[Added 5-4-2009 ATM by Art. 40[1]]
[1]
Editor's Note: Former Art. X, Validity, which comprised former
§§ 200-41 through 200-43, was repealed 5-6-2019 ATM
by Art. 26. Article 26 also renumbered former Arts. XI through XIII
as Arts. X through XII, respectively.
A.
Purposes. The purposes of Smart Growth Overlay Districts are:
(1)
To promote low-impact, green, and sustainable development that is
pedestrian friendly.
(2)
To ensure high-quality site planning, architecture and landscape
design that is consistent with SG's visual character and identity
of the Town of Marblehead.
(3)
To establish development standards that ensure context-sensitive
design and creative site planning in the reuse of existing buildings
and construction of new buildings.
(4)
To provide for diversified housing stock at a variety of costs in
close proximity to the local bus lines, including affordable housing,
that meets the needs of the Town's population and promotes diversity.
(5)
To generate positive tax revenue, and to benefit from the financial
incentives provided by MGL c. 40R, while providing the opportunity
for housing choice among households of varying incomes, ages and sizes.
B.
Scope and authority. An SG is established pursuant to the authority of MGL c. 40R and 760 CMR 59.00, and shall be deemed to overlay the parcels as shown on the Zoning Map of the Town of Marblehead, as amended. At the option of the owner, development of land within an SG may be undertaken by means of a plan approval pursuant to the zoning controls set forth in this § 200-44 or by complying with all applicable zoning controls set forth in the Zoning Bylaw of the Town of Marblehead (underlying zoning). When a building permit is issued for any development project for which plan approval has been granted, all of the land shown on the plan which was submitted pursuant to § 200-44K of this bylaw shall be developed pursuant to this § 200-44 and shall not be developed pursuant to the underlying zoning. Development projects proposed pursuant to this § 200-44 shall be subject to all other applicable local, state and federal regulations.
C.
Establishment and delineation of Smart Growth Overlay Districts.
There are two districts identified as SG Pleasant Street District
(assessor map 129 parcel 20) and SG Vinnin Square District (assessor
map 1 parcel 1). The boundaries of the two districts are delineated
as SG Pleasant Street District and SG Vinnin Square District on the
Zoning Map.
D.
Definitions. All definitions are as they appear in § 200-7 of the Marblehead Zoning Bylaw in effect as of the date of adoption of this Bylaw, May 4, 2009, with the exception of the following terms:
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CONSTRUCTION, START OR COMMENCEMENT
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NONCONFORMING BUILDING OR LOT
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NONCONFORMING USE
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SITE PREPARATION
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AFFORDABLE HOMEOWNERSHIP UNIT — An affordable housing
unit required to be sold to an eligible household in accordance with
the requirements of this Bylaw.
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AFFORDABLE HOUSING — Housing that is affordable to and
occupied by eligible households.
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AFFORDABLE HOUSING RESTRICTION — A deed restriction of
affordable housing meeting the requirements in MGL c. 184, § 31,
and the requirements of this Bylaw.
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AFFORDABLE RENTAL UNIT — An affordable housing unit required
to be rented to an eligible household in accordance with the requirements
of this Bylaw.
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APPLICANT — A landowner or other petitioner that files
a plan for a development project subject to the provisions of the
SG.
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APPROVING AUTHORITY — The Planning Board of the Town of
Marblehead acting as the authority designated to review projects and
issue approvals under this Bylaw.
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AS-OF-RIGHT DEVELOPMENT — A development project allowable
under this Bylaw without recourse to a special permit, variance, zoning
amendment, or other form of zoning relief. A development project that
is subject to the plan review requirement of this Bylaw shall be considered
an as-of-right development.
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DESIGN STANDARDS — The document entitled Marblehead Smart
Growth Overlay District Design Standards, as amended, approved by
DHCD May 1, 2009, pursuant to MGL c. 40R, § 10. The design
standards are applicable to all development projects within an SG
that are subject to plan review by the approving authority.
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DEVELOPMENT LOT — One or more lots meeting the dimensional
requirements of this Bylaw which are designated as a development lot
on a plan for a development project proposed within an SG and for
which plan approval is required under the provisions of this Bylaw.
