Town of Great Barrington, MA Article III Procedures

§ 240-6 Preliminary discussion of requirements (sketch plan).

A. Before preparing the preliminary plan, the applicant, with his land surveyor and professional civil engineer, each licensed in the Commonwealth of Massachusetts, is strongly encouraged to meet informally with the Planning Board with a sketch plan to discuss the requirements for subdivision of land and the proposed development. The applicant should provide the Board with an informal sketch plan showing the conceptual layout of the subdivision, along with any other information that might be helpful in discussing the suitability of the property, subdivision procedures, and alternative designs. Form B-1, Inventory of Constraints and Opportunities,[1] may be used by the Board to guide the discussion and to enhance understanding of the site. The consideration of alternative forms of subdivision, such as open space residential development (OSRD) or planned unit residential development (PURD) is encouraged. There is no fee associated with this session.

[1] Editor's Note: Form B-1 is on file in the Town offices.

B. Town representatives may provide informal, nonbinding suggestions to the applicant, including highlighting particular subject areas in which the Town may require technical experts to make additional findings on behalf of the Town, at the expense of the applicant, if the project proceeds to formal application, as set forth in MGL c. 44, Section 53G and § 240-26 of these regulations.

§ 240-7 Preliminary plan.

A. The subdivider may submit a preliminary plan of a residential subdivision for discussion and tentative approval by the Planning Board. The subdivider is required to submit a preliminary plan of a nonresidential subdivision for discussion and tentative approval by the Planning Board.

B. It is strongly recommended that a preliminary plan be filed in every case. The submission of a preliminary plan will enable the subdivider, the Planning Board, municipal agencies, and other parties in interest to discuss and clarify the Town's requirements for subdivisions, procedures, constraints and opportunities of the land, possible alternative layouts, and other issues presented by the proposed subdivision at an early stage before detailed engineering of the definitive plan is begun. During discussion of the preliminary plan, the complete information required for the definitive plan (contents) and the financial arrangements (performance guarantee) can be developed.

C. General.

(1) The preliminary plan shall be clearly drawn at a suitable scale not smaller than one inch equals 100 feet on sheets not smaller than 8 1/2 inches by 11 inches nor larger than 24 inches by 36 inches. Three prints shall be filed with the Planning Board.

(2) A properly executed application Form B[1] (See Appendix.) shall be filed with the preliminary plan submitted to the Planning Board, and a copy of this form shall also be filed with the Town Clerk by delivery or registered mail.

[1] Editor's Note: Form B is included at the end of this chapter.

(3) Each application shall be accompanied by a nonrefundable filing fee. The amount of the fee shall be determined under § 240-25.

(4) Within five working days of submission to the Planning Board, the subdivider shall distribute additional copies of the plan to the Board of Health, the Conservation Commission, the Great Barrington Fire District or Housatonic Water Works, as applicable, the Department of Public Works and, if the subdivision has frontage on a state highway, Mass Highway, and the Great Barrington Police and Fire Departments, to obtain the recommendations of these agencies, as may be applicable in each case.

D. Contents. The preliminary plan shall be a plan of a proposed subdivision or resubdivision of land drawn on vellum or Mylar, or a print thereof, showing:

(1) The subdivision name, boundaries, North point, date, scale, legend and title "Preliminary Plan";

(2) The names of the record owner and the applicant and the name of the designer, engineer or surveyor;

(3) The names of all abutters, as determined from the most recent local tax list;

(4) The existing and proposed lines of streets, ways, easements and any public areas within the subdivision in a general manner;

(5) The proposed system of drainage, including adjacent existing natural waterways, in a general manner;

(6) The approximate boundary lines of proposed lots, with approximate areas and dimensions;

(7) The names, approximate location and widths of adjacent streets; and

(8) The topography of the land in a general manner.

