Town of Middleton, MA Rules and Regulations

The Zoning Board of Appeals shall consist of five regular members and two alternate members, all appointed by the Select Board, per Section 6 of the Town Charter. Vacancies shall be filled at a regular meeting of the Select Board. The regular members shall elect all officers of the Zoning Board annually, following the confirmation of the annual appointee; officers consist of a Chair, Vice Chair, and Clerk. The regular members shall also adopt and/or amend these Rules and Regulations at a regular meeting by majority vote, according to MGL c. 40A, 12. Alternate members do not participate in these acts. The Chair of the Zoning Board of Appeals shall preside at all hearings and meetings.

The Chair, subject to these Rules, shall decide all points of order or procedure, unless otherwise directed by a majority of the Board in session at that time.

The Vice-Chair shall act as Chair when the Chair is absent or is otherwise unable to perform their duties. If both the Chair and the Vice-Chair are absent, the Clerk shall act as Chair and shall appoint an acting Clerk.

The Clerk of the Board shall keep all accounts and files of the Board in proper order and generally assist the Chairman in the performance of their duties.

Alternate member. An alternate member(s) shall be designated by the Chair to sit on the Board in the case of absence, inability to act or apparent conflict of interest on the part of any Board member, or in the event of a vacancy of the regular membership. If designated to vote for an absent member, the alternate(s) shall continue to vote until the conclusion of the agenda item then under consideration. Alternates, when not designated to take the place of a member, shall sit with the Board and participate in discussions but shall not make or second motions or vote.

Support staff.

Zoning board of appeals administrative assistant. The ZBA Clerk shall receive the applications for variances, appeals, special permits and comprehensive permits for the BOA; review applications for compliance with the Zoning Bylaw and Board Rules requirements; arrange for appropriate meeting space; prepare all legal advertisements prior to sending to the local newspaper; distribute copies of applications to the appropriate boards and departments; mail the public hearing notices and any decisions to the parties-in-interest according to MGL c. 40A, §§ 9, 11 and/or § 15; deliver or mail hard copies of applications to each member before each meeting.

Town planner: makes recommendations to the Board on any matter to come before the Board for action or decision, including, where appropriate, the preparation of proposed correspondence, resolutions, and votes to be taken by the Board. The Town Planner ensures that Board meeting minutes are taken and prepared by a hired recording secretary. Before each meeting, the Town Planner provides each member digital copies of the agenda, together with such explanatory notes, recommendations as to the action to be taken by the Board as may be appropriate and such copies of correspondence or other material relevant to the agenda as may be available. This should occur on the Friday preceding each regular meeting of the Board.

Building commissioner: makes recommendations on each application before the Board on compliance with the Zoning Bylaw and signs each application before it is submitted.

Quorum. Three members of a five-member Board will constitute a quorum for regular business.

Resignations. If a regular member or associate member resigns from the Board, the resignation shall be submitted, in writing, to the Select Board Chairperson and a copy shall be provided to the Town Clerk. Subject to any applicable restrictions relating to the terms of the appointment of the individual, the resignation may specify a future effective date, so as to allow completion of any pending cases to which the member has been assigned. Unless otherwise stated, the resignation shall become effective upon the filing of same with the Town Clerk.

§ 260-3 Meetings of Board.

Public meetings. Public meetings shall be conducted in accordance with the Open Meeting Law, MGL c. 30A, §§ 18 through 25. Notice for each meeting shall be filed with the Town Clerk and posted in the Town Office Building at least 48 hours prior to the meeting, excluding Saturdays, Sundays and legal holidays.

Public hearings. Public hearings of the Zoning Board of Appeals are normally held during a regularly scheduled meeting date, which is the fourth Thursday of each month at 7:00 p.m. Others may be scheduled as necessary.

Filing deadlines:

Applications. The last date to file all applications will be 3:00 p.m., 30 days before the next scheduled meeting date; however, the Board has 65 days within which to conduct a required public hearing.

Additional information. To be accepted and considered by the Board at a meeting, additional information for an ongoing application must be submitted by 3:00 p.m. the Thursday before the meeting, one week before the given meeting. Information submitted after this deadline may or may not be considered by the Board.

Notice to Parties-in-interest. Applications that are subject to abutter notification requirements under MGL c. 40A, § 11, defines "parties in interest" as the petitioner, owners of land abutting the subject land, owners of land directly opposite on any public or private street or way, and abutters to the abutters within 300 feet of the property line of subject land (abutters outside Town boundary also must receive notice) as certified by the Town's Assessor, and the Planning Boards of all abutting towns. [See § 260-4B(1)(d) of these Rules for application requirements for parties-in-interest notifications.]