The lots comprising a development lot need not be in the same ownership
but within the application review period the applicant must demonstrate
site control of all land shown on the plan.
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DEVELOPMENT PROJECT — A residential or mixed-use development undertaken under this § 200-44. The limits of a development project shall be identified on the plan which is submitted to the approving authority for plan review.
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DHCD — The Massachusetts Department of Housing and Community
Development (DHCD) or any successor agency.
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ELIGIBLE HOUSEHOLD — An individual or household whose
annual income is below 80% of the area-wide median household income
as determined by the United States Department of Housing and Urban
Development (HUD), adjusted for household size, with income computed
using HUD's rules for attribution of income to assets.
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HOUSEHOLD INCOME, MEDIAN — The median income, adjusted
for household size, as reported by the most recent information from,
or calculated from regulations promulgated by, the United States Department
of Housing and Urban Development (HUD).
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MIXED-USE DEVELOPMENT PROJECT — A development that includes
a building or buildings with a minimum of 25% of the floor area on
the street level devoted to one or more nonresidential use. A minimum
of 50% of the total gross floor area in a mixed-use development project
shall be devoted to residential uses.
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MONITORING AGENT — A qualified housing organization designated
by the Marblehead Board of Selectmen with the power to monitor and
to enforce compliance with the provisions of this Bylaw related to
affordable housing units, including but not limited to computation
of rental and sales prices; income eligibility of households applying
for affordable housing units; administration of an approved housing
marketing and resident selection plan; and recording and enforcement
of an affordable housing restriction for each affordable housing unit
in an SG.
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MULTIFAMILY DEVELOPMENT PROJECT — A residential development
that contains a building or buildings(s) with more than three dwelling
units.
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NONRESIDENTIAL USE — A use that is listed as an allowed
retail and consumer service use or an allowed institutional and recreational
use in the B1 Zoning District, without need for a special permit,
in the Zoning Bylaws, Table 1, Land Use Regulations,[1] in effect as of the date of adoption of this § 200-44.
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OFFICE — A place of business of a professional organization
or the administration facility of a commercial or industrial organization.
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PLAN — Plans depicting a proposed development project
for all or a portion of the SG and which is submitted to the approving
authority for its review and approval in accordance with the provisions
of this Bylaw and the design standards.
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PLAN APPROVAL — The approving authority's authorization
for a proposed development project based upon a finding of compliance
with this Bylaw and design standards after the conduct of a plan review.
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PLAN REVIEW — The review procedure established by § 200-44K of this Bylaw and administered by the Planning Board of the Town of Marblehead as the approving authority.
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RENOVATION — Physical improvement that adds to the value
of the real property. Painting, ordinary repairs, and other normal
maintenance do not constitute a renovation.
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SETBACK — Please refer to Article V, Dimensional Regulations, § 200-15B(3), of the Marblehead Zoning Bylaw in effect as of the date of adoption of this Bylaw.
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SG or DISTRICT — The Smart Growth Overlay District, an
overlay zoning district adopted pursuant to MGL c. 40R, in accordance
with the procedures for zoning adoption and amendment as set forth
in MGL c. 40A and approved by the Department of Housing and Community
Development pursuant to MGL c. 40R and 760 CMR 59.00.
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UNDERLYING ZONING — The zoning requirements adopted pursuant
to MGL c. 40A that are otherwise applicable to the geographic area
in which the SG is located, as said requirements may be amended from
time to time.
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UNDULY RESTRICT — A provision of the SG or a design standard
that adds unreasonable costs or unreasonably impairs the economic
feasibility of a proposed development project in an SG.
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UNRESTRICTED UNIT — A dwelling unit that is not restricted
as to rent, price or eligibility of occupants.
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ZONING BYLAW — The Zoning Bylaw of the Town of Marblehead,
Massachusetts, adopted in accordance with and pursuant to the provisions
of MGL c. 40A.
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ZONING MAP — The Zoning Map of the Town of Marblehead,
Massachusetts, adopted in accordance with and pursuant to the provisions
of MGL c. 40A.
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[1]
Editor's Note: Table 1, Land Use Regulations, is included at the end of this chapter.
E.
Permitted uses. The following uses shall be permitted in the following
districts as-of-right upon plan approval, and at residential densities
specified in Table G, Table of Dimensional and Density Requirements:
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Table E
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Allowable Uses
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Residence Uses
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SG Pleasant Street District
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SG Vinnin Square District
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Multifamily development project
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No1
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Yes
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Mixed-use development project
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Yes
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Yes
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NOTES:
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1 The approving authority may grant a waiver pursuant to § 200-44L of this Bylaw to allow a multifamily development project in the SG Pleasant Street District upon a finding that the inclusion of a nonresidential use at the street level would unduly restrict opportunities for development.
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F.
Prohibited uses or activities in the SG.
G.
Dimensional and other requirements.
(1)
New buildings within the SG shall be subject to the bulk, dimensional
and density requirements in Table G, Table of Dimensional and Density
Requirements:
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Table G
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Table of Dimensional and Density Requirements
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District
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Min. Lot Area
(sq. ft.)
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Max. Residential Density
(units/ acre)
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Min. Frontage
(linear ft.)
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Min. Front Setback
(linear ft.)
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Min. Side Setback
(linear ft.)
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Min. Rear Setback
(linear ft.)
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Min. Open Area
(%)
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Max. Height
(ft.)
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SG Pleasant Street District
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10,000
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51
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35
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N
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(1)
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(1)
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N
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50
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SG Vinnin Square District
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10,000
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30
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35
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N
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(1)
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(1)
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(2)
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42
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NOTES:
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N — None
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(1) — Except as to any boundary abutting any other business
district, six feet; as to any boundary abutting any residential district,
nine feet. May be reduced at the discretion of the approving authority.
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(2) — One square foot of open land area (in addition to
the areas of required parking spaces for such lot) for each two square
feet of gross floor area.
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(2)
Building renovation. Renovation of existing buildings may maintain
existing building footprints, and may only expand such footprints
insofar as such expansion is in compliance with the required dimensional
requirements for new buildings.
(3)
Portions of the lot in the SG Vinnin Square District are located
in the Town of Swampscott and in the City of Salem. If a development
project proposed in the SG Vinnin Square District includes development
in another municipality, allowable density in the Town of Marblehead
will be calculated based on the area of land within the Town of Marblehead.
(4)
Fractional units. When the application of the allowable densities
specified in Table G, Table of Dimensional and Density Requirements,
results in a number that includes a fraction, the fraction shall be
rounded up to the next whole number if the fraction is 0.5 or more.
If the result includes a fraction below 0.5, the fraction shall be
rounded down to the next whole number.
(5)
Signage. Commercial signage proposed within a mixed-use development project shall be subject to the procedures and requirements of the Marblehead Sign Bylaw, Chapter 148 of the Marblehead General Bylaws, in effect as of the date of adoption of this Bylaw.
(6)
Noise. An Application proposing the installation of exterior venting
air conditioners, ventilators, blowers and similar equipment shall
be required to demonstrate to the approving authority that the noise
produced by such equipment will not be in excess of 60 decibels at
20 feet in any direction, or the distance to the nearest building
having a residential use, whichever is the lesser. Upon construction
and occupancy, noise from the development project, including resulting
from air conditioners, ventilators, blowers and similar equipment,
shall at all times comply with this requirement.
H.
Off-Street parking.
(1)
Off-street parking in the districts shall be provided in order to
meet or exceed the following minimum requirements:
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Table H
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Off-Street Parking Minimum Required Parking
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Use
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Vinnin
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Pleasant
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Dwelling unit (1 bedroom)
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2.0 spaces
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1.0 space
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Dwelling unit (2 bedrooms)
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2.0 spaces
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1.5 spaces
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Dwelling unit (3 bedrooms)
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2.0 spaces
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2.0 spaces
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Dwelling unit (4 bedrooms)
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2.0 spaces
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2.5 spaces
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Nonresidential use
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1.0 space/300 square feet
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1.0 space/500 square feet
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(2)
Fractional spaces. When the application of the minimum required parking standards in this § 200-44H results in a number that includes a fraction, the fraction shall be rounded up to the next whole number if the fraction is 0.5 or more. If the result includes a fraction below 0.5, the fraction shall be rounded down to the next whole number.
(3)
Location of parking. Any surface parking lot shall be located at
the side or rear of a building, relative to any public right-of-way
or public open space. In no case shall surface parking for new construction
be permitted within the required front setbacks. Subsurface parking
that requires blasting may be disallowed if the approving authority
finds, based on the results of a geotechnical analysis, that it is
not possible to mitigate any extraordinary adverse impact of blasting
on nearby properties.
(4)
The approving authority may grant a plan approval making such modifications
in the parking standards or prescribe safeguards and conditions as
it shall warrant appropriate, provided that it finds that it is impractical
to meet the standards and that such modifications are appropriate
by reason of the proposed use and will not result in or worsen parking
or traffic problems in or in proximity to the SG. The approving authority
may impose conditions of use or occupancy appropriate to such modifications.
(5)
Shared use of required parking. At the discretion of the approving
authority, shared use may be made of required parking spaces by intermittent
use establishments such as churches, assembly halls, or theaters whose
peak parking demand is only at night or on Sundays and by other uses
whose peak demand is only during the day. In order for such shared
parking to be eligible to satisfy required off-street parking standards
in whole or in part, prior to plan approval a formal agreement shall
be made in writing by the owners of the uses involved concerning the
number of spaces involved, substantiation of the fact that such shared
use is not overlapping or in conflict, and the duration of the agreement.
Required spaces shall be within 300 feet of the main entrance to the
principal buildings served by the shared parking.
(6)
The approving authority may require additional visitor parking beyond
the maximum required spaces per unit if deemed appropriate given the
design, layout, use and/or density of the proposed development project.
(7)
Construction standards. Each parking space shall be at least nine
feet wide and 20 feet long and shall be designed with appropriate
means of vehicular access to a street as well as maneuvering areas.
Access and maneuvering areas shall not be obstructed or used for the
parking of motor vehicles. Parking shall be designed and constructed
to comply with all applicable disability access requirements including
but not limited to the Americans with Disabilities Act (ADA) and the
Massachusetts Architectural Access Board (AAB).
I.
Design standards. To ensure that new development shall be of high
quality, and shall meet the standards envisioned by the Town of Marblehead
in adopting this Bylaw, the approving authority shall adopt the Marblehead
Smart Growth Overlay District design standards as approved by DHCD
on May 1, 2009 governing the issuance of plan approvals for development
projects within the SG and shall file a copy with the Town Clerk.
In addition to the standards set forth in this Bylaw, the physical
character of development projects within the SG shall comply with
such design standards. In the event of any conflict between this Bylaw
and the design standards, this Bylaw shall govern and prevail.
(1)
The approving authority may adopt, by simple majority vote, amendments
to the design standards.
(2)
Before adopting any amendment to the design standards, the approving
authority shall submit the proposed amendment to DHCD for approval.
Any amendment to the design standards shall not take effect until
approved by DHCD and filed with the Town Clerk.
(3)
Any amendment to the design standards must be objective and not subjective
and may only address the scale and proportions of buildings, the alignment,
width, and grade of streets and sidewalks, the type and location of
infrastructure, the location of building and garage entrances, off-street
parking, the protection of significant natural site features, the
location and design of on-site open spaces, exterior signs, and buffering
in relation to adjacent properties. DHCD may, at its discretion, require
any amendment to the design standards to contain graphics illustrating
a particular standard or definition in order to make such standard
or definition clear and understandable.
J.
Affordable housing.
(1)
Number of affordable housing units. Twenty percent of all dwelling
units constructed in a development project shall be affordable housing
units provided, however, that 25% of all rental dwelling units in
a development project shall be affordable housing units. For development
projects in which all of the dwelling units are limited to occupancy
by elderly persons and/or by persons with disabilities, 25% of the
dwelling units shall be affordable housing units, whether the dwelling
units are rental or ownership units.
(2)
Fractional units. When the application of the percentages specified in Subsection J(1) results in a number that includes a fraction, the fraction shall be rounded up to the next whole number if the fraction is 0.5 or more. If the result includes a fraction below 0.5, the fraction shall be rounded down to the next whole number.
(3)
Affordable housing units shall comply with the following requirements:
(a)
The monthly rent payment for an affordable rental unit, including
utilities and parking, shall not exceed 30% of the maximum monthly
income permissible for an eligible household, with price determined
assuming a family size equal to the number of bedrooms in the unit
plus one unless other affordable program rent limits approved by DHCD
shall apply;
(b)
For an affordable homeownership unit the monthly housing payment,
including mortgage principal and interest, private mortgage insurance,
property taxes, condominium and/or homeowners' association fees,
insurance, and parking, shall not exceed 30% of the maximum monthly
income permissible for an eligible household, assuming a family size
equal to the number of bedrooms in the dwelling unit plus one; and
(c)
Affordable housing units required to be offered for rent or
sale shall be rented or sold to and occupied only by eligible households.
(4)
Design and construction.
(a)
Design. Affordable housing units must be comparable in initial
construction quality and exterior design to the unrestricted units.
However, nothing in this section is intended to limit a homebuyer's
rights to renovate a dwelling unit under applicable law. The affordable
housing units must have access to all on-site amenities. The total
number of bedrooms in the affordable housing units shall be at least
proportionate to the total number of bedrooms in all units in the
development project.
(b)
Timing. All affordable housing units must be constructed and
occupied not later than concurrently with construction and occupancy
of unrestricted units. For any development project that is approved
in phases, the proportion of affordable housing units shall be consistent
across all phases.
(5)
Affordable housing restriction. Each affordable housing unit shall
be subject to an affordable housing restriction which is recorded
with the Essex County Registry of Deeds or Land Court Registry District
of Essex County. The affordable housing restriction shall provide
for the implementation of the requirements of this Bylaw. All affordable
housing restrictions must include, at minimum, the following:
(a)
Description of the development project, including whether the
affordable housing unit will be rented or owner-occupied.
(b)
A description of the affordable homeownership unit, if any,
by address and number of bedrooms; and a description of the overall
quantity and number of bedrooms and number of bedroom types of affordable
rental units in a project or portion of a project which are rental.
Such restriction shall apply individually to the specifically identified
affordable homeownership unit and shall apply to a percentage of rental
units of a rental project or the rental portion of a project without
specific unit identification.
(c)
The term of the affordable housing restriction shall be the
longest period customarily allowed by law but shall be no less than
30 years.
(d)
The name and address of the monitoring agent with a designation
of its power to monitor and enforce the affordable housing restriction.
In a case where the monitoring agent cannot adequately carry out its
administrative duties, upon certification of this fact by the Marblehead
Board of Selectmen or by DHCD such duties shall devolve to and thereafter
be administered by a qualified housing entity designated by the Marblehead
Board of Selectmen.
(e)
Reference to a housing marketing and resident selection plan,
to which the affordable housing unit is subject, and which includes
an affirmative fair housing marketing program, including public notice
and a fair resident selection process. If approved by DHCD, the housing
marketing and selection plan may provide for preferences in resident
selection. The plan shall designate the household size appropriate
for a unit with respect to bedroom size and provide that preference
for such unit shall be given to a household of the appropriate size.
(f)
A requirement that buyers or tenants will be selected at the
initial sale or initial rental and upon all subsequent sales and rentals
from a list of eligible households compiled in accordance with the
housing marketing and selection plan.
(g)
Reference to the formula pursuant to which rent of a rental
unit or the maximum resale price of a homeownership unit will be set.
(h)
A requirement that only an eligible household may reside in
an affordable housing unit and that notice of any lease or sublease
of any affordable housing unit to another eligible household shall
be given to the monitoring agent.
(i)
Provision for effective monitoring and enforcement of the terms
and provisions of the affordable housing restriction by the monitoring
agent.
(j)
Provision that the restriction on an affordable homeownership
unit shall run in favor of the monitoring agent and the Town of Marblehead,
in a form approved by municipal counsel, and shall limit initial sale
and resale to and occupancy by an eligible household.
(k)
Provision that the restriction on affordable rental units in
a rental development project or rental portion of a development project
shall run with the rental development project or rental portion of
a development project and shall run in favor of the monitoring agent
and the Town of Marblehead, in a form approved by municipal counsel,
and shall limit rental and occupancy to an eligible household.
(l)
Provision that the owner(s) or manager(s) of affordable rental
unit(s) shall file an annual report to the monitoring agent, in a
form specified by that agent certifying compliance with the provisions
of this Bylaw and containing such other information as may be reasonably
requested in order to ensure affordability.
(m)
A requirement that residents in affordable housing units provide
such information as the monitoring agent may reasonably request in
order to ensure affordability eligibility and compliance.
(n)
Designation of the priority of the affordable housing restriction
over mortgages and other restrictions.
(6)
Administration. The monitoring agent shall ensure the following:
(a)
Prices of affordable homeownership units are properly computed;
rental amounts of affordable rental units are properly computed.
(b)
Income eligibility of households applying for affordable housing
units is properly and reliably determined.
(c)
The housing marketing and resident selection plan conforms to
all requirements and is properly administered.
(d)
Sales and rentals are made to eligible households chosen in
accordance with the housing marketing and resident selection plan
with appropriate unit size for each household being properly determined
and proper preference being given.
(e)
Affordable housing restrictions meeting the requirements of
this section are recorded with the Essex County Registry of Deeds
or Land Court Registry District of Essex County.
(7)
The housing marketing and selection plan may make provision for payment
by the applicant of reasonable costs to the monitoring agent to develop,
advertise, and maintain the list of eligible households, to conduct
the housing lottery, and to monitor and enforce compliance with affordability
requirements over time.
K.
Administration. The approving authority shall adopt and file with
the Town Clerk administrative rules relative to the application requirements
and contents for plan review. Such administrative rules may be included
as a separate section within the approved design standards. Such administrative
rules and any amendment thereto must be approved by the Massachusetts
Department of Housing and Community Development. The plan review process
encompasses the following, as may be supplemented by the administrative
rules:
(1)
Preapplication review. The applicant is encouraged to participate in a preapplication review with the approving authority at a regular meeting(s) of the approving authority. The purpose of the preapplication review is to obtain the advice and direction of the approving authority prior to filing the application, including determining whether additional technical analyses listed in § 200-44K(2)(c) may be required. At the preapplication review the applicant shall outline the proposal and seek preliminary feedback from the approving authority, other municipal review entities, and other members of the public. The applicant is also encouraged to request a site visit by the approving authority and/or its designee in order to facilitate preapplication review.
(2)
Application procedures.
(a)
An application for plan approval shall be filed by the applicant
with the Town Clerk and a copy of the application including the date
of filing certified by the Town Clerk shall be filed forthwith with
the approving authority. The applicant shall also file the required
number of copies of the application with the Building Inspector and
with the approving authority. Said filing shall include any required
forms provided by the approving authority.
(b)
As part of any application for plan approval, the applicant
must submit the following documents to the approving authority and
the administering agency:
[1]
Evidence that the development project complies with the cost and eligibility requirements of § 200-44J(3), Affordable housing;
[2]
Development project plans that demonstrate compliance with the requirements of § 200-44J(4), Affordable housing; and
[3]
A form of affordable housing restriction that satisfies the requirements of § 200-44J(5), Affordable housing.
(c)
As part of any application for plan approval, the applicant
may be required to submit one or more of the following technical analyses
to the approving authority:
[1]
Surface and water pollution. A report on the impact of stormwater
runoff on adjacent and downstream surface water bodies, subsurface
groundwater and the water table.
[2]
Soils. The potential dangers of erosion and sedimentation caused
by the operation and maintenance of the proposed development.
[3]
Geotechnical analysis. If subsurface blasting is proposed an
analysis by a certified geotechnical engineer shall be required in
accordance with MGL c. 148 showing whether such blasting will have
any extraordinary adverse impacts on nearby property.
[4]
Traffic impact. A report on existing street capacities, estimated
average daily traffic generation, composition, peak hour levels and
directional flows resulting from the proposed development, proposed
methods to mitigate the estimated traffic impact and methodology and
sources used to derive existing data and estimations.
[5]
Sample board. Identification of all major exterior materials,
colors and finishes.
