~ 171-49. Membership; terms of office.
A. There shall be a Board of Appeals consisting of five members elected by the voters for terms of such length and so arranged that the term of one such electee shall expire each year and that, thereafter, one member shall be elected at each annual election. In addition thereto, there shall be two associate members appointed jointly by the Board of Selectmen and the Board of Appeals for terms of one and two years for the first appointment and, thereafter, each year one appointment for a term of two years. The Chairman of the Board of Appeals may designate any such associate member to sit on the Board and act in the case of the absence, inability to act or conflict of interest on the part of a regular member thereof or, in the event of a vacancy on said Board, may designate any such
associate member to sit as a member of the Board and act until said vacancy is filled. No person shall serve on the Planning Board and the Board of Appeals at one time.
B. The Board shall elect annually a Chairman, a Vice Chairman and a Clerk from its own number and may, subject to appropriation, employ experts and clerical and other assistants.
~ 171-50. Establishment of rules.
The Board shall establish rules consistent with the provisions of the Zoning Bylaw for the conduct of its operations and shall file a copy of such rules with the Town Clerk.
~ 171-51. Powers and duties.
The Board shall have the following powers:
A. To hear and decide appeals in accordance with the provisions of ~ 171-52 herein.
B. To hear and decide applications for special permits upon which the Board of Appeals is specifically authorized to act under this chapter in accordance with the applicable provisions of the section of this chapter relating to special permits.
C. To hear and decide petitions for variance as set forth in the section of this chapter relating to variances.
~ 171-52. Basis for appeals.
An appeal to the Board of Appeals as this chapter provides may be taken by any person aggrieved by reasons of his or her inability to obtain a permit or enforcement action from any administrative officer under the provisions of the Zoning Bylaw; by the regional planning agency in whose area the town is situated; or by any person, including an officer or board of the town, or of an abutting town, aggrieved by an order or decision of the Inspector of Buildings or other administrative official.
~ 171-53. Appeals and variance request procedure.
A. The Board of Appeals shall not act on any matter unless and until a written application is filed with the Town Clerk on forms provided by the Board of Appeals, indicating the section of this chapter under which the Board is requested to act and stating the grounds on which the request is based. The Town Clerk shall transmit within three business days a copy of said application to each member of the Board of Appeals and shall mark on the face of each copy the date of such transmittal. The application shall be deemed received by the Board of Appeals two business days after such transmittal (Saturdays, Sundays and legal holidays excluded). [Amended 5-4-1989 ATM, Art. 19]
B. A notice of appeal shall be construed as a claim of error in a decision by an administrative official based on incorrect interpretation of this chapter and shall not be construed as a petition for variance.
C. Any appeal under ~ 171-52 of the Board of Appeals shall be taken within 30 days from the date of the ruling that is being appealed by filing a notice of appeal, specifying the grounds thereof, with the Town Clerk who shall forthwith transmit copies of the notice to such officer or board whose ruling is being appealed and to the members of 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.
D. A petition for variance shall be construed as a request for relief from the requirements of this chapter under ~ 171-56 and shall not be construed as a notice of appeal.
E. A petition for variance under ~ 171-56 of this chapter may be entered at any time by any person. Said person shall file a petition for variance with the Town Clerk, who shall forthwith transmit said petition to the members of the Board of Appeals, along with all accompanying plans, documents and papers. Each petition for variance shall be filed in duplicate with the Town Clerk, together with at least two sets of plans and information. At least one complete set shall be on sheets no larger than 11 inches by 14 inches. A petition for variance may be filed by the person filing a timely notice of appeal if the person filing the notice of appeal also wishes to request relief under ~ 171-56 in the event that the appeal is dismissed. [Amended 5-4-1989 ATM, Art. 19]
F. Meetings.
(1) Meetings of the Board shall be held at the call of the Chairman or when called in such other manner as the Board shall determine in its rules. The Board of Appeals shall hold a hearing on any appeal or petition for variance transmitted to it by the Town Clerk within 65 days from the date of receipt of such appeal or petition by said Town Clerk. The Board shall cause notice of such hearing to be published and sent to parties of interest as provided for herein and shall notify the Town Planning Board and the planning boards of adjacent towns so that they may forward recommendations with respect to said matter for consideration of the Board of Appeals. The Chairman, or in his absence the Acting Chairman, may administer oaths, summon witnesses and call for production of papers. [Amended 5-4-1989
ATM, Art. 19]
(2) The concurring vote of four members of the Board 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 any ordinance or bylaw.