Public notice. Notice of public hearings shall be published twice, one being two weeks in advance of the hearing, in a newspaper of general circulation for Middleton in accordance with MGL c. 40A, § 11. Notice of public hearings shall be filed with the Town Clerk and publicly posted in Town Hall not less than 14 days prior to the hearing. In addition, a copy of the advertised notice shall be sent by mail to the following: the property owner, petitioner, abutters, owners of land directly opposite on any public or private street or way, owners of land within 300 feet of the property line (all as they appear on the most applicable tax list), and any other interested parties, and be postmarked at least 14 days prior to the date of the hearing. This abutters list can be obtained from the Assessor's Office during normal office hours.

Hearings to be public. All hearings are open to the public. No person shall be excluded unless they are considered by the Chair to be a "serious hindrance" to the workings of the Board.

Representation and absence. An applicant may present the application or be represented by an agent or attorney. In the absence of representation without due cause on behalf of the applicant, the Board may act on the matter using the information it has otherwise received, continue the matter to the next public hearing, or the Board may decide by unanimous vote that the petition be denied.

(6)

Hearing procedure. The Chair shall open the meeting, explain the procedures of the Board and open the evidentiary part of the hearing. All hearings proceed in the following order, with the Chair in charge of all portions of the hearing:

Notation by the Board of all submitted materials and observations of the site visit, if applicable;

Applicant's presentation and evidence gathering;

Questions from the Board;

Comments and questions from the public;

Applicant's response;

(f)

Submittal of final plans and information as requested by the Board;

(g)

Final comments and questions from the public, applicant and Board, in that order;

(h)

Close of evidentiary part of the hearing or, if necessary, continuation of the hearing to a date and time certain;

(i)

Public meeting Board deliberations, including, but not limited to:

Identify, review, and make findings of fact;

Identify, discuss, and establish condition;

Review and make findings required under any applicable section of the Zoning Bylaw;

(j)

Motion to approve or deny followed by a second. Discussion, if any, of the motion (Motion should be in the form of the agenda item unless modified.);

(k)

Revised final plans and information: Revised plans submitted to the Board as a condition of a special permit, variance or comprehensive permit shall be reviewed and acted on at a public meeting.

(7)

Mullins Rule. Pursuant to MGL c. 39, § 23D, members who miss one session of a public hearing may certify that they have examined all the evidence received by the Board at the missed session using a "Mullins Form." (See Form D in appendices.[1])

Editor's Note: The Forms and Appendices are included as an attachment to this chapter.

Site visits. The Zoning Board of Appeals may want to view any properties that come before it under applications for special permits, variances, appeals and comprehensive permits. Applicants will be notified of the site visit, and should be prepared to meet with the Board at the site. The purpose of the site visit is to view the site and its relation to the surrounding area. It is not acceptable for testimony or deliberation on an application to occur outside the public hearing. The Open Meeting Law does not apply to site visits, and the applicant may deny permission to members of the public to attend the site visit.

Findings and decision. The Board's written decision shall state the specific findings of fact and reasons for its decision.

Voting. The record shall show the vote of each Board member upon each question or, if failing to vote, indicating such fact. A concurring vote of four members of the five sitting Board members is necessary in granting special permits, variances, and appeals from the decision of the Building Commissioner (MGL c. 40A, § 15). The alternate member may vote when a sitting member is not in attendance or has stepped off the Board for reason of conflict.

Extensions. In accordance with MGL c. 40A, the required time limits for conducting a public hearing as well as acting on an application may be extended by written agreement between the petitioner and the Board. A copy of such agreement shall be filed with the Town Clerk.

Filing and recording. Decisions of the Board are final only when signed by the Board and filed with the Town Clerk. Time limitations for filing are specific to the type of application. Board decisions that grant a special permit, variance, appeal or comprehensive permit shall not take effect until a copy of the decision is filed with the Registry of Deeds and bears the signed certification of the Town Clerk that 20 days have elapsed after the decision has been filed and no appeal has been filed. The applicant bears all responsibility for recording at the Registry of Deeds any special permit, variance, appeal or comprehensive permit granted by the Board. Denials and withdrawals of applications are not recorded at the Registry of Deeds.

