(a) The city councilmay provide for the appointment and compensation of a board of adjustmentconsisting of five or more members, each to be appointed for three years. Inappointing the original members of such board, or in the filling of vacanciescaused by the expiration of the terms of existing members, the council mayappoint certain members for less than three years to the end that thereafterthe terms of all members shall not expire at the same time. The council may, inits discretion, appoint and provide compensation for alternate members to serveon the board in the absence or temporary disqualification of any regular memberor to fill a vacancy pending appointment of a member. Alternate members shallbe appointed for the same term, at the same time, and in the same manner asregular members. Each alternate member, while attending any regular or specialmeeting of the board and serving on behalf of any regular member, shall haveand may exercise all the powers and duties of a regular member. A city maydesignate a planning board or governing board to perform any or all of theduties of a board of adjustment in addition to its other duties.
(b) A zoning ordinanceor those provisions of a unified development ordinance adopted pursuant to theauthority granted in this Part shall provide that the board of adjustment shallhear and decide appeals from and review any order, requirement, decision, ordetermination made by an administrative official charged with the enforcementof that ordinance. An appeal may be taken by any person aggrieved or by anofficer, department, board, or bureau of the city. Appeals shall be takenwithin times prescribed by the board of adjustment by general rule, by filingwith the officer from whom the appeal is taken and with the board of adjustmenta notice of appeal, specifying the grounds thereof. The officer from whom theappeal is taken shall forthwith transmit to the board all the papersconstituting the record upon which the action appealed from was taken. Anappeal stays all proceedings in furtherance of the action appealed from, unlessthe officer from whom the appeal is taken certifies to the board of adjustment,after notice of appeal has been filed with him, that because of facts stated inthe certificate a stay would, in his opinion, cause imminent peril to life orproperty or that because the violation charged is transitory in nature a staywould seriously interfere with enforcement of the ordinance. In that caseproceedings shall not be stayed except by a restraining order, which may begranted by the board of adjustment or by a court of record on application, onnotice to the officer from whom the appeal is taken and on due cause shown. Theboard of adjustment shall fix a reasonable time for the hearing of the appeal,give due notice thereof to the parties, and decide it within a reasonable time.The board of adjustment may reverse or affirm, wholly or partly, or may modifythe order, requirement, decision, or determination appealed from, and shallmake any order, requirement, decision, or determination that in its opinionought to be made in the premises. To this end the board shall have all thepowers of the officer from whom the appeal is taken.
(c) The zoningordinance may provide that the board of adjustment may permit specialexceptions to the zoning regulations in specified classes of cases orsituations as provided in subsection (d) of this section, not includingvariances in permitted uses, and that the board may use special and conditionaluse permits, all to be in accordance with the principles, conditions,safeguards, and procedures specified in the ordinance. The ordinance may alsoauthorize the board to interpret zoning maps and pass upon disputed questionsof lot lines or district boundary lines and similar questions as they arise inthe administration of the ordinance. The board shall hear and decide allmatters referred to it or upon which it is required to pass under any zoningordinance.
(d) When practicaldifficulties or unnecessary hardships would result from carrying out the strictletter of a zoning ordinance, the board of adjustment shall have the power tovary or modify any of the regulations or provisions of the ordinance so thatthe spirit of the ordinance shall be observed, public safety and welfaresecured, and substantial justice done. No change in permitted uses may beauthorized by variance. Appropriate conditions, which must be reasonablyrelated to the condition or circumstance that gives rise to the need for avariance, may be imposed on any approval issued by the board.
(e) The concurring voteof four‑fifths of the members of the board shall be necessary to reverseany order, requirement, decision, or determination of any administrativeofficial charged with the enforcement of an ordinance adopted pursuant to thisPart, or to decide in favor of the applicant any matter upon which it isrequired to pass under any ordinance, or to grant a variance from theprovisions of the ordinance. For the purposes of this subsection, vacantpositions on the board and members who are disqualified from voting on a quasi‑judicialmatter shall not be considered "members of the board" for calculationof the requisite supermajority if there are no qualified alternates availableto take the place of such members.
