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Subject: Proposed New Board of Appeal Policies
To Be Adopted By: The Board of Selectmen, with Joint Concurrence from Town Counsel and Board of Appeal
Proposed By: David F. Delorey, Jr.
Date: May 1, 1998, Revised July 30, 1998
Location: Town of Billerica, Massachusetts

The Board of Selectmen will consider adopting the following new town policy to govern the Board of Appeals in following case law and their oath of office by only granting variances that fall within the constitution, general laws and town by-laws.

The following is a new town policy to be voted by the Board of Selectmen:

Town Policy to be Adopted by the Board of Selectmen

11.0) Board of Appeals

The Board of Selectmen has produced this policy to inform residents, taxpayers and officials of the town, and the public in general, that the Board of Selectmen is committed to a fair, reasonable, consistent and defendable standard of performance by town boards, commissions, committees and agencies that completely complies with known due process requirements of the constitution, general laws, town by-laws and case law. This policy is mainly designed to prevent and avoid needless litigation costs to the town. The Board of Selectmen has created this policy as a proactive step to prevent costly litigation undertakings launched to adjudicate process issue disputes that could have been remedied by a good prior written understanding of important Board of Appeal processes and due process requirements of the law. While the Board of Appeal is indeed an independent quasi-judicial board, appointed by the Board of Selectmen, that adjudicates zoning issues, the Town Charter also requires that "the Board of Selectmen shall cause all of the laws and orders for the government of the town to be enforced", including compliance with the zoning by-law. Thus this particular policy has been promulgated to integrate these two, at some times conflicting, requirements. In summary, it is the belief of the Board of Selectmen that the following policy statements are in the public interest and will result in an improved level of service to the residents and taxpayers of the town, to wit:

11.1) The Variance and Special Permit Application Process Shall:

(a) require that all petitioners provide the proof and written evidence that any variance requested, on any application form, clearly states the reason(s) why such request deserves a variance [i.e., because it complies with every statutory requirement, including consistency with every applicable case law decision], at the time of application, and

(b) require the petitioners to re file applications when significant or substantive changes, affecting a petitioner's original application [e.g., reasons, scope, plans, documentation, etc.], are introduced after the petitioner files their application, and

(c) require that every zoning by-law section, subsection, sub-subsection that the petitioner requests to be varied be included on the petitioner's application, and advertised, as a request to be varied [e.g., "sign setbacks, section 16.4.D.4.F, rather than advertising the variance too broadly as "section 16"], and

(d) require petitioners to identify specifically all metrics and the specific locations on their proposed plan(s) for each variance element applied for [i.e., from: the by-law metric requirement on the property and plan, to: the requested metric on the property and plan].

11.2) In Granting a Variance or Special Permit, the Board Shall:

(a) state exhaustively the reasons, produce written proof and document evidence, consistent with the statutory requirements and case law, why the Board of Appeal granted a variance or special permit, [i.e., never rely solely on reciting the statutory requirements, and/or mere relying on oral testimony from the petitioner], and

(b) decide all important questions while the public and abutters are present [rather than deferring to another time], and

(c) use the public hearing mainly to hear from the public [rather than allowing the petitioner an opportunity to surprise the abutters and the public at the public hearing with significant or substantive changes to the petitioners application, such as providing new significant or substantive evidence, testimony, plans, etc.], and

(d) continue public hearings, and notify all parties in interest, when substantive matters are in dispute, and

(e) require that petitioners re-file applications when significant changes affect a petitioner's original application [e.g., reasons, scope, plans, documentation, etc.], and

(f) abide by the letter and intent of every opinion by town counsel, and

(g) request written opinions from town counsel when matters of law are in question, and

(h) require that at least four granting members sign all plans to which a variance relies upon, and

(i) identify specifically and in every detail what was granted in a variance [i.e., distances, locations and specific zoning by-law sections, subsections, subsections, etc. varied] and make reference back to the petitioner's application to validate that such variance was applied for and advertised, and

(j) identify specifically all metrics for each variance element, rather than generally stating "as per plan submitted", "conforming in all respects" and the like, and

11.3) General Operating Procedures Shall Include Provisions to Ensure That:

(a) everyone is allowed an equal opportunity to speak [the chair shall not recognize anyone rising to speak who has already spoken on the petition under consideration, including the petitioner, if there are others who wish to speak that have not spoken, except for the purpose of an explanation or the correction of a mistake, and

(b) minutes are produced and published in a timely fashion [i.e. within seven days for a granted variance] and always before their decisions are filed with the town clerk, and

(c) all plans on an application, or considered as part of the application, be certified plot plans and include all items requested to be varied and significant features on the property [i.e., showing lot lines, structures, signs, green areas, parking, etc. to aid the building inspector in determining approval of a building permit), and

(d) only elements that were discussed, debated and voted in public are included in the board's decisions, and

(e) maintain an effective public records filing system (i.e., file index, file log, petition details, grant/not grant status, litigated, content description [including plans, letters, graphics, number of pages]), and

(f) file all plans relied upon for the granted Special Permits and Variances with the Registry of Deeds on or about the same day as filed with the town clerk [not rely solely on the town's filing system], and

(g) file minutes of every meeting with the town manager and at the library as required by town charter, and

(h) "back up" and preserve all computer files on a regular basis [i.e. per MGL 66], and

(i) provide petitioners access to their paper files, magnetic recordings and computer files upon request and in reasonable time frames [i.e. per MGL 66], and

(j) charge no more than the state recommended $0.20 per page for public records, and

(k) record every meeting on magnetic tape as a public record for the purpose of preparing minutes; these tapes will be subjuct to erasure when the minutes are voted by the Board of Appeal and filed according to the town charter and by-laws.

11.4) This Policy Statement Advises the Board of Appeals that the following practices are considered by the Board of Selectmen to be discouraged practices and potentially inconsistent with due process requirements. Engaging in these practices may result in removal from the Board of Appeals using administrative procedures in the town charter. To wit:

(a) decisions and/or activities that are substantially inconsistent with the Massachusetts Constitution, Massachusetts General Laws, case law decisions rendered by the courts, the Billerica General By-Laws, the Billerica Zoning By-Laws, and the above policy statements (i.e., #1 through #3), and

(b) decisions that result in: (1) the dividing of land, or creating new subdivisions of land, which constructively produces one or more new lots or building lots where any one of them fail to meet the minimum area requirements identified in the zoning by-law; or (2) determining that non-conforming lots are paradoxically "conforming in all respects"; or (3) granting variances to applications relating to parcels of land that are substantially flat, rectangular and dry, and

(c) failing to meet the general rule that variances are a disfavored form of relief which should be sparingly granted.

Original draft prepared by David F. Delorey, Jr. - April 29, 1998
Working Selectmen's Sub-committee* meeting to finalize procedures - Monday, May 11, 1998
Text modified to reflect three (3) written comments (pro-bono) by Town Counsel - July 13, 1998
Text modified to reflect Town Counsel's additional written comments (pro-bono) - July 30, 1998
Text modified to reflect Town Counsel's personal final review (pro-bono) and Selectmen's Sub-committee member's comments - August 12, 1998

* Subcommittee comprised of Selectman Ed Hurd, Chairman of the Board; Selectman Mike Rosa; Appeals Board Chairman, Doris Peason; Appeals Board member Joe Shaw; Town Counsel, Attorney Len Kopelman; Joe and Kathy Dougherty; and Dave Delorey.


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