Withdrawal. Any filed application may be withdrawn without prejudice, by notice in writing to the Town Clerk, with a copy to the Clerk of the Board, at any time prior to publication of legal notice of the hearing in the newspaper. Requests to withdraw after publication of legal notice may be in writing as provided above, or they may be made by the applicant orally at the public hearing. After such publication, withdrawal requires approval by unanimous vote of the Zoning Board of Appeals at a public meeting. At least two members of the original Board panel assigned to the application must participate in the vote on the request for withdrawal. All application fees are nonrefundable.

Miscellaneous. The Board may at its discretion seek information from any Town official, board, committee, agency or any other person whom the Board believes may have appropriate expertise in any matter.

§ 260-4 Applications under Zoning Act (MGL c. 40A).

Procedures.

Special permits/site plan review.

Time requirements for Board action. When an application is filed with the Town Clerk, the Board must hold a public hearing within 65 days from the day of filing. The decision of the Board must be filed with the Town Clerk within 90 days following the close of the public hearing as established by MGL c. 40, § 9. Failure by the Board to act within the prescribed time limits shall be deemed approval of the application, and a constructive grant of the permit.

Time requirements for appeals of a decision. Any person aggrieved by the Board's decision may appeal to the court within 20 days as provided in MGL c. 40A, § 17.

Time requirements for use or construction. Substantial use or construction of a project authorized by a special permit must commence within two years of filing the decision with the Town Clerk. The required time limits for substantial use or construction may be extended by written agreement between the petitioner and the Board for an additional period.

Conditions of approval. MGL c. 40A, § 9 allows the imposition of "conditions, safeguards and limitations on time or use." A special permit, unlike a variance, may be conditioned by limiting its duration to the term of ownership or use by the applicant.

Modifications to existing special permits and approved site plans. The ZBA shall not approve a substantial modification which changes the result of an original deliberate decision, or which grants relief different from that originally granted, without compliance with the relevant notice and hearing requirements. The following changes will be deemed to be insubstantial or insignificant by the Building Commissioner after the petitioner first submits a written request for a determination of the change(s):

Changes to infrastructure (underground utilities: water, sewer, electric, and utility provisions/apparatus with written approval by the agency responsible for the utility).

Increases in the type or quantity of landscaping.

Shifting of structures, parking spaces or other site amenities less than one foot in distance, provided the change does not result in any violations of any setbacks, buffers, or open space requirements.

[4]

A reduction in the footprint of the proposed structures or a reduction in impervious areas, provided that the parking requirements of Section 5.0 (Zoning Bylaw) continue to be satisfied.

[5]

Moving of accessible parking pursuant to 521 CMR, as most recently amended.

[6]

The Board may determine that other modifications are insubstantial or insignificant at its regular public meetings.

Variances. Applications for variances shall be acted upon following a public hearing. No variance shall be granted without specific findings by the Board that all four conditions found in MGL c. 40A, § 10 have been met.

Required findings.

Circumstances relating to soil conditions, shape, or topography that especially affect the property for which a variance is sought but do not generally affect the zoning district in which the land or structure is located.

Facts showing that substantial hardship, financial or otherwise, will result from literal enforcement of the applicable zoning restrictions to the land or building.

Facts supporting a finding that the relief sought will be desirable and without substantial detriment to the public good.

[4]

Facts supporting a finding that the relief sought may be given without nullifying or substantially derogating from the intent and purpose of the Zoning Bylaws.

Conditions. The Board may impose conditions and limitations both of time and of use, including the continued existence of any particular structures. However, the Board cannot impose conditions based on the continued ownership of the land or structures to which the variance pertains.

Time requirements for Board action. When an application for a variance is filed with the Town Clerk, the Board shall hold a public hearing within 65 days from the day of filing. The decision of the Board shall be made within 100 days from the date of filing the application with the Town Clerk. Failure by the Board to act within the prescribed time limits shall be deemed a grant of the variance.

Time requirements for appeals of a decision. Any person aggrieved by the Board's decision for the variance may appeal to the court within 20 days, as provided in MGL c. 40A, § 17.

Time requirements for use or construction. If the rights authorized by a variance are not exercised within one year of the date that the Board voted to grant the variance, the variance shall lapse. The required time limits for exercising said rights may be extended by written agreement between the petitioner and the Board for an additional period not to exceed six months, provided that the application for such an extension is filed with the Board prior to expiration of the variance (MGL c.40A, § 10). A copy of such agreement shall be filed in the office of the Town Clerk.

