Zoning Board of Appeals
The Zoning Board of Appeals is a five member Board, with three alternate members. The Board operates in compliance with the Zoning Board Rules and Regulations and makes its decisions based on the Zoning Bylaw (as authorized under Chapter 40A, Massachusetts General Laws) . Enforcement Authority of the Zoning Bylaw lies with the Building Inspector.
The Zoning Board of Appeals also administers applications for comprehensive permits for construction of affordable housing under Massachusetts General Laws Chapter 40B. Town of Pelham 40B Regulations
Changes to the Zoning Bylaw are proposed by the Planning Board and voted by town meeting.
Form 1, Application for Findings, Appeals, Variances, and Special Permits
Frequently Asked Questions
Question 1: What kinds of cases does the ZBA hear?
Answer: It hears four kinds of cases:
- Applications for special permits. The Planning Board is the permitting authority for some issues (for example common access driveways and cemeteries), but the Zoning Board of Appeals is the permitting authority for 13 issues (see Table 1 in Section 125-5 for the list).
- Applications for variances. Although the ZBA acts on applications for variances from zoning bylaws listed in Section 125, it can only do so rarely because of the restrictions imposed by State Law. According to Section 10 of Massachusetts General Laws Chapter 40A, the ZBA can only grant a variance related to land or structures if it finds that owing to circumstances related 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 . . . bylaw 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 . . .
Furthermore, Section 10 also prohibits variances for use --- that is, the ZBA may not "authorize a use or activity not otherwise permitted" in Pelham. Prior applicants have discovered that while it is not especially difficult to demonstrate hardship, it is unusual for applicants to be able to meet the first requirement (that the application is prompted by soil conditions, shape, or topography that are highly unusual in Pelham), and the last requirement (that granting the variance will not nullify or substantially derogate from the intent or purpose of the bylaw).
- Applications for findings. Section 125-7E authorizes to grant changes, extension, or alterations of preexisting, nonconforming structures or uses provided that the ZBA finds that the proposed change (1) creates no new zoning violation, and (2) "will not be substantially more detrimental to the neighborhood than the existing nonconforming structure" or use.
- Appeals of actions by the building inspector or zoning enforcement officer.
Question 2: What should I do if I think I might want to apply for a special permit, a variance, or a finding, or appeal an action by the building inspector or zoning enforcement officer?
Answer: The first step it to communicate informally via email or phone with the ZBA chair. At the moment, the chair is Jeff Eiseman, firstname.lastname@example.org, 253-2932.
Question 3: What are the formal procedures for applying apply for a special permit, a variance, or a finding, or appealing an action by the building inspector or zoning enforcement officer?
Answer: The first step is to obtain a copy of the application.
- You can obtain a paper copy from the Rhodes Building or you can download or print a copy from the website. Read the entire application to see what information you will need to provide. However, if you know you want to proceed as soon as you can, then you should immediately contact the Assessor's office and ask for an official list of the abutters to the
property at issue. Note that the Assessor's hours are restricted, typically 10 AM to noon on Tuesdays. Currently, the official abutter's list costs $25, and the application fee for the desired action is $100 (This fee is used for three purposes: for postage to mail out notices to abutters both before and after the hearing, for advertising the hearing in the /Daily Hampshire Gazette/, and for clerical support related to distributing and recording copies of the application and notices). The application is not complete until (1) all information requested in the application has been provided, (2) an official abutter's list has been obtained, and (3) 12 copies of the application, along with the application fee, are submitted to the Town Clerk (who will not consider the application complete unless all the required information is both submitted and intelligible).
Question 4: What should applicants know about time?
Answer: All of the following . . .
- Because of notification and advertising requirements, hearings can't be scheduled for three weeks after a complete application has been received, but it may take longer than to find a date when five ZBA members are available.
- Most hearings last only one evening, and it is typical for the decision to be made immediately following the hearing (after discussion by Board Members in full view of those attending.
However, it is possible that a hearing will take longer than one night, or that a decision will not be reached at the hearing.
- Anyone who has been granted a special permit, variance, or finding must wait for about five weeks before they may act. The ZBA is allowed up to two weeks to formally write up, file, and mail out the decision. A 20-day appeal period begins immediately after the decision is filed. During that time, anyone can file an appeal of the decision (to a court). Applicants whose applications have been denied who wish to appeal must do so within this 20 day period. If someone does file an appeal of a grant, then the applicant may not act upon the special permit, variance, or finding unless and until the court rules in the applicant's favor.
- A nonconforming use that has been abandoned or discontinued for two year may not be re-established.
- Applicants who are granted variances must act upon them within one year. After that, they are no longer valid.
- Applicants who are granted special permits or findings must act upon them within two years. After that, they are no longer valid.