(e1) A member of theboard or any other body exercising quasi‑judicial functions pursuant tothis Article shall not participate in or vote on any quasi‑judicialmatter in a manner that would violate affected persons' constitutional rightsto an impartial decision maker. Impermissible conflicts include, but are notlimited to, a member having a fixed opinion prior to hearing the matter that isnot susceptible to change, undisclosed ex parte communications, a closefamilial, business, or other associational relationship with an affectedperson, or a financial interest in the outcome of the matter. If an objectionis raised to a member's participation and that member does not recuse himselfor herself, the remaining members shall by majority vote rule on the objection.
(e2) Every decision ofthe board shall be subject to review by the superior court by proceedings inthe nature of certiorari. Any petition for review by the superior court shallbe filed with the clerk of superior court within 30 days after the decision ofthe board is filed in such office as the ordinance specifies, or after awritten copy thereof is delivered to every aggrieved party who has filed awritten request for such copy with the secretary or chairman of the board atthe time of its hearing of the case, whichever is later. The decision of theboard may be delivered to the aggrieved party either by personal service or byregistered mail or certified mail return receipt requested.
(f) The chairman ofthe board of adjustment or any member temporarily acting as chairman, isauthorized in his official capacity to administer oaths to witnesses in anymatter coming before the board.
(g) The board ofadjustment may subpoena witnesses and compel the production of evidence. If aperson fails or refuses to obey a subpoena issued pursuant to this subsection,the board of adjustment may apply to the General Court of Justice for an orderrequiring that its order be obeyed, and the court shall have jurisdiction toissue these orders after notice to all proper parties. No testimony of anywitness before the board of adjustment pursuant to a subpoena issued inexercise of the power conferred by this subsection may be used against thewitness in the trial of any civil or criminal action other than a prosecutionfor false swearing committed on the examination. Any person who, while underoath during a proceeding before the board of adjustment, willfully swearsfalsely, is guilty of a Class 1 misdemeanor. (1923, c. 250, s. 7; C.S., s. 2776(x); 1929, c. 94,s. 1; 1947, c. 311; 1949, c. 979, ss. 1, 2; 1963, c. 1058, s. 3; 1965, c. 864,s. 2; 1967, c. 197, s. 1; 1971, c. 698, s. 1; 1977, c. 912, ss. 9‑12;1979, c. 50; 1979, 2nd Sess., c. 1247, s. 37; 1981, c. 891, s. 7; 1985, c. 397,s. 2; c. 689, s. 30; 1991, c. 512, s. 2; 1993, c. 539, s. 1088; 1994, Ex.Sess., c. 24, s. 14(c); 2005‑418, s. 8(a); 2009‑421, s. 5.)
(a) The city councilmay provide for the appointment and compensation of a board of adjustmentconsisting of five or more members, each to be appointed for three years. Inappointing the original members of such board, or in the filling of vacanciescaused by the expiration of the terms of existing members, the council mayappoint certain members for less than three years to the end that thereafterthe terms of all members shall not expire at the same time. The council may, inits discretion, appoint and provide compensation for alternate members to serveon the board in the absence or temporary disqualification of any regular memberor to fill a vacancy pending appointment of a member. Alternate members shallbe appointed for the same term, at the same time, and in the same manner asregular members. Each alternate member, while attending any regular or specialmeeting of the board and serving on behalf of any regular member, shall haveand may exercise all the powers and duties of a regular member. A city maydesignate a planning board or governing board to perform any or all of theduties of a board of adjustment in addition to its other duties.