Appeals of an order or decision of the Building Commissioner. The Zoning Board of Appeals can receive appeals under MGL c. 40A, §§ 7, 8, and 15 from: (i) A person aggrieved by an inability to obtain a permit from the Building Commissioner, (ii) a person aggrieved by enforcement action, or lack thereof, from the Building Commissioner, or (iii) the regional planning agency, an officer or board of the Town or of an abutting town aggrieved by an order or decision of the Building Commissioner or Town official perceived to be in violation of the Zoning Bylaw.

Time requirements for the petitioner. An appeal under MGL c. 40A, § 8 must be taken by the petitioner within 30 days from the date of the order or decision that is being appealed. This order or decision must be in the form of a letter signed by the Building Commissioner stating the reason for the denial. The application for appeal, specifying the grounds for the appeal, shall be reviewed for completeness before it is filed with the Town Clerk. Once it has been filed with the Town Clerk, the Chair will schedule a public hearing. Copies of the time-stamped application of appeal will be forwarded by the Town Clerk to the Zoning Board of Appeals and the officer or Board whose decision is being appealed, as stipulated in MGL c. 40A, § 15.

Time requirements for Board action. The Board shall hold a public hearing on any appeal application within 65 days from the date of filing. The decision of the Board shall be made within 100 days from the date of filing the application with the Town Clerk. The required time limits for a public hearing and said action may be extended by written agreement between the petitioner and the Board. A copy of such agreement shall be filed in the office of the Town Clerk.

Failure by the Board to act within the prescribed time limits shall be deemed an approval of the application and a constructive grant of the appeal. The petitioner who seeks such approval by reason of the Board's failure to act shall notify the Town Clerk in writing within 14 days from the expiration of the 100-day or extended time period. The petitioner shall send notice to parties in interest that any appeal of the grant must be made pursuant to MGL c. 40A, § 17. Any appeal of the grant must be filed with the court within 20 days from the date that the petitioner notified the Town Clerk in writing of the Board's failure to act.

Application requirements.

General.

Application form. A complete application shall be filed on the Town's permitting portal and include the appropriate ZBA application form(s). [See § 260-3B(1) for deadlines for filing new applications and for submitting additional information.] All information called for by said form shall be furnished by the petitioner at the time of application and in the manner therein prescribed. The ZBA may deny any incomplete and inaccurate application, petition, or appeal and notify the Town Clerk and appellant of such denial. The Building Commissioner must sign each application before it is submitted to the Town Clerk. (See all application forms in Appendices.[1])

Editor's Note: The Forms and Appendices are included as an attachment to this chapter.

Waivers. The Board may, with good cause, waive technical requirements under Section 9.5.6 of the Zoning Bylaw for an application upon submittal of a written request by the applicant and majority vote of the Board. All requests for waivers shall be included in the application package.

Multiple actions for single project. Only one general application form is required for a single project where more than one type of relief is requested; additionally, the petitioner must clearly describe each form of relief requested on the separate sub-forms. The fee for an application containing multiple forms of relief shall be based on the single highest fee charged for the multiple requests for relief. If a project contains commercial/industrial and residential (mixed use), the fee shall be based on "GFA" as opposed to "residential units."

Providing Parties-in-interest notification and decision materials.

Applications for special permits, variances, and appeals are subject to abutter notification requirements under MGL c. 40A, § 11, which defines "parties in interest" as the petitioner, owners of land abutting the subject land, owners of land directly opposite on any public or private street or way, and abutters to the abutters within 300 feet of property line of subject land (abutters outside Town boundary also must receive notice) as certified by the Town's Assessor, and the Planning Boards of all abutting towns. If the subject property is close to the Town boundary, a certified abutter's list from the abutting town will be required, if applicable.

Each applicant shall submit the following materials with the hard copy of their application to the Planning Office:

Each applicant is required to submit two self-addressed stamped envelopes for each abutter and each Planning Board of abutting town (addresses below) to be used by the planning office to send out required notices and decisions.

Boxford Planning Board	7A Spofford Road	Boxford, MA 01921
Topsfield Planning Board	8 West Common Street	Topsfield, MA 01983
North Andover Planning Board	120 Main Street	North Andover, MA 01845
North Reading Planning Board	235 North Street	North Reading, MA 01864
Lynnfield Planning Board	55 Summer Street	Lynnfield, MA 01940
Peabody Planning Board	24 Lowell Street	Peabody, MA 01960
Danvers Planning Board	1 Sylvan Street	Danvers, MA 01923

Envelopes shall be legibly addressed with enough postage on them to mail one sheet of paper in each, and the following return address must also be placed on the upper left-hand corner of each envelope:

Middleton Planning Board

195 North Main Street

Middleton, MA 01949

The original copy of the abutters list certified by the Assessing Department must be submitted with the application materials. Submit these envelopes along with the required hard copy of your completed application. The Planning Office will mail the public hearing notice and notice of decision using these addressed and stamped envelopes.

