[HISTORY: Adopted by the Zoning Board of
Appeals of the Town of Boxford 6-27-2002. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 196.
A.
Authority. These rules and regulations of the Boxford Board of Appeals are adopted pursuant to and under the authority of § 196-44 of the Boxford Zoning Bylaw; Chapter 40A ("The Zoning Act") and other applicable provisions of the Massachusetts General Laws.
B.
Purpose. The purpose of these rules and regulations
is to establish uniform standards and procedures for conducting the
business of the Board of Appeals. These shall apply to all matters
over which the Board of Appeals has jurisdiction, including:
(1)
To hear and decide appeals from any decisions of the
Inspector of Buildings;
(2)
To hear and decide applications for special permits
as authorized by the Boxford Zoning Bylaw;
(3)
To hear and decide petitions for variances as authorized
by the Boxford Zoning Bylaw;
(4)
To hear and decide applications seeking authorization
and a comprehensive permit to build low- and moderate-income housing
contemplated by MGL c. 40B, § 21;
(5)
To hear and decide upon all matters otherwise legally
within the jurisdiction of the Board of Appeals.
A.
Members and officers. The Board of Appeals shall consist
of three regular members appointed by the Select Board. The Board
of Appeals shall annually, at their first meeting in July, elect officers
consisting of a Chairperson, Vice Chairperson and Clerk from its regular
members, and may engage, subject to appropriation, a Secretary and
such other assistance as is necessary.
[Amended 9-12-2020 ATM by Art. 19]
B.
Alternate members. Alternate members of the Board
of Appeals shall be appointed by the Select Board. Alternate members
shall sit on the Board of Appeals in the case of absence, inability
to act or conflict of interest on the part of any regular member.
Alternate members shall not participate in elections of officers.
[Amended 9-12-2020 ATM by Art. 19]
C.
Chairperson's power and duties.
(1)
The Chairperson shall preside over all hearings and
meetings of the Board of Appeals. Subject to the rules as stated herein,
the Chairperson shall decide all points of order unless overruled
by a majority of the Board in session at the time. The Chairperson
shall designate associate members to sit on the Board as may be deemed
necessary and in the event of a vacancy on the Board shall designate
an associate member to act as a member until the vacancy is filled
by appointment of the Select Board.
[Amended 9-12-2020 ATM by Art. 19]
(2)
In addition to powers granted by Massachusetts General
Laws and the Boxford Zoning Bylaw, and subject to these rules and
regulations and further instruction of the Board of Appeals, the Chairperson
shall supervise the work of the Secretary, arrange for necessary help
and exercise general supervision over the Board's activities. The
Vice Chairperson shall preside over any hearing or meeting, or perform
all duties and exercise all powers of the Chairperson in the absence
of the Chairperson.
D.
Secretary. A Secretary shall be appointed by the Select
Board and, subject to the direction of the Board and its Clerk, shall
undertake all of the clerical work of the Board including all correspondence,
sending of all notices required by law or the rules and regulations
or orders of the Board, receive and scrutinize all petitions and applications
for compliance with the rules and regulations of the Board, keep dockets,
minutes and records of the Board's proceedings, compile all required
documents, and maintain necessary files and indices.
[Amended 9-12-2020 ATM by Art. 19]
E.
Quorum. A quorum for the purpose of conducting public
hearings and transacting other business of the Board of Appeals shall
consist of three members.
F.
Regular hearing dates. The regular hearing dates of
the Board of Appeals shall be held as necessary at 7:30 p.m. on the
fourth Thursday of each month, or at other times determined by the
Board. If a regular hearing is cancelled, it shall be held on the
next regular hearing date unless otherwise provided.
G.
Meetings of the Board. Meetings of the Board of Appeals
may be called by the Chairperson or at the request of two members.
Notice thereof shall be given to each member at least 48 hours before
the time set, not including Sundays and holidays, except that announcement
of a meeting at any hearing or other meeting of the Board attended
by all members shall be sufficient notice. Notices shall be posted
publicly as required by law for all meetings.
A.
General procedure.
(1)
All applications for hearing must be date stamped
by the Town Clerk and filed with the Board's Secretary. All applications
shall be made by the owner of the property noted in the request or
with the owner's written permission attached.
(2)
Prior to filing any application it shall be reviewed
with the Board's Secretary to assure its completeness, and each such
application shall be accompanied by all applicable site plans, building
plans and such other information as may be required by the Boxford
Zoning Bylaw or as may reasonably be deemed necessary by the Board's
Secretary. Failure to provide all applicable site plans, building
plans and other required information, including the specific reference(s)
to all applicable sections of the Zoning Bylaw, may result in either
rejection of the application for incompleteness or the need for a
new application and hearing.
B.
Application requirements. Any person who wishes to
make an application for hearing shall file twelve copies of the following:
(1)
Application for hearing. Every application for action
by the Board of Appeals shall be made on an official application form
entitled "Board of Appeals - Application for Hearing" which is hereby
made part of the rules and regulations and shall be furnished by the
Inspector of Buildings or the Board's Secretary upon request. Any
other communication purporting to be an application or petition shall
be treated as mere notice of intention to seek Board action until
such time as it is made on the official application form. All information
called for by the application form shall be furnished by the applicant
in the manner therein prescribed together with all information specified
in the applicable provisions of the Boxford Zoning Bylaw.
(2)
Plans and specification. The applicant shall file
seven prints of all applicable plans and specifications, which shall
clearly show the nature of the specific request being made. Insofar
as practicable all plans shall be drawn to scale, shall not exceed
24 inches x 36 inches and shall indicate as applicable:
(a)
The title of the plan, including assessor's
map and parcel number;
(b)
Plot plan, including all required setbacks and
property boundaries;
(c)
The scale;
(d)
The date, name and address of the owner and
the applicant; the name, seal and address of the designer, engineer
or surveyor;
(e)
The zoning classification and the location of
any zoning district boundaries including floodplain;
(f)
The location of all existing and proposed buildings
or parts thereof, structures, signs, parking and loading spaces;
(g)
The limits of all paving and storage areas;
(h)
All required landscaping; and
(i)
Such other information as is necessary to ensure
the purposes of the Boxford Zoning Bylaw and these rules.
(3)
Filing fee.
(a)
Application for a special permit or an appeal
hearing shall be accompanied by two checks payable to the Town of
Boxford for $100 for the application and a separate one to cover the
cost of mailing. The newspaper will bill the applicant directly for
advertising.
(b)
Application for a variance hearing shall be
accompanied by two checks payable to the Town of Boxford for $150
for the application and a separate one to cover the cost of mailing.
The newspaper will bill the applicant directly for advertising.
(c)
In the event that an application to the Board
involves more than one of the above matters, the filing fee for each
application shall be paid. In addition, all applications for a repetitive
petition shall be accompanied by a new check payable to the Town of
Boxford in the same amount as if it were an original application.
C.
Information to be furnished to the Board of Appeals.
(1)
Special permits. In the case of a special permit,
the following points, at a minimum, based on the Zoning Act, MGL c.
40A, § 9, shall be identified and both factually and legally
supported on the application form and again verbally at the hearing:
(2)
Variances. In the case of a variance, the following
points, at a minimum, based on the Zoning Act MGL c. 40A, § 10,
shall be identified and both factually and legally supported on the
application form and again verbally at the hearing:
(a)
That there are circumstances relating to the
soil conditions, shape or topography of the land or structure and
especially affecting such land or structure in question, but which
do not affect generally the zoning district in which the land or structure
is located;
(b)
That due to those circumstances especially affecting
the land or structure, a literal enforcement of the provisions of
this bylaw would involve substantial hardship, financial or otherwise
to the petitioner;
(c)
That desirable relief may be granted without
nullifying or substantially derogating from the intent or purpose
of this bylaw; and
(d)
That desirable relief may be granted without
substantial detriment to the public good.
(3)
Appeals. In the case of an appeal, the following points,
at a minimum, based on the Zoning Act, MGL c. 40A, § 8,
shall be identified and both factually and legally supported on the
application form and again verbally at the hearing:
D.
Public hearing and notice.
(1)
Notice.
(a)
The notice shall contain the name of the applicant;
the name of the owner of property, if different; a description of
the area or premises (street address or other adequate identification
of the location of the area or premises); the date, time and place
of the public hearing; and the subject matter or the application with
specific reference to all applicable sections of the Boxford Zoning
Bylaw or General Laws.
(b)
Notice of hearings shall be advertised as required
by the provisions of MGL c. 40A, § 11, or MGL c. 41, § 81AA.
In addition, copies of the notice shall be sent by mail at least seven
days prior to the date of the hearing, postage prepaid, to all parties
in interest, and provided to the Planning Board, Inspector of Buildings,
Board of Health, Conservation Commission, Fire Department, Select
Board, Assessor's Office and where applicable, other Town Boards and
departments. In the event of the failure to give timely notice to
parties in interest, the Board of Appeals may continue the hearing
until such notice requirement has been satisfied.
[Amended 9-12-2020 ATM by Art. 19]
(2)
Hearings to be public. All hearings shall be open
to the public and shall be conducted in accordance with the Massachusetts
Open Meeting Law, MGL c. 39, § 23B.