E. Supplemental submittals. In addition to those items above, it is suggested that the following information be submitted to assist the applicant and the Planning Board in discussing more fully the proposed subdivision:

(1) A locus plan of the subdivision showing zoning district and zoning overlay district boundaries, as applicable, street configuration, and the full extent of contiguous land holdings by the applicant at the proposed site in relation to the surrounding area, at a scale no smaller than one inch equals 1,000 feet.

(2) A brief narrative description of the project approach, including rationale for selection of type of subdivision, such as conventional subdivision, PURD or OSRD, and discussion of whether the proposed ways are intended to remain privately owned and maintained by a homeowners' association, or intended for acceptance as public ways. The narrative should also briefly discuss the compatibility of the subdivision with the Town's most recent Master Plan; impact on inventory of affordable housing in the Town; concerns about wetlands or floodplain; adequate access to proposed lots and traffic issues, including pedestrian and bicyclist safety; adequacy of recreational and open space areas, grades and drainage.

(3) Form B-1, Inventory of Constraints and Opportunities,[2] should be prepared and submitted to the Planning Board. This will help all parties understand the site and will be integral to all discussions with the Planning Board throughout the design and approval process.

[2] Editor's Note: Form B-1 is on file in the Town offices.

(4) A preliminary draft municipal impact statement (water supply, fire protection, sewage disposal, and storm drainage) as well as an erosion and sedimentation control plan.

(5) Soil types and conditions as well as a description of the natural surface and subsurface drainage and its effect on the total project design, in a general manner.

(6) The proposed building sites or building envelopes, in a general manner.

F. Approval or disapproval.

(1) The Planning Board may give the preliminary plan its approval, with or without modification, or may disapprove the plan. Approval of a preliminary plan does not constitute approval of a subdivision.

(2) In the event of a disapproval of a preliminary plan, the Planning Board shall state, in detail, the reason for its disapproval. The original of the plan shall be returned to the applicant and the Town Clerk shall be notified, in writing, forthwith of the Board's action.

(3) Disapproval of a preliminary plan by the Planning Board does not affect the applicant's right to submit a definitive plan application for approval of the same or similar subdivision.

(4) The Planning Board's disapproval of a preliminary plan is not subject to appeal.

G. Time periods. The Planning Board shall approve or disapprove the preliminary plan within 45 days after submission. The applicant may make a written request to extend the time to a specified date and time.

§ 240-8 Definitive plan.

A. General.

(1) Any person who submits a definitive plan of a subdivision to the Planning Board for approval shall file with the Board the following:

(a) Original drawings of the definitive plan and seven contact prints thereof, dark line on white background.

(b) A properly executed application Form C.[1] (See Appendix.)

[1] Editor's Note: Form C on file in the Town offices.

(c) A nonrefundable filing fee. The amount of the fee shall be determined under § 240-25.

(d) One copy of a certificate of title duly searched and executed by an attorney or title company stating that the title to the premises shown on said plan is in the name of the applicant or in the name of the partnership, trust or other entity conferring effective site control on the applicant.

(2) The applicant shall file by hand delivery or registered mail a notice with the Town Clerk stating the date of submission for such approval, accompanied by a copy of the completed application Form C (See Appendix.) and a copy of the plan. When a definitive plan is submitted and a preliminary plan has been filed previously and acted upon, the Planning Board must take final action within 90 days from the date the application was filed with the Town Clerk. For a subdivision showing lots in a residential zone, if the applicant chooses not to file a preliminary plan and starts by filing a definitive plan, the Planning Board must take final action within 135 days from the filing date. In either case, the applicant may make a written request to extend the time.

B. Contents.

(1) The definitive plan shall be prepared by a professional civil engineer and a land surveyor, each registered in Massachusetts, and shall be clearly and legibly drawn in ink on Mylar. Each sheet of the plan shall have the stamp and seal of the professional who prepared it, the date of preparation and a title. The lot plan(s) shall be at a scale of one inch equals 40 feet. Engineering drawings may be at a scale appropriate to the information being shown, but in no case at a scale less than one inch equals 40 feet. Sheet sizes shall not exceed 24 inches by 36 inches.