Recommendations by Planning Board and Industrial Commercial Design Review Committee. The Zoning Board of Appeals may not make a decision on a site plan approval unless the applications have been sent to the Planning Board and Industrial Commercial Review Committee for their review and recommendations.

Special permits, variances, and site plan review filing requirements.

A complete application shall be filed on the Town's permitting portal and include the appropriate ZBA application form(s), abutters materials according to § 260-4B of the ZBA Rules, required supporting documents and plans.

The petitioner shall file with the Planning Office; nine printed copies, including one copy with original signatures (all included plans shall be no larger than 11 inches by 17 inches, and either one flash memory device or an emailed copy of each complete application package; however, if a Stormwater Management Plan or Traffic Study is required for a project, only two printed copies and as well as digital copies of each shall be required as part of the printed application package. Staff will file one copy of the application package with the Town Clerk and one copy will be for the file.

A ZBA Application Checklist containing all required materials and supporting documents for each application can be found on page 3 of the ZBA General Application (Form A[2]).

Editor’s Note: The Forms and Appendices are included as an attachment to this chapter.

Directions for submitting applications through the Town's online permitting portal can be found under "Appendices."

Each application shall include the following items:

Project narrative: a thorough description of the existing conditions and/or use; the proposed changes; justification of the proposal; and any other relevant information that the Board may need in reviewing the application.

Site plan contents:

Site plans shall be scaled one inch equals 20 feet for 24 inches by 36 inches plan size.

Existing conditions plan. Plan shall include the property boundaries, outlines of existing buildings and structures showing closest points of structure to each lot line; existing pavement areas; existing easements; and wetland delineation and 100-foot buffer zone. The plan must be prepared and stamped by a registered land surveyor.

Proposed site plan. Plan shall include the property boundaries, outlines of proposed buildings and structures showing closest points of structure to each lot line; typical building setbacks for the zoning district; proposed pavement areas; proposed easements; wetland delineation and 100-foot buffer zone. The plan must be prepared and stamped by a registered land surveyor and professional civil engineer.

[d]

Elevation plans. (Suggest we ask an architect what should be in here. I would be sure this also includes a rendering and massing plan)

[e]

Floor plans: include existing and proposed layout, drawn to scale and dimensioned. All plans must be dated and include the name of preparer.

[f]

Building elevations: show existing conditions and proposed changes drawn to scale. For anything other than one- and two-family residential developments, all architectural plans must be prepared by a registered architect.

[g]

Landscaping plan: plan shall depict locations and species of landscaping areas provided. The plan must be prepared and stamped by a registered land surveyor.

[h]

Outdoor lighting plan: Plan showing location and type of outdoor lighting and lighting fixtures, said lighting to be designed to minimize glare and light spillover onto adjacent properties, streets. All exterior lighting shall be designed and installed so as to be shielded or downcast, and to avoid light trespass onto adjacent properties. Lighting fixtures shall be selected according to the Dark Sky compliance recommendations. Plan shall depict the light intensity (footcandle) in an appropriate grid. All exterior lighting shall be limited to 15 feet in height and shall cast a maximum of eight footcandles of light on the ground. Lighting shall also be directed so as not to blind vehicle or pedestrian traffic, Adjacent buildings or spill to abutting properties to the site.

Off-site improvement plans: Plan shall depict full design, grading, etc. for any work required within the public way. This includes but is not limited to pedestrian implements, traffic improvements, traffic signal improvements, etc.

[j]

Parking analysis. A comparison table shall be placed on the site plan for any project that includes parking lot construction, structural change, reconstruction, alteration, extension or change of use or occupancy of a building(s) or structure(s). The Parking Summary Table shall summarize:

Existing parking count.

[ii]

Proposed parking count.

[iii]

Proposed ADA parking.

[iv]

ADA parking requirements.

[v]

Overall site parking count required by the zoning bylaw.

Traffic study.

