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Attorney General to Holliston -- Taking Stance, On Variance!

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Attorney General to Holliston -- Taking Stance, On Variance! Powered By Docstoc
					Holliston Special Town Meeting of October 28, 2002 — Case # 2291

Case Comment

       The town is cautioned to apply in a manner consistent with G.L. c. 40A, § 10, a proposed
       by-law amendment that would require a variance to divide land on which there exists a
       structure or use that is currently allowed by variance. Section 10 confers upon the local
       permit granting authority the power to place conditions on the issuance of a variance. This
       statutory power cannot be taken away by local legislative action. Unlike G.L. c. 40A, § 9,
       which authorizes towns to impose conditions on special permits by by-law, Section 10
       does not allow a town to impose conditions on the issuance of a variance by by-law, but
       rather only as conditions imposed, after hearing, by the permit granting authority. Thus, the
       text may not be interpreted as taking away the authority of the permit granting authority to
       grant or to place conditions upon variances, and by extension may not be interpreted to
       compel the inclusion of conditions that are binding on the permit- granting authority.


                                         February 10, 2003

Jacqueline S. Dellicker, Town Clerk
100 Linden Street
Holliston, MA 01746

RE:    Holliston Special Town Meeting of October 28, 2002 — Case # 2291
       Warrant Article # 11 (Zoning)

Dear Ms. Dellicker:

       Article 11 - I return with the approval of this Office the amendments to the town by-laws
adopted under this Article on the warrant for the Holliston town meeting that convened on October
28, 2002, except as provided below.

        The amendments adopted under Article 11 make a number of changes to Section I-C
“Preexisting Non-Conforming Uses, Structures And Lots.” One such change amends
Section I-C (4), “Divisions, Changes to, or Alterations of Lots,” by deleting the existing text and
inserting new text, which provides in pertinent part as follows:

       b. No parcel of land upon which there exists a structure or use that currently is the
       recipient of a Special Permit or Variance shall be divided, changed or altered until
       the Special Permit Granting Authority or Board of Appeals grants an additional
       Special Permit or Variance to such property. In all cases, the parcel upon which the
       structure or use is to remain and all new parcels created shall be in compliance with
       Section IV-B Schedule of Intensity Regulations.
(Emphasis added.)

        In approving Section I-C (4) (b), we caution the town to apply it in a manner consistent
with G.L. c. 40A, § 10. Section I-C (4) (b) would require a variance to divide land in which there
exists a structure or use that is “currently” allowed by variance. The town’s Inspector of Buildings
represents to us that “currently” is to be interpreted to mean that a structure or use on the parcel
sought to be divided then enjoys the benefit of an earlier granted variance.

        The second sentence requires the existing parcel and the newly created parcel to comply
with the Town’s Schedule of Intensity Regulations.

        General Laws Chapter 40A, Section 10, governs the issuance of variances from provisions
of local zoning by-laws. Section 10 provides in pertinent part as follows:

       The permit granting authority shall have the power after public hearing . . . to
       grant upon appeal or upon petition with respect to particular land or structures a
       variance from the terms of the applicable zoning . . . by-law where such
       permit granting authority specifically finds that owing to circumstances relating 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 ordinance or by-law
       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 such ordinance or by-law. Except where local . . . by-laws shall expressly
       permit variances for use, no variance may authorize a use or activity not otherwise
       permitted in the district in which the land or structure is located . . . .

       The permit granting authority may impose conditions, safeguards and limitations both
       of time and of use, including the continued existence of any particular structures but
       excluding any condition, safeguards or limitation based upon the continued ownership
       of the land or structures to which the variance pertains by the applicant, petitioner or any
       owner.

(Emphasis added.)

         Section 10 confers upon the local permit-granting authority – if and only if it makes the
findings expressly required by Section 10 – the power to grant a variance with respect to land or
structures from the terms of the applicable zoning by-laws. Section 10 also allows a municipality
to permit (or by inaction prohibit) the issuance by the local permit granting authority of a “use
variance.” A use variance permits one to use land or structures in a manner not permitted by the
town’s zoning by-laws. Cavanaugh v. Diflumera, 9 Mass. App. Ct. 396, 400 (1980) (compare
dimensional variances which permit deviations from zoning matters such as setbacks, frontage, and
lot size). Once a town allows use variances, then the provisions of
G.L. c. 40A, § 10, govern, including the authority of the permit-granting authority to place
conditions on the issuance of a variance.
        Section 10 confers upon the local permit-granting authority the power to place conditions
on the issuance of a variance. This statutory power cannot be taken away by local legislative
action. Unlike G.L. c. 40A, § 9, which authorizes towns to impose conditions on special permits
by by-law, Section 10 does not allow a town to impose conditions on the issuance of a variance by
by-law, but rather only as conditions imposed, after hearing, by the permit granting authority.

        The second sentence in Section I-C (4) (b) may not be interpreted as taking away the
authority of the permit granting authority to grant or to place conditions upon variances, and by
extension may not be interpreted to compel the inclusion of conditions that are binding on the
permit- granting authority.

       We point out that we appreciate the time and attention provided by the Town’s Inspector of
Buildings to discuss with us the purpose and application of the amendments adopted under Article
11. Our review is facilitated when we have such discussions with town officials.

                                              Very truly yours,

                                              THOMAS F. REILLY
                                              ATTORNEY GENERAL


                                              by: Kelli E. Lawrence, Assistant Attorney General
                                              By-law Coordinator, Municipal Law Unit
                                              1350 Main Street, 4th Floor
                                              Springfield, MA 01103-1629
                                              (413) 784-1240, x 117


enc.
pc:

Town Counsel

				
DOCUMENT INFO
Description: Attorney General comment on new regulations from Holliston, Massachusetts in 2002.