PLANNING
BOARD
SPECIAL
PERMIT RULES AND REGULATIONS
Adopted:
Amended
through
ARTICLE 1 -
GENERAL
Section 1 -
Purpose and Scope:
These rules are adopted by the Tewksbury Planning
Board as authorized by Massachusetts General Laws, Chapter 40A, Section 9, for
the purpose of establishing uniform rules and procedures for hearing all
applications coming under its jurisdiction as a special permit granting
authority (SPGA) by virtue of the applicable provisions of Massachusetts
General Laws and the Tewksbury Zoning By-Laws.
Section 2 -
Petitioner or Applicant:
An application for a special permit may be filed by
a property owner, a tenant, a license, a prospective purchaser or other
applicant provided that documentation from the owner certifying the applicant’s
legal interest in the property and right to file accompanies the
application. A copy of any such
application shall forthwith be given to the Town Clerk by the applicant. Prior to filing with the Planning Board, all
applications shall be reviewed with the Town Planner to assure their
correctness, completeness and clarity and shall be accompanied by applicable
plans and such other information as the Planner may reasonably require incident
to the application prior to his/her endorsement of the application.
ARTICLE 2 -
ORGANIZATION
Section 1 -
Officers:
When the Planning Board acts as a Special Permit
Granting Authority, the SPGA shall consist of the five (5) Planning Board
members and the officers of the Planning Board shall fill the same positions
with the SPGA as they occupy as Planning Board members. The chairperson shall preside over all
hearings subject to the rules as stated herein and shall decide all points of
order unless overruled by a majority of the Planning Board in session at the
time. The chairperson shall appoint such
committees as may be deemed necessary or desirable from time-to-time. The chairperson shall handle all correspondence
of the Planning Board, the sending of all notices required by law and the rules
and orders of the Planning Board and shall receive and scrutinize all petitions
and applications for compliance with the rules of the Planning Board.
Section 2 -
Quorum:
A quorum for the purpose of conducting public
hearings and transacting other business shall consist of four (4) members.
Section 3 -
Hearings:
Hearings of the Planning Board shall be held at the
time and place specified in the hearing notice.
ARTICLE 3 -
SUBMISSION OF AN APPLICATION
Section 1 -
Application Form:
Every application for a special permit by the
Planning Board shall be made on an official application form, entitled
“Planning Board Application for Hearing” which shall be furnished by the Town
Planner upon request. Any communication
purporting to be an application shall be treated as mere notice of intention to
seek Planning Board action until such time as it is made on the official
form. All information called for by the
form shall be furnished by the applicant in the manner therein prescribed and
in precise language identifying the applicable provisions of the By-Laws and
the specific nature of the application.
The form to be used is hereby made a part of these rules.
Section 2 -
Filing:
All applications for the Planning Board’s
consideration shall be filed at a regular meeting of the Planning Board.
Section 3 -
Submissions:
Two (2) copies of the application form shall be
submitted and shall be accompanied by ten (10) copies of plans, sketches or
diagrams sufficient to show nature of the specific request being made by the
petitioner. All plans and documents
submitted in support of the application shall meet the requirements for a
Definitive Plan set forth in the Subdivision Rules and Regulations of
the Planning Board and shall contain all other information pertinent to the
application as required by the Zoning By-Laws, other By-Laws and these
rules. All site plans submitted to the
Tewksbury Planning Board for approval in conformance with the Zoning Bylaw
shall be required to utilize X & Y
coordinates to “NAD83 state plane” system
and Z coordinate to the “1927 NGVD” system.
Section 4 -
Filing Deposit:
Every Special Permit applied for from the Tewksbury
Planning Board shall be accompanied by a $300.00 filing fee. Project proponents shall be responsible for all
fees related to advertising, abutter notification, and engineering
reviews. These fees are mandatory and
are non-refundable.
Section 5 -
Names and Address of Abutters:
After the petition or application is filed, the
chairperson shall obtain immediately a list of the names and addresses of all
parties in interest which shall be certified by the Board of Assessors, parties
in interest wherever herein used or referred to shall be as defined in
Massachusetts General Laws, Chapter 40A, Section 11 and shall include, among
others, abutters, abutters to abutters and all owners of land within three
hundred (300) feet of the property lines of the premises which are the subject
of the petition or application.