The ZBA shall make the final determination of whether a traffic study will be required for the proposed project; however, a traffic study (two hard copies) shall be submitted with the application in the case of petitions that include any of the following:

Construction, structural change, reconstruction, alteration, extension or change of use or occupancy of a building(s) or structure(s) containing eight or more residential dwelling units, or used for fast-food, or any kind of establishment with a drive through;

[ii]

Twenty-five or more new peak hour trips based on ITE (Institute of Transportation Engineering) trip generation data from a development on a residential or local street; and/or

[iii]

Fifty or more new peak hour trips based on ITE (Institute of Transportation Engineering) trip generation data on a collector or arterial street.

Applicants may submit a request to waive the requirement to submit a Traffic Impact Access Study that the Board will consider at the public hearing held for the application.

The person or firm preparing the traffic study must be a professional engineer licensed by the Commonwealth of Massachusetts and shall be certified as a professional traffic operations engineer. The scope of study shall include, but is not necessarily limited to:

General. Traffic Impact and Access Study (TIAS) will detail existing and future roadway conditions, the number of trips anticipated to be generated by the proposed development, the impacts, if any, on the existing roadway network, and any potential mitigation measures. The study will be confirmed by the Town.

[ii]

Traffic counts.

Manual turning movement counts will be collected during the weekday morning (7:00 - 9:00 a.m.), evening (4:00 - 6:00 p.m.), Saturday mid-day, peak periods at study area locations.

Automatic Traffic Recorder (ATR) counts will be conducted within the project area for a forty-eight-hour weekday period. ATR data collected will be summarized in fifteen-minute increments and will include directional traffic volumes, vehicle classification, and vehicle speeds.

[iii]

Safety analysis.

Historical crash data will be provided for the most recent five years available from MassDOT. Crashes will be summarized by type, severity, time period, weather conditions, and lighting conditions, and crash rates will be calculated and compared with State and District 4 averages.

Crash diagrams will be provided in accordance with MassDOT Design Submission guidelines.

[C]

Sight distance will be evaluated at proposed site driveways to verify adequate visibility is provided.

[D]

Evaluations of proposed site access drives and intersections impacted by the proposed development will be presented to verify that accommodations will be adequate for the project generated traffic, including sufficient capacity to accommodate peak hour traffic volumes and adequate geometry to safely accommodate design vehicles.

[iv]

Traffic projections/site-generated traffic.

Existing traffic data will be projected to a seven-year horizon based on an appropriate percent per year compound annual growth rate in accordance with MassDOT and Town standards. Background growth assumptions used in TIAS will be based on historical MassDOT traffic count data for study roadways, census data, and CTPS regional model data. Additional large development projects in the area will be identified for additional traffic volumes to be included in the Design Year traffic network.

Project generated trips, pass-by trips, and internal trip capture will be estimated using the ITE Trip Generation Manual and added to the Design Year traffic volume network.

[v]

Traffic analyses/TIAS Preparation.

Study intersections will be analyzed to compare operations under future "no-build" and "build" conditions using Synchro software. The findings will be summarized in tabular form.

Recommendations for potential mitigation measures at study intersections will be identified where appropriate. The future build volumes will be analyzed with the proposed mitigation measures using the Synchro model.

[C]

A Traffic Impact and Access Study (TIAS) will be prepared to describe the methodology of evaluations performed, summarize the findings of all analyses, and present potential mitigation measures where required.

[D]

The TIAS will include a summary of parking supply, circulation and drive-through operations. The study will verify that the off-street parking supply and drive-through, as may be applicable, meet Town zoning requirements.

[E]

Impacts of the development and the need to mitigate potential project impacts will be presented. In addition to roadway capacity impacts, accommodations for pedestrians, bicyclists, conformance with all ADA requirements, and consistency with any proposed future roadway improvements will be presented.

Appeals filing requirements.

A complete application (ZBA application and Form A4[3] shall be filed on the Town's permitting portal and include the appropriate ZBA application form(s), abutters materials according to § 260-4B(1)(d) of the ZBA Rules, and required supporting documents and plans. The petitioner shall file with the Town Clerk, nine printed copies, including one copy with original signatures (all included plans shall be no larger than 11 inches by 17 inches), and one copy on either a flash memory device or an emailed version of each complete application package, along with the appropriate filing fee. Special instructions for Stormwater Plans and Traffic Study submittals can be found below. The Town Clerk will forward one copy to the Planning Office.

Editor's Note: The Forms and Appendices are included as an attachment to this chapter.

A complete application shall include the ZBA application form, required filing fee(s), certified list of abutters, and required supporting documents and plans.