(a) If multiple sheets are used, an index sheet showing the entire subdivision and a table of contents sheet indicating sheet numbers and titles shall accompany them.

(b) If revisions of plans are made over the course of an application for definitive plan approval, changes made from previous submittals shall be highlighted or clouded on each plan, and a revision block, listing the number, date, and description of such changes, shall be provided. The final approved Mylar for recording shall have all such highlighting removed.

(2) The definitive plan shall contain the following information:

(a) The subdivision name, boundaries, North point, date, scale, legend and the title "Definitive Plan."

(b) The name and address of the owner of record, subdivider, civil engineer and land surveyor.

(c) The names of all parties in interest as they appear on the most recent tax list.

(d) Lines and widths of existing and proposed roads, ways, easements and public or common areas within the subdivision and the names of proposed roads.

(e) Boundary lines, areas and dimensions of all proposed lots designated numerically and in sequence.

(f) Sufficient data to determine the location, direction and length of every road and way line, lot line and boundary line and to establish these lines on the ground.

(g) Location of all permanent property corner markers and monuments properly identified as to whether existing or proposed.

(h) The location, names and present widths of roads bounding, approaching or within the subdivision.

(i) Identification of the location, dimensions, purpose, and holders of existing and proposed easements appurtenant to the subdivision. The holders of existing easements shall be notified by the applicant, by certified or registered mail return receipts, about the proposed subdivision at the same time as other parties in interest.

(j) Suitable space to record the action of the Planning Board, Board of Health and Town Clerk.

(k) The location of electric power and communications lines, as well as streetlighting fixtures, their specific type and light source. All services shall be underground. All street lighting fixtures shall be designed with a horizontal cut-off light shield.

(l) Directly above or below the layout plan of each road, a profile showing existing and proposed grades along the center line of the road, together with the figures of elevation at the top and bottom of all grades and at intervals of 100 feet (or other interval as deemed practical by the Planning Board) along the grade. Intersecting roads shall be clearly identified on the profile. The horizontal scale of the profiles shall be one inch equals 40 feet and the vertical scale shall be one inch equals four feet or other such scales as the Planning Board may allow. These may be submitted on the same sheet as the definitive plan or on separate sheets.

(m) The proposed layout of storm drainage, water supply and sewage disposal. This may be submitted on the same sheet as the definitive plan or on separate sheets.

(n) Current zoning information, i.e., district, minimum lot size, frontage, lot width, required front, rear and side yards, maximum ground coverage ratio, and building height.

(o) A drawing showing the outline of the tract being subdivided and other roadways in the vicinity of the subdivision sufficient to locate the subdivision on the Town of Great Barrington Zoning Map.

(p) Landscaping plan indicating the limits of disturbance (LOD), location and species of proposed street trees and wooded areas to be retained within 40 feet of the boundaries of each right-of-way, and location and species of street trees and wooded areas to be added within 40 feet of the boundaries of each right-of-way. The landscaping plan shall clearly delineate the limits of disturbance (LOD), whether within the right-of-way or beyond.

(q) Control and management of invasive species. The landscaping plan shall also discuss measures to control and manage existing invasive species and to avoid planting of known invasive plants within all rights-of-way of the proposed subdivision as well as the first 40 feet beyond said right-of-ways. Invasive plants to be managed include but are not limited to: oriental bittersweet; multi-flora rose; Japanese barberry; honeysuckle; phragmites; Japanese knotweed; purple loosestrife; garlic mustard; and euonymus alatus. All species proposed to be planted shall be native, noninvasive species, with reference made directly on the landscaping plan to a widely accepted compendium of plant species, such as the latest edition of: Invasive Plant Atlas of New England (IPANE); "The Evaluation of Non-native Plant Species for Invasiveness in Massachusetts," 2005 Final Report by the Mass. Invasive Plant Advisory Group; "Alternatives to Invasive Species," 2003 report of the New England Wild Flower Society, or similar current references.