(3)
Representation and absence. An applicant may appear
in his/her own behalf or be represented by a qualified agent or attorney.
In the absence of an appearance, the Board of Appeals may, in its
discretion, decide the matter using the information it has received,
dismiss the petition with or without prejudice or continue the hearing
to a later date. All petitioners will be asked to sign an agreement
to extend the time for a decision in all cases that are continued
beyond the second hearing.
(4)
Hearing procedure.
(a)
The Chairperson shall call the hearing to order
and open each hearing by requesting the Clerk to read the notice as
advertised.
(b)
The petitioner or representative will then present
the case, stating fully the reason(s) why the petition or application
should be granted.
(c)
The Chairperson may ask the Inspector of Buildings
to further explain the application or may ask another Town Official
or representative thereof (Planning Board, Town Engineer, etc.) for
their comments and recommendations.
(d)
When the petitioner or representative and the
Inspector of Buildings or other Town officials have concluded, the
Chairperson will allow all abutters of the matter under consideration
to speak on material facts on the case. Those who wish to speak will
rise, address the Board of Appeals, give their names and addresses
and then proceed.
(e)
When all abutters have spoken, the Chairperson
will then allow other interested parties a similar opportunity to
speak on material facts on the case.
(f)
Rebuttals may only be allowed at the discretion
of the Chairperson.
(g)
As directed by the Chairperson, any regular
or alternate member of the Board of Appeals may direct appropriate
questions during the hearing. In addition, the Board may choose to
retain any record that has been introduced in evidence for reference
in the consideration of the case. All cases will require a review
process and a recommendation by the Planning Board.
(h)
When the case has been presented, the Chairperson
will close the hearing and inform the petitioner or representative
and others present of the time requirements involved and the applicable
appeals procedures.
(i)
Decisions will generally be made at the conclusion
of the hearing but may be postponed, prior to the close of evidence,
to permit submission of written material or other documents requested
by the Board; to permit viewing the property with respect to which
an application has been filed; or to enable the Board to fully consider
all records which have been introduced in evidence.
E.
Actions by the Board of Appeals.
(1)
Voting requirements. A unanimous vote of all three
sitting members of the Board of Appeals shall be necessary to reverse
any order or decision of the Inspector of Buildings; or to decide
in favor of a special permit or variance or on any matter legally
within the jurisdiction of the Board. The Board shall cause to be
made a detailed record of its proceedings, showing the vote of each
member or if absent or failing to vote, indicating such fact, and
setting forth clearly the reason or reasons for its decisions and
of its other official actions, copies of all of which shall be filed
in the Office of the Town Clerk.
(2)
Withdrawal. An application may be withdrawn without
prejudice by notice in writing to the Board's Secretary at any time
prior to the publication of notice of a public hearing by the Board
of Appeals. Withdrawal of an application thereafter with or without
prejudice requires Board approval and, in either event there shall
be no return of any fee paid.
(3)
Repetitive petition. No appeal of a decision by the
Inspector of Buildings, nor request for a special permit or variance
which has been unfavorably and finally acted upon by the Board of
Appeals shall be acted upon within two years after the date of final
unfavorable action unless at least five members of the Planning Board
and a unanimous vote of the Zoning Board agree that new evidence presented
indicates that the reapplication is substantially altered from the
original petition and the Board of Appeals finds specific and material
changes in the conditions upon which the previous unfavorable action
was based and describes such changes in its records prior to scheduling
a new hearing.
(4)
Limitation of approval.
(a)
A special permit shall lapse if a substantial
use thereof has not commenced except for good cause or in the case
of a permit for construction, if construction has not commenced except
for good cause within two years from the date of the grant thereof.
(b)
Any rights authorized by a variance, which are
not exercised within one year from the date of grant of such variance,
shall lapse and may be reestablished only after notice and a new hearing.
(5)
Decisions.
(a)
Decisions of the Board of Appeals shall be made
in writing and shall contain the following:
[1]
Case number, name and address of the applicant
and identification of the land affected;
[2]
Name and address of the owner of the land affected
if not the applicant;
[3]
Place, time and date of the public hearing;
[4]
Dates hearing was advertised and name of paper
and a statement that the applicant and parties in interest were notified;
[5]
Brief account of the hearing and relief requested;
[6]
Date the decision was rendered, the vote of
the Board stating specifically which members voted for and which voted
against, whether the application was granted or denied in whole or
in part and the reasons therefor and the conditions, if any imposed.
