Zoning & Land Use

Under a Zoning Ordinance in a city or a By-Law in a town, certain uses are permitted as a matter of right. For example, building a single-family home in a residential district, would be allowed as a matter of right. Constructing an industrial building or a warehouse in an industrial zone would also typically be allowed as a matter of right. Some uses, however, are only allowed conditionally. That condition is referred to as a Special Permit. A person would apply to the local Zoning Board of Appeals for a Special Permit to conduct a use which is only conditionally allowed. Typically the conditions would be such that there were no traffic problems, pedestrian safety problems, no overloading of water, sewer or other municipal systems, and that there would not be an undesirable effect on the surrounding neighborhood. If the applicant can meet all of these conditions, the Zoning Board of Appeals would issue a Special Permit, which would allow that use to be conducted on that property. Frequently, the Special Permit is subject to condition, such as buffers, screening, hours of operation and site layout.

A Variance is a form of relief, also granted by the Zoning Board of Appeals of the city or town, whereby a provision of the Zoning By-Law or Ordinance is waived. The Zoning Board must find that due to the shape, soil conditions or topography of the lot or the arrangement of buildings or other uses which are on the land, that there would be a hardship to the applicant, which can be cured without harm to the public in general or neighbors. As an example, a person might have an oddly shaped lot that was big enough to build a house on, but because it was narrow where it connected with the roadway, it did not have enough lot width. The Zoning Board of Appeals could grant a variance to allow this lot to be built upon. As another example, there might be a large outcropping of rock on a lot which means that the only place a house could be located on the lot would violate a side yard or rear yard setback. Again, the Zoning Board of Appeals could issue a variance to allow this lot to be built upon.

Yes, if you meet one of three conditions. The first condition is that the Engineer who prepares the plan certifies that no new lot lines are being created. By that we mean that you are just showing the perimeter of your property and not selling off any piece of it, or dividing it into separate lots. The second way is to have the plan endorsed by your local Planning Board as “Approval Not Required.” Even though the Planning Board is “approving” the plan, under state law it is technically an “endorsement.” In order to record such a plan, each lot, as shown on the plan, must have frontage on a public way, or on an approved subdivision road, and each of the lots must meet zoning requirements in your city or town, such as lot size and lot width. This type of plan would allow you to divide your property into two or more lots, as long as all of them had street frontage and met the minimum zoning requirements. The final way is to have the plan approved as a subdivision. This is a long, expensive and complicated process, whereby you take a large tract of land, such as a former farm, and covenant to build roads within it and to create lots along those new roads.

You may take an appeal to the superior court, the district court or the land court of Massachusetts. That appeal must be filed within twenty (20) days of the date that the decision you are appealing is filed with the city or town clerk. There are a number of other procedural requirements that you must follow scrupulously in order to obtain your appeal rights. You may appeal if you are someone who is aggrieved by the decision. This is a technical term, however, it basically means you must be someone directly affected by the decision, rather than simply someone in another part of town who is opposed to the decision reached by the zoning board of appeals.

Appeals of a building inspector’s decision are filed with the zoning board of appeals. Those appeals must be filed within thirty (30) days of the time that the building inspector issues his decision. The zoning board of appeals would then decide whether the building inspector ruled correctly, in which instance the decision is sustained, or ruled incorrectly, in which case it is overruled.

You may not fill wetlands or alter them without going before your local conservation commission. That conservation commission has the authority to review your project and to determine if the wetlands will be affected. The commission’s authority extends for up to 100 feet or upland immediately adjacent to the wetlands, which is known as the buffer. If you meet the appropriate state standards and agree to minimize the effect on the wetlands, and in some cases create new wetlands in another area, so that the total amount of wetlands remains approximately the same, the conservation commission my issue, pursuant to state law, an order of conditions allowing this work to occur. The conservation commission, of course, may put special conditions on the work regulating your particular project. In addition, many communities have a local wetlands protection by-law or ordinance and also a Storm Water Management Permit by-law or ordinance. As an example, in many communities there is a 25 foot buffer zone that is immediately adjacent to any protected wetland area which is not allowed to be altered at all. Therefore, in addition to the state permit issued by the conservation commission, you would need a local permit as well. These would be accomplished at the same hearing. Finally, many communities require that if you alter more than a certain amount of property, whether it be wetlands or upland, typically 2500 square feet or more, then you must present your Storm Water Management plans to the conservation commission and have them issue a local permit on that issue.

You should…