[HISTORY: Adopted by the Zoning Board of Appeals of the Town of Fairhaven 8-1-2006. Amendments noted where applicable.]
Zoning — See Ch. 198.
These rules establish procedures for applications to the Zoning Board of Appeals for comprehensive permits granted under the Anti-Snob Zoning Act (Chapter 774 of the Acts of 1969), MGL c. 40B, §§ 20-23, and the regulations promulgated thereunder. They are required by MGL c. 40B, § 21, and by 760 CMR 31.02. The purpose of that act and these rules is to facilitate the development of affordable housing in Massachusetts. Further explanation of the background and purpose is provided in the regulations of the Housing Appeals Committee, 760 CMR 30.01.
These rules alone are not sufficient to describe comprehensive permit procedures before the Zoning Board of Appeals. They must be read in conjunction with and implemented in a manner consistent with the complete regulations of the Housing Appeals Committee, 760 CMR 30.00 and 31.00, and with the Guidelines for Local Review of Comprehensive Permits, published periodically by the Department of Housing and Community Development. In addition, the Board's regulations governing variances, special permits, and administrative appeals for the conduct of hearings under MGL c. 40A apply to comprehensive permit applications. In case of inconsistency or conflict between those general rules for conduct and these rules, these rules shall govern.
These rules and regulations may be adopted and from time to time amended by majority vote of the Fairhaven Zoning Board of Appeals members present and voting, provided that such adoption or amendment is taken after a public hearing on any proposed changes.
As used in this chapter, the following terms shall have the meanings indicated:
- Means the Zoning Board of Appeals established under MGL c. 40A, § 12.
- LOCAL BOARD
- Means any local board or official, including but not limited to any Board of Survey; Board of Health; Planning Board; Conservation Commission; Historical Commission; Water, Sewer, or other commission; Fire, Police, traffic, or other department; Building Inspector or similar official or board; Board of Selectmen.
- LOW INCOME UNITS
- Shall remain low income in perpetuity.
The application for a comprehensive permit shall consist of:
Preliminary site development plans at a scale of one inch equals 40 feet, unless another scale is previously requested by the applicant and found suitable by the Board, showing the locations and outlines of proposed buildings; the proposed locations, general dimensions and materials for streets, drives, parking areas, walks and paved areas; and proposed lighting improvements within the site prepared by a registered professional engineer or registered architect.
A plan and report on existing site conditions and a summary of conditions in the surrounding areas, showing the location of existing wetlands, unique vegetation, water bodies, wells, one-hundred-year floodplain elevation and other natural features; streams, wetlands, vistas, slope areas, geological features, unique vegetation, and historic features; the location and nature of existing buildings, existing street elevations, traffic patterns and character of open areas, if any, in the neighborhood; and other features that may be important to the site. This submission may be combined with that required in § 493-3A(2), above; the plan shall be stamped by the registered land surveyor who performed the instrument boundary survey and who shall certify the accuracy of the locations of the buildings, setbacks and all other required dimensions, elevations and measurements, adjacent property wells and septic systems. The plans shall be signed under the penalties of perjury.
A landscape plan prepared and stamped by the registered landscape architect, to include the total square feet of all landscape, open space and recreation areas and depiction of materials to be used and the quantity, size, methods, and species of plantings.
Preliminary, scaled, architectural drawings. For each building the drawings shall be signed by a registered architect and shall include typical floor plans, typical elevations, and sections and shall identify construction type and exterior finish.
The application shall also furnish a narrative summary of the vital statistics of the project. Such information shall include but not be limited to total gross and net square footage; number of parking spaces; estimated amounts of water consumption and sewer discharge; traffic generation information; a tabulation of proposed buildings by type, size (number of bedrooms, floor area), and ground coverage; and a summary showing the percentage of the tract to be occupied by buildings, by parking and other paved vehicular areas and by open areas.
Where a subdivision of land is involved, a preliminary subdivision plan.
A preliminary utilities plan showing the proposed location and types of sewage, drainage, and water facilities, including hydrants. Adequate supporting information shall be provided to demonstrate that the drainage system will meet all stormwater management guidelines promulgated by the Massachusetts Department of Environmental Protection and/or Town of Fairhaven stormwater management regulations, whichever are more stringent.
An upkeep and maintenance plan, with supporting legal documents.
Documents showing that the applicant fulfills the jurisdictional requirements of 760 CMR 31.01, that is:
The applicant shall be a public agency, a nonprofit organization, or a limited dividend organization.
The project shall be fundable by a subsidizing agency under a low- and moderate-income housing subsidy program. The Board may review this documentation to ensure that the applicable subsidizing agency has performed the due diligence required under 760 CMR 31.01.
The applicant shall control the site and the means of access thereto. This documentation must adequately demonstrate that the applicant possesses the necessary control over the site and the site access to develop the project as proposed in the application.