(b)
The Board's Secretary will send a copy of its
decision forthwith to the owner, the applicant if other than the owner,
the Planning Board, the Town Clerk, the Inspector of Buildings, the
Board of Health, Conservation Commission and, where applicable, other
Town Boards and departments, and will send notices of its decision
to parties in interest and every person present at the hearing who
requests that notices be sent and states the address to which such
notice is to be sent. In addition, the Board will send a copy of decision
for a shared driveway to the Fire Department and for accessory apartments
to the Board of Assessors.
(c)
A variance or special permit does not become
effective until the Town Clerk certifies that no appeal of the decision
has been filed in Superior Court within the twenty-day statutory appeal
period or that if an appeal has been filed, it has been dismissed
or denied. A certified copy of the decision shall be recorded in the
Essex County Registry of Deeds and indexed in the grantor index under
the name of the owner of record or recorded and noted on the owner's
certificate of title (for registered land.)
(d)
The applicant or petitioner is responsible for
filing the certified decision in the Registry of Deeds, paying the
recording fees and delivering said copy to the Zoning Board of Appeals
office.
[Added 5-22-2003]
A.
Purpose.
(1)
These rules set forth substantive and procedural requirements
for review of applications by the Zoning Board of Appeals (ZBA) for
comprehensive permits granted under MGL c. 40B, §§ 20-23
(the Act). These Rules are required by M.G.L. c. 40B, § 21,
as amended by State Acts of 1989, c. 593, and by 760 CMR 31.02. Other
requirements are set forth in the Act. These rules must be read in
conjunction with and implemented in a manner consistent with the complete
regulations of the Housing Appeals Committee, 760 CMR 30.00 and 31.00.
It is also advisable to read the Guidelines for Local Review of Comprehensive
Permits published from time to time by the Massachusetts Department
of Housing and Community Development (DHCD).
(2)
The ZBA's general rules of conduct of hearings under
MGL c. 40A apply to comprehensive permit applications. In case of
inconsistency or conflict between those general rules for conduct
and these rules, these rules shall govern.
B.
ZBA
LOCAL BOARD
LOCAL HOUSING PARTNERSHIP (LHP)
Definitions. As used in this section, the following
terms shall have the meanings indicated:
The Zoning Board of Appeals established under MGL c. 40A,
§ 12.
Any local board or official, including, but not limited to
any board of health; planning board; conservation commission; historical
commission; fire, police, public works department, or other department;
building inspector or similar official or board; board of selectmen.
All boards, regardless of their geographical jurisdiction or their
source of authority (that is, including boards created by special
acts of the legislature or by other legislative action) shall be deemed
local boards if they perform functions usually performed by locally
created boards.
A committee formed by the Select Board to promote the growth
of affordable housing in accordance with state mandates and to serve
as the initial screening authority for proposed comprehensive permits
under MGL c. 40B, § 21.
[Amended 9-12-2020 ATM by Art. 19]
C.
Complete application.
(1)
A complete application for a comprehensive permit
shall include (760 CMR 31.02):
(a)
An application form;
(b)
A determination of project eligibility (site
approval) by the subsidizing agency [See 760 CMR 31.01(2)];
(c)
Documentation of site control (e.g., preliminary
determination by the subsidizing agency that the applicant has a sufficient
interest in the site or a purchase and sale agreement or deed);
(d)
Evidence that the project applicant is a nonprofit
organization, a public agency or a limited dividend organization;
(e)
Preliminary site development plans (signed by
a registered architect or other pertinent design/engineering professional)
showing the location and footprints of all proposed buildings, changes
in grading and topography, parking, landscaping, exterior lighting,
signs, roads, walkways and driveways (including building materials),
open space, wetlands, and infrastructure and utilities;
(f)
An existing conditions plan showing the location
of all existing buildings, streets, metes and bounds description of
the site, open spaces, trails and trails network, topography, wetlands
and buffer areas, on-site infrastructure, parking, roads, driveways,
storm water facilities, street elevations, traffic patterns and the
character of open areas, if any, in the neighborhood;
(g)
Preliminary architectural drawings (scaled and
signed by a registered architect) including the location and use of
all buildings, typical floor plans, elevations, sections, construction
type and exterior finish;
(h)
Building tabulations (including the number and
type of buildings, number and size of units, number of bedrooms per
building, floor area of units, and building and impervious surface
coverage);
(i)
Where a subdivision of land is involved, a preliminary
subdivision plan;
(j)
Preliminary utilities plan showing the proposed
location and types of water, wastewater and stormwater facilities,
including hydrants;
(k)
Payment of filing fee:
[1]
Limited dividend organizations, nonprofit organizations
and governmental entities utilizing the New England Fund Program:
$500 and $50 per individual residential unit; or
[2]
Limited dividend organizations that are using
the Local Initiative Program (LIP) (760 CMR 45.00): $250 and $25 per
individual residential unit;
(l)
Advertising costs and postage for abutter notification
shall be borne directly by the applicant;
(m)
Documentation that the applicant has notified
DHCD (per 760 CMR 31.01) within 10 days of filing its application
with the subsidizing agency for preliminary approval of the project;
(n)
Documentation that the applicant has notified
DHCD (per 760 CMR 31.01) within 10 days of receipt of a written determination
of project eligibility (or site approval) from the subsidizing agency;
(o)
First level hazardous waste assessment (MGL
21E) (if applicable);
(p)
List of state or other local approvals necessary
to be sought and granted prior to the issuance of a building permit
for the project;
(q)
A geohydrologic study on the impact of public
water supply and irrigation needs on the local aquifer, nearby private
wells, and surface water tributaries to the Ipswich River, Parker
River and Merrimack River;
(r)
List of waivers, variances and exceptions sought
by applicant from any and all local regulations, policies and by-laws;
and
(s)
Additional information the ZBA reasonably determines
is necessary to make a decision.