(b) A zoning ordinanceor those provisions of a unified development ordinance adopted pursuant to theauthority granted in this Part shall provide that the board of adjustment shallhear and decide appeals from and review any order, requirement, decision, ordetermination made by an administrative official charged with the enforcementof that ordinance. An appeal may be taken by any person aggrieved or by anofficer, department, board, or bureau of the city. Appeals shall be takenwithin times prescribed by the board of adjustment by general rule, by filingwith the officer from whom the appeal is taken and with the board of adjustmenta notice of appeal, specifying the grounds thereof. The officer from whom theappeal is taken shall forthwith transmit to the board all the papersconstituting the record upon which the action appealed from was taken. Anappeal stays all proceedings in furtherance of the action appealed from, unlessthe officer from whom the appeal is taken certifies to the board of adjustment,after notice of appeal has been filed with him, that because of facts stated inthe certificate a stay would, in his opinion, cause imminent peril to life orproperty or that because the violation charged is transitory in nature a staywould seriously interfere with enforcement of the ordinance. In that caseproceedings shall not be stayed except by a restraining order, which may begranted by the board of adjustment or by a court of record on application, onnotice to the officer from whom the appeal is taken and on due cause shown. Theboard of adjustment shall fix a reasonable time for the hearing of the appeal,give due notice thereof to the parties, and decide it within a reasonable time.The board of adjustment may reverse or affirm, wholly or partly, or may modifythe order, requirement, decision, or determination appealed from, and shallmake any order, requirement, decision, or determination that in its opinionought to be made in the premises. To this end the board shall have all thepowers of the officer from whom the appeal is taken.
(c) The zoningordinance may provide that the board of adjustment may permit specialexceptions to the zoning regulations in specified classes of cases orsituations as provided in subsection (d) of this section, not includingvariances in permitted uses, and that the board may use special and conditionaluse permits, all to be in accordance with the principles, conditions,safeguards, and procedures specified in the ordinance. The ordinance may alsoauthorize the board to interpret zoning maps and pass upon disputed questionsof lot lines or district boundary lines and similar questions as they arise inthe administration of the ordinance. The board shall hear and decide allmatters referred to it or upon which it is required to pass under any zoningordinance.
(d) When practicaldifficulties or unnecessary hardships would result from carrying out the strictletter of a zoning ordinance, the board of adjustment shall have the power tovary or modify any of the regulations or provisions of the ordinance so thatthe spirit of the ordinance shall be observed, public safety and welfaresecured, and substantial justice done. No change in permitted uses may beauthorized by variance. Appropriate conditions, which must be reasonablyrelated to the condition or circumstance that gives rise to the need for avariance, may be imposed on any approval issued by the board.
(e) The concurring voteof four‑fifths of the members of the board shall be necessary to reverseany order, requirement, decision, or determination of any administrativeofficial charged with the enforcement of an ordinance adopted pursuant to thisPart, or to decide in favor of the applicant any matter upon which it isrequired to pass under any ordinance, or to grant a variance from theprovisions of the ordinance. For the purposes of this subsection, vacantpositions on the board and members who are disqualified from voting on a quasi‑judicialmatter shall not be considered "members of the board" for calculationof the requisite supermajority if there are no qualified alternates availableto take the place of such members.
(e1) A member of theboard or any other body exercising quasi‑judicial functions pursuant tothis Article shall not participate in or vote on any quasi‑judicialmatter in a manner that would violate affected persons' constitutional rightsto an impartial decision maker. Impermissible conflicts include, but are notlimited to, a member having a fixed opinion prior to hearing the matter that isnot susceptible to change, undisclosed ex parte communications, a closefamilial, business, or other associational relationship with an affectedperson, or a financial interest in the outcome of the matter. If an objectionis raised to a member's participation and that member does not recuse himselfor herself, the remaining members shall by majority vote rule on the objection.
(e2) Every decision ofthe board shall be subject to review by the superior court by proceedings inthe nature of certiorari. Any petition for review by the superior court shallbe filed with the clerk of superior court within 30 days after the decision ofthe board is filed in such office as the ordinance specifies, or after awritten copy thereof is delivered to every aggrieved party who has filed awritten request for such copy with the secretary or chairman of the board atthe time of its hearing of the case, whichever is later. The decision of theboard may be delivered to the aggrieved party either by personal service or byregistered mail or certified mail return receipt requested.
(f) The chairman ofthe board of adjustment or any member temporarily acting as chairman, isauthorized in his official capacity to administer oaths to witnesses in anymatter coming before the board.
