(1) Appeals. To hear and decide an appeal taken by any person aggrieved by reason of his/her inability to obtain a permit or enforcement action from the Building Commissioner under the provisions of MGL Chapter 40A, or of this chapter, by the Metropolitan Area Planning Council or by any person, including an officer or board of the City of Marlborough or of an abutting municipality aggrieved by an order or decision of the Building Commissioner in violation of any provision of MGL Chapter 40A, or of this chapter

Procedure.

(1) In the case of every appeal made to the Board of Appeals and every petition for a variance to said Board under the provisions of this chapter, the Board shall hold a public hearing thereon. Notice of the hearing shall be given by publication in a newspaper of general circulation in the City once in each of two successive weeks, the first publication to be not less than 14 days before the day of the hearing and by posting said notice in the City Hall for a period of not less than 14 days before the day of the hearing. Notice shall be sent by mail, postage prepaid, to parties in interest, including the petitioner, abutters, owners of land directly opposite on any public or private street or way, owners of land within 300 feet of the property line, including owners of land in another municipality, all as they appear on the most recent applicable tax lists; the Planning Board; and the planning board of every abutting municipality. The Assessors shall certify to the Board the names and addresses of the parties in interest.

(2) The decision of the Board, including all findings, conditions and safeguards, and a record of the public hearing shall be filed promptly with the City Clerk and at the same time copies transmitted to the Planning Board, Conservation Commission, Building Commissioner and other appropriate City agencies.

(3) An appeal from a decision of the Building Commissioner and a petition for a variance shall be filed with the City Clerk, who shall forthwith transmit it to the Board of Appeals. The Board shall hold a public hearing within 65 days of the receipt of the appeal or petition from the City Clerk and shall render a decision within 100 days from the date of filing.

(4) If the Board of Appeals shall fail to act within 100 days of the filing of the appeal or petition, as the case may be, then the appeal or petition shall be deemed approved subject to the following requirements:

(a) The petitioner, after the expiration of the aforesaid periods, shall file with the City Clerk a copy of his petition and an affidavit stating the date of the public hearing or filing, as the case may be, and the failure of the Board of Appeals to render a decision within the required period.

(b) Upon receipt of the petition and affidavit, the City Clerk shall give notice of the filing to those persons entitled to a notice of the decision under MGL c. 40A, § 15. The filing of a petition and affidavit in the office of the City Clerk shall be deemed the equivalent of the filing of a decision for purposes of the provisions of MGL c. 40A, §§ 11 and 17.

(c) If no appeal is taken within the required statutory period, then the City Clerk shall furnish the petitioner with a certificate that no appeal has been filed, all of which shall be recorded in the manner prescribed under MGL c. 40A, § 11, in lieu of the documents required to be recorded under that section.

 

(5) Special permit procedure. Except as set forth below, the provisions set forth in § 650-59B and C, pertaining to the procedures and rules applicable to special permit granting authorities, as such provisions may be amended from time to time, shall, so far as apt, be applicable to the Board of Appeals acting upon an application for a special permit proposing an alteration, reconstruction, extension or structural change which, per the determination of the Building Commissioner, would increase or intensify the existing nonconforming nature of a lawful preexisting nonconforming single-family dwelling or two-family house. In particular, each special permit application to the Board of Appeals filed under this subsection shall contain the information as itemized in § 650-59C(4), and shall be accompanied by a preliminary site plan which shall contain the information as itemized in § 650-59C(5).

Each application filed under this subsection shall be filed with the Office of the City Clerk in accordance with MGL Chapter 40A, on a form provided by that Office, and shall be accompanied by a filing fee in the amount calculated to be the same as for special permit applications submitted to the City Council under § 650-59C(3). The application for the special permit shall be made in writing by the applicant or its duly authorized agent, who shall file the following number of sets of application materials at the Office of the City Clerk, which shall keep the original and forward all copies to the Board of Appeals, which shall distribute those copies as follows: see table for details.

The Board of Appeals shall hold a public hearing on each special permit application filed under this subsection. The procedures for the public hearing and for the notice thereof to parties in interest shall be in conformance with MGL c. 40A and the Zoning Ordinance of the City of Marlborough, as either or both may be amended from time to time; provided, however, that the Board shall hold the public hearing on a special permit application on the same evening as it would be holding the public hearing on any variance petition that may be associated with the same proposed work (alteration, reconstruction, extension or structural change) on the same dwelling or house.

Within 90 days after the close of the public hearing on the special permit application filed under this subsection, the Board of Appeals shall take final action on a decision to grant or deny the requested special permit; provided, however, that no special permit shall be granted by the Board under this subsection if any variance petition that may be associated with the same proposed work (alteration, reconstruction, extension or structural change) on the same dwelling or house is denied by the Board.

The Board may adopt rules and regulations for the issuance of special permits under this subsection in accordance with MGL c. 40A and the Zoning Ordinance of the City of Marlborough, as either or both may be amended from time to time.

Rules. The Board of Appeals shall adopt rules and procedures not inconsistent with this chapter and the provisions of MGL Chapter 40A for the conduct of its business in deciding on appeals and granting variances and shall file a copy thereof with the City Clerk. Such rules shall include provisions for submission of petitions in writing, for advertising and holding hearings, for keeping records of proceedings, for recording the vote of each member upon each question, for setting forth the reason or reasons of each decision and for notifying the parties at interest, including the Building Commissioner and the Planning Board, as to each decision. Wherever proceedings under this chapter require the giving of notice by publication in a newspaper, mailing or service by a civil officer, the costs thereof shall be borne by the applicant. The Board of Appeals shall require estimated costs to be advanced by the applicant in accordance with provisions in the rules.