(2)
In order to allow review by local officials, the Applicant
shall provide the Town Clerk with 20 copies of the complete application
so that the local boards, officials and departments may review the
same and that one copy may be placed on file at each library. In addition
there shall be one unbound copy for copying purposes and eleven-inch-by-seventeen-inch
copies of all plans (with matchlines) shall be made available to the
Town Clerk for copying purposes.
D.
Review fees.
(1)
The ZBA may employ outside consultants to provide
technical or legal assistance in reviewing a comprehensive permit
application in the event municipal staff cannot provide these services
in-house. Whenever feasible, as determined by the ZBA, the ZBA will
work cooperatively with the applicant to identify appropriate consultants.
The ZBA may require the applicant to pay all or part of the consultant's
fees. Consultants shall include, but not be limited to special counsel
to the ZBA, traffic consultants, design review consultants, and/or
financial reviews (for New England Fund projects only).
(2)
In hiring outside consultants, the Board may engage
engineers, financial analysts, planners, lawyers, urban designers
or other appropriate professionals who can assist the Board in analyzing
a project to ensure compliance with all relevant laws, bylaws, and
regulations. Such assistance may include, but not be limited to, analyzing
an application, monitoring or inspecting a project or site for compliance
with the Board's decision or regulations, or inspecting a project
during construction or implementation.
(3)
Funds received by the Board pursuant to this section
shall be deposited with the municipal treasurer who shall establish
a special account for this purpose, consistent with the terms and
provisions of MGL c. 44 § 53G. Expenditures from this special
account may be made at the direction of the Board without further
appropriation. Expenditures from this special account shall be made
only for services rendered in connection with a specific project or
projects for which a project review fee has been or will be collected
from the applicant. Accrued interest may also be spent for this purpose.
Failure of an applicant to pay a review fee shall be grounds for denial
of the comprehensive permit application.
(4)
At the completion of the Board's review of a project,
any excess amount in the account, including interest, attributable
to a specific project shall be repaid to the applicant or the applicant's
successor in interest. A final report of said account shall be made
available to the applicant or applicant's successor in interest. For
the purpose of this regulation, any person or entity claiming to be
an applicant's successor in interest shall provide the Board with
documentation establishing such succession in interest.
(5)
Any applicant may take an administrative appeal from
the selection of the outside consultant to the Select Board. Such
appeal must be made in writing and may be taken only within 20 days
after the Board has mailed or hand-delivered notice to the applicant
of the selection. The grounds for such an appeal shall be limited
to claims that the consultant selected has a conflict of interest
or does not process the minimum, required qualifications. The minimum
qualifications shall consist either of an educational degree in, or
related to, the field at issue or three or more years of practice
in the field at issue or a related field. The required time limit
for action upon an application by the Board shall be extended by the
duration of the administrative appeal. In the event that the Select
Board makes no decision within one month following the filing of the
appeal, the selection made by the Board shall stand.
[Amended 9-12-2020 ATM by Art. 19]
E.
Procedures.
(1)
Negotiation/mediation. The applicant shall meet with
the Local Housing Partnership to review and negotiate the proposal
for a comprehensive permit before an application is filed with the
ZBA.
(2)
The ZBA shall hold a public hearing on the project
within 30 days of receipts of the completed application. The ZBA shall
notify all Local Boards of the application for a comprehensive permit
upon receipt of the application and forwards copies of the application
and the ZBA should request that representatives of Local Boards attend
the public hearing(s) to provide input and advice to the applicant.