ARTICLE 4 -
HEARINGS
Section 1 -
Notice:
Notices of hearings shall be advertised as required
by the provisions of Massachusetts General Laws, Chapter 40A, Section 11. In addition, copies of the advertised notice
shall be sent by mail at least seven (7) days prior to the date of the hearing,
postage prepaid, to all parties in interest and provided, where applicable, to
Town boards and departments. In the
event the Planning Board’s failure to give timely notice to parties in
interest, the Board may continue the hearing until such notice requirement has
been satisfied.
Section 2 -
Hearings to be Public:
All hearings shall be open to the public and shall
be conducted in accordance with the Massachusetts Open Meeting Law, General
Laws, Chapter 39, Section 23B.
Section 3 -
Representation and Absence:
An applicant may appear in his own behalf or be
represented by an agent or attorney. In
the absence of an appearance, the Planning Board may, in its discretion, decide
the matter using the information it has received or dismiss the petition with
or without prejudice.
Section 4 -
Hearing Procedure:
a. Hearings will start at the time stated in the
notice unless delayed because of prior hearings.
b. At the hearing, any party, whether entitled
to notice thereof or not, may appear in person or by agent or by attorney.
c. At the hearings, the chairperson may
administer oaths, summon witnesses and call for the production of papers. The Planning Board may retain any record
which has been introduced in evidence for reference in the consideration of the
case.
d. No person shall address a hearing of the
Planning Board without leave of the chairperson and all persons shall, at the
request of the chairperson, be silent.
If a person, after warning from the chairperson, persists in disorderly
behavior, the chairperson may order him to withdraw from the hearing, and, if
he does not withdraw, may order a constable or any other person to remove him
and confine him in some convenient place until the hearing is adjourned.
e. The chairperson may close the hearing
immediately, if, in the chairperson’s opinion, these rules are being violated
or the hearing becomes disorderly.
f. The chairperson will open each hearing by
reading, or causing to be read, the notice as advertised.
g. The petitioner or his representative will
then present his case, stating fully the reason(s) why the petition or
application should be granted.
h. When the petitioner or his representative has
concluded the presentation, the chairperson will allow all those in favor of
the matter under consideration to speak.
Those who wish to speak will rise, address the chairperson, give their
names and addresses, then proceed.
I. When all those in favor have spoken, the
chairperson will then allow those in opposition a similar opportunity to be
heard. Rebuttals may only be allowed at
the discretion of the chairperson.
j. Similarly, no cross-examination will be
allowed, although questions seeking information and deemed relevant by the
Planning Board may be allowed at its discretion.
k. Members of the Planning Board who are hearing
the case may direct appropriate questions during the hearing.
l. When all facts have been presented, the
chairperson will close the hearing and inform the petitioner or his
representative and others present that they will be notified of the Planning
Board’s decision.
Section 5 - Information to be Furnished to the Board
Every application for a special permit shall be
supported by all of the facts relied upon by an applicant. The following points, based on Massachusetts
General Laws, Chapter 40A, Section 9, shall be identified and factually
supported:
a. The particular type of use proposed for the
land or structure, if any;
b. The conditions and character of operations of
the proposed uses which show that it will be in harmony with the general
purpose and intent of the district and the By-Law; and
c. The nature of the proposed use in relation to
both the general and specific provisions of the By-Law governing that use and
the district in which it is located.
Such information, together with any relevant data
required by the Zoning By-Law, shall be indicated on the application form and
presented verbally or in writing at the public hearing.
ARTICLE 5 -
ACTIONS BY THE PLANNING BOARD
Section 1 -
Voting Requirements:
The concurring vote of 4 and 5 members of the
Planning Board shall be necessary to decide in favor of an application. The Planning Board shall cause to be made a
detailed record of its proceedings, showing 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 decisions, and of its other
official actions, copies of all of which shall be filed in the offices of the
Town Clerk and the Planning Board.
Section 2 -
Withdrawal:
An application may be withdrawn without prejudice by
notice in writing to the chairperson at any time prior to the publication of
notice of a public hearing by the Planning Board. Withdrawal of application thereafter with or
without prejudice requires Planning Board approval and there shall be not
return of any fee paid with such application.