A list of requested exceptions to local requirements and regulations, including local codes, ordinances, bylaws or regulations. The application shall describe how the project does not meet the local requirement and describe why relief from the local requirement is necessary.
A complete pro forma, detailing the projected costs and revenues of the proposed project. In preparing its pro forma, the applicant shall limit its costs to actual investment in the property. Acquisition costs shown in the pro forma shall be limited to the lesser of the existing as-is fair market value of the property (i.e., the value under existing bylaws and regulations without the benefit of waivers or variances) or the amount of last arm's-length sale (with all reasonable and demonstrable carrying costs), whichever is less. Additionally, the applicant shall fully disclose any costs ascribed to related entities. Profits generated by any related entities in the development of any aspect of the project shall not be allowable as project costs.
A complete copy of any and all materials and applications submitted by the applicant to any prospective subsidizing agency or source, including, but not limited to, applications for site approval.
An abutters list as they appear on the Town tax list, approved by the Town Assessor, for all property owners within a three-hundred-foot radius of the site. The abutters list shall also be put on mailing labels; the labels shall be one inch by 2 5/8 inch (Avery 5160/8160, white).
The application shall be accompanied by the following fees:
Legal advertisement fee: $150 deposit.
Abutter notification fee: $4.64 per abutter within the 300 feet, for certified return receipt mailing.
Additionally, the application fee shall include a deposit of $5,000 to pay for the services of legal counsel for assistance in any project of 25 units or less, and $7,500 for any project in excess of 25 units but not exceeding 75 units, and $10,000 for any project in excess of 75 units. This cost is a reasonable estimate of the administrative costs for counsel retained to assist the Board with the multitude of legal issues that must be explored in the MGL c. 40B process. In the event that such sum is insufficient to fund the necessary legal services, the Board may require additional deposits. The Board, in its sole and unfettered discretion, may waive any or all of this fee. Alternatively, the applicant may opt to pay for the Board's legal counsel in the manner prescribed by MGL c. 44, § 53G, or § 493-4 hereof.
Within seven days of filing of the application, the Board shall notify each local official of the application by sending such official a copy of the list required by § 493-3A(11), above, as well as any other information that will enable such local official to assess the proposed project. Based upon that list, it shall also invite the participation of each local official who has a substantial interest in the application by providing such official with a copy of the entire application.
In order to allow review by local officials, the applicant shall provide the Town Clerk 24 copies of the complete application for the following boards, officials and departments for review:
[Amended 5-7-2016 ATM by Art. 36]
The applicant shall provide to the Board for copying purposes one unbound copy of the complete application and 11-inch-by-17-inch copies of all plans (with match lines). The Board, at its sole discretion, reserves the right to distribute the application to other municipal departments or officials or to expert consultants for their review and advice, including, but not limited to, traffic engineering, civil engineering, architectural, accounting, and legal counsel. The Board reserves the right to require that the applicant, at his/her expense, provide additional copies of the application.
When reviewing an application for, or when conducting inspections in relation to, a comprehensive permit application, the Board may determine that the assistance of outside consultants is warranted 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 work related to the comprehensive permit application. Whenever possible, the Board shall work cooperatively with the applicant to identify appropriate consultants and to negotiate payment of the consultant fees. Alternatively, the Board may, by majority vote, require that the applicant pay a reasonable project review fee of a sufficient sum to enable the Board to retain consultants chosen by the Board alone. The Board may require that an applicant deposit a lump sum in order to retain consultants. In the event that such sum is insufficient to fund the necessary consulting services, the Board may require additional deposits.
In hiring outside consultants, the Board may engage engineers, scientists, financial analysts, planners, lawyers, facilitators, architects, urban designers or other appropriate professionals who can assist the Board in analyzing a project to ensure compliance with all relevant laws, 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 decision or regulations, or inspecting a project during construction or implementation.
Funds received by the Board pursuant to this section shall be deposited with the Municipal Treasurer, who shall establish a special account for this purpose, consistent with the terms and provisions of MGL c. 44, § 53G. Expenditures from this special account may be made at the direction of the Board without further appropriation. Expenditures from this special account shall be made only for services rendered in connection with a specific project or projects for which a project review fee has been or will be collected from the applicant. Accrued interest may also be spent for this purpose. Failure of an applicant to pay a review fee shall be grounds for denial of the comprehensive permit application.
At the completion of the Board's review of a project, any excess amount in the account, attributable to a specific project, shall be repaid to the applicant or the applicant's successor in interest. A final report of said account shall be made available to the applicant or 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 documentation establishing such succession in interest.
Any applicant may take an administrative appeal from the selection of the outside consultant to the Board of Selectmen. Such appeal must be made in writing and may be taken only within 14 days after the Board has mailed or hand-delivered notice to the applicant of the selection. The grounds for such an appeal shall be limited to claims that the consultant selected has a conflict of interest or does not possess the minimum, required qualifications. The minimum qualifications shall consist either of 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. The required time limit for action upon an application by the Board shall be extended by the duration of the administrative appeal. In the event that no decision is made by the Board of Selectmen within one month following the filing of the appeal, the selection made by the Board shall stand.
