PART
TITLE
VII. CITIES, TOWNS AND DISTRICTS
CHAPTER
40A. ZONING
Chapter 40A:
Section 9. Special permits
Section 9. Zoning ordinances or by-laws shall
provide for specific types of uses which shall only be permitted in specified
districts upon the issuance of a special permit. Special permits may be issued
only for uses which are in harmony with the general purpose and intent of the
ordinance or by-law, and shall be subject to general or specific provisions set
forth therein; and such permits may also impose conditions, safeguards and
limitations on time or use.
Zoning ordinances or by-laws may also provide for special permits
authorizing increases in the permissible density of population or intensity of
a particular use in a proposed development; provided that the petitioner or
applicant shall, as a condition for the grant of said permit, provide certain
open space, housing for persons of low or moderate income, traffic or pedestrian
improvements, installation of solar energy systems, protection for solar
access, or other amenities. Such zoning ordinances or by-laws shall state the
specific improvements or amenities or locations of proposed uses for which the
special permits shall be granted, and the maximum increases in density of
population or intensity of use which may be authorized by such special permits.
Zoning ordinances or by-laws may provide that special permits may be granted
for multi-family residential use in nonresidentially
zoned areas where the public good would be served and after a finding by the
special permit granting authority, that such nonresidentially
zoned area would not be adversely affected by such a residential use, and that
permitted uses in such a zone are not noxious to a multi-family use.
Zoning ordinances or by-laws may provide for special permits authorizing the
transfer of development rights of land within or between districts. These
zoning ordinances or by-laws shall include incentives such as increases in
density of population, intensity of use, amount of floor space or percentage of
lot coverage, that encourage the transfer of development rights in a manner
that protect open space, preserve farmland, promote housing for persons of low
and moderate income or further other community interests.
Zoning ordinances or by-laws may also provide that cluster developments or
planned unit developments shall be permitted upon the issuance of a special
permit.
Notwithstanding any provision of this section to the contrary, zoning
ordinances or by-laws may provide that cluster developments shall be permitted
upon review and approval by a planning board pursuant to the applicable
provisions of sections 81K to 81GG, inclusive, of chapter 41 and in accordance
with its rules and regulations governing subdivision control.
“Cluster development” means a residential development in which the buildings
and accessory uses are clustered together into one or more groups separated
from adjacent property and other groups within the development by intervening
open land. A cluster development shall be permitted only on a plot of land of
such minimum size as a zoning ordinance or by-law may specify which is divided
into building lots with dimensional control, density and use restrictions of
such building lots varying from those otherwise permitted by the ordinance or
by-law and open land. Such open land when added to the building lots shall be
at least equal in area to the land area required by the ordinance or by-law for
the total number of units or buildings contemplated in the development. Such
open land may be situated to promote and protect maximum solar access within
the development. Such open land shall either be conveyed to the city or town
and accepted by it for park or open space use, or be conveyed to a non-profit
organization the principal purpose of which is the conservation of open space,
or to be conveyed to a corporation or trust owned or to be owned by the owners
of lots or residential units within the plot. If such a corporation or trust is
utilized, ownership thereof shall pass with conveyances of the lots or
residential units. In any case where such land is not conveyed to the city or
town, a restriction enforceable by the city or town shall be recorded providing
that such land shall be kept in an open or natural state and not be built for
residential use or developed for accessory uses such as parking or roadway.
“Planned unit development” means a mixed use development on a plot of land
containing a minimum of the lesser of sixty thousand square feet or five times
the minimum lot size of the zoning district, but of such larger size as an
ordinance or by-law may specify, in which a mixture of residential, open space,
commercial, industrial or other uses and a variety of building types are
determined to be sufficiently advantageous to render it appropriate to grant
special permission to depart from the normal requirements of the district to
the extent authorized by the ordinance or by-law. Such open space, if any, may be
situated to promote and protect maximum solar access within the development.
