SteveR: initial revision

2020-12-23T23:25:39Z

initial revision

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Presented by Ilana Quirk (attorney, and teacher of affordable housing
law) on December 17, 2020.

A special permit is the approval for a use that's allowed under a
municipality's discretionary authority. These uses will be listed in
the local zoning bylaw. Special permit uses are allowed, but not by
right. There are two basic kinds of special permit uses: (1) uses
that are allowed, if specific performance standards are met ("shall
issue a special permit"), and (2) uses that are allowed at the special
permit granting authority's discretion ("may issue a special
permit").

Variances cover things that are not allowed by right or by special
permit. A variance is an exception to local zoning. There are
stricter standards, and a higher burden of proof.

Board decisions (for variances and special permits) cannot be
arbitrary and capricious. The decision should assess applicants on
the basis of a set of criteria, and the criteria should (preferably)
be spelled out in the local zoning bylaw.

Several bodies can be given the authority to grant special permits:
the ZBA, planning board, zoning administrators, select board (in a
town), or the city council (in a city). Variances can only be granted
by the ZBA.

Board members should carefully examine their local bylaws for special
permit standards. Pay specific attention to the use of "may"
vs. "shall".

When people come to a board meeting or public hearing, realize that
some of them haven't had the experience of interacting with local
government. Try to make a good impression. Diplomacy can be helpful.

Special permits are covered in Ch 40A section 1A. Variances are
covered in Chapter 40A, Section 10.

40A requires every zoning bylaw to be accompanied by a zoning map,
which divides the municipality into zoning districts. Regulations
within each district must be uniform; this is called the rule of
uniformity.

Special permits are allowed conditionally, and boards are expected to
weigh the benefits and detriments of a proposal. Special permit
criteria are generally less stringent that variance criteria.

Variances allow one to do something that would ordinarily be
prohibited. There are dimensional variances and use variances. 40A
says that use variances are allowed only where a local zoning bylaw
explicitly allows them.

Boards can impose conditions when granting special permits and
variances. It's always a good idea to mention the specific plan in
the decision and conditions.

Variances should be granted sparingly, and only if all of the
statutory conditions are met.

Chapter 40A was amended in 2016. New zoning changes don't apply to
previously-granted special permits, as long as construction begins
within 12 months. Special permits lapse if they're not exercised
within three years.

Variances date back to the 1924 Massachusetts Zoning Enabling Act.
They were added to prevent regulatory takings.

A building permit is still needed after a special permit has been
granted. An applicant may have to seek additional permits from other
town bodies (e.g., Conservation Commission, Historic Districts
Commission).

Special permits can provide relief for dimensional regulations. The
requirements are generally less strict than those for a variance.

No person has the legal right to a variance. If a variance decision
is appealed, the burden of proof lies with the party seeking the
variance.

Zoning districts must be set up uniformly and use regulations must be
uniform throughout the district. 40A Section 9 contains an exception
to this for multi-family homes. They can be allowed by special
permit, if the multi-family housing doesn't adversely affect the
non-residential district, and the permitted non-residential uses are
not noxious to a multi-family use.

In 2018, Chapter 40A was amended to allow transfer of development
rights, if adopted by the local government.

40A Section 9 says that adult uses have to be allowed in some
districts. However, the internet appears to have made this less of an
issue. Section 9B covers solar energy and 9C covers childcare
facilities.

Bylaws should provide clear and adequate standards for when a special
permit granting authority (SPGA) should grant or deny a special
permit request.

Board decisions should be written for people who were not present
during the public hearings (e.g., a judge).

Uses not listed in a district don't qualify for a special permit, even
if they're similar to other uses mentioned in the bylaw.

The SKIT doctrine says there must be at least one use allowed by right
in each district. This doesn't include exempt (Dover amendment) uses.

Dimensional variances provide exceptions to dimensional requirements:
setback, frontage, parking requirements, lot area, building height,
lot coverage an so on. The decision should grant relief according to
what's being asked for. For example, suppose a petitioner seeks a
variance to side yard setback for a 10x10 addition. The decision
should grant the variance "in order to construct a 10 x 10
addition", as shown on submitted plans. A variance to construct a 10
x 10 addition shouldn't allow the petitioner to turn around and
construct a 10 x 30 addition. Again, it's helpful for the decision to
site a specific plan.

There are three criteria for granting of a variance, and the statue
requires all three to be met. First, relief must be related to soil
or topography or the shape of the lot; the circumstances must be
particular to the lot, and not to the district as a whole. Second,
the ZBA must find that literal enforcement would create a hardship.
Third, the ZBA must find that granting of the variance would not
create substantial detriment to the public good.