[6]
Noise. Documentation as necessary to demonstrate that the noise
produced by exterior venting air conditioners, ventilators, blowers
and similar equipment will not be in excess of 60 decibels at 20 feet
in any direction, or the distance to the nearest building having a
residential use, whichever is the lesser.
(d)
Review fees. The applicant shall be required to pay for reasonable
consulting fees to provide peer review of the application for the
benefit of the approving authority. Such fees shall be held by the
Town of Marblehead in an interest-bearing escrow account, and shall
be used only for expenses associated with the use of outside consultants
employed by the approving authority in reviewing the plan application.
Any surplus funds remaining after the completion of such review, including
any interest accrued, shall be returned to the applicant forthwith.
(e)
Upon receipt by the approving authority, applications for plan
approval shall be distributed to the Board of Selectmen, Board of
Health, Fair Housing Committee, Building Inspector, Conservation Commission,
Zoning Board of Appeals, Department of Public Works, the Fire and
Police Departments and the Water and Sewer Commission. Any reports
from these parties shall be submitted to the approving authority within
60 days of filing of the application.
(f)
Within 30 days of filing of an application with the approving
authority, the approving authority or its designee shall evaluate
the proposal with regard to its completeness and shall submit an advisory
report, in writing, to the applicant certifying the completeness of
the application. Where an application is found to be incomplete, the
approving authority or its designee shall provide a statement outlining
required items that were missing from the application. The approving
authority or its designee shall forward to the applicant, with its
report, copies of all recommendations received to date from other
boards, commissions or departments.
(3)
Public hearing. The approving authority shall hold a public hearing
and review all applications according to the procedure specified in
MGL c. 40R, § 11.
(4)
Prior to the granting of any plan approval for a development project,
the applicant must demonstrate, to the satisfaction of the monitoring
agent or, in the event that a monitoring agent has not yet been named,
to the satisfaction of the approving authority, that the method by
which such affordable rents or affordable purchase prices are computed
shall be consistent with state or federal guidelines for affordability
applicable to the Town of Marblehead.
(5)
Plan approval decision.
(a)
The approving authority shall make a decision on the application
for plan approval by a simple majority vote and shall file said decision
with the Town Clerk, within 120 days of the receipt of the application
by the Town Clerk. The time limit for public hearings and taking of
action by the approving authority may be extended by written agreement
between the applicant and the approving authority. A copy of such
agreement shall be filed with the Town Clerk.
(b)
Failure of the approving authority to take action within 120
days or extended time, if applicable, shall be deemed to be an approval
of the application.
(c)
An applicant who seeks approval because of the approving authority's
failure to act on an application within the 120 days or extended time,
if applicable, must notify the Town Clerk, in writing, within 14 days
from the expiration of said time limit for a decision, of such approval
and that a copy of that notice has been sent by the applicant to parties
in interest by mail and that each such notice specifies that appeals,
if any, shall be made pursuant to MGL c. 40R and shall be filed within
20 days after the date the Town Clerk received such written notice
from the applicant that the approving authority failed to act within
the time prescribed.
(d)
The approving authority's findings, including the basis
of such findings, shall be stated in a written decision of approval,
conditional approval or denial of the plan approval application. The
written decision shall contain the name and address of the applicant,
identification of the land affected and its ownership, and reference
by date and title to the plans that were the subject of the decision.
(e)
The decision of the approving authority, together with the detailed
reasons therefor, shall be filed with the Town Clerk, the Board of
Appeals and the Building Inspector. A copy of the decision shall be
mailed to the applicant and to the owner if other than the applicant
by the approving authority certifying that a copy of the decision
has been filed with the Town Clerk and that all plans referred to
in the decision are on file with the approving authority. A notice
of the decision shall be sent to parties in interest and to persons
who requested a notice at the public hearing.
(f)
Effective date. If 20 days have elapsed after the decision has
been filed in the office of the Town Clerk without an appeal having
been filed or if such appeal, having been filed, is dismissed or denied,
the Town Clerk shall so certify on a copy of the decision. If the
application is approved by reason of the failure of the approving
authority to timely act, the Town Clerk shall make such certification
on a copy of the application. A copy of the decision or application
shall be recorded with the title of the land in question in the Essex
County Registry of Deeds or the Essex Land Registry District, 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. The
responsibility and the cost of said recording and transmittal shall
be borne by the applicant.