(3) All hearings of the Board of Appeals shall be open to the public. The decision of the Board shall be made within 100 days after the date of filing of an appeal or petition for variance. The required time limits for a public hearing and final action by the Board of Appeals may be extended by written agreement between the applicant and the Board of Appeals. A copy of such agreement shall be filed in the office of the Town Clerk. Failure of the Board to act within 100 days after the date of filing of an appeal or petition for variance shall be deemed to be the granting of the relief sought, subject to any applicable judicial appeal, except in the event of a written agreement extending the required time limits as provided in this section. The Board shall make 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 its official actions, copies of all of which shall be filed within 14 days in the office of the Town Clerk and in the office of the Planning Board, and shall be a public record. [Amended 5-4-1989 ATM, Art. 19]
G. Notice of decisions shall be mailed forthwith to parties of interest, to the Planning Board, to the Selectmen and to every person present at the hearing who requests that notice to be sent to him or her and states the address to which such notice is to be sent.
H. Upon the granting of a variance, the Board of Appeals shall issue to the landowner a notice, certified by the Chairman or Clerk, containing the name and address of the landowner, identifying the land affected and stating that a variance has been granted which is set forth in the decision of the Board on file in the office of the Town Clerk. No such variance shall take effect until such notice is recorded in the Registry of Deeds by the petitioner.
~ 171-54. Notice of public hearing.
A. In all cases where notice of a public hearing is required, notice shall be made by publication in a newspaper of general circulation in the Town of Great Barrington once in each of two successive weeks, the first publication to be not less than 14 days before the day of the hearing, and by posting such notice in a conspicuous place in the Town Hall for a period of not less than 14 days before the day of such hearing.
B. Publications and notices shall contain the name of the petitioner; a description of the area or premises, the street address, if any, or other adequate identification of the location of the subject of the petition; the date and place of the hearing; the subject matter of the hearing; and the nature of action or relief requested, if any. No such hearing shall be held on any day on which a state or municipal election, caucus or primary is held in Great Barrington.
C. Costs of publication and mailing of notices shall be paid by the applicant.
D. When notice to individuals or specific boards or other agencies is required, notice shall be sent by mail, postage prepaid. Such notices shall be sent to parties of interest, i.e., the petitioner, abutters, owners of land directly opposite on any public or private street or way and owners of land within 300 feet of the property line, all as they appear on the most recent applicable tax list, notwithstanding that the land of any such owner is located in another town, the Planning Board of the town and the planning board of every abutting town.
~ 171-55. Review by other boards and agencies.
The Board of Appeals shall, within 10 days after receipt of an appeal, application or petition, transmit a copy thereof for review to the Board of Health, the Planning Board, the Board of Selectmen, the Conservation Commission and any other town agency, at the discretion of the Board of Appeals. Any board or agency to which such matters are referred for review shall make such recommendations as they deem appropriate in writing to the Board of Appeals; provided, however, that failure to make recommendations within 35 days of receipt by such board or agency of the matter for review shall be deemed lack of opposition thereto.
~ 171-56. Variances.
A. The Board of Appeals may authorize, upon appeal or petition with respect to a particular land or structure, a variance from the terms of this chapter where the Board specifically 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 this chapter would involve substantial hardship, financial or otherwise, to the petitioner and where the Board finds also that the desired 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.
B. No variance from the terms of this chapter shall be granted by the Board of Appeals unless and until a written application for the variance is submitted on forms supplied by the Board, and the Board specifically finds after a hearing:
(1) 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 this chapter would involve substantial hardship, financial or otherwise, to the petitioner;
(2) That the desired 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; and
(3) That the special conditions and circumstances do not result from the actions of the petitioner.
C. The Board of Appeals shall not grant the desired variance unless it specifically finds after the hearing that all the requirements of this section have been met.
D. The Board of Appeals may impose limitations both of time and use and may prescribe appropriate conditions and safeguards. Violations of such limitations, conditions and safeguards, when they are made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter.
E. The Board of Appeals shall not authorize a use or activity not otherwise permitted in the district in which the land or structure is located.
F. If the rights authorized by a variance are not exercised within one year of the date of granting of such variance, they shall lapse and may be reestablished only after notice and a new hearing as provided in ~ 171-53.
~ 171-57. Reconsideration of unfavorable permits. [Amended 5-6-2002 ATM, Art. 26]
No appeal or petition for variance that has been unfavorably and finally acted upon by the Board of Appeals shall be acted upon favorably within two years after the date of final unfavorable action unless said Board finds, by a vote of at least four members of the five-member Board, 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. No such reconsideration shall take place until and unless at least four members of the Planning Board consent thereto nor until adequate notice as specified in ~ 171-54 is given to parties of interest of the time and place of the proceedings when the question of such consent will be considered.
~ 171-58. Withdrawal of petition. [Amended 5-4-1989 ATM, Art. 19]
Any notice of appeal, petition for variance or application for special permit that has been transmitted to the Board of Appeals may be withdrawn, without prejudice, by the petitioner prior to the publication of the notice of a public hearing thereon but thereafter may be withdrawn without prejudice only with the approval of the Board of Appeals. Said approval shall require the concurring vote of at least four members of the Board.
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