[HISTORY: Adopted by the Town of Barnstable 9-2-2004 by Order No.
2004-118; amended in its entirety 10-20-2005 by Order No. 2006-020. Subsequent amendments
noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 240.
[Amended 5-24-2007 by Order No. 2007-105; 7-16-2009 by Order
No. 2009-138; 7-12-2012 by Order No. 2012-152; 2-1-2018 by Order No. 2018-054]
It is the purpose and intent of this chapter
to enable the Town of Barnstable to enter into development agreements
(hereinafter "regulatory agreements") in the areas delineated on the
Regulatory Agreement Districts Map dated January 2, 2018.[1]
A.
The Town of Barnstable adopts this chapter under the
Home Rule Authority of Article 89 of the amendments to the Massachusetts
Constitution, the provisions of the Cape Cod Commission Act, Chapter
716 of the Acts of 1989, as amended, and Chapter D, Development Agreement
Regulations, Code of Cape Cod Commission Regulations of General Application.
[1]
Editor's Note: Said map is on file in the
Town offices.
In this chapter, the following words have the
meanings indicated:
The plan established by the Barnstable Zoning Ordinance, § 240-24.1.11.
A person who has a majority legal or equitable interest in
the real property which is the subject of the regulatory agreement.
A qualified applicant may be represented by an authorized agent.
A contract entered into between the Cape Cod Commission and/
or the Town of Barnstable and a holder of property development rights,
the principal purpose of which is to negotiate and to establish the
development regulations that will apply to the subject property during
the term of the agreement and to establish the conditions to which
the development will be subject including, without limitation, a schedule
of impact fees and/or transfer development rights.
The municipality where the proposed development is located.
The Town Manager, or his or her designee, shall be authorized to execute,
on behalf of the Town of Barnstable, a regulatory agreement, subject
to the procedural requirements set forth below.
Notwithstanding provisions to the contrary,
the Town of Barnstable is hereby authorized to enter into a regulatory
agreement with a qualified applicant within the Downtown Implementation
District, provided the following conditions are met:
A regulatory agreement may be executed by and
between a qualified applicant and:
A.
Negotiation of the elements of a regulatory agreement between authorized parties (§ 168-4) and a qualified applicant shall follow all pertinent rules of due process currently required for public meetings, public hearings, and ratification of board and council decisions.
B.
Negotiation of the elements of a regulatory agreement between authorized parties (§ 168-4) and a qualified applicant shall be led by the Planning Board or its designee and shall include representatives from other municipal boards, departments and commissions where said joint participation will assist the negotiation process.
C.
No regulatory agreement may be executed by the Town
Manager prior to an affirmative, majority vote by the Planning Board
and the Town Council recommending the execution of the regulatory
agreement. When a waiver from zoning is allowed under the negotiated
regulatory agreement, there shall be a two-thirds vote of the Town
Council recommending execution of the regulatory agreement.
D.
The Town Manager may make minor amendments to the
regulatory agreement recommended by the Planning Board and approved
by the Town Council and execute said regulatory agreement as amended,
provided that such amendments do not alter the use, intensity or mitigation
stipulations of the regulatory agreement. However, in no instance
may the Town Manager make substantial amendments to the regulatory
agreement recommended by the Planning Board and approved by the Town
Council without first receiving written concurrence from the Planning
Board and the Town Council and qualified applicant that said substantial
amendments are agreed to.
E.
The Town Manager or his/her designee shall be authorized
to execute, on behalf of the Town, a regulatory agreement. Prior to
executing said regulatory agreement, the Town Manager shall obtain
a majority vote of the Town Council to authorize the execution, unless
the regulatory agreement authorizes a waiver from the Barnstable Zoning
Ordinance, in which case the Town Manager shall obtain a two-thirds
majority vote of the Town Council to authorize the execution. The
Town Manager shall, within seven days of the Town Council vote authorizing
the execution of the regulatory agreement, cause said regulatory agreement
to be so executed and forward the same to the qualified applicant
by certified, return receipt, mail. Within 21 days of the date said
regulatory agreement has been mailed by the Town Manager, the qualified
applicant shall execute the agreement and return, either by certified
mail or hand delivery, the fully executed regulatory agreement.
A.
Proffers by a qualified applicant. A regulatory agreement
may include, but is not limited to, the provisions whereby a qualified
applicant agrees to provide certain benefits which contribute to one
or more of the following:
(1)
The Town's infrastructure.
(2)
Public capital facilities.
(3)
Land dedication and/ or preservation.
(4)
Affordable housing, either on or off site.
(5)
Employment opportunities.
(6)
Community facilities.
(7)
Recreational facilities.
(8)
Alternative mass transportation.
