ZBA research project final Zoning Board of Appeals Rules, Regulations & Practices page 1/11
Continuations & Withdrawals
Research Project
April 2023
Agenda:
A. Items of Concern
B. Authority for ZBA to Develop Rules and Regulations:
C. Specific References to Continuances and Withdrawals contained in MGL, Town of Barnstable
Code and/or Town of Barnstable Planning Board Rules & regulations:
D. Current Barnstable ZBA Procedures:
E. Research Results of Other Towns & Cities:
F. Proposed Administrative Inclusions:
G. Proposed Rules & Regulations for Withdrawals - Decisions Required:
H. Proposed Rules & Regulations for Continuances - Decisions Required:
I. Proposed Action Alternative Pros & Cons
J. Appendix – excel spreadsheet
Contents:
A. Items of Concern: The Board has encountered situations which are concerns for example, the
inconvenience to our citizens who have attended an in-person or virtual hearing only to find out at the hearing
that the applicant has withdrawn or requested a continuance. Further these requests may have been
requested via the applicant or more often by their representative sometimes by e-mail on the day of the
hearing.
B. Authority for ZBA to Develop Rules and Regulations:
1. MGL chapter 40A, section 12
“The board of appeals shall adopt rules, not inconsistent with the provisions of the zoning ordinance/by-law
for the conduct of its business and for purposes of this chapter and shall file a copy of said rules with the city
or town clerk.”
Zoning Board of Appeals Rules, Regulations & Practices Continuations & Withdrawal s page 2/11
Research Project (continued)
2. Town of Barnstable Code
There are no explicit references in this Code for the adoption of any Zoning Board of Appeals Rules &
Regulations (see Article III, chapter 240-11 of the Administrative Code of the Town of Barnstable).
3. Rules and Regulations of the Barnstable Planning Board
There are no explicit references in their Rules and Regulations for the adoption by the Zoning Board of Appeals
of Rules & Regulations.
Authority Conclusions:
Authority to adopt ZBA Rules and Regulations comes from MGL chapter 40A, section 12.
C. Specific References to Continuances and Withdrawals contained in MGL, Town of
Barnstable Code and/or Town of Barnstable Planning Board Rules & regulations:
1. MGL chapter 40A, section 16
“Any petition for a variance or application for a special permit which has been transmitted to the permit
granting authority or special permit granting authority may be withdrawn, without prejudice by the petitioner
prior to the publication of the notice of a public hearing thereon, but thereafter be withdrawn without
prejudice only with the approval of the special permit granting authority or permit granting authority.”
2. MGL chapter 40A, section 15
“The required time limits for a public hearing and said action, may be extended by written agreement between
the applicant and the board of appeals. A copy of such agreement shall be filed in the office of the city or town
clerk.”
3. Rules and Regulations of the Barnstable Planning Board, section 6.2
Rules of Procedure for Public Hearings – “An Applicant may appear on his own behalf or may be represented
by an authorized agent or attorney. In the absence of an appearance on behalf of an Applicant, without cause,
the Board may make a decision on the basis of available information otherwise received.”
4. Rules and Regulations of the Barnstable Planning Board, section 7.5
Withdrawal of Application – “An Applicant may withdraw an application without prejudice by written notice to
the Board at any time prior to the first publication of the notice of the public hearing. After such public notice,
withdrawal of an application without prejudice shall be permitted only by majority vote of the Board.”
Zoning Board of Appeals Rules, Regulations & Practices Continuations & Withdrawals page 3/11
Research Project (continued)
D. Current Barnstable ZBA Procedures:
Please note: the procedures that follows assume that the 1st notice has been sent; "hearing" means that the
hearing on the actual appeal is opened by the Board (as compared to the “meeting”).