Zoning ordinances or by-laws may also provide for the use of structures as
shared elderly housing upon the issuance of a special permit. Such zoning
ordinances or by-laws shall specify the maximum number of elderly occupants
allowed, not to exceed a total number of six, any age requirements and any
other conditions deemed necessary for the special permits to be granted.
Zoning ordinances or by-laws may provide that certain classes of special
permits shall be issued by one special permit granting authority and others by
another special permit granting authority as provided in the ordinance or
by-law. Such special permit granting authority shall adopt and from time to
time amend rules relative to the issuance of such permits, and shall file a
copy of said rules in the office of the city or town clerk. Such rules shall
prescribe a size, form, contents, style and number of copies of plans and
specifications and the procedure for a submission and approval of such permits.
Zoning ordinances or by-laws may provide for associate members of a planning
board when a planning board has been designated as a special permit granting
authority. One associate member may be authorized when the planning board
consists of five members, and two associate members may be authorized when the
planning board consists of more than five members. A city or town which
establishes the position of associate member shall determine the procedure for
filling such position. If provision for filling the position of associate
member has been made, the chairman of the planning board may designate an
associate member to sit on the board for the purposes of acting on a special
permit application, in the case of absence, inability to act, or conflict of
interest, on the part of any member of the planning board or in the event of a
vacancy on the board.
Each application for a special permit shall be filed by the petitioner with
the city or town clerk and a copy of said application, including the date and
time of filing certified by the city or town clerk, shall be filed forthwith by
the petitioner with the special permit granting authority. The special permit
granting authority shall hold a public hearing, for which notice has been given
as provided in section eleven, on any application for a special permit within
sixty-five days from the date of filing of such application; provided, however,
that a city council having more than five members designated to act upon such
application may appoint a committee of such council to hold the public hearing.
The decision of the special permit granting authority shall be made within
ninety days following the date of such public hearing. The required time limits
for a public hearing and said action, may be extended
by written agreement between the petitioner and the special permit granting
authority. A copy of such agreement shall be filed in the office of the city or
town clerk. A special permit issued by a special permit granting authority
shall require a two-thirds vote of boards with more than five members, a vote
of at least four members of a five member board, and a unanimous vote of a
three member board.
Failure by the special permit granting authority to take final action within
said ninety days or extended time, if applicable, shall be deemed to be a grant
of the special permit. The petitioner who seeks such approval by reason of the
failure of the special permit granting authority to act within such time
prescribed, shall notify the city or town clerk, in writing within fourteen
days from the expiration of said ninety days or extended time, if applicable,
of such approval and that notice has been sent by the petitioner to parties in
interest. The petitioner shall send such notice to parties in interest by mail
and each such notice shall specify that appeals, if any, shall be made pursuant
to section seventeen and shall be filed within twenty days after the date the
city or town clerk received such written notice from the petitioner that the
special permit granting authority failed to act within the time prescribed.
After the expiration of twenty days without notice of appeal pursuant to
section seventeen, or, if appeal has been taken, after receipt of certified
records of the court in which such appeal is adjudicated, indicating that such
approval has become final, the city or town clerk shall issue a certificate
stating the date of approval, the fact that the special permit granting
authority failed to take final action and that the approval resulting from such
failure has become final, and such certificate shall be forwarded to the
petitioner. The special permit granting authority shall cause to be made a
detailed record of its proceedings, indicating the vote of each member upon each
question, or if absent or failing to vote, indicating such fact, and setting
forth clearly the reason for its decision and of its official actions, copies
of all of which shall be filed within fourteen days in the office of the city
or town clerk and shall be deemed a public record, and notice of the decision
shall be mailed forthwith to the petitioner, applicant or appellant, to the
parties in interest designated in section eleven, and to every person present
at the hearing who requested that notice be sent to him and stated the address
to which such notice was to be sent. Each such notice shall specify that
appeals, if any, shall be made pursuant to section seventeen and shall be filed
within twenty days after the date of filing of such notice in the office of the
city or town clerk.
