be lawfully altered or
changed upon the granting of a Special Permit from
the Board of Appeals. One of the main purposes
of zoning is to stabilize use of property, and the
advantages that owners of nonconforming property acquire
by enactment of a zoning ordinance are not to be augmented
unless permitted by the current ordinance. Everpure
Ice Mfg. Co. v. Board of Appeals of Lawrence, 324
Mass. 433, 86 N.E. 906 (1949). Pursuant
to Massachusetts
General Laws Chapter 40A Section 6 and Hopkinton
Zoning By-law 210-128, the Board of Appeals may only grant
a Special Permit to alter or change a "grandfathered"
use or structure upon a finding that the proposed change
is not substantially more detrimental to the neighborhood
and that one of four circumstances exist.
These include that 1) the nonconforming use, building or
structure is being changed to a similar or more
restricted use, 2) the nonconforming use, building or
structure is being enlarged in the same use to an extent
of not more than 25% in volume or area, or special
circumstances exist with respect to 3) existing lots or 4)
off-street parking.
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Can Grandfathered Protection be lost?
Most definitely. Generally,
preexisting non-conforming uses are to be given minimal
tolerance. Chilson v. Zoning Board of
Appeals of Attleboro, 344 Mass. 406, 182 N.E.2d 535
(1962). A protected use may be lost if it is
discontinued, or altered or changed without a Special
Permit from the Board of Appeals. Pursuant to Massachusetts
General Laws Chapter 40A Section 6 and Hopkinton
Zoning By-law 210-129 to 131, a nonconforming use may not
be resumed or changed to another nonconforming use after
1) abandonment of use for two years, 2) two years during
which it has been neither used nor offered for sale, or 3)
failure to resume use or to convert to another approved
nonconforming use within two years of purchase. Also, once
a nonconforming use reverts to a more restricted use, it
may not return again to its original less restricted use.
And, once a nonconforming use has been destroyed or
damaged by fire, explosion or other catastrophe, it may be
rebuilt or restored at the same location and again used as
it previously was, provided that its owner shall apply for
a building permit and start operations for restoring or
rebuilding on said premises within 12 months after such
catastrophe; and further, provided that the buildings as
restored shall not exceed in volume or area the original
nonconforming structure.
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What is a Variance?
A Variance is a waiver of the zoning rules
adopted by the Citizens of Hopkinton at
Town Meeting. Accordingly, it is only in rare
instances and under exceptional circumstances that
relaxation of the general restrictions established by the Zoning
By-laws are permitted. A Variance is
distinguished from a Special Permit. The Variance is
used to authorize an otherwise prohibited use or to loosen
dimensional requirements otherwise applicable to a
structure. No person has a right to a
Variance. Variance of "use" is
almost never granted by the Board of Appeals. Variance
of "dimensional" requirements is granted in
rare occasions. A Variance may granted pursuant
to the Hopkinton Zoning By-laws and Massachusetts
General Laws Chapter 40A Section 10. The
Board of Appeals has no discretion to grant a Variance
unless the petitioner provides evidence of, and that
the Board of Appeals finds that, owing to
circumstances relating to the soil conditions, shape, or
topography of such land or structures and especially
affecting such land or structures but not affecting
generally the zoning district in which it is located, a
literal enforcement of the provisions of the ordinance or
by-law 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 such ordinance or by-law. Even if
the Board of Appeals find that such hardship exists, it
may exercise its discretion and not grant a Variance. No
building permit may be issued by the Director
of Municipal Inspections for a use or structure that
requires a Variance until 1) a Variance has been
granted by the Board of Appeals, 2) the expiration of the
twenty (20) day appeal period pursuant to Massachusetts
General Laws Chapter 40A Section 11, and 3) the Variance
has been recorded at the Middlesex
South District Registry of Deeds. The Director
of Municipal Inspections may require proof of
recording at the Registry of Deeds prior to issuance of a
building permit.
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Does a Variance lapse?
Pursuant to Massachusetts
General Laws Chapter 40A Section 10 and Hopkinton
Zoning By-law 210-146B(3), if the rights authorized by a
Variance are not exercised within one year,
the Variance lapses, unless otherwise extended by the
Board of Appeals. Upon the filing
by of a written request for "Extension of an
Existing Variance" (it is recommended that you
utilize the Petition for Variance form), along with a $300
filing fee with the Clerk of the Board of Appeals within
one year of the date of the grant of the original
Variance, the Board of Appeals in its discretion may
extend the time for exercise of such rights under the
Variance for a period not to exceed six months.
If the Board of Appeals does not grant such
extension within thirty days of the date of application
therefor, upon the expiration of the original one year
period, the Variance lapses and such rights may be
reestablished only with the filing of a new Petition
for Variance with the Office
of the Town Clerk.
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Is a Special Permit available to vary Side
Yard and Rear Yard Requirements?