Withdrawals & Continuances:
1. an appeal may be withdrawn or continued, without prejudice, prior to a hearing - by either in-person or in
writing - with the approval of the Board
2. a request for a withdrawal or continuance may be made during the hearing only by an in -person request by
the petitioner or representative - with the approval of the Board
3. an appeal may not be withdrawn or continued if the petitioner or their representative have not so
requested prior to the hearing, and they are not present at the hearing - the Board must rule on the petition
4. for continuances the petitioner must submit, in writing, an agreement to extend the time limit for a decision
by the Board on the application, if applicable
E. Research Results of Other Towns & Cities:
Process
1. reviewed 24 City & Town web sites for ZBA & Planning Department Rules and Regulations
* 12/15 Towns in Barnstable County (Barnstable, Bourne, Brewster, Chatham, Dennis, Falmouth,
Harwich, Orleans, Mashpee, Provincetown, Sandwich, Yarmouth)
* 7 large Cities (Boston, Worcester, Los Angeles, San Francisco, Chicago, Dallas, Philadelphia)
* 4 others (Newburyport, Swampscott, Foxborough, Norwalk, CT)
2. 10 of above also “interviewed” via telephone
3. complete data obtained from 14 Cities and Towns (consistency achieved)
4. questions asked on basis that first public notice of case had been published
Analysis
5. Only 7/21 Cities and Towns surveyed had specific rules & regulations for Continuances and/or Withdrawals
in writing;
6. Only Dallas required requests (for Withdrawals 5 business days) to be submitted within specific timeframes
prior to hearing; (Boston suggested 48 hours prior to hearing)
7. 8/13 treated Continuations & Withdrawals different one from another;
Zoning Board of Appeals Rules, Regulations & Practices Continuations & Withdrawals page 4/11
Research Project (continued)
8. for Continuances 4/13 required Applicant/Representative to be present at hearing;
* Cape = Chatham, Yarmouth, Mashpee
* Cape = Sandwich, Bourne, Falmouth, Provincetown: if Applicant did not submit written request prior
to hearing then must appear at hearing
9. for Withdrawals 3/13 required Applicant/Representative to be present at hearing;
* Cape = Bourne, Mashpee, Chatham
Conclusions from Internet Search and/or Telephone Survey (please refer to attached matrix)
10. most Towns on the Cape had no published formal Rules and Regulations for Continuances and/or
Withdrawals;
11. most Towns on the Cape handled the Continuances and/or Withdrawals in an “informal” but consistent
manner (but of course honored the MGL);
12. from telephone interviews - many Towns were sensitive to the fact that Continuances were not
“advertised” thus, citizens who were interested in a specific hearing were inconvenienced leading some Towns
to require an appearance at a hearing (Falmouth required an appearance at the 2nd and succeeding requests);
13. most all Towns on the Cape accepted either a prior written request or an appearance at the hearing for a
Withdrawal request – but not both;
14. there were no specific time requirements for submission of written requests for Continuances and/or
Withdrawals to the ZBA staff except sometime prior to the hearing (unless the decision was made during a
hearing);
15 almost all Towns (if not all) required a written agreement from the Appellant if the Continuance would
extend the hearing beyond the required time to act;
F. Proposed Administrative Inclusions:
Suggested inclusions IF the Barnstable ZBA elects to create “official” Rules and Regulations:
1. The Barnstable Zoning Board of Appeals shall adopt rules, not inconsistent with the provisions of the MGL,
Town of Barnstable Code or Board of Planning zoning ordinance or by-law, for the conduct of its business and shall file a
copy of said rules with the Town Clerk (?).
2. These Rules of Procedure may be amended by the affirmative majority vote of all members of the Board,
provided that such amendment shall be presented in writing at a regular meeting and action taken at a subsequent
regular meeting.
3. The Board may in a particular case waive strict compliance with the requirements of these Rules and
Regulations when in the judgement of the Board such action is in the public interest and not inconsistent with other
ordinance or law.
4. If an attorney, agent or other authorized party represents a petitioner, a letter of authorization from the
petitioner must be presented for the public record.
Zoning Board of Appeals Rules, Regulations & Practices Continuations & Withdrawals page 5/11
Research Project (continued)
G. Proposed Rules & Regulations for Withdrawals - Decisions Required:
WITHDRAWALS
Any application which has been transmitted to the Zoning Board of Appeals may be withdrawn by the
petitioner or their representative, without prejudice, prior to publication of the notice of public hearing.
Thereafter the application may be withdrawn only with the approval of the Board which may determine if
it is with or without prejudice. A dismissal without prejudice would allow the petitioner to initiate the appeal process
again at their convenience without waiting two full years.
The ZBA may in its discretion grant a withdrawal but is not obligated to do so.
Appearance at hearing requesting a withdrawal:
1. An appearance by the petitioner or their representative at the hearing is not required if a
written request that states the reason has been made prior to the hearing.