(g) The board ofadjustment may subpoena witnesses and compel the production of evidence. If aperson fails or refuses to obey a subpoena issued pursuant to this subsection,the board of adjustment may apply to the General Court of Justice for an orderrequiring that its order be obeyed, and the court shall have jurisdiction toissue these orders after notice to all proper parties. No testimony of anywitness before the board of adjustment pursuant to a subpoena issued inexercise of the power conferred by this subsection may be used against thewitness in the trial of any civil or criminal action other than a prosecutionfor false swearing committed on the examination. Any person who, while underoath during a proceeding before the board of adjustment, willfully swearsfalsely, is guilty of a Class 1 misdemeanor. (1923, c. 250, s. 7; C.S., s. 2776(x); 1929, c. 94,s. 1; 1947, c. 311; 1949, c. 979, ss. 1, 2; 1963, c. 1058, s. 3; 1965, c. 864,s. 2; 1967, c. 197, s. 1; 1971, c. 698, s. 1; 1977, c. 912, ss. 9‑12;1979, c. 50; 1979, 2nd Sess., c. 1247, s. 37; 1981, c. 891, s. 7; 1985, c. 397,s. 2; c. 689, s. 30; 1991, c. 512, s. 2; 1993, c. 539, s. 1088; 1994, Ex.Sess., c. 24, s. 14(c); 2005‑418, s. 8(a); 2009‑421, s. 5.)
(a) The city councilmay provide for the appointment and compensation of a board of adjustmentconsisting of five or more members, each to be appointed for three years. Inappointing the original members of such board, or in the filling of vacanciescaused by the expiration of the terms of existing members, the council mayappoint certain members for less than three years to the end that thereafterthe terms of all members shall not expire at the same time. The council may, inits discretion, appoint and provide compensation for alternate members to serveon the board in the absence or temporary disqualification of any regular memberor to fill a vacancy pending appointment of a member. Alternate members shallbe appointed for the same term, at the same time, and in the same manner asregular members. Each alternate member, while attending any regular or specialmeeting of the board and serving on behalf of any regular member, shall haveand may exercise all the powers and duties of a regular member. A city maydesignate a planning board or governing board to perform any or all of theduties of a board of adjustment in addition to its other duties.
(b) A zoning ordinanceor those provisions of a unified development ordinance adopted pursuant to theauthority granted in this Part shall provide that the board of adjustment shallhear and decide appeals from and review any order, requirement, decision, ordetermination made by an administrative official charged with the enforcementof that ordinance. An appeal may be taken by any person aggrieved or by anofficer, department, board, or bureau of the city. Appeals shall be takenwithin times prescribed by the board of adjustment by general rule, by filingwith the officer from whom the appeal is taken and with the board of adjustmenta notice of appeal, specifying the grounds thereof. The officer from whom theappeal is taken shall forthwith transmit to the board all the papersconstituting the record upon which the action appealed from was taken. Anappeal stays all proceedings in furtherance of the action appealed from, unlessthe officer from whom the appeal is taken certifies to the board of adjustment,after notice of appeal has been filed with him, that because of facts stated inthe certificate a stay would, in his opinion, cause imminent peril to life orproperty or that because the violation charged is transitory in nature a staywould seriously interfere with enforcement of the ordinance. In that caseproceedings shall not be stayed except by a restraining order, which may begranted by the board of adjustment or by a court of record on application, onnotice to the officer from whom the appeal is taken and on due cause shown. Theboard of adjustment shall fix a reasonable time for the hearing of the appeal,give due notice thereof to the parties, and decide it within a reasonable time.The board of adjustment may reverse or affirm, wholly or partly, or may modifythe order, requirement, decision, or determination appealed from, and shallmake any order, requirement, decision, or determination that in its opinionought to be made in the premises. To this end the board shall have all thepowers of the officer from whom the appeal is taken.