The topography finding should be fact-dependent, as it depends on
local knowledge. The hardship finding must relate to the premises for
which the variance is sought.

There are filing process requirements for special permits and
variances. Applicants may be able to see a constructive grant if the
deadlines aren't met.

Special permit applications are filed with the municipal clerk, who
transmits them to the special permit granting authority. The SPGA has
35 days to respond. A special permit application may be withdrawn
without prejudice before the first advertisement.

During public hearings, remember that members of the public may be
unfamiliar with the process. Explain the criteria that will be used
in the decision to grant or deny the permit. The board is making a
decision based on legal requirements; it's not a popularity contest.

40A Sections 11 and 15 specify notice requirements. Legal notices
must be published 14 days before a hearing opens (in a newspaper,
posted on city hall, or sent to parties of interest). Notices must
include the name of the applicant, the location of the property, the
date, time and location of the hearing, the subject matter, and the
nature of relief being requested.

Any abutter within 300 feet is a party of interest.

Public hearings can be continued; notice is not required for continued
hearings. Boards must follow open meeting law, and the decision to
continue must be made at a public meeting. Hearings must be continued
to a specific date and time.

Advertising and posting are different things. Both need to be done.

Open Meeting Law requires agendas to be published 48 hours in advance
of the meeting. The agenda should specify what votes (if any) will be
taken.

Materials used in a public hearing must be available for public
inspection.

If an application is incomplete, let the applicant know, and try to
get the matter corrected before the first hearing date. If the
applicant doesn't correct the defect, a board can instruct the
applicant to complete the application and continue. Or, the board can
deny the permit request. Incomplete applications aren't a good reason
to delay the opening of a hearing.

Be sure the hearing venue is large enough to accommodate the expected
audience. If too many people show up to fit in the room, consider
continuing the hearing (and find a larger venue).

Be sure that a quorum of members is present for hearings, and know
whether your city or town has adopted the Mullin rule.

When opening a hearing, be transparent and welcoming to the public.
Summarize notices before each public hearing. Explain the procedure,
and tell the public when they'll be able to participate. Announce any
written comments the board has received.

When conducting the hearing, give the applicant an opportunity to
present. Encourage members of the public to ask questions. If the
board sets time limits on public comment, be fair and even in
enforcing those limits.

Refrain from making jokes during the public hearing promises. If the
joke goes badly, you risk damaging the board's credibility.

If possible, make an audio or video recording of each meeting. This
is particularly important if your municipality has adopted the Mullin
rule.

Keeping accurate minutes is critical. Minutes should state which
board members are present and absent.

Hearings should be closed by vote (majority vote required). Once a
hearing is closed, you'll have to re-advertise in order to introduce
new information.

For special permits, boards have 65 days to open hearings. Notice
must be given 14 days before the hearing opens. Once the hearing is
closed, boards have 90 days to issue a decision.

The timeline for variances is similar, but boards must render a
decision within 100 days of receipt of the petition.

Constructive grants are covered in 40A Section 9, 11, and 15. This
applies when a board fails to act in a timely manner.

A decision should include the board's finding of fact. It's
advantageous to vote on the finding of fact separately from (and
before) voting on the decision. These findings should state which
zoning or statutory criteria apply. The chair should ask board
members if they've viewed the property, and the answers should be
recorded in the minutes. This can be helpful in appeal cases.

When rendering a decision, board members must go through the special
permit criteria, and their findings of fact.

Findings of fact should name the applicant and property owner,
describe the characteristics of the property, the relief sought, and
the statutory provisions that apply. The decision must do more than
state the criteria; it should state how and why the criteria are
satisfied.

It's very helpful to have a template for writing decisions.

Special permits had variances require super-majority vote for
approval.

Boards should consider including a catch-all clause in their
decisions, something like "any relief not expressly granted is hereby
denied".

Boards must make their own findings; they cannot delegate this
responsibility.

Special permits may be conditioned by limiting the duration of the
permit to a specific term of ownership, or the term of use by an
applicant. Variances cannot be conditioned in this way.

When an application involves phased construction, consider putting
time limits on the length of each phase.

When working on a decision, be careful not to deliberate over email.
Deliberation must be done during a public meeting.

Once a decision is made, boards have 14 days to file it with the town
clerk. Boards must mail notices of the decision to all interested
parties. The notice doesn't need to include a copy of the decision;
it just has to say that a decision was reached.

Applicants must record decisions (with the registry of deeds) before
they can take effect.

Special permits lapse after the time period specified in the local
bylaw. This period can be two or three years. Variances lapse if not
exercised in one year. Lapse time excludes time required for appeals.

[[Category:Notes]]

CPTC: Special Permits and Variances - Revision history

SteveR: initial revision