(r) Overall site plan at a scale no smaller than one inch equals 100 feet showing existing and proposed topography of the entire subdivision with contour intervals of at most 10 feet in elevation and proposed locations of the roads, lots, utilities, drainage system, and approximate building sites or building envelopes, open space areas, wetlands, floodplain, scenic roads, historical markers, including stone walls and significant trees, and other features of the site. All elevations shall refer to a U.S.G.S. benchmark, and its location shall be stated. All drawings shall be MassGIS compatible.

(3) Required additional information.

(a) Impact statement. An impact statement that details the probable effects of the proposed subdivision on the following matters shall accompany any land subdivision plan expected to generate average daily traffic (ADT) greater than 50:

[1] Detailed narrative description of the project approach, including selection of type of subdivision, whether the proposed ways are intended to remain privately owned and maintained by a homeowners' association, or intended for acceptance as public ways.

[2] Description of the natural environment, including soil types and vegetative conditions, topographic conditions, areas of slopes greater than 15%, waterways, wetlands or floodplain, and features with special environmental, scenic or historical significance.

[3] List of other permits that will be required, e.g., Wetlands Protection Act, Scenic Mountains Act, floodplain, Massachusetts Endangered Species Act, Water Quality Protection District, PURD, OSRD, utility connections and access to public ways, etc.

[4] Analysis of impacts of the proposed subdivision, based on the maximum allowable number of dwelling units, or other projected uses, on:

[a] Municipal water supply and/or distribution system, or public or private on-site wells;

[b] Fire protection measures;

[c] Municipal sewer collection and treatment capacity, if applicable, or suitability of soils for on-site septic systems;

[d] Stormwater drainage mitigation and impacts on wetlands, waterways, and capacity of existing drainage system within the proposed subdivision and downstream of the subdivision.

[5] Statement of estimated impacts on other municipal facilities, including school population, solid waste disposal, police, fire and other emergency services.

[6] A traffic impact analysis. Any subdivision that will generate average daily traffic (ADT) greater than 400, estimated according to the current Institute of Traffic Engineers (ITE) trip generation guidelines, will be required to submit a detailed traffic impact analysis. This report should analyze the projected increase in traffic compared to the existing conditions, no-build conditions in five years, and build conditions in five years, and identify any changes in level of service at nearby intersections. Applications for subdivisions with average daily traffic (ADT) of 100 to 400 will require an abbreviated traffic analysis. Smaller subdivisions will require only a trip generation analysis for the morning and afternoon peak hours, unless the Planning Board, at its discretion, requests a detailed traffic impact analysis.

[7] Statement of compatibility of the proposed subdivision of land with established or future land uses in the neighborhood, and with the Town's most recent Master Plan and Open Space and Recreation Plan, which are available at the Town Clerk's office.

(b) The definitive subdivision plan shall be accompanied by a plan for stormwater management and control of erosion and sedimentation prepared by a professional engineer registered in Massachusetts and shall include the following:

[1] A plan showing property lines, wetlands, stream courses, water bodies, the location of areas to be stripped of vegetation and the location of areas to be regraded and contour data, including existing and proposed grades within the right-of-way and the first 40 feet outside the right-of-way, or the limit of disturbance (LOD), whichever is greater.

[2] A schedule of operations to show the sequence and timing of major improvement phases, such as clearing, grading, paving, installation of drainage features and the like.

[3] Plans and specifications for temporary and permanent seeding, sodding or revegetation and for stabilizing other unprotected or unvegetated areas.

[4] A plan showing the location, design and timing of structural sediment control measures, both temporary and permanent, such as silt fences, diversions, waterways, grade stabilization structures, debris basins and the like.

[5] The calculations used in designing erosion control structures.

[6] A description of procedures to be followed to maintain sediment control measures, including disposal of sediment removed from all stormwater management structures including detention and evaporation ponds.

[7] Standards shall conform to the Massachusetts Erosion and Sediment Control Guidelines for Urban and Suburban Areas (Department of Environmental Protection, March 1997) as then in effect, and the applicable requirements under the U.S. EPA NPDES Stormwater Construction General Permit.