Hopkinton's Zoning By-laws contain a very unusual
provision that allows the Board of Appeals to issue a
Special Permit to allow variation of side and rear set
back requirements. "Required side
yard and rear yard areas may be varied in the case of an
irregular, narrow or shallow lot, or a lot unusual in
shape of topography, upon the granting of a Special Permit
by the Board of Appeals. Zoning By-law
Section 210-119. Too often, an
owner will file a Petition for a Variance for side
and/or rear set back requirements and be denied
because he or she could not prove the requisite hardship
for the granting of a Variance. Because
there is no "hardship" requirement for a the
grant of a Special Permit, it may be preferable to file
for a Special Permit under Zoning By-law 210-119 instead
of a Variance.
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Where do I get the applicable Board of Appeals forms?
Appeals, Applications for Special Permits, and
Petitions for Variances are available at the Office
of the Town Clerk. There is a Supplemental
form that needs to be completed if there is a pre-existing
non-conforming ("grandfathered") use or
structure on the property.
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Where do I file the forms?
Completed Appeals, Applications for Special
Permits, and Petitions for Variances must be filed with
the Office
of Town Clerk with the applicable $300 filing fee (per
pleading) and list of abutters from the Town Assessors
Office. You need to file ten
(10) complete copies of your pleadings (and plans &
legal briefs, if applicable) with the original.
Do not file the original pleadings with the Director
of Municipal Inspections. While you
are not required to submit copies of your pleadings
to the Director
of Municipal Inspections, it is recommended that you
communicate with the Director since he is the Zoning
Enforcement Officer for the Town of Hopkinton.
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After I file a Pleading, can I decide to postpone
the Public Hearing or withdraw my Pleading?
Once you file your Pleading with the Office
of Town Clerk and Notice of a Public Hearing is
published, you can not on your own decide
to postpone the Public Hearing or withdraw your Pleading. Because
of the nature of zoning, your request for zoning
relief effects not only your property and yourself,
it effects your abutters and their property rights. Therefore
you have no right to postpone a Public Hearing or
withdraw your Pleading. However, you
may request permission from the Board of Appeals to do so.
If you find that you require additional time to
prepare, you should appear at the Public Hearing and
make a request to continue the Public Hearing to
another date. You should be fully prepared to
explain the reasons for your request. Your
request may or may not be granted. If your
request is granted, you will be asked to sign a written
request on a form provided by the Clerk of the Board of
Appeals. Any request for a continuance will
extend the deadline the Board of Appeals has to
render a decision. You should be aware that
even if your request is granted, in the discretion of the
Chairman of the Board of Appeals, testimony and evidence
from others in attendance may be allowed at the initial
Public Hearing. If you wish to withdraw your
Pleading, you should appear at the Public Hearing and
make that request. Again, you should be
fully prepared to explain the reasons for your
request. Your request may or may not be granted
pursuant to Massachusetts
General Laws Chapter 40A Section 16. Generally,
it is not sufficient to merely make a prior written request
and then not appear at the Public Hearing. This
does not provide an opportunity for the Board of Appeals
to inquire as to the rationale for your request and the
effect of a continuance or withdrawal on the abutters. Failure
to appear at the Public Hearing to make a request for
a continuance of a Public Hearing or
withdrawal of a Pleading may result in denial of your
Pleading.
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When is the Public Hearing and what happens at the
Hearing?
The Clerk of the Board of Appeals will schedule a
Public Hearing on your Appeal, Application, and/or
Petition as soon as the Board of Appeals docket will
permit. Generally, but not always, this will
occur within 45 days of the filing with the
Office
of the Town Clerk. The Public Hearing
is your opportunity to make your case for the specific
relief that you request. It is strongly
recommend that you come to the Public Hearing well
prepared. Under most circumstances, you bear
the burden of proof, and you should be familiar with the
Town of Hopkinton Zoning By-laws and Massachusetts
General Laws Chapter 40A. It is critical
that you know what relief you want, and be able to explain why you want
it, and provide the Board of Appeals with the legal
basis for such relief. Keep your oral
argument succinct and on-point. Do not
stray or wander into issues that do not relate to your
pleading and the zoning issues at hand. It is
strongly recommended that you provide the Board of Appeals
with a written brief detailing the facts and issues
of law. Since the abutters have also been
provided with Notice of the Public Hearing, you may expect
both support and opposition to your filing. It
is strongly recommended that prior to the Public Hearing
that you discuss your plans with your neighbors and
solicit their support. You should know in
advance the opposition that you face and be prepared
to advise and discuss with the Board of Appeals just how
you intend to deal with and mitigate any
obstacles. With respect to Petitions for
Variances, you must clearly explain, and provide evidence
of, a substantial hardship that qualifies under the
Hopkinton Zoning By-laws and Massachusetts
General Laws Chapter 40A Section 10. Unsupported
oral testimony asserting "substantial
hardship" may not be sufficient. When
submitting written evidence at the public hearing, such as
plans, documents or legal briefs, it is strongly
recommended that you provide sufficient copies for each
board member sitting in attendance (up to 7 members may
attend a hearing). If you are not sure
of your rights, the specific relief you are requesting, or
the legal basis for your position, it is recommended that you
consider retaining legal counsel to represent your
interests. Proceedings before the
Board of Appeals involve your property rights. In
certain circumstances, if your Appeal, Application,
or Petition is denied, you may not bring another request
for two years, unless you can meet the stringent
requirements of Massachusetts
General Laws Chapter 40A Section 16.