Section 3 -
Repetitive Petition:
No appeal, application or petition which has been
unfavorably and finally acted upon by the Planning Board shall be acted
favorably upon within two (2) years after the date of final unfavorable action
unless (1) all but one of the members of
the Planning Board consent to a re-petition after notice is given to parties in
interest of the time and place of the proceedings to consider such consent; and
(2) the Planning Board finds specific and material changes in the conditions
upon which the previous unfavorable action was based and describes such changes
in its records prior to scheduling a new hearing.
Section 4 -
Limitation on Approval/Extensions:
If an application for a special permit is approved
by the Planning Board, all permits necessary for the prosecution of the work
shall be obtained and substantial use thereof shall be commenced except for
good cause or construction begun except for good cause within 2 years from the
date of filing of the Planning Board’s decision in the office of the Town
Clerk, unless the Planning Board otherwise provides for a lesser period of time
in the decision. A reasonable extension
of said time shall be granted by the Planning Board in the case of an appeal to
the Superior Court under Massachusetts General Laws, Chapter 40A, Section 17 or
for other good cause shown.
Section 5 -
Decisions:
a. The chairperson will send a copy of the
Planning Board’s decision forthwith to the owner, the applicant if other than
the owner, the Town Clerk and, where applicable, other Town Boards and
departments and will send notices of its decision to every person present at
the hearing who requests that notice be sent and states the address to which
such notice is to be sent.
b. A special permit does not become effective
until the Town Clerk certifies that no appeal of the decision has been filed in
Superior Court within the 20-day statutory appeal period or that if an appeal
has been filed, it has been dismissed or denied and a certified copy of the
decisions recorded in the Middlesex Registry of Deeds and indexed in the
grantor in the grantor index under the name of the owner of record or is
recorded and noted on the owner’s certificate of title.
c. A copy of the recorded decision certified by
the Registry is necessary before a building permit dependent on the Planning
Board’s decision can be issued by the Building Inspector.
ARTICLE 6 - POLICIES AND ADVICE
a) Policy on Employment of Outside Consultants (M.G.L. c. 44, Section 53G)
The applicant will be required to provide sufficient fees to cover the cost of consultant review and site inspections. The estimated amount will be established by the Planning Board’s consultant upon submittal of an application. Failure of the applicant to submit sufficient funds prior to the public hearing on the application, shall be considered failure to file a complete application.
The applicant has the right to an administrative appeal of the selected consultant. The appeal is to the Board of Selectmen and is limited to claims that the consultant has a conflict of interest or does not possess the minimum required qualifications. The required time limits for action upon an application by the Planning Board shall be extended by the duration of the administrative appeal. In the event that no decision is made by the Board of Selectmen within one month following the filing of the appeal, the selection made by the Planning Bard shall stand.
The fee will be placed in an account, to be drawn upon, to cover the costs of engineering review and site inspections. The special account, including accrued interest, if any, shall be expended at the direction the Planning Board through the Director of Community Development, without further appropriation; provided, however, that such funds are to be expended by it only in connection with carrying out its responsibilities under the law. Should the amount not cover the actual costs, the applicant will be advised that an additional deposit will be required to fund the account.
Any excess amount in the account attributable to the project, including any accrued interest, at the completion of said project shall be repaid to the applicant or the applicant’s successor in interest and a final report of said account shall be made available to the applicant or to the applicant’s successor in interest.
The Town Auditor shall submit annually a report of said special account to the Board of Selectmen and Town Manager of the Town for their review. Said report shall be published in the Town Annual Report. The Town Auditor shall submit annually a copy of said report to the Director of the Bureau of Accounts.
b)
Performance Guarantees
The Board may require
performance guarantees for the completion of outstanding work prior to the
sign-off of a certificate of occupancy. The Board will allow for a deposit of
money with the Town of
c)
Advice
Any advice, opinion or
information given to an applicant by any Planning Board member, the Town Planner
or any other official or employee of the Town prior to a public hearing shall
not be binding on the Planning Board. Individuals are discouraged from
appealing personally to members of the Planning Board prior to a public
hearing.
ARTICLE 7 -
AMENDMENTS
These rules may be amended by a majority vote of the
members of the Planning Board provided that such amendment shall be presented
in writing at a regular meeting and action taken thereof at a subsequent
regular meeting.
THESE RULES
AND REGULATIONS FOR SPECIAL PERMITS WERE ADOPTED BY THE