OR
2. An appearance by the petitioner or their representative at the hearing is required to formally
submit the request and state the reason for it for the Board’s consideration even if a written request has
been made prior to the hearing.
An appearance by the petitioner or their representative at the hearing is required even if a written
request has been made prior to the hearing.
Written Request for withdrawal:
3. A written request that states the reason for it is required whether the request is made prior to or
at the hearing.
4. A written request that states the reason for it is not required if the request is made at the
hearing.
And ?
5. A request for withdrawal must be received in sufficient time to notify all interested parties before
the hearing date.
Zoning Board of Appeals Rules, Regulations & Practices Continuations & Withdrawals page 6/11
Research Project (continued)
H. Proposed Rules & Regulations for Continuations - Decisions Required:
CONTINUANCES
Any application which has been transmitted to the Zoning Board of Appeals may be continued by the
petitioner or their representative, without prejudice, prior to publication of the notice of public hearing.
After publication of the notice of a public hearing an application may be continued only with the
approval of the Board, in its discretion, which may allow or deny any request for continuance and may
determine if it is with or without prejudice. A dismissal without prejudice would allow the petitioner to initiate
the appeal process again at their convenience without waiting two full years.
Should the Board determine that additional information is required, the public hearing would be
continued to a date certain.
A continuance granted by the Board must include the date and time of the continued hearing.
Any request for a continuance that would extend the hearing beyond the required time to act shall be
in writing, regardless of the petitioner‘s attendance at the hearing. If agreed to by the Board, this continuance
and extension request shall be filed with the Town Clerk(?).
The ZBA may in its discretion grant a continuance but is not obligated to do so.
Appearance at hearing requesting a continuation:
6. An appearance by the petitioner or their representative at the hearing is not required if a
written request that states the reason has been su bmitted prior to the hearing.
OR
7. An appearance by the petitioner or their representative at the hearing is required to formally
submit the request and state the reason for it for the Board’s consideration even if a written request has
been made prior to the hearing.
OR
8. An appearance by the petitioner or their representative at the hearing is not required at the
first request for a continuance but for any subsequent requests an appearance by the petitioner or their
representative is required to formally submit the request and state the reason for it for the Board’s
consideration.
Zoning Board of Appeals Rules, Regulations & Practices Continuations & Withdrawals page 7/11
Research Project (continued)
Written Request for a continuation:
9. A written request that states the reason for it is required whether the request is made prior
to or at the hearing.
OR
10. A written request is not required if the continuance is made at the hearing.
OTHER RULES & REGULATIONS FOR CONSIDERATION:
11. Total duration period for a continuation?
unlimited?
1 (?) year?
12. Number of times a continuance may be granted?
unlimited in duration?
unlimited in # times?
unlimited within 1 (?) year of total duration?
4 (?) times within 1(?) year total duration?
4 (?) total times regardless of total duration?
13. Time requirements for withdrawal?
A request for withdrawal must be in writing and received before 5:00 p.m. of the day that will leave
five full working days (excluding Saturdays, Sundays, and official city holidays) before the date of the
hearing.
14. Time requirements for Public comments?
Written Public comment should be submitted at least 48 hours before the hearing ?
information provided less than one (1) week prior to a public hearing by any party may result in a
continuance?
Zoning Board of Appeals Rules, Regulations & Practices Continuations & Withdrawals page 8/11
Research Project (continued)
I. Proposed Action Alternative Pros & Cons:
1. do nothing
Pro = easiest
Pro = doesn’t create more controversy
Con = no explicit published Rules & Regulations for potential petitioners
Con = potentially inconsistent; relies solely on staff; staff turnover?
Con = if inconsistent, impact on petitioners?
Con = create potential legal issues
Con = unsettling for ZBA members
2. make decisions on proposed procedures
Pro = ensures procedures reflect current ZBA experiences
Pro = possibility to improve on current procedures
Con = absorbs additional ZBA time (e.g. special session and Planning Board review if changed?)
3. create formal/documented/published (i.e. Internet) ZBA Rules & Regulations that contain only
Withdrawals & Continuations
Pro = ensures perpetual, consistent application of procedures
Pro = answers any questions from potential petitioners
Pro = eliminates any potential legal issues on procedures
Con – more effort/work for ZBA to create
Con – Town webmaster would have to modify ZBA webpage to include
END
appendix of 3 page excel spreadsheet follows