In addition to an administrative fee, which
the Board of Health has traditionally imposed, a new second type of
fee, referred to herein as the "project review fee," is now possible.
This fee is to be deposited into a special account as enabled by MGL
C. 44, § 53G, referred to herein as the "593 Account." This
fee* shall be imposed on those applications which, as designated by
the Board of Health, require the services of outside consultants for
the review process due to the size, scale or complexity of a proposed
project, because of a project's potential impacts, or because the
Town lacks the necessary expertise to perform the review work related
to the permit or approval. In hiring outside consultants, the Board
may engage engineers, planners, designers or other appropriate professionals
who can assist the Board in analyzing a project to ensure compliance
with all relevant laws, ordinances, bylaws and regulations. Such assistance
may include, but not be limited to, analyzing an application, monitoring
or inspecting a project or site for compliance with the Board's decisions
or regulations, or inspecting a project during construction or implementation.
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* NOTE: The term "fee" has a different connotation
when used in the phrase "administrative fee" than when used in the
phrase "project review fee." Administrative fees are exact payments
assessed to an applicant and are therefore a precise, known project
cost. Project review fees are really deposits into a special "escrow"
account from which actual review costs will be paid. Because any excess
left in the account will be returned to the applicant, it is not known
at the time the project review fee is imposed what the actual eventual
project cost will be.
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A.
Monies shall be collected from the applicant and deposited
into the 593 Account upon submission of the application. The applicant
must also furnish the Town Treasurer with either a federal identification
number or a social security number for earned interest reporting to
the Internal Revenue Service.
B.
Outside consultants retained by the Board of Health
to assist in the review of an application shall be paid from this
account.
C.
The Board of Health shall determine the amount of initial deposit to be made, as put forth in the accompanying schedule, and the amount of any additional funds required during the process, should the applicant's 593 Account approach depletion. Such determinations shall be consistent with the requirements of § 278-12B.
D.
Any excess amount attributable to a particular project,
including accrued interest, will be repaid to the applicant, or the
applicant's successor in interest, at the conclusion of the review
process. For the purpose of this regulation, any person or entity
claiming to be an applicant's successor in interest shall provide
the Board with documentation establishing such succession in interest.
E.
Should it become apparent to the Board of Health,
and the applicant is in agreement, that an application requires the
services of outside consultants for proper review, the Board may require
the imposition of this second type of fee, even if it is not normally
part of the review process for that type of application, and providing
that said imposition is in compliance with the state enabling legislation.
A.
The choice of a consultant selected by the Board of
Health for the review of an application may be appealed in writing
to the Select Board by the applicant, providing such appeal is initiated
within two weeks of the initial selection.
[Amended 10-1-2018 ATM
by Art. 14]
B.
The Select Board shall convene a formal hearing within
20 days of receiving a written appeal filed by an applicant.
[Amended 10-1-2018 ATM
by Art. 14]
C.
There are two conditions which will disqualify the
selected consultant:
(1)
Conflict of interest. A consultant may not have a
financial interest in a project under review, or be in a position
to financially benefit in some way from the outcome of the pending
review process. Consultants must be in compliance with the Massachusetts
Conflict of Interest Law (Chapter 268A).
(2)
Lack of appropriate qualifications. A consultant must
possess the minimum required qualifications. The minimum qualifications
shall consist of either an educational degree in, or related to, the
field at issue or three or more years of practice in the field at
issue or a related field.
E.
The required time limits for action upon an application
by the Board of Health shall be extended by the duration of the administrative
appeal.
F.
If no decision is rendered by the Select Board within
one month following the filing of the appeal, the selection made by
the Board of Health shall stand.
[Amended 10-1-2018 ATM
by Art. 14]
G.
This administrative appeal shall not preclude further
judicial review, if otherwise permitted by law, on the grounds provided
for in this section.
A.
Funds collected from various applicants for the 593
Account shall be turned over to the Town Treasurer by the Board of
Health office for deposit into an account separate from other funds.