In making its decision the ZBA shall take into consideration the recommendations
of the local boards. These recommendations shall include the reasons
why any local bylaws or regulations of those boards should not be
waived.
(3)
The ZBA will give public notice, beginning at least
14 days prior to the date of the hearing, by advertising the comprehensive
permit hearing in a local newspaper of general circulation, notifying
interested parties by certified mail as defined in MGL c. 40A § 11
to include the petitioner, direct abutters, owners of land directly
opposite on any public or private street or way, abutters to abutters
within 300 feet of the property line of the proposed project, the
Planning Board of Boxford, the Planning Board of every abutting city
or town, and posting a copy of the hearing notice in the Town Hall.
(4)
In the event that, during the public hearing, the applicant proposes any changes in its application or project plans that in, the ZBA's judgement, constitute a material or substantial change in the project, the applicant shall provide a new determination of project eligibility (site approval) from the subsidizing agency, and the ZBA may request, and the Applicant shall provide, any and all changes to the information specified in Subsection C(1) that is deemed by the ZBA to be necessary for the ZBA and other local boards to evaluate such changes.
F.
Decisions.
(1)
The ZBA shall render a decision based on a majority
vote, within 40 days of the close of the public hearing, unless such
time period is extended by written agreement of the ZBA and the applicant.
The public hearing is deemed closed when all public testimony has
been received and all information requested by the ZBA has been received.
The ZBA may dispose of the application in the following manner:
(a)
Approve a comprehensive permit on the terms
and conditions set forth in the application;
(b)
Deny a comprehensive permit as not consistent
with local needs;
(c)
Approve a comprehensive permit with conditions,
including but not limited to height, site plan, size, shape, or building
materials, that do not render the construction or operation of such
housing economic.
(2)
Any decision approving a comprehensive permit shall,
at minimum, contain the following conditions:
(a)
For condominium projects, legal review and approval
by the Town of final condominium documents;
(b)
For all projects, legal review and approval
by the Town of deed riders;
(c)
A requirement that the units remain affordable
for as long as the housing is not in compliance with local zoning.
(d)
The project has the written support of the Local
Housing Partnership.
(e)
A requirement that the project qualify under
state laws and regulations such as Wetlands Protection Act, Title
5, Subdivision Control Law, State Health Code and the State Building
Code prior to construction.
(3)
The burdens of proof for ZBA decisions (denial, approval
or approval with conditions) are described in 760 CMR 31.06 (5)-(8).
"Consistent with local needs" is defined in M.G.L. c. 40B, § 20.
Evidentiary standards, presumptions and the balancing of housing need
and local concerns are described in 760 CMR 31.07.
G.
Condominium documents. All condominium documentation
shall state that:
(1)
Unit owner's percentage interest in the condominium
shall be based on unit fair market value (not square footage of the
unit).
(2)
There shall be one vote per unit owner, unless MGL
c. 183A requires otherwise.
(3)
Condominium documents shall prohibit amendments to
affordability provisions.
(4)
Affordable units shall not be rented without the approval
of the Town, as determined by the Boxford Housing Partnership.
H.
Amendments to approved permit.
(1)
If after the issuance of a comprehensive permit an
applicant seeks to change its proposal as approved by the ZBA, it
shall promptly notify the ZBA in writing, describing such change.
Within 20 days the ZBA shall determine and notify the applicant whether
it deems the change substantial or insubstantial [see 760 CMR 31.03(2)
for examples of substantial and insubstantial changes.]
(2)
If the ZBA determines the change is insubstantial,
the comprehensive permit shall be modified to incorporate the change.
(3)
If the ZBA determines the change is substantial, it shall hold a public hearing within 30 days of its determination and issue a decision within 40 days of the close of the hearing, in accordance with Subsection D(5) of these rules. Only the changes in the proposal or aspects of the proposal affected thereby shall be at issue in the hearing.
I.
New England Fund projects. The Federal Home Loan Bank
Board of Boston (FHLBB) and its member banks (A member bank is hereinafter
referred to as "the bank,") provide comprehensive permit applicants
with construction financing at below-market interest rates through
the New England Fund (NEF). The Housing Appeals Committee (HAC) in
Stuborn v. Town of Barnstable determined that NEF qualifies as a subsidy
for purposes of the Act and outlined the type of issues that should
be considered by towns when reviewing comprehensive permit applications.
J.
NEF applications.
