[HISTORY: Adopted by the Zoning Board of Appeals of the Town
of Easton 3-22-2011.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Affordable Housing Trust Fund — See Ch. 20.
[1]
Editor's Note: These rules also superseded former Ch.
400, Comprehensive Permits, adopted 4-17-1980, as amended.
A.
These Rules establish procedures for applications to the zoning board
of appeals for comprehensive permits granted under MGL c. 40B, §§ 20-23
and the regulations promulgated thereunder. They are required by MGL
c. 40B, § 21 and by 760 CMR 56.00, et seq. The purpose of
that Act and these Rules is to facilitate the proper development of
affordable housing in Massachusetts.
B.
These Rules alone are not sufficient to describe comprehensive permit
procedures before the zoning board of appeals. They must be read in
conjunction with and implemented in a manner consistent with MGL c.
40B, §§ 20-23. In addition, the Board's general
rules and policies for 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.
C.
These rules take effect on passage and supersede any other c. 40B
rules that may have been adopted by the Board.
As used in this chapter, the following terms shall have the
meanings indicated:
The zoning board of appeals established under MGL c. 40A,
§ 12.
Any applicant which proposes to sponsor housing under MGL c. 40B; and is not a public agency; and is eligible to receive a subsidy from a state or federal agency and which agrees to limit its actual profit as required under law. [See § 400-3A(9).]
Any local board or official, including, but not limited to
any board of survey; board of health; planning board; conservation
commission; historical commission; water, sewer, or other commission;
fire, police, traffic, or other department; building inspector or
similar official or board; board of selectmen.
A.
The application for a comprehensive permit shall consist of:
(1)
Site development plans showing the locations and outlines of proposed
buildings; the proposed locations, general dimensions and materials
for streets, drives, parking areas, walks and paved areas; and proposed
landscaping improvements and open areas within the site. All site
development plans shall be stamped by a registered Professional Engineer;
(2)
A report on existing site conditions and a summary of conditions in the surrounding areas, showing the location and nature of existing buildings, existing street elevations, traffic patterns and character of open areas, if any, in the neighborhood. This submission may be combined with that required in § 400-3A(1), above;
(3)
Preliminary, scaled, architectural drawings. For each building, the
drawings shall be signed by a registered architect, and shall include
typical floor plans, typical elevations, and sections, and shall identify
construction type and exterior finish;
(4)
A tabulation of proposed buildings by type, size (number of bedrooms,
floor area) and ground coverage, and a summary showing the percentage
of the tract to be occupied by buildings, by parking and other paved
vehicular areas, and by open areas;
(6)
A utilities plan, stamped by a registered Professional Engineer showing
the proposed location and types of sewage, drainage, and water facilities,
including hydrants. Adequate supporting information shall be provided
to demonstrate that the drainage system will meet all Stormwater Management
Guidelines promulgated by the Massachusetts Department of Environmental
Protection, or best management practices, whichever is more stringent;
(7)
Documents showing that the applicant fulfills the jurisdictional
requirements of 760 CMR 31.01, that is:
(a)
The applicant shall be a public agency, a non-profit organization,
or a limited dividend organization.
(b)
The project shall be fundable by a subsidizing agency under
a low and moderate income housing subsidy program. The Board may review
this documentation to ensure that the applicable subsidizing agency
has performed the due diligence required under 760 CMR 56.04.
(c)
The applicant shall control the site and the means of access
thereto. This documentation must adequately demonstrate that the Applicant
possesses the necessary control over the site and the site access
to develop the project as proposed in the Application.
(8)
A concise list of requested exceptions to local requirements and
regulations, including local codes, ordinances, by-laws or regulations,
along with an explanation of the reasons for seeking such exceptions.
Blanket waivers requests shall not be permitted;
(9)
A complete financial pro-forma, detailing the projected costs and
revenues of the proposed project. In preparing its pro-forma, the
Applicant shall limit its costs to actual arm's length expenses
in purchasing and developing the property. Acquisition costs shown
in the pro-forma shall be limited to the lesser of the existing as-is
fair market value of the property (i.e. the value under existing by-laws
and regulations without the benefit of waivers or variances) or the
amount of last arm's length sale (with all reasonable and demonstrable
carrying costs). Additionally, the Applicant shall fully disclose
any land or development costs ascribed to related entities. Profits
generated by any related entities in the development of any aspect
of the project shall not be allowable as project costs;
(10)
A complete copy of any and all materials and applications submitted
by the Applicant to any prospect subsidizing agency or source, including,
but not limited to applications for site approval;
(11)
A list of each member of the development and marketing team,
including all contractors and subcontractors, to the extent known
at the time of application. The Applicant shall also be required to
disclose its relationship to all such entities;
(12)
A list of all prior development projects completed by the Applicant,
along with a brief description of each such project;
(13)
Evidence of local need for the type and number of housing units
being proposed by this Application.
(14)
If the project requires work that would, in conventional circumstances,
require a filing with the Easton Conservation Commission under any
local wetlands bylaw, the Applicant shall provide any and all information
that would normally be required for such a filing with the Conservation
Commission.
B.
Fees.
(1)
The application shall be accompanied by a filing fee based upon the
number of proposed housing units of:
(2)
These fees are applicable for both original applications as well
as for applications for permit modifications that are deemed to be
substantial by the Board.