(c) The performance guarantee required for improvements in connection with the proposed subdivision may be required to be sufficient to cover the costs of accomplishing the erosion and sedimentation control measures.

C. Review by other officials. Within five working days of submittal of a definitive plan, the subdivider shall distribute an additional copy of the complete set of the definitive plan application materials, including plans, impact report and other documents, to the following agencies: Board of Health, the Conservation Commission, Great Barrington Fire District or Housatonic Water Works, as applicable, Great Barrington Department of Public Works and, if the subdivision has frontage on a state highway, Mass Highway, Great Barrington Police Department and Fire Department. The applicant shall obtain dated receipts verifying that the materials were submitted and shall make reasonable efforts to obtain the recommendations of these agencies. Each agency shall review the submittals and provide its comments within a thirty-day period from the date of submittal to the agency. Failure of any official or agency to respond within the thirty-day period shall be deemed an approval of the submission. The Planning Board shall not close the public hearing on applications for definitive plan approval until the subdivider provides documentation of approval or comments from these agencies, or more than 30 days have passed from the receipt of the definitive plan by the agency in question.

(1) Board of Health. The following lists specific requirements applicable to the Board of Health:

(a) The subdivider shall provide a copy of the definitive plan application materials to the Board of Health, and the Board of Health shall report, in writing, to the Planning Board within 30 days.

(b) Every lot that is not proposed to have a connection to the Town sewer system shall be provided with an on-site sewage disposal system satisfactory to the Board of Health. The applicant shall submit to the Board of Health the results of soils testing demonstrating the suitability for a septic system on each such lot.

(c) If the Board of Health disapproves said plan, it shall make specific findings as to which, if any, of the lots shown on such plan cannot be used for building sites without injury to the public health. The Board of Health, in making such findings, shall show justification and, where possible, shall make recommendations for adjustment thereof.

(d) The Board of Health may approve the plan on condition that prior to the issuance of a building permit for a dwelling on any lot, additional soil evaluations, percolation testing, and specific design plans of the septic system are submitted to verify the suitability of a specific location in compliance with the current regulations of the State Sanitary Code, Title 5.

(e) Based on the recommendation of the State Department of Public Health or the Town's Board of Health, where, due to restrictive water, soil, topographic, geologic or other existing conditions, the proposed development is of a density that exceeds the sustaining capacity of the proposed lots for individual on-site sewage disposal systems and wells on each lot, the Board of Health may direct that the applicant revise the plan to provide either:

[1] A consolidated on-site water supply system or connection to a municipal water system;

[2] A consolidated on-site sewage disposal system or connection to a municipal sewer system; or

[3] An increase in lot size so that individual wells and on-site sewage disposal systems may have adequate areas in which to function properly on the same lot.

(f) The Board of Health may require as a condition of subdivision approval that a performance guarantee be furnished by the subdivider to assure the construction of surface drainage improvements recommended by the Board of Health and that all required improvements shall be made without undue erosion, siltation or flooding of traveled ways and without causing any condition of public nuisance through dust or surface drainage or any act of negligence by the subdivider or his agents during the periods of construction. Such performance guarantee may be released only after completion of the work to the satisfaction of the Board of Health.

(2) Flagging and site review by Planning Board and Conservation Commission. Prior to the filing of the definitive plan, the applicant shall file a request for determination of applicability (RDA) with the Conservation Commission to determine whether the subdivision will affect any state or federal wetlands.

(a) Any wetlands on the subdivision property proposed for development (but excluding areas designated for permanent open space) shall be delineated by the applicant's wetland scientist prior to submission of the definitive plan, and the locations of all wetland boundaries shall be surveyed and shown on the plans. If any work is proposed within 200 feet of any identified wetlands, the applicant shall file an abbreviated notice of resource area delineation (ANRAD) or other applicable form under the current Wetlands Protection Act regulations, for the review and approval of the Conservation Commission.