The Board shall hold its initial public hearing on the application within 45 days of its receipt. It may request the appearance at the hearing, or at any subsequent hearing(s), of such representatives of a local board as it considers necessary or helpful in reviewing the application. In making its decision, the Board shall take into consideration the recommendations of a local board.
At the Board's discretion, the Board may establish a negotiating subcommittee to negotiate with the developer to resolve site, massing, technical, and buffering issues. The negotiating subcommittee shall normally consist of the following: one of the members of the Board to act as a liaison, the Planning and Economic Development Director, the Building Commissioner, an independent mediator, the developer and/or members of the development team, and any other representatives of the Board's choosing. The Board's liaison will report back to the full Board on the progress of negotiations. The actions and opinions of the liaison and/or the negotiating subcommittee shall not be construed to be binding on the full Board.
The Board shall render a decision, based on a majority vote of the Board, within 40 days after termination of the public hearing, unless such time period is extended by written agreement of the Board and the applicant. The hearing is deemed terminated when all public testimony has been received and all information requested by the Board has been received.
The Board may dispose of the application in the following manner:
Approve a comprehensive permit on the terms and conditions set forth in the application;
Deny a comprehensive permit as not consistent with local needs; or
Approve a comprehensive permit with conditions, including but not limited to the number of permitted housing units; the height, size, shape or general appearance of the proposed buildings; the configuration of the site plan; and any other reasonable condition that is necessary to address local concerns while not rendering the construction or operation of such housing uneconomic. In order to assist the Board with determining the permissible extent of conditions, the Board may require that the applicant provide a revised pro forma at the Board's request, during the latter stages of the public hearing after the parties have had an opportunity to review the proposed project and any revisions thereto. The economic viability of a project may be determined with reference to the average profit earned by other developers of residential housing, as adjusted for the type of housing and the geographical area.
It shall be the applicant's burden to demonstrate that the waiver of any particular local regulation, bylaw or ordinance is necessary in order to maintain the project's economic viability. There shall be a presumption that the waiver of any local bylaw, ordinance or regulation will adversely affect local concerns.
In the event that, during the public hearing, the applicant proposes any changes in his/her application or project plans that, in the Board's sole and unfettered discretion, constitute a material or substantial change to the project, the applicant shall provide a new site eligibility letter from the designated subsidizing agency.
In the event of material or substantial changes, the Board may request, and the applicant shall provide, any and all information specified in § 493-3 hereof that is deemed by the Board to be necessary to evaluate such changes.
In the event of a material or substantial change, any and all plans and supporting information shall be provided to all of the local entities identified in § 493-3D, above.
If the applicant submits a revised plan for the Board's consideration and said plan is the plan that is the subject of the Board's hearing and deliberation, then the application shall be deemed to be revised, subject to the foregoing provisions.
If the Board approves the comprehensive permit, any person aggrieved may appeal within the time period and to the court provided in MGL c. 40A, § 17.
If the Board denies the comprehensive permit or approves the permit with conditions or requirements considered by the applicant to be unacceptable, the applicant may appeal to the Housing Appeals Committee as provided in MGL c. 40B, § 22.
No comprehensive permit shall take effect until a copy of the decision, bearing the certification of the Town Clerk that 20 days have elapsed after the filing of the decision and no appeals has been filed, is recorded in the Registry of Deeds and is indexed under the name of the owner of record of the land.
No comprehensive permit shall take effect until copies of the Board of Health and Conservation Commission written decisions of approval or a determination of applicability or order of conditions and until the Fairhaven Board of Health certifies the wells and septic systems and they all meet the relevant sections of Title V, bearing the date filed with the Town Clerk, are recorded in the Registry of Deeds and are indexed under the name of the owner of record of the land.
As a condition of the comprehensive permit, the applicant shall post a bond, or other form of surety, as a safeguard for performance, and/or a penal sum in a form and amount acceptable to the Board, prior to the expiration of the twenty-day appeal period, unless the Board shall specify otherwise. If the applicant is not the owner and must purchase the property in question in order to assume such obligations, or if another form of ownership or control is in force, such person or entity shall comply with the provisions of this section within 20 days following the date of such purchase or control. If said performance guarantee shall lapse before completion and certification of final inspection by the Board, a new guarantee shall be filed expeditiously by the applicant/controller of the land and/or project. Sum of bond shall be determined by the engineer or engineers as set forth by the Board to be the total of cost of roadways, sewer or septic system, water system or wells, parking areas, landscaping and such estimated by the Board's engineer.
The provisions of these rules and regulations are severable. If any provision of these rules and regulations is held invalid, the other provisions shall not be affected thereby. If the application of these rules and regulations or any of their provisions to any person or circumstances is held invalid, the application of these rules and regulations and their provisions to other persons and circumstances shall not be affected thereby.