§ 240-125. Zoning Board of Appeals.

A. 

Establishment of the Board. The Zoning Board of Appeals established by Chapter 215 of the Acts of 1984, as amended by Chapter 295 of the Acts of 1984 and as may be further amended from time to time, is the Zoning Board of Appeals referred to herein.

(1) 

Membership of the Board. The Zoning Board of Appeals shall consist of five members appointed by the Town Council of the Town of Barnstable.

(2) 

Term of office. Members of the Zoning Board of Appeals shall be appointed for three-year terms so arranged that as nearly as possible 1/3 of the terms shall expire each year.

(3) 

Associate Board members. The Town Council may appoint not more than six associate members for similar terms as provided in Subsection A(2).

(4) 

Election of officers. The Zoning Board of Appeals shall elect a Chairman and clerk from its own membership each year.

(5) 

Removal of members. Members may only be removed for cause by the Town Council after a hearing.

(6) 

Vacancies. In case of a vacancy, inability to act, or interest on the part of a member of the Board, the Chairman of the Zoning Board of Appeals may designate a duly appointed associate member to act to fill the vacancy.

B. 

General powers.

(1) 

The Zoning Board of Appeals shall have the following powers:

(a) 

Appeals from administrative official. To hear and decide an appeal taken by any person aggrieved by reason of their inability to obtain a permit from any administrative official under the provisions of Chapter 40A of the General Laws, or by any officer or board of the Town, or by any person aggrieved by any order or decision of the Building Commissioner, or other administrative official in violation of any provision of Chapter 40A of the General Laws or of this chapter.

(b) 

Special permits. To hear and decide applications for special permits for exceptions as provided for in Chapter 40A of the General Laws and in this chapter.

(c) 

Variances. To authorize upon appeal or upon petition in cases where a particular use is sought for which no permit is required, with respect to a particular parcel of land or to an existing building thereon, a variance from the terms of this chapter where, owing to conditions especially affecting such parcel or such building but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter, but not otherwise.

(d) 

Other powers. To act as a Board of Appeals under the provisions of Chapter 41, §§  81Y, 81Z, 81AA, and 81BB of the General Laws.

(e) 

Use variances. To authorize variances for uses in accordance with the provisions of this chapter; provided, however, that no such variances shall be granted within 300 feet of the major arteries known as Route 28, Route 132, Route 149 and West Main Street and Route 6A, within the Marstons Mills Village District (MMVD) and the West Barnstable Village Business District (WBVBD) and within 300 feet of the MMVD and WBVBD boundary.

[Amended 6-17-2010 by Order No. 2010-122; 9-8-2011 by Order No. 2011-138; 3-21-2013 by Order No. 2013-060]

(2) 

In exercise of the foregoing enumerated powers, the Zoning Board of Appeals shall take into consideration the same types of evidence as referred to in § 240-123D.

[Amended 11-2-1995 by Order No. 95-198]

C. 

Special permit provisions. The Zoning Board of Appeals may grant special permits only for uses specifically provided for as such in this chapter.

(1) 

Public hearing required. The Zoning Board of Appeals shall, within 65 days after the filing of a special permit application with the Town Clerk or the Board, hold a public hearing on said application as per Chapter 808, Acts of 1975, as amended. Special permits shall not be issued until said public hearing is held.

(2) 

Standards for granting special permits. A decision of the Zoning Board of Appeals on an application for a special permit shall be based on the following:

(a) 

Whether or not the application falls within the category specifically excepted by this chapter.

(b) 

An evaluation of all the evidence presented at the public hearing by the petitioner and interested parties as it relates to the fulfillment of the spirit and intent of this chapter without substantial detriment to the public good or the neighborhood affected.

(c) 

A site plan has been reviewed and found approvable in accordance with Article IX herein subject only to the issuance of a special permit.

[Added 11-7-1987 by Art. 1]

(3) 

Validity.

[Amended 5-7-2009 by Order No. 2009-077]

(a) 

Period of validity: A special permit shall become void within two years from the date of issue unless any construction work contemplated thereby shall have commenced and proceeded in good faith continuously to completion, or, if no construction work is contemplated by the special permit, the premises shall be open for business or in full use under said special permit. The two-year period shall not include time required to pursue or await determination of an appeal referred to in MGL Ch. 40A, §17. However, the special permit granting authority, in its discretion, may extend the time for exercise of such rights for a period not to exceed a total of one year upon a showing of good cause; and provided, further, that the request for such extension is filed with the special permit granting authority prior to the expiration of said two-year period. If the permit granting authority does not grant such extension, upon the expiration of the original two-year period, such special permit shall become void.

(b) 

Retroactive applicability: The period of validity for any special permit in effect on the effective date of these provisions shall be two years from the date of issue, unless further extended pursuant to Subsection C(3)(a) above. The period of validity for any special permit that would have lapsed before the effective date of these provisions, but for which a request for extension was filed prior to its lapse, shall be two years from the date of issue, unless further extended pursuant to Subsection C(3)(a) above.

(4) 

Subsequent amendments. Construction or operations under a building or special permit shall conform to any subsequent amendment of the ordinance unless the use or construction is commenced within a period of not more than six months after the issuance of said permit and in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable.