HOUSE DOCKET, NO. 2876        FILED ON: 1/16/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3382

The Commonwealth of Massachusetts

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PRESENTED BY:

Paul McMurtry

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act creating a state appeal board for the purposes of serving those small business owners who feel the Board of Health or Building Department have treated them unfairly on a local level.

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PETITION OF:

HOUSE DOCKET, NO. 2876        FILED ON: 1/16/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3382

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act creating a state appeal board for the purposes of serving those small business owners who feel the Board of Health or Building Department have treated them unfairly on a local level.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Chapter 40 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by adding the following section:-

Section 70. (a)The following words shall unless a contrary intention clearly appears, have the following meanings:-

“Board”, the board of appeal for small business owners.

“Local permit”, a permit issued by a local permit authority pursuant to the general laws or authorized by special legislative act.

“Local permit authority”, a board of health, a regional board of health or department of health established by the general laws or authorized by special legislative act; a building department of a city or town; or a historic district commission established by the general laws or authorized by special legislative act.

“Small business or small business owners”, a business entity, including its affiliates, that: (i) is independently owned and operated; (ii) has a principal place of business in the commonwealth; and (iii) would be defined as a “small business” under applicable federal law, as established in the United States Code and promulgated from time to time by the United States Small Business Administration.

(b) There shall be a board of appeal for small business owners on denial of local permits.  The board shall be within, but not subject to, the department of housing and economic development consisting of the secretary of housing and economic development, the secretary of public safety and the commissioner of public health.

The secretaries of housing and economic development and public safety may by a writing, in such form as he or she may prescribe, filed in his or her office, designate from time to time a representative to act in his place, the commissioner of public health may in like manner designate from time to time a representative to act in his or her place. Any such designation may be revoked at any time and may run for such period as the designating officer may prescribe. The compensation of such a representative, if not an employee of the commonwealth, shall be fixed by the board, subject to the approval of the governor and council. The secretary of housing and economic development or his or her representative shall be the chairman of the board.

(c) With the approval of the governor and council, the board may appoint and remove a secretary and such clerical and other assistants as its work may require. The secretary so appointed shall be eligible to serve also as the representative of the secretary of housing and economic development, if designated as aforesaid. All expenditures incurred under this section shall be paid from the Housing and Economic Development Trust Fund established by section 16I of chapter 6A. The secretary shall keep a record of all proceedings before the board, and the secretary and such clerical and other assistants shall perform such duties as the board may direct. Any member of the board shall have power to summon and compel the attendance and testimony of witnesses and the production of books, records and documents and may administer oaths. Sections 9 and 11 of chapter 233 shall apply to the board and witnesses summoned before it. The fees of witnesses before the board for attendance and travel shall be the same as for witnesses before a court in civil cases and need not be paid nor tendered to them prior to their attendance, and shall be paid by the commonwealth upon the certificate of the board or a member thereof filed with the comptroller.

(d) An office and a room for hearings shall be provided by the commonwealth, to be assigned by the governor and council. The board may hold hearings at any place within the commonwealth and the members and secretary thereof shall be allowed their necessary traveling and other expenses in holding hearings outside the city of Boston. The board, with the approval of the governor and council, may make and amend reasonable rules and regulations to set forth the standards in subsection (e), expedite, and regulate hearings and the procedure before it.

(e) Whenever an application by a small business for a local permit is unreasonably denied or is granted with such conditions and requirements to make the operation of the permit uneconomic for the small business owner, the small business owner shall have the right to appeal to the board for a review of the same. Such appeal shall be taken within 20 days after the date of the notice of the decision by the local permit authority by filing with the board a statement of the prior proceedings and the reasons upon which the appeal is based. The board shall forthwith notify the local permit authority of the filing of such petition for review and the latter shall, within 10 days of the receipt of such notice, transmit a copy of its decision and the reasons therefor to the board. Such appeal shall be heard by the board within 20 days after receipt of the applicant’s statement. A stenographic record of the proceedings shall be kept and the board shall render a written decision, based upon a majority vote, stating its findings of fact, its conclusions and the reasons therefor within 30 days after the termination of the hearing, unless such time shall have been extended by mutual agreement between the board and the applicant. Such decision may be reviewed in the superior court in accordance with the provisions of chapter 30A. No further review shall be had.

(f) The hearing by the board in the executive office of housing and economic development shall be limited to the issue of whether, in the case of the denial of an application, the decision of the local permit authority was reasonable and consistent with local needs and, in the case of an approval of a permit to a small business with conditions and requirements imposed, whether such conditions and requirements make the operation of the permit uneconomic.

(g) If the committee finds, in the case of a denial, that the decision of the local permit authority was unreasonable to the small business owner, it shall vacate such decision and shall direct the board to issue a permit or approval to the small business.

(h) If the board finds, in the case of an approval with conditions and requirements imposed, that the decision of the local permit authority makes the operation of the permit uneconomic, it shall order the local permit authority to modify or remove any such condition or requirement so as to make the proposal no longer uneconomic to the small business and to issue any necessary permit or approval; provided, however, that the committee shall not issue any order that would allow the operation of the permit with standards less safe than the applicable permitting requirements pursuant to the general laws.

(i) The board or the small business shall have the power to enforce the orders of the board at law or in equity in the superior court. The local permit authority shall carry out the order of the board within 30 days of its entry and, upon failure to do so, the order of board shall, for all purposes, be deemed to be the action of the local permit authority, unless the small business owner consents to a different decision or order by such local permit authority.