B.
A copy of the latest statement from the banking institution
handling the 593 Account shall be forwarded from the office of the
Town Treasurer to the Board of Health office as soon as it is received
to allow for timely and accurate accounting.
D.
An accounting of an applicant's funds held in the
593 Account may be requested by the applicant at any time.
(1)
The Board of Health shall respond to the request in
a timely fashion.
(2)
This accounting shall include a report of all deposits
made to the account and invoices paid from the account for the project.
(3)
This accounting shall not include an estimate of accumulated
interest since the last banking statement.
E.
An applicant may request an estimate of bills pending
from consultants for work completed, or in progress, but not yet invoiced.
It should be understood that this information will take a longer time
period to gather. Because of the extra work involved, applicants should
request this further accounting only if they are contemplating withdrawal
or suspension of their application.
F.
If available, a brief account summary of the type described under Subsection D above shall be furnished to both the Board of Health and the applicant at each hearing. This will allow the Board to determine if further funds will need to be collected and deposited into the 593 Account should it approach depletion.
G.
Excess fees in the 593 Account, including accumulated
interest, shall be returned to the applicant at the conclusion of
the review process as defined herein:
(1)
With the approval or disapproval (final action) of
a preliminary subdivision plan. The applicant may choose to leave
the remaining funds in the 593 Account and those funds, including
accumulated interest, shall be credited toward the definitive plan
project review fee.
(2)
With the approval or disapproval (final action) of
a definitive subdivision plan. The applicant may choose to leave the
remaining funds in the 593 Account and those funds, including accumulated
interest, shall be credited toward the inspection phase project review
fee.
(3)
With the final release of the performance bond at
the end of construction of an approved definitive subdivision plan.
When more than one type of application is being
sought at the same time (for the same project), only the highest of
the applicable project review fees shall be collected for deposit
into the 593 Account, and not the sum of those fees.
A.
Initial deposits. The following project review fees for the indicated
application types are to be submitted with their initial applications:
[Amended 6-1-2015]
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Project Review Fees*
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Initial Deposit
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Additional Deposit
| |
|---|---|---|---|
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Community or industrial sewage disposal system
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$1,000
|
Plus engineer's estimate, if peer review required*
| |
|
Hazardous material remediation
|
$1,000
|
Plus engineer's estimate, if peer review required*
| |
|
Subdivision project remediation
|
$1,000
|
Plus engineer's estimate, if peer review required*
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B.
Exemptions from initial deposits. Applications involving a single lot do not require the submission of a project review fee with the initial application. The Board of Health shall consider at the first review session, or at any subsequent review session, whether such a fee is warranted and, if so, the amount of the fee. Such flexibility is necessary because the wide range of scope and scale to such applications makes it difficult to calculate an equitable project review fee without consideration of the project on a case-by-case basis. In addition to those application types listed here, any other type of application not specifically listed in Subsection A above shall be subject to Article III.
C.
Subsequent deposits. If the cost for the consultant to review the
project exceeds the amount deposited into the revolving fund, the
applicant is responsible for reimbursing the Town for the additional
costs. The Board shall utilize the following procedure:
[Amended 6-1-2015]
(1)
Request a written estimate from the consultant on the cost to review
the project, including the cost to attend meetings with the design
engineer and public hearing(s), if necessary.
(2)
The Board shall vote to accept the estimate with a provision that
the cost to review the project shall not exceed the estimate without
written approval from the Committee.
(3)
The Board shall inform the applicant of the cost estimate for project
review and of any additional costs that may be incurred.
D.
Inspection phase of projects. After the granting of
any permit or approval which will culminate in construction requiring
inspections by Board of Health consultants, the Board may wish to
make an adjustment in the funds held in an applicant's 593 Account.
E.
The Board of Health has the right to require supplemental project review fees if the applicant's 593 Account approaches depletion during the inspection phase of the review process. Such findings of the Board, while subject to the provisions of § 278-12B, do not require a formal hearing or prior notice to interested parties.