(9)
Any other benefit intended to serve the proposed development,
municipality or county, including site design standards, to ensure
preservation of community character and natural resources.
B.
Proffers by the Town of Barnstable. A regulatory agreement may include the provisions whereby the Town of Barnstable agrees to provide certain protection from future changes in applicable local regulations and assistance in streamlining the local regulatory approval process. Streamlining will include, where not in conflict with existing local, state or federal law, holding of joint hearings, coordination of permit applications and, where possible, accelerated review of permit approvals. A regulatory agreement may also provide for extensions of time within which development approvals under state, regional and local laws may be extended to coincide with the expiration of the regulatory agreement established in § 168-9, below. When the Cape Cod Commission is not a party to the regulatory agreement, the land use development rights shall not vest with respect to Cape Cod Commission regulations and designations and the property shall be subject to subsequent changes in the Commission's regulations and designations.
A.
Where the Cape Cod Commission is to be a party to
a regulatory agreement, a qualified applicant shall complete a regulatory
agreement application form and comply with the specific requirements
set forth in Section 5 of Chapter D of the Code of Cape Cod Commission
Regulations of General Application, as revised.
B.
Where the Cape Cod Commission is to be a party to
a regulatory agreement, the procedural requirements established in
Section 5 of Chapter D of the Code of Cape Cod Commission Regulations
of General Application, as revised, shall be followed, and no such
regulatory agreement shall be valid unless and until the requirements
of said Section 5 of Chapter D have been complied with in full.
A.
Where the Cape Cod Commission is not to be a party
to a regulatory agreement, a qualified applicant shall complete a
regulatory agreement application form. The regulatory agreement application
form shall include:
(1)
A fully completed application form provided by the
Town of Barnstable, including a certified list of abutters.
(2)
A legal description of the land subject to the agreement
and the names of its legal and equitable owners.
(3)
The proposed duration of the agreement.
(4)
The development uses currently permitted on the land,
and development uses proposed on the land, including population densities,
and building densities and height.
(5)
A description of public facilities that will service
the development, including who shall provide and pay for such facilities,
the date any new facilities will be constructed, and a schedule to
assure that public facilities adequate to serve the development are
available concurrent with the impacts of the development.
(6)
A description of any reservation or dedication of
land for public purposes.
(7)
A description of all local development permits approved
or needed to be approved for the development of the land.
(8)
A statement indicating that the failure of the agreement
to address a particular permit, condition, term, or restriction shall
not relieve the qualified applicant of the necessity of complying
with the law governing said permitting requirements, conditions, term
or restriction.
(9)
A final environmental impact report, certified as
adequate by the Secretary of Environmental Affairs, if required under
MGL c. 30, §§ 61 through 62h.
(10)
Additional data and analysis necessary to assess the
impact of the proposed development, as determined by the Town of Barnstable.
B.
All qualified applicants seeking to enter into a regulatory agreement without the Cape Cod Commission as a party shall submit the proposed development to the Barnstable Building Commissioner for a jurisdictional determination. If the Barnstable Building Commissioner determines that the proposed development is not a development of regional impact, then the Building Commissioner shall forward his or her determination, together with the reasons for such determination and a copy of the regulatory agreement application form, to the Clerk of the Cape Cod Commission within five business days. If the proposed development is not a development of regional impact, then the qualified applicant may pursue a regulatory agreement without the Cape Cod Commission as a party pursuant to the provisions of § 168-8C through I, below. If the proposed development is a development of regional impact, then the Cape Cod Commission must be a party to the regulatory agreement, in which case, the provisions of Section 5 of Chapter D of the Code of Cape Cod Commission Regulations of General Application, as revised, shall apply.
C.
The Town of Barnstable shall assume the responsibility
for overseeing the regulatory agreement process. The Town of Barnstable
shall hold a public hearing after receipt of a fully completed application
from a qualified applicant for consideration of a proposed regulatory
agreement. The Town of Barnstable shall hold at least two public hearings.
The public hearings regarding review of a regulatory agreement shall
not exceed 60 days, unless extended by mutual agreement of the parties.
Failure to close the public hearings within 60 days shall not result
in a constructive grant of the proposed development.
D.
The Town of Barnstable shall provide notice of the
public hearing to consider a regulatory agreement by publication in
a newspaper of general circulation once in each of two successive
weeks, the first publication to be not less than 14 days before the
day of the hearing, and by mailing notice not less than 14 days before
to:
(1)
The Town Council, Town Manager, Town Clerk, Building
Inspector, Planning Board, Board of Appeals, Conservation Commission,
Board of Health, Historic District Commission, Housing Authority,
and to any other Town agency or any individual that makes a written
request for such notice;
(2)
The applicant;
(3)
Each abutter to the proposed development, based on
a list of abutters provided by the applicant and certified by the
Barnstable Tax Assessor. Abutters shall include owners of land directly
opposite on any public or private street or way and owners of land
located within 300 feet of any boundary of the proposed development;
and
(4)
The Cape Cod Commission.
E.
The qualified applicant shall bear the cost of providing
notice of the public hearing to consider the proposed regulatory agreement.
F.
The Town of Barnstable shall review proposed regulatory
agreements for their consistency with the Cape Cod Commission Act,
the Design and Infrastructure Plan and the Barnstable Local Comprehensive
Plan.
G.
The Town of Barnstable shall file its regulatory agreement
with the Clerk of the Cape Cod Commission and with the Barnstable
Town Clerk. Notices of regulatory agreements shall be published in
a newspaper of general circulation in the Town of Barnstable, including
a brief summary of the contents of the regulatory agreement and a
statement that copies of the regulatory agreement are available for
public inspection at the Barnstable Town Clerk's office during normal
business hours. In addition, the Town of Barnstable shall provide
the Cape Cod Commission with a summary of the regulatory agreement
which the Cape Cod Commission shall publish in its official publication
pursuant to Section 5(i) of the Cape Cod Commission Act.
H.
Regulatory agreements shall be issued in a form suitable
for recording in the Barnstable County Registry of Deeds. The Town
of Barnstable shall record the regulatory agreement in the Barnstable
County Registry of Deeds and shall submit proof of such recording
to the Town Clerk and the Cape Cod Commission Clerk within 14 days
of such recording. The qualified applicant shall bear the expense
of recording.
I.
The cost for filing and processing of each regulatory
agreement shall be as established by the Town Manager during his annual
public hearing on the Town's fee schedule, except that the Town Manager
may establish temporary fees to apply from the effective date of this
chapter until the next annual public hearing on Town fees.
A.
Nothing in this chapter may be construed to permit
a municipality to require a qualified applicant to enter into a regulatory
agreement.
B.
A regulatory agreement will commence and terminate
as agreed by the parties, in writing, except as otherwise provided
in this section. Where the Cape Cod Commission is not a party, a regulatory
agreement shall not exceed 10 years; however, provisions in the regulatory
agreement pertaining to the preservation of open space and park areas,
and agreement to pay for maintenance of utilities and other infrastructure
may exceed such ten-year limitation. Where the Cape Cod Commission
is a party, a regulatory agreement may extend for a longer period
of time than that noted above, as set forth in Section 7 of the Code
of Cape Cod Commission Regulations of General Application, as revised.
C.
A regulatory agreement may not be used to prevent
the Town of Barnstable or other governmental agency from requiring
a qualified applicant to comply with the laws, rules and regulations
and policies enacted after the date of the regulatory agreement, if
the Town of Barnstable or governmental agency determines that the
imposition of and compliance with the newly effective laws and regulations
are essential to ensure the public health, safety or welfare of the
residents of all or part of the jurisdiction.
A.
Where the Cape Cod Commission is not a party to the
regulatory agreement, any party to the agreement may petition the
Town of Barnstable to amend or rescind the regulatory agreement. The
petitioning party shall provide notice to all parties to the agreement
and to the Cape Cod Commission of its intention to amend or rescind
the agreement by providing such parties with a copy of the petition
seeking such amendment or rescission. When the Town of Barnstable
initiates an amendment or rescission, it shall provide notice, in
writing, to all other parties to the agreement and to the Cape Cod
Commission. The process for amendment or rescission shall follow the
procedures for adoption outlined above.
B.
When the Cape Cod Commission is a party to the regulatory
agreement, any other party to the regulatory agreement may petition
the Commission to amend or rescind the regulatory agreement. Such
petition shall be made in writing, on a form provided by the Cape
Cod Commission. The petitioning party shall provide notice to all
parties to the regulatory agreement and to the Commission of its intention
to amend or rescind the agreement by providing such parties and the
Commission with a copy of the petition seeking such amendment or rescission.
When the Commission initiates an amendment or rescission, it shall
provide advanced notice, in writing, to all other parties to the agreement.
The process for amendment or rescission shall follow the procedures
for adoption outlined above.
A regulatory agreement is a binding contract
which is enforceable in law or equity by a Massachusetts court of
competent jurisdiction.
A.
If any provision of this chapter is held invalid by
a court of competent jurisdiction, the remainder of the ordinance
shall not be affected thereby. The invalidity of any section or sections
or parts of any section or sections of this chapter shall not affect
the validity of the remainder of the Barnstable ordinances.
B.
To the extent that a conflict of interest exists between
this chapter and other ordinances of the Town of Barnstable, the more
restrictive provisions shall apply.