(3)
Additionally, the application fee shall include $5,000 to pay for the services of legal counsel for assistance in any project of 25 units or less, and $7,500 for any project in excess of 25 units but not exceeding 75 units and $10,000 for any project in excess of 75 units. This cost is a reasonable estimate of the administrative costs for counsel retained to assist the Board with the multitude of legal issues that must be explored in the c. 40B process. Furthermore, in order to assist the Board in the determination of whether or not any proposed conditions will render the project uneconomic, as required under MGL c. 40B, §§ 20-23, the application fee shall include an additional $5,000 for the retention of a financial expert. The Board, in its sole and unfettered discretion may waive any or all of these additional fees if it is determined that legal and/or financial review is not necessary. Alternatively, the applicant may opt to pay for the Board's legal counsel or financial consultant in the manner prescribed by MGL c. 44, § 53G and § 400-4 hereof. Upon request by the applicant, the Board may, for good cause shown, waive the legal or consulting fees contemplated under this paragraph for non-profit or public applicants.
C.
Within seven days of filing of the application, the Board shall notify
every pertinent local official, board or department of the application
by sending such official a copy of the application. Based upon that
information, it shall also invite the participation of each local
official who has an interest in the application. In order to allow
review by local officials, the Applicant shall provide the Town Clerk
with 25 copies of the complete application so that all boards, officials
and departments may review the same; and one unbound copy for copying
purposes. Additionally, eleven-inch by seventeen-inch copies of all
plans (with match-lines) shall be made available to the Town Clerk
for copying purposes.
A.
When reviewing an application for, or when conducting inspections
in relation to, a comprehensive permit application, the Board may
determine that the assistance of outside consultants is warranted
due to the size, scale or complexity of a proposed project, because
of a project's potential impacts, or because the Town lacks the
necessary expertise to perform the work related to the comprehensive
permit application. Whenever possible, the Board shall work cooperatively
with the applicant to identify appropriate consultants and to negotiate
payment of the consultant fees. Alternatively, the Board may, by majority
vote, require that the applicant pay a reasonable "project review
fee" of a sufficient sum to enable the Board to retain consultants
chosen by the Board alone. The Board may require that an Applicant
deposit a lump sum in order to retain consultants. In the event that
such sum is insufficient to fund the necessary consulting services,
the Board may require additional deposits.
B.
In hiring outside consultants, the Board may engage engineers, scientists, financial analysts, planners, lawyers (see § 400-3 hereof), 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.
C.
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.
D.
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.
E.
Any applicant may make an administrative appeal from the selection
of the outside consultant to the Board of Selectmen. 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
possess 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 no decision is made by the
Board of Selectmen within one month following the filing of the appeal,
the selection made by the Board shall stand.
A.
The Board shall hold a public hearing on the application within 30
days of its receipt, unless such time period is extended by written
agreement of the Board and the Applicant. It may request the appearance
at the hearing of such representatives or local officials as it considers
necessary or helpful in reviewing the application. In making its decision,
the Board shall take into consideration the recommendations of local
officials.
B.
The Board shall render a decision, based on a majority vote of the
Board, within forty days after termination of the public hearing,
unless such time period is extended by written agreement of the Board
and the applicant. The hearing may be deemed terminated when all public
testimony has been received and all information requested by the Board
has been received.
C.
The Board may dispose of the application in the following manner:
(1)
Approve a comprehensive permit on the terms and conditions set forth
in the application;
(2)
Deny a comprehensive permit in the event that the proposed project
presents adverse impacts to local concerns that outweigh the community's
housing needs; or
(3)
Approve a comprehensive permit with conditions, including but not
limited to the number of permitted housing units, the height, size,
shape or general appearance of the proposed buildings, the configuration
of the site plan, and any other reasonable condition that is necessary
to address issues arising under zoning, wetlands, planning or other
local concerns while not rendering the construction or operation of
such housing uneconomic. The scope of conditions may include any matter
that would normally be addressed by a Local Board in review of a conventionally
proposed project. In order to assist the Board with determining the
permissible extent of conditions, the Board may require that the Applicant
provide a revised pro-forma at the Board's request, during the
latter stages of the public hearing after the parties have had an
opportunity to review the proposed project and any revisions thereto.
The economic viability of a project may be determined with reference
to the average profit earned by other developers of residential housing,
as adjusted for the type of housing, the geographical area and the
current economic climate.
D.
It shall be the applicant's burden to demonstrate that the waiver
of any particular local regulation, by-law or ordinance is necessary
in order to maintain the project's economic viability. There
shall be a presumption that the waiver of any local by-law, ordinance
or regulation will adversely affect local concerns.
E.
If a subdivision of land is involved, the following shall apply:
(1)
No construction is permitted until a Definitive Subdivision Plan
has been submitted to and approved by the Board;
F.
No comprehensive permit shall take effect until a copy of the decision,
bearing the certification of the Town Clerk, that 20 days have elapsed
after the filing of the decision and no appeals have been filed, is
recorded in the Registry of Deeds and is indexed under the name of
the owner of record of the land.
A.
In the event that, during the public hearing, the Applicant proposes
any changes in its Application or project plans that, in the Board's
discretion, constitutes a material or substantial change to the project,
the Applicant shall provide a new site-eligibility letter from the
designated subsidizing agency.
B.
In the event of material or substantial changes, the Board may request, and the Applicant shall provide, any and all information specified in § 400-3 hereof that is deemed by the Board to be necessary to evaluate such changes.
C.
In the event of a material or substantial change, any and all plans and supporting information shall be provided to all of the local entities identified in § 400-3C, above.
D.
If the Applicant submits a revised plan for the Board's consideration
and said plan is the plan that is the subject of the Board's
hearing and deliberation, then the Application shall be deemed to
be revised, subject to the foregoing provisions.
A.
If the Board approves the comprehensive permit, any person aggrieved
may appeal within the time period and to the court provided in MGL
c. 40A, § 17.
B.
If the Board 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.