(b) To facilitate site inspection by the Planning Board and the Conservation Commission, the applicant shall flag the center line of all proposed ways in the subdivision at fifty-foot intervals and all points where lot lines intersect rights-of-way. In performing this flagging and surveying, the applicant's surveyor should minimize the cutting of brush and avoid cutting any trees larger than four inches in diameter at breast height (DBH).

D. Public hearing.

(1) The Planning Board shall hold a public hearing before approval of the definitive plan may be granted. Notice of such hearing shall be given by the Planning Board at the expense of the applicant at least 14 days prior thereto by advertisement in a newspaper of general circulation in the Town once in each of two successive weeks, the first publication being not fewer than 14 days before the day of such hearing or, if there is no such paper in the Town, then by posting such notice in a conspicuous place in the Town Hall for a period of not fewer than 14 days before the day of such hearing and by mailing a copy of such advertisement to the applicant, civil engineer, land surveyor and to all parties interest.

(2) The applicant, and/or his engineer, landscape architect, and surveyor shall attend the public hearing.

E. Decision. After the public hearing is closed, the Board, in due course, shall approve, approve with modifications, or disapprove the definitive subdivision plan submitted.

(1) Certificate of approval or disapproval.

(a) Before final approval, application for all necessary permits under MGL c. 131, § 40 (Wetlands Protection Act) shall be made, and all necessary permits shall be obtained from Mass Highway if the subdivision has frontage on a state highway. The applicant shall notify the Planning Board, in writing, of any changes in the plan required by said permit or permits.

(b) Before final approval of a definitive plan, the Planning Board shall establish that all lots conform to Chapter 171, Zoning, of the Code of the Town of Great Barrington. (Failure of the lots to comply will be grounds for disapproval of the plan. See MGL c. 41, § 81Q and amendments thereto.)

(c) In the event of approval, the Board shall either endorse conditions of approval of the definitive plan application on the definitive plan itself or set forth such conditions in a separate instrument that shall be referenced on the definitive plan and recorded therewith, and which shall, for the purpose of the Subdivision Control Law, be deemed to be a part of the approved plan.

(d) The action of the Planning Board in respect to such plan shall be by majority vote of the full Board, copies of which shall be certified and filed with the Town Clerk and sent by delivery or registered mail to the applicant.

(e) Final approval, if granted, shall be endorsed on the original drawings of the definitive plan by the signatures of a majority of the Planning Board, but not until after the statutory twenty-day appeal period has lapsed following the filing of the certificate of the action of the Planning Board with the Town Clerk, and provided that the Town Clerk endorses on the plan a statement to the effect that no notice of appeal to a court of proper jurisdiction has been received within the appeal period, and provided further, that any conditions of approval, if a part of the Board's action, are fulfilled to the satisfaction of the Board.

(f) If the Planning Board approves with modifications or disapproves such plan, it shall state in its vote the reasons for its action.

(g) Final approval by the Board does not constitute acceptance by the Town of the roads within a subdivision nor does it indicate compliance with the provisions of the State Wetlands Protection Act, MGL c. 131, § 40, or the Code of the Town of Great Barrington.

(h) The endorsement of the plan approval by the Planning Board shall be valid for a period of two years from the date of said approval, or other such period of time as specified, for the completion of all work within the right-of-way. Prior to the expiration of said approval period, the developer and/or owner shall, in writing, request of the Planning Board an extension of time if necessary. Failure to request an extension of time prior to the expiration of said approval period shall result in the Planning Board notifying the Building Inspector that no additional building permits may be issued in said development. Any request for extension shall state the reasons for said extension and also the length of time requested. Extension of time shall not, in any case, exceed one year. Additional extensions, after the first, may be applied for, but not until at least 10 months have expired on the extension in effect.

(2) Submission of documents. Proposed easement documents and performance guarantee shall be submitted to the Planning Board within 20 days from the date of approval of the definitive plan. The Planning Board shall then submit the documents to Town Counsel for approval as to form and legality.

(3) Filing of plans in Registry of Deeds or Land Court and with the Board of Assessors.