(1)
A complete application for a project receiving New England Fund financing, in addition to the requirements for a complete application listed herein above in Subsection C, shall include:
(a)
A project eligibility letter that provides the
following information:
[1]
Name of applicant;
[2]
Address of site;
[3]
Number of units proposed;
[4]
Type of housing proposed (ownership or rental);
[5]
Name of housing program under which project
eligibility letter or site approval letter is sought;
[6]
Relevant details of the proposed project (e.g.,
percentage of affordable units, income-eligibility standards, duration
of the affordable housing restrictions, how the applicant will comply
with the limited dividend aspect of the program, etc.);
[7]
A statement that the proposed project is generally
eligible under the requirements of the NEF program, pending final
review and approval;
[8]
A statement by the bank that it has not exceeded
its lending limits with the FHLBB;
[9]
A statement by the Bank that it has performed
an on-site inspection of the property as well as a review of the project-eligibility
application and has found that:
[a]
The proposed housing design is
generally appropriate for the site on which it is located;
[b]
The proposed project appears financially
feasible within the housing market in which it will be situated (based
on comparable rental or sales figures);
[c]
An initial pro forma has been reviewed
and that the project appears viable from a development cost perspective;
and
[d]
The applicant meets the general
eligibility standards of the NEF program.
(b)
A statement that the entity issuing the project
eligibility letter has notified the ZBA and Select Board, provided
a thirty-day review period for local comment and provided a list of
comments from Local Boards and officials and neighbors;
[Amended 9-12-2020 ATM by Art. 19]
(c)
The information provided by the applicant to
the entity issuing the project eligibility letter;
(d)
Project pro forma [for allowable acquisition costs, see Subsection B(1) of these rules; for reasonable profits, see Subsection K of these rules.];
(e)
Proposed regulatory agreement;
(f)
Proposed monitoring agreement;
(g)
Market feasibility report;
(h)
General information on the applicant and projects
that the applicant has completed, including comprehensive permit projects.
K.
NEF reasonable profits. The applicant's profits shall
be reasonable and shall be limited as follows:
(1)
Homeownership projects: 20% of total development costs
(TDC). TDC does not include overhead, profits and management consulting
fees. Overhead shall not be more than 5% of the total development
costs (net of profits, management consulting fees and overhead).
(2)
Rental projects: Annual return of 10% of equity (equity
being the difference between TDC, as defined by the NEF construction
loan documents, and the amount of the construction loan.) This difference
may not be equal to the applicant's cash invested. TDC includes an
allowable fee for applicant's overhead (5% of TDC, excluding site
acquisition and applicant overhead and fee) and applicant fees (20%
of TDC, excluding site acquisition and applicant overhead and fees).
L.
NEF allowable acquisition costs. The development pro
forma must list a land value that is the lower of the last arm's length
transaction (if within three years) plus reasonable carrying and/or
maintenance costs or the value under the pre-existing zoning regulations,
plus reasonable carrying costs.
(1)
Last arm's length transaction shall not involve an
identity of interest between the seller and the buyer or any party
related to the buyer;
(2)
Pre-existing zoning regulations concerns the time
the option or purchase and sale agreement is executed.
(3)
Reasonable carrying costs include interest, taxes,
insurance and the costs related to option agreements. These costs
plus the acquisition costs cannot exceed the appraised value of the
land under the density permitted by a comprehensive permit.
M.
NEF decisions.
(1)
Any decision by the ZBA regarding a comprehensive permit application for an NEF project shall comply with the rules set forth herein above in Subsection F.
(2)
A decision by the ZBA approving a comprehensive permit
application for an NEF project shall also contain, but not be limited
to, the following conditions:
N.
Regulatory agreements.
(1)
The purpose of the regulatory agreement is to provide legal assurances that the applicant will construct and maintain the units in accordance with these rules and be limited to a reasonable profit for the project (as set forth in Subsection K herein above) subject to the regulatory agreement.
(2)
The regulatory agreement shall:
(a)
Include a definition of "profit";
(c)
Limit profits on rental projects to an annual return of 10% of equity [See Subsection K(1) herein above.];
(d)
Require a full compilation and certification
of total development costs (net of related-party expenses) and total
revenue, on a federal income tax basis, prepared and certified by
a certified public accountant, acceptable to the monitoring agent
and the Town; and
(e)
Be executed by the Town, the lending bank, and
the applicant.
(f)
Establish resale and rerental controls to preserve
long-term affordability and to ensure its availability to low- or
moderate-income households.
O.
Monitoring agreements.
(1)
The purpose of the monitoring agreement is to provide
legal assurances that there is a public entity (or a private entity
responsible to a public entity) to oversee compliance with the terms
of the regulatory agreement.
