[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.]
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]
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 December 28, 2011.
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.
The provisions of this chapter shall not apply to any single-family structure in existence on the date of adoption of this chapter that is used as a primary residence by the owner or a family member of the owner, as the term "family member" is defined in the Barnstable Zoning Ordinance.
Editor's Note: Said map is on file in the Town offices.
In this chapter, the following words have the meanings indicated:
- DESIGN AND INFRASTRUCTURE PLAN
- The plan established by the Barnstable Zoning Ordinance, § 240-24.1.11.
- QUALIFIED APPLICANT
- 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.
- REGULATORY AGREEMENT
- 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.
- TOWN OF BARNSTABLE
- 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:
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.
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.
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.
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.
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.
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:
The Town's infrastructure.
Public capital facilities.
Land dedication and/ or preservation.
Affordable housing, either on or off site.
Alternative mass transportation.
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.
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.
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.
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.
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:
A fully completed application form provided by the Town of Barnstable, including a certified list of abutters.
A legal description of the land subject to the agreement and the names of its legal and equitable owners.
The proposed duration of the agreement.
The development uses currently permitted on the land, and development uses proposed on the land, including population densities, and building densities and height.
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.
A description of any reservation or dedication of land for public purposes.
A description of all local development permits approved or needed to be approved for the development of the land.
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.
A final environmental impact report, certified as adequate by the Secretary of Environmental Affairs, if required under MGL c. 30, §§ 61 through 62h.
Additional data and analysis necessary to assess the impact of the proposed development, as determined by the Town of Barnstable.
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.
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.
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:
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;
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
The Cape Cod Commission.
The qualified applicant shall bear the cost of providing notice of the public hearing to consider the proposed regulatory agreement.
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.
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.
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.
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.
Nothing in this chapter may be construed to permit a municipality to require a qualified applicant to enter into a regulatory agreement.
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.
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.
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.
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.
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.
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.