As provided by MGL c. 44, § 53G, the Lexington Board
of Appeals may impose reasonable fees for the employment of outside
consultants, engaged by the Board of Appeals, for specific expert
services. Such services shall be deemed necessary by the Board to
come to a final decision on an application submitted to the Board
of Appeals pursuant to the requirements of the Zoning Bylaw (MGL c.
40A), Comprehensive Permit (MGL c. 40B), or any other state or municipal
statute, bylaw or regulation, as they may be amended or enacted from
time to time. The Board of Appeals may also impose fees for other
consultant services related to application review, or permit conditionings
or monitoring, under any of the above-referenced laws or regulations.
A. Special account. Funds received pursuant to these rules shall be
deposited with the Town Treasurer who shall establish a special account
for this purpose. Expenditures from this special account may be made
at the direction of the Board of Appeals without further appropriation
as provided in MGL c. 44, § 53G. Expenditures from this
account shall be made only in connection with a specific project or
projects for which a consultant fee has been collected from the applicant.
Expenditures of accrued interest may also be made for these purposes.
B. Consultant services. Specific consultant services may include, but
are not limited to traffic, drainage, and noise. Services may also
include on-site monitoring during construction, or other services
related to the project deemed necessary by the Board. The consultant
shall be chosen by, and report only to the Board and/or its designee.
C. Notice. The Board of Appeals shall give written notice to the applicant
of the selection of an outside consultant. Such notice shall state
the identity of the consultant, the amount of the fee to be charged
to the applicant, and a request for payment of said fee in its entirety.
Such notice shall be deemed to have been given on the date it is mailed
or delivered. No such costs or expenses shall be incurred by the applicant
if the application or request is withdrawn within five days of the
date notice is given.
D. Fee payment. The fee must be received prior to the initiation of
consulting services. The Board may request additional consultant fees
if necessary review requires a larger expenditure than originally
anticipated or new information requires additional consultant services.
Failure by the applicant to pay the consultant fee specified by the
Board within 10 business days of the request for payment, or refusal
of payment, shall be cause for the Board to deny the application based
on lack of sufficient information to evaluate whether the project
meets applicable performance standards in the Zoning Bylaw or its
regulations. An appeal by the applicant stops the clock on the above
deadline; the countdown resumes on the first business day after the
appeal is either denied or upheld. A denial for lack of information
may be based solely on the lack of the third-party consultant review
identified as necessary by the Board. Failure by the applicant to
pay the consultant fee specified by the Board within 10 business days
of the request for payment shall be cause for the Board to deny the
permit application.
E. Appeals. The applicant may appeal the selection of the outside consultant
to the Select Board, who may only disqualify the outside consultant
selected on the grounds that the consultant has a conflict of interest
or does not possess the minimum required qualifications. The minimum
qualifications shall consist of either an educational degree or three
or more years of practice in the field at issue or a related field.
Such an appeal must be in writing and received by the Select Board,
and a copy received by the Board, so as to be received within 10 days
of the date consultant fees were requested by the Board of Appeals.
The required time limits for action upon the application shall be
extended by the duration of the administrative appeal.
F. Return of unspent fees. When the Board's review of a project
is completed and a permit/decision issued, any balance in the special
account attributable to that project shall be returned within 30 days.
The excess amount, including interest, shall be repaid to the applicant
or the applicant's successor in interest. For the purpose of
this regulation, any person or entity claiming to be an applicant's
successor in interest shall provide the Board with appropriate documentation.
A final report of said account shall be made available to the applicant
or applicant's successor in interest.