(a) Approval of all subdivisions is subject to the condition that, unless an appeal has been taken from such approval as provided by statute, the subdivider shall record the subdivision plan in the Berkshire Southern District Registry of Deeds or the Land Court within six months from the date of approval and shall notify the Planning Board, in writing, that said plan has been recorded and filed with the Registry or Land Court. Such notification shall include the date, plan, book and page numbers or certificate numbers.

(b) The applicant shall deliver to the Planning Board one copy of the approved and recorded plan.

(c) At the same time as the plan is recorded in the Southern Berkshire Registry of Deeds or Land Court, the subdivider shall file it with the Great Barrington Board of Assessors.

(d) If the applicant delays recording of the approved plan past the allotted six-month period, such plan shall not be accepted for recording by the Registry of Deeds or Land Court unless and until it has endorsed thereon or recorded therewith and referred to thereon a certificate of the Planning Board or the Town Clerk, dated within 30 days of such recording, that the approval has not been rescinded, modified or amended. The Board or the Town Clerk shall issue such certificate unless the records of the Board, or the Town Clerk receiving the application, show that there has been such modification, amendment, or rescission.

(4) Appeal by any person. Any person, whether or not a party to the proceedings, aggrieved by a decision of the Planning Board concerning a plan of a subdivision or by the failure of the Board to take final action concerning such a plan within the required time, may appeal to a court of proper jurisdiction sitting in equity for Berkshire County, provided that such appeal is entered within 20 days after such decision has been recorded in the office of the Town Clerk, or within 20 days after the expiration of the required time as aforesaid, as the case may be, and that notice of such appeal is received by the Town Clerk within 20 days.

(5) Modification, amendment, or rescission of approved subdivision plan.

(a) The Planning Board, on its own motion or on the petition of any person interested, may modify, amend or rescind its approval of a plan or require a change in a plan as a condition of retaining its status as an approved plan.

(b) All relevant provisions of the Subdivision Control Law and these rules and regulations relating to the submission and approval of a plan shall, to the fullest extent possible, be construed to apply under this section to both a rescission and the approval of any modifications or amendments to any plan.

(c) No rescission, modification or amendment of the approval of a plan or change in such plan shall affect the lots in a subdivision which have been sold or mortgaged in good faith and for valuable consideration subsequent to the approval of the plan or any rights appurtenant thereto, without the consent of the owner of such lots and of the holder of the mortgage or mortgages, if any, thereon.

(d) So far as unregistered land is affected, no modification, amendment or rescission of the approval of a plan, nor change in a plan under this section, shall take effect until:

[1] The plan, as originally approved, or a copy thereof and a certified copy of the vote of the Board making such modification, amendment, or rescission and any additional plan referred to in such vote have been recorded;

[2] An endorsement has been made on the plan originally approved as recorded referring to such vote and where it is recorded; and

[3] Such vote is properly indexed in the grantor index of the Registry of Deeds under the names of the owners of record of the land affected.

(e) So far as registered land is affected, no modification, amendment or rescission of the approval of a plan nor change in a plan under this section shall take effect until such modification, amendment or change has been verified by the Land Court, pursuant to Chapter 185 of the General Laws, and, in case of rescission, modification, amendment or change not so verified, until ordered by the Court pursuant to MGL c. 185, § 114.

(6) Performance guarantee; completion period. Before the Planning Board endorses its approval of a definitive plan, the applicant shall agree to complete, without cost to the Town, all improvements required by these regulations and as conditions of the Board's approval, and shall provide a performance guarantee to assure proper completion of construction of the ways and utilities required to serve all of the lots in the proposed subdivision. The performance guarantee may also require completion of certain road and utility improvements within a specified period of time.

(a) Forms of guarantee: The applicant may select any of the following forms of performance guarantee as specified by MGL c. 41 § 81U:

[1] A bond.

[2] A deposit of money or negotiable securities.

[3] A lender agreement.

[4] A covenant, executed and recorded, running with the land, whereby such improvements shall be provided to serve any lot before such lot may be conveyed or built upon. A note shall be inscribed on the recorded definitive plan or a separate instrument recorded referencing the covenant.

(b) Security amount. If the completion is secured by a financial guarantee listed above in Subsection E(6)(a)[1], [2] or [3] the Board shall determine the amount. The applicant shall submit a completed copy of Form D[2] with estimated costs for review by the Board. Costs shall include all construction costs plus the following:

[1] The cost to the Town, should it be obliged to install the required improvements, including supervision, bidding and state wage rates;

[2] Maintenance for one year;

[3] Inflation over the time allowed for completion of work; and

[4] Ten-percent contingency.

[2] Editor's Note: Form D on file in the Town offices.

(c) Enforcement of construction upon failure of performance. Any financial guarantee may be applied by the Planning Board for the benefit of the Town, as provided in MGL c. 41, §§ 81U and 81Y, upon the applicant's failure of performance, to the extent of the reasonable cost to the Town of completing such construction and installation. Town Counsel shall approve all such financial guarantees, which shall be deemed conditions of definitive plan approval. No building permit shall be issued by the Town until and unless the Planning Board votes to release the guarantee in whole or in part.

(d) Release of performance guarantee. When the applicant has completed some or all of the improvements required by the approved definitive plan for lots in the subdivision, the applicant may request a partial or final release of the performance guarantee for the lots. The applicant shall submit such a request on Form E.[3] The Board, or its designated representative, shall perform an inspection of the completed work. (Refer to § 240-21.) If the improvements have been partially or totally completed to the satisfaction of the Board, the Board may issue a certificate of partial or final release of performance guarantee, releasing the applicable portion of the performance guarantee.

[3] Editor's Note: Form E on file in the Town offices.

(e) Partial release of performance guarantee. The Board may, from time to time, reduce the amount of any financial guarantee in whole or in part or the number of lots held under the covenant. The amount of the remaining performance guarantee shall reflect the estimated cost of the work remaining to be completed as defined in § 240-8E(6)(b) above.

(f) Before the Board releases any performance guarantee, in whole or in part, the subdivider shall file with the Board a Form F, Certificate of Completion,[4] prepared and stamped by a registered Massachusetts professional civil engineer and land surveyor, where applicable, indicating that roadways, utilities and other required improvements have been constructed in accordance with, and are accurately located as shown on, the plans approved by the Board. Any deviations from the approved plans shall be indicated on a set of record plans submitted to the Board with the certificate of completion. The subdivider shall also furnish to the Board a certificate that he or she has complied with all the requirements of Articles III and IV of these regulations.

[4] Editor's Note: Form F on file in the Town offices.

(g) If the Board determines that the construction has been satisfactorily completed in whole or in part, it shall, within 45 days, release the applicable portion of the performance guarantee.

(h) If the Board determines that the construction has not been satisfactorily completed, it shall specify in a notice, sent to the applicant and Town Clerk by registered mail or hand delivery, the specifics of the deficiencies or incomplete portions of the work as shown on the approved plans or how it fails to comply with the Subdivision Regulations.

(i) If the request is for a partial release of a covenant that would release one or more building lots for sale or building construction, the portion of the subdivision road and utilities shall be substantially completed, sufficient to provide adequate access and utilities to the released lots.

(j) Failure of the Planning Board to act on an application for release of a performance guarantee within 45 days after receipt by the Board of the application shall relieve all obligations under the performance guarantee and terminate by operation of law any deposit, which shall be returned, and any such covenant shall become void. In the event that the forty-five-day period expires without such specification, or without the release and return of the bond, or return of the deposit, or release of the covenant, the Town Clerk shall issue a certificate to this effect, which may be recorded.

(k) Release of performance guarantee only during suitable weather conditions. To assure that the Town agencies can perform an inspection of the work requested for release of performance guarantee under reasonable weather conditions, the applicant shall schedule its applications for release of performance guarantee to occur only between March 1 and November 30. No application for release shall be submitted between December 1 and February 28.