A Brief Overview of the Planning Board and ZBA Application Process
Stage 1 – Preliminary Inquiry:
If a potential applicant has an idea for a project, the first step is usually to talk to the experts. Those experts may be lawyers, engineers, or town staff. If the project is not a simple one, an applicant can also schedule a technical review. This is an informal conversation with the heads of relevant departments where any and all designs and proposals can come forward. Staff can give frank advice, ask questions, and point out any problems that a potential project may have. While no applicant has to submit to a technical review, the more complicated the project, the more we recommend it. Applicants can come in and ask staff questions about a potential project or parcel at any time, but scheduling a meeting is usually a good idea.
Stage 2 – Application Process:
Once an application is submitted to the Planning Department, be it for a Special Permit, for Variance relief, Site Plan Review, Subdivision Application, or any Appeal, the staff reviews the application to make sure it is complete, and has 3 days before being stamped in at the Town Clerk’s Office. Once the application is stamped in, only then do the regulatory deadlines begin. From that date, the Boards have 65 days to open a hearing on most matters. As per state law (M.G.L. Ch. 40A Section 11), a Public Hearing requires notice in a local newspaper for 2 consecutive weeks prior to the hearing, and all abutters within 300’ are notified by mail, even if they are in another town. Public Meetings and Discussions do not, but we sometimes ask applicants to send out notification to abutters as a courtesy.
During the time before the application comes up at the public meeting, staff reviews the application and may ask the applicant for further information, asks other staff or departments for comments (For example, does Conservation have any concerns about this proposal, or DPW?), and should a Board Member have any questions, staff will assist or forward the question to the applicant for more information or clarification. Staff will also forward any and all comments from the public to the Board members, the applicant, and other members of the public who have commented on the project; this occurs throughout the process.
Stage 3 – Going before the Board:
Once the public hearing has been opened, the Board has a set time to vote on an application (for example, the ZBA has 90 days to decide on a Special Permit application, or 100 days to decide on a Variance.). This time limit can be extended if the applicant agrees, and they almost always do. During the meetings the Boards will hear a presentation from the applicant or other experts, ask questions, take comments from the public, both written and oral, (sometimes not required but the Board will invite public comment anyway), and may close the hearing or continue until a later date. Occasionally matters are simple enough to vote on that first night, but most are not.
An important note to make is what powers the Boards have, and just as importantly, what powers the Boards do not have. If an application is in front of the ZBA and they need approval from the Planning Board for a small part of that (say a landscaping waiver for example), the ZBA cannot grant that waiver. Along those lines, if a project is allowed by-right, the Planning Board has limited jurisdiction in the power it has. The Board may be able to shape that project, but it may not be able to outright deny a by-right project. Conversely, a Board may not be able to grant a Special Permit (or what-have-you) no matter how great a project is due to the underlying bylaws.
The burden of proof differs for each application as well. A Variance has a high requirement set down by the Commonwealth, as you are requesting relief from the approved zoning for a specific reason. A Special Permit, on the other hand, is discretionary which gives the Boards more flexibility.
Stage 4 – After the Vote:
After a vote has been taken by the Board (which usually must a quorum voting in favor), the decision, which gets written up by staff and signed by the Board members, must be stamped in at the Town Clerk’s Office, and the decision gets mailed out to the applicant and parties of interest. Abutters are also notified that a decision has been filed. There is then a 20 day appeal period for the majority of cases during which any party can file an appeal of the decision. If no appeal has been filed within those 20 days, the decision stands and may be recorded with the Middlesex Registry of Deeds. For most cases, the applicant then has 2 years to act on a decision. The applicant can request that the period they have to act be extended.
If these statutory deadlines are not met, the applicant can file for what is known as a Constructive Approval. Constructive approvals are rare as applicants understand that town staff and the Boards are working in good faith and work hard to meet every deadline. Applicants extending a deadline is a very common occurrence.
Keep in mind that every case is different and that while the description above is correct for most cases, there are exceptions to some procedures. For example, an affordable housing project filed under M.G.L. Ch. 40B has a similar but very distinct set of criteria and procedures.
If you have any questions about a process, feel free to contact the Planning Department at firstname.lastname@example.org.