CPTC: Special Permits and Variances
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.