Supporting documents: Applications for appeals under MGL c. 40A, §§ 7, 8 and 15, and the Town Zoning Bylaws Section 9.1.6, Appeals, must be supported by a legibly written memorandum setting forth in detail all facts relied upon and including:

Written documentation specifying the grounds thereof for filing the appeal.

Facts relied upon shall support a finding that the applicant was aggrieved because of their inability to obtain a permit or enforcement action for the applicable administrative office.

Facts shall also include reference to the applicable laws and reason why the applicant should obtain the permit or enforcement action and what remedy the applicant is requesting from the Zoning Board of Appeals.

§ 260-5 Comprehensive permits.

Purpose and context.

These rules establish procedures for applications to the Zoning Board of Appeals for comprehensive permits granted under MGL c. 40b, §§ 20 through 23 and the regulations promulgated thereunder. They are required by MGL c. 40b, § 21 and by 760 CMR 56.00 et seq. The purpose of that act and these rules is to facilitate the proper development of affordable housing in Massachusetts.

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 MGL c. 40B, §§ 20 through 23. In addition, the Board's general rules and policies for 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.

LIMITED DIVIDEND ORGANIZATION

These rules take effect on passage and supersede any other MGL c. 40B rules that may have been adopted by the Board.

Definitions.

As used in this section, the following terms shall have the meanings indicated:

BOARD

The Middleton Zoning Board of Appeals established under MGL c. 40A, § 12.

Any applicant which proposes to sponsor housing under MGL c. 40B; and is not a public agency; and is eligible to receive a subsidy from a state or federal agency and which agrees to limit its actual profit as required under law. [See Subsection C(1)(h) below.]

LOCAL BOARD

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, public works, or other department; building inspector or similar official or board; board of selectmen.

Filing; time limits; fees; notice.

The application for a comprehensive permit shall consist of:

Site development plans 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 landscaping improvements and open areas within the site. All site development plans shall be stamped by a registered professional engineer;

A report on existing site conditions and a summary of conditions in the surrounding areas, showing the location and nature of existing buildings, existing street elevations, traffic patterns and character of open areas, if any, in the neighborhood. This submission may be combined with that required in Subsection C(1)(a), above;

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;

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 or definitive subdivision plan conforming to all of the applicable requirements of the Middleton Regulations for the Subdivision of Land;

(f)

A utilities plan, stamped by a registered professional engineer 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, or best management practices, whichever is more stringent;

(g)

For projects with more than eight residential units, a Traffic Impact and Access Study;

(h)

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- or 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 56.04.

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;

(i)

A concise list of requested exceptions to local requirements and regulations, including local codes, bylaws or regulations, along with an explanation of the reasons for seeking such exceptions. Blanket waivers requests shall not be permitted;

(j)

A complete financial 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 arm's length expenses in purchasing and developing the property. Additionally, the applicant shall fully disclose any land or development costs ascribed to related entities;

(k)

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 project eligibility;

(l)

A list of each member of the development and marketing team, including all contractors and subcontractors, to the extent known at the time of application. The applicant shall also be required to disclose its relationship to all such entities;

(m)

A list of all prior development projects completed by the applicant, along with a brief description of each such project;

(n)

Evidence of local need for the type and number of housing units being proposed by this application.

Fees.

The application shall be accompanied by a filing fee based upon the number of proposed housing units of:

For limited dividend organizations: $1,000 flat fee, plus $50 per unit.

For nonprofit organizations: $1,000 flat fee, plus $25 per unit.

For public agencies or governmental entities: $0.

These fees are applicable for both original applications as well as for applications for permit modifications that are deemed to be substantial by the Board.

Additionally, the application fee shall include $5,000 to pay for the services and administrative expense of expert legal counsel. 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 c. 40B process. The Board, in its sole and unfettered discretion, may waive any or all of these additional fees if it is determined that legal review is not necessary. Alternatively, the applicant may opt to pay for the Board's legal counsel or financial consultant in the manner prescribed by MGL c. 44, § 53G. Upon request by the applicant, the Board may, for good cause shown, waive the legal or consulting fees contemplated under this subsection for nonprofit or public applicants.

Within seven days of filing of the application, the Board shall notify every pertinent local official, board or department of the application by sending such official a copy of the application. Based upon that information, it shall also invite the participation of each local official who has an interest in the application. In order to allow review by local officials, the applicant shall provide the Town Clerk with 25 copies of the complete application so that all boards, officials and departments may review the same; and one PDF copy of the complete application.