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Must the Appellant, Applicant, or Petitioner
Appear at the Public Hearing?
Generally, the Appellant, Applicant, or
Petitioner must appear at the Public Hearing. Failure
to appear may result in denial of your Pleading. If
you are represented by an Attorney
who is licensed to practice law in the Commonwealth of
Massachusetts, he or she may appear on your
behalf. However, even if your are represented
by counsel, it is highly recommended that you also appear. Persons
other than licensed Attorneys may not "represent"
an Appellant, Applicant, or Petitioner. For
example, if you want a licensed engineer to make your
presentation to the Board of Appeals, you must also appear at
the Public Hearing. You can not send a
person other than an attorney to act on your behalf
without your attendance. In the case of
Special Permits and Variances, if the Applicant or
Petitioner is not the owner of record of the parcel, then
written authorization from the owner of record is
required to be submitted to the Board of Appeals in order
to provide evidence of standing for the
non-owner to file the Pleading. If not included
with the initial filing, it must be submitted at the
commencement of the Public Hearing; otherwise, your
pleading may be denied.
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When will the Board of Appeals render and
file a decision?
The Board of Appeals will attempt to render and
file a decision as soon as possible. However,
the Members of the Board of Appeals serve the
community as unpaid volunteers and have other
commitments to family and their employers. Therefore,
decisions are not always filed as soon as many would
desire. Your patience is appreciated and
sufficient time, including allowance for the 20 day appeal
period, should be budgeted within your
construction schedule. Pursuant to Massachusetts
General Laws Chapter 40A Section 15, the deadline for
filing a Decision for an Appeal, Variance, or
Chapter 40A Special Permit, except for a Special Permit issued
under Massachusetts
General Laws Chapter 40A Section 9, is one
hundred (100) days after the initial filing with
the Office
of the Town Clerk. For a Special Permit issued
under Massachusetts
General Laws Chapter 40A Section 9, the Board of
Appeals will hold a public hearing within sixty-five days
from the date of filing of such Application. The
decision of Board of Appeals shall be made
within ninety (90) days following the
date of such public hearing. However, the required time
limits for a public hearing and action may be extended by
written agreement between the petitioner and the special
permit granting authority. A copy of such
agreement shall be filed in the Office
of the Town Clerk.
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How many affirmative votes are necessary to render
a favorable decision?
Generally, five members of the Board of Appeals
will vote on a decision. Associates Members of
the Board of Appeals may attend Public Hearings and vote
in the absence or unavailability of Full Members.
Decisions granting relief require an affirmative vote of
at least four (4) members. Therefore, a simple majority is
insufficient.
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When do Special Permits and Variances granted by
the Board of Appeals become valid?
Special Permits and Variances granted by the
Board of Appeals become valid pursuant to Massachusetts
General Laws Chapter 40A Section 11 only after they
are recorded at the Middlesex
South District Registry of Deeds after expiration
of the twenty (20) day appeal period. The
statute provides that "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 town clerk that twenty days have
elapsed after the decision has been filed in the office of
the town clerk and no appeal has been filed or that if
such appeal has been filed, that it has been dismissed or
denied, and if it is a variance or special permit which
has been approved by reason of the failure of the permit
granting authority or special permit granting authority to
act thereon within the time prescribed, a copy of the
application for the special permit or petition for the
variance accompanied by the certification of the city or
town clerk stating the fact that the permit granting
authority or special permit granting authority failed to
act within the time prescribed and no appeal has been
filed and that the grant of the application or petition
resulting from such failure to act has become final or
that if an appeal has been filed, that it has been
dismissed or denied, is recorded in the registry of deeds
for the county and district in which the land is located
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."
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Can I appeal a decision of the Board of Appeals?
Original applicants, aggrieved persons, and
municipal boards or officers may appeal the decision to
grant or withhold a Special Permit or Variance, the
decision to uphold or reverse an enforcement action by the Director
of Municipal Inspections or the failure of the
Board of Appeals to take final action within the statutory
time limit. Appeals may be timely taken to a court
of competent jurisdiction pursuant to Massachusetts
General Laws Chapter 40A Section 17.
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