(c) The zoningordinance may provide that the board of adjustment may permit specialexceptions to the zoning regulations in specified classes of cases orsituations as provided in subsection (d) of this section, not includingvariances in permitted uses, and that the board may use special and conditionaluse permits, all to be in accordance with the principles, conditions,safeguards, and procedures specified in the ordinance. The ordinance may alsoauthorize the board to interpret zoning maps and pass upon disputed questionsof lot lines or district boundary lines and similar questions as they arise inthe administration of the ordinance. The board shall hear and decide allmatters referred to it or upon which it is required to pass under any zoningordinance.
(d) When practicaldifficulties or unnecessary hardships would result from carrying out the strictletter of a zoning ordinance, the board of adjustment shall have the power tovary or modify any of the regulations or provisions of the ordinance so thatthe spirit of the ordinance shall be observed, public safety and welfaresecured, and substantial justice done. No change in permitted uses may beauthorized by variance. Appropriate conditions, which must be reasonablyrelated to the condition or circumstance that gives rise to the need for avariance, may be imposed on any approval issued by the board.
(e) The concurring voteof four‑fifths of the members of the board shall be necessary to reverseany order, requirement, decision, or determination of any administrativeofficial charged with the enforcement of an ordinance adopted pursuant to thisPart, or to decide in favor of the applicant any matter upon which it isrequired to pass under any ordinance, or to grant a variance from theprovisions of the ordinance. For the purposes of this subsection, vacantpositions on the board and members who are disqualified from voting on a quasi‑judicialmatter shall not be considered "members of the board" for calculationof the requisite supermajority if there are no qualified alternates availableto take the place of such members.
(e1) A member of theboard or any other body exercising quasi‑judicial functions pursuant tothis Article shall not participate in or vote on any quasi‑judicialmatter in a manner that would violate affected persons' constitutional rightsto an impartial decision maker. Impermissible conflicts include, but are notlimited to, a member having a fixed opinion prior to hearing the matter that isnot susceptible to change, undisclosed ex parte communications, a closefamilial, business, or other associational relationship with an affectedperson, or a financial interest in the outcome of the matter. If an objectionis raised to a member's participation and that member does not recuse himselfor herself, the remaining members shall by majority vote rule on the objection.
(e2) Every decision ofthe board shall be subject to review by the superior court by proceedings inthe nature of certiorari. Any petition for review by the superior court shallbe filed with the clerk of superior court within 30 days after the decision ofthe board is filed in such office as the ordinance specifies, or after awritten copy thereof is delivered to every aggrieved party who has filed awritten request for such copy with the secretary or chairman of the board atthe time of its hearing of the case, whichever is later. The decision of theboard may be delivered to the aggrieved party either by personal service or byregistered mail or certified mail return receipt requested.
(f) The chairman ofthe board of adjustment or any member temporarily acting as chairman, isauthorized in his official capacity to administer oaths to witnesses in anymatter coming before the board.
(g) The board ofadjustment may subpoena witnesses and compel the production of evidence. If aperson fails or refuses to obey a subpoena issued pursuant to this subsection,the board of adjustment may apply to the General Court of Justice for an orderrequiring that its order be obeyed, and the court shall have jurisdiction toissue these orders after notice to all proper parties. No testimony of anywitness before the board of adjustment pursuant to a subpoena issued inexercise of the power conferred by this subsection may be used against thewitness in the trial of any civil or criminal action other than a prosecutionfor false swearing committed on the examination. Any person who, while underoath during a proceeding before the board of adjustment, willfully swearsfalsely, is guilty of a Class 1 misdemeanor. (1923, c. 250, s. 7; C.S., s. 2776(x); 1929, c. 94,s. 1; 1947, c. 311; 1949, c. 979, ss. 1, 2; 1963, c. 1058, s. 3; 1965, c. 864,s. 2; 1967, c. 197, s. 1; 1971, c. 698, s. 1; 1977, c. 912, ss. 9‑12;1979, c. 50; 1979, 2nd Sess., c. 1247, s. 37; 1981, c. 891, s. 7; 1985, c. 397,s. 2; c. 689, s. 30; 1991, c. 512, s. 2; 1993, c. 539, s. 1088; 1994, Ex.Sess., c. 24, s. 14(c); 2005‑418, s. 8(a); 2009‑421, s. 5.)