Zoning ordinances or by-laws shall provide that a special permit granted
under this section shall lapse within a specified period of time, not more than
two years, which shall not include such time required to pursue or await the
determination of an appeal referred to in section seventeen, from the grant
thereof, if a substantial use thereof has not sooner commenced except for good
cause or, in the case of permit for construction, if construction has not begun
by such date except for good cause.
Zoning ordinances or by-laws shall also provide that uses, whether or not on
the same parcel as activities permitted as a matter of right, accessory to
activities permitted as a matter of right, which activities are necessary in
connection with scientific research or scientific development or related
production, may be permitted upon the issuance of a special permit provided the
granting authority finds that the proposed accessory use does not substantially
derogate from the public good.
In any city or town that accepts this paragraph, zoning ordinances or
by-laws may provide that research and development uses, whether or not the uses
are currently permitted as a matter of right, may be permitted as a permitted
use in any non-residential zoning district which is not a residential,
agricultural or open space district upon the issuance of a special permit
provided the special permit granting authority finds that the uses do not
substantially derogate from the public good.
“Research and development uses” shall include any 1 or more of
investigation, development, laboratory and similar research uses and any
related office and, subject to the following limitations, limited manufacturing
uses and uses accessory to any of the foregoing.
“Limited manufacturing” shall, subject to the issuance of the special
permit, be an allowed use, if the following requirements are satisfied: (1) the
manufacturing activity is related to research uses; (2) no manufacturing
activity customarily occurs within 50 feet of a residential district; and (3)
substantially all manufacturing activity customarily occurs inside of buildings
with any manufacturing activities customarily occurring outside of buildings
subject to conditions imposed in the special permit.
A hazardous waste facility as defined in section two of chapter twenty-one D
shall be permitted to be constructed as of right on any locus presently zoned
for industrial use pursuant to the ordinances and by-laws of any city or town
provided that all permits and licenses required by law have been issued to the
developer and a siting agreement has been established
pursuant to sections twelve and thirteen of chapter twenty-one D, provided
however, that following the submission of a notice of intent, pursuant to section
seven of chapter twenty-one D, a city or town may not adopt any zoning change
which would exclude the facility from the locus specified in said notice of
intent. This section shall not prevent any city or town from adopting a zoning
change relative to the proposed locus for the facility following the final
disapproval and exhaustion of appeals for permits and licenses required by law
and by chapter twenty-one D.
A facility, as defined in section one hundred and fifty A of chapter one
hundred and eleven, which has received a site assignment pursuant to said
section one hundred and fifty A, shall be permitted to be constructed or
expanded on any locus zoned for industrial use unless specifically prohibited
by the ordinances and by-laws of the city or town in which such facility is
proposed to be constructed or expanded, in effect as of July first, nineteen
hundred and eighty-seven; provided, however, that all permits and licenses
required by law have been issued to the proposed operator. A city or town shall
not adopt an ordinance or by-law prohibiting the siting
of such a facility or the expansion of an existing facility on any locus zoned
for industrial use, or require a license or permit granted by said city or
town, except a special permit imposing reasonable conditions on the
construction or operation of the facility, unless such prohibition, license or
permit was in effect on or before July first, nineteen hundred and
eighty-seven; provided, however, that a city or town may adopt and enforce a
zoning or non-zoning ordinance or by-law of general application that has the
effect of prohibiting the siting or expansion of a
facility in the following areas: recharge areas of surface drinking water
supplies as shall be reasonably defined by rules and regulations of the
department of environmental protection, areas subject to section forty of
chapter one hundred and thirty-one, and the regulations promulgated thereunder; and areas within the zone of contribution of
existing or potential public supply wells as defined by said department. No
special permit authorized by this section may be denied for any such facility
by any city or town; provided, however, that a special permit granting
authority may impose reasonable conditions on the construction or operation of
the facility, which shall be enforceable pursuant to the provisions of section
seven.