The above-stated materials shall be accompanied by an executed Middleton ZBA Comprehensive Permit Application form and abutters materials according to § 260-4B(1)(f) of the ZBA Rules.

Review fees. The Board may impose reasonable fees for the employment of outside consultants for specific expert services according to Board's rules for hiring outside consultants. (See § 260-6B of the ZBA Rules.)

Public hearing and decision.

The Board shall commence a public hearing on the application within 30 days of its receipt, unless such time period is extended by written agreement of the Board and the applicant. The Board may request the appearance at the hearing of such representatives or local officials as it considers necessary or helpful in reviewing the application. In making its decision, the Board shall take into consideration the recommendations of local officials.

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 may be 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 in the event that the proposed project presents adverse impacts to local concerns that outweigh the Town's housing 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 issues arising under zoning, wetlands, planning or other local concerns while not rendering the construction or operation of such housing uneconomic. The scope of conditions may include any matter that would normally be addressed by a local board in review of a conventionally proposed project. 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, the geographical area and the current economic climate. The Board is permitted to engage a financial consultant, at the applicant's expense (see above), for any review of the impact of conditions that may be imposed.

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.

If a subdivision of land is involved, the following shall apply:

No construction is permitted until a definitive subdivision plan has been submitted to and approved by the Board;

The definitive subdivision plan shall be prepared and submitted in accordance with Middleton's Regulations Governing the Subdivision of Land. The Zoning Board and not the Planning Board is the permit granting agency.

(6)

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 have been filed is recorded in the Registry of Deeds and is indexed under the name of the owner of record of the land.

Changes in application.

In the event that, during the public hearing, the applicant proposes any changes in its application or project plans that, in the Board's discretion, constitute a material or substantial change to the project, the applicant shall provide a new site-eligibility letter or other suitable determination from the designated subsidizing agency that such changes are approvable under the subject subsidizing program.

In the event of material or substantial changes, the Board may request, and the Applicant shall provide, any and all information specified in Subsection C above, 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 Subsection C(3), above.

If, during a hearing, 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.

Appeals.

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.

§ 260-6 Fees.

Application fees. Fees for applications shall be submitted in the form of a check made payable to the Town of Middleton. Fees are subject to change by vote of the Select Board. Current fees can be found in the Appendices. See § 260-4B(1)(c) for determining fees for multiple projects.

Fees for outside consultants.

In addition to the fees payable pursuant to § 260-6A, Application fees, the applicant shall pay the reasonable fees for the employment of outside consultants who, in the discretion of the Zoning Board of Appeals, are necessary to provide guidance on a specific project or conduct site inspections on a permitted project. The appointment of such an outside consultant shall be subject to the right of appeal by an applicant pursuant to the provisions of MGL c. 44, § 53G. The funds received for outside consultants shall be deposited in a special account and shall be expended by a majority vote of the Zoning Board of Appeals without further appropriation and shall be subject to such other provisions contained in said Section 53G. The payment of fees for such outside consultants shall be made by the applicant prior to the vote by the Zoning Board of Appeals to approve or disapprove a project.

The Board shall give written notice to the applicant of the selection of an outside consultant, which 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 given on the date it is mailed by First Class United States Postal Service. No such costs or expenses shall be incurred by the applicant if the application or request is withdrawn within one week of the date notice is given.

The fee must be received in its entirety prior to the initiation of consulting services. The Board may request additional consultant fees if the necessary review or construction inspectional service 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 20 days of the request for payment shall be cause for the Board to determine that the application is administratively incomplete and may serve as the basis for denying the application (except in the case of an appeal of the selection of the consultant under MGL c. 44, § 53G and these Rules). In cases where the consultant fees are being used for construction inspections, the bond held for construction completion, if any, may be used to cover the unpaid consultant fees. The Board shall state such in a letter to the applicant. No additional review or action shall be taken on the permit request until the applicant has paid the requested fee.

The selection of an outside consultant may be appealed to the Select Board. Such appeals are limited to claims that the consultant selected has a conflict of interest or does not possess the minimum required qualifications. The minimum qualifications consist of either an educational degree in the field at issue or a related field, or three or more years of practice in the field at issue or a related field. The required time limits for action upon an application by the Zoning Board of Appeals shall be extended by the duration of the administrative appeal. In the event that no decision is made by the Select Board within one month following the filing of the appeal, the selection made by the Zoning Board of Appeals shall stand.