(6)
Criteria for approval. The approving authority shall approve the
development project upon finding that it complies with the requirements
of the SG and applicable design standards.
(7)
Criteria for conditional approval. The approving authority may impose conditions on a development project as necessary to ensure compliance with this § 200-44 and applicable design standards, or to mitigate any extraordinary adverse impacts of the development project on nearby properties, insofar as such conditions are compliant with the provisions of MGL c. 40R and applicable regulations and do not unduly restrict opportunities for development. The approving authority may require construction of an approved development project to be phased for the purpose of coordinating the development project with any mitigation required to address extraordinary adverse development project impacts on nearby properties.
(8)
Criteria for denial. The approving authority may deny an application
for plan approval pursuant to this Bylaw if the Board finds one or
more of the following:
(a)
The development project does not meet the conditions and requirements
set forth in the SG and applicable design standards.
(b)
The applicant failed to submit information and fees required
by the SG and necessary for an adequate and timely review of the design
of the development project or potential development project impacts.
(c)
It is not possible to adequately mitigate significant adverse
development project impacts on nearby properties by means of suitable
conditions.
(9)
Time limit. A plan approval shall remain valid and shall run with
the land indefinitely, provided that construction has commenced within
two years after the decision issues, which time shall be extended
by the time required to adjudicate any appeal from such approval.
Said time shall also be extended if the project proponent is actively
pursuing other required permits for the project or if there is good
cause for the failure to commence construction, or as may be provided
in an approval for a multiphase development project.
(10)
Appeals. Pursuant to MGL c. 40R, § 11, any person
aggrieved by a decision of the approving authority may appeal to the
Superior Court, the Land Court Department, or the Housing Court Department
within 20 days after the plan decision has been filed in the office
of the Town Clerk.
L.
Waivers. The approving authority may at its discretion authorize waivers in the plan approval with respect to the dimensional and other standards set forth in this § 200-44 and in the design standards upon a finding that such waiver will allow the development project to achieve the density, affordability and/or physical character allowable under this Bylaw. However, the approving authority may not waive any portion of the affordable housing requirements in § 200-44J, Affordable housing except insofar as such waiver results in the creation of a number of affordable housing units in excess of the minimum number of required affordable housing units.
M.
Fair housing requirement. All development projects within the SG
shall comply with applicable federal, state and local fair housing
laws.
N.
Annual update. On or before July 31 of each year, the Board of Selectmen
shall cause to be filed an annual update with the Department of Housing
and Community Development (DHCD) in a form to be prescribed by DHCD.
The annual update shall contain all information required in 760 CMR
59.07, as may be amended from time to time, and additional information
as may be required pursuant to MGL c. 40S and accompanying regulations.
The Town Clerk shall maintain a copy of all updates transmitted to
DHCD pursuant to this Bylaw, with said copies to be made available
upon request for public review.
O.
Notification of issuance of building permits. Upon issuance of a
residential building permit within the SG, the Building Inspector
shall cause to be filed an application to the DHCD in a form to be
prescribed by DHCD, for authorization of payment of a one-time density
bonus payment for each residential building permit pursuant to MGL
c. 40R. The application shall contain all information required in
760 CMR 59.06(2), as may be amended from time to time, and additional
information as may be required pursuant to MGL c. 40S and accompanying
regulations. The Town Clerk shall maintain a copy of all such applications
transmitted to DHCD pursuant to this Bylaw, with said copies to be
made available upon request for public review.
P.
Date of effect. The effective date of this Bylaw shall be the date
on which such adoption is voted upon by Town Meeting pursuant to the
requirements of MGL c. 40A § 5 and MGL c. 40R; provided,
however, that an applicant may not proceed with construction pursuant
to this Bylaw prior to the receipt of final approval of this Bylaw
and accompanying Zoning Map by both the Department of Housing and
Community Development and the Office of the Massachusetts Attorney
General.
Q.
Severability. The provisions of this section are severable. If any
provision of this section is held invalid, the other provisions shall
not be affected but shall remain in full force.