(2)
The Boxford Housing Partnership shall be the monitoring
agent under any monitoring agreement.
(3)
The per unit fees for monitoring the affordable units
shall be set by the Boxford Housing Partnership.
P.
Affordability restrictions-all applications.
(1)
Restrictions for homeownership projects.
(a)
The formula for determining resale price shall
be the lesser of the appraised value of the unit multiplied by a discount
rate (established by a ratio between the original sales price of the
affordable unit compared to the sales price of a market-rate unit),
or a price based on an annual debt service on a mortgage plus taxes,
insurance and condominium fees (assuming a down payment of 10%) that
does not exceed 30% of the annual income of a household earning 70%
of the area median income for the local statistical area as defined
by the United States Department of Housing and Urban Development.
(b)
Upon resale, the owner of the affordable unit
shall be required to actively market the affordable unit to eligible
purchasers for up to 120 days.
(c)
The Town shall have a right of first refusal
to purchase the affordable units.
(d)
Excess profits shall be returned to the Town
to be used for affordable housing purposes.
(e)
Approval by the Department of Housing and Community
Development of deed riders shall be required.
(f)
There shall be a deed restriction that the affordable
unit shall remain affordable in perpetuity.
(2)
Restrictions for rental projects.
(a)
Affordable rents shall be limited to 30% of
the annual income of a renter whose income is 70% of the area median
income for the local statistical area as defined by the United States
Department of Housing and Urban Development or established pursuant
to a rent schedule set by the Town.
(b)
Tenant selection, income guideline changes,
and annual verification of income shall be by the Boxford Housing
Partnership.
Q.
Buyer/tenant selection-all applications.
(1)
Buyers of affordable units shall:
(a)
Be first-time homebuyers and not have had an
ownership interest in a residence in three years preceding the date
of the closing of the loan except that a single parent, with one or
more children living with him or her, who has been divorced or widowed
within the preceding three years and who no longer owns a home, or,
who in the case of a divorced person, is subject to a court order
or separation agreement to sell the home and divide the proceeds,
or, in the case of a widowed person, whose home is subject to a binding
purchase and sale agreement for sale, will be considered a first-time
homebuyer, notwithstanding prior home ownership during those preceding
three years, provided such widowed or divorced person is eligible
in other respects.
(b)
Have a household income of less than 80% of
the area median income for the local statistical area as defined by
the United States Department of Housing and Urban Development.
(2)
Renters of affordable units shall have a household
income of less than 80% of the area median income for the local statistical
area as defined by the United States Department of Housing and Urban
Development.
(3)
Applicants shall have a Town-approved affirmative
marketing plan for sale and rental of the affordable units.
R.
T.
Appeals.
(1)
If the ZBA approves a comprehensive permit, any person
aggrieved may appeal within the time period and to the court provided
in MGL c. 40A, § 17.
(2)
If the ZBA denies the comprehensive permit or approves
the permit with conditions or requirements considered by the applicant
to be unacceptable, the applicant may appeal to the Housing Appeals
Committee as provided in MGL c. 40B, § 22.10
U.
Lapse of permits.
(1)
If construction authorized by a comprehensive permit
has not begun with three years of the date on which the permit becomes
final, the permit shall lapse. The permit shall become final on the
date of the ZBA decision if no appeal is filed. Otherwise, it shall
become final on the date the last appeal is decided or otherwise disposed
of.
(2)
The ZBA may set an earlier or later expiration date
for the permit and may extend any expiration date. An extension may
not be unreasonably denied.
A.
Advice and policies.
(1)
Any advice, opinion or information given to an applicant
by any Board of Appeals member, the Inspector of Buildings, the Board's
Secretary or any other official or employee of the Town prior to a
public hearing shall not be binding on the Board. Individuals are
discouraged from appealing personally to members of the Board prior
to a public hearing.
(2)
The Board may, at its discretion, develop policies
to further define or interpret provisions of their Zoning Bylaw in
these rules and regulations.
B.
Waivers. The Board of Appeals may waive strict compliance
with any of these rules and regulations if it deems it in the public
interest and if a written record is kept of such waivers, and the
reasons for them.
C.
Amendments to rules and regulations. These rules and
regulations may be amended by a unanimous vote of the members of the
Board of Appeals, provided that such amendment shall be presented
in writing at a regular meeting and action taken thereof at a subsequent
regular meeting.
D.
Effective date. These rules and regulations were adopted
at a regular meeting of the Board of Appeals on June 27, 2002, and
become effective as of July 1, 2002. The rules previously adopted
and subsequently amended are hereby repealed. No action taken under
said Rules shall be affected by said repeal.
