A.
Plans submitted for either review and approval under the Subdivision
Control Law or for a determination that approval under the Subdivision
Control Law is not required shall be delivered to the Planning Board
at a meeting of said Board, or shall be sent by registered mail to
the Planning Board, postage prepaid. If so mailed, the date of receipt
by the Planning Board shall be the date of submission of the plan.
B.
The applicant shall provide written notice to the Town Clerk of such
filing, together with a copy of the application form. Such notice
shall be given by delivery or sent by registered mail and shall describe
the land to which the plan relates, sufficient for identification,
and shall state the date on which such plan was submitted to the Planning
Board, and shall include the name and address of the owner(s) of the
subject land.
C.
Review of plans. The Planning Board may submit any plans filed for
approval to any professional that it deems necessary for review. The
cost of the review will be the responsibility of the applicant.
A.
Any person who believes his or her plan does not require subdivision approval, because it does not show a "subdivision" as defined in MGL c. 41 § 81L, and in Article I of these regulations, may submit to the Planning Board:
(1)
The plan; and
(2)
Six (6) paper copies of the plan; and
(4)
The applicable filing fee as shown in the fee schedule in Appendix
B[2] and on file with the Town Clerk; and
[2]
Editor's Note: Appendix B is included at the end of this chapter.
(5)
Any documentation necessary to demonstrate that the plan does not
require approval under the Subdivision Control Law.
B.
A plan submitted under § 194-5 shall be prepared in accordance with the applicable requirements of the Franklin County Registry of Deeds and shall, at a minimum, show the following information:
(1)
The name(s) of the record owner(s) of the subject land, and the names
of the owners of all adjacent land as determined from the most recent
tax records of the Town;
(2)
The location of all existing buildings on the subject land;
(3)
The location of all easements and rights-of-way located on or serving
the subject land;
(4)
The existing and proposed boundaries of the subject land and of each
parcel and lot created or altered by the plan;
(5)
The zoning classification of the subject land;
(6)
A locus plan at a scale of one (1) inch equals one hundred (100)
feet showing the subject land in relation to the nearest intersecting
street(s);
(7)
The locations, widths, and names of all abutting ways;
(8)
A notation reading: "Endorsement of this plan does not certify compliance
with zoning or any Town bylaw or regulation."
(9)
Electronic copies of said plan which meet the Level I submission
standards of the current version of the "MassGIS Standard for Digital
Plan Submission to Municipalities." Electronic copies must be submitted
on a CD-ROM or other electronic media acceptable to the Planning Board
and must be accompanied by the completed checklist required in the
MassGIS standard.
C.
Frontage on ways in existence.
(1)
In determining whether a way that was in existence on February 8,
1958, when the Subdivision Control Law came into effect in Sunderland,
provides adequate frontage to qualify a plan as not a subdivision,
the Board will consider the following:
(a)
Is the right-of-way at least thirty-three (33) feet wide and
of reasonable horizontal alignment?
(b)
Does the existing horizontal and vertical alignment of the roadway
provide safe visibility?
(c)
Is the roadway constructed at least sixteen (16) feet wide,
with at least eighteen (18) inches of gravel, and with adequate provisions
for drainage?
(d)
If the road could ever service more than ten (10) dwelling units,
is it bituminous surfaced or have provisions been made for such surfacing
without cost to the Town?
(e)
Have provisions been made for public utilities without cost
to the Town?
(2)
Is the grade less than or equal to ten percent (10%)?
(3)
The Board will not find a way in existence when the Subdivision Control
Law became effective in Sunderland to provide adequate frontage unless
it meets the above standards. However, the Board may waive strict
compliance with a standard upon its determination, following consultation
with the Selectboard, Highway Superintendent, Police Chief and Fire
Chief, that the way will, in fact, be adequate to provide for the
needs of vehicular traffic in relation to the proposed use of the
land abutting thereon or served thereby, and for installation of municipal
services to serve such land and the buildings erected or to be erected
thereon.
[Amended by Ch. 141 of the Acts of 2019, approved 12-12-2019]
D.
Frontage on approved subdivision ways. A way shown on an approved
subdivision plan will be considered as frontage for purposes of MGL
c. 41, § 81L only if either:
E.
Frontage on a public way. When the lots shown on a plan presented for endorsement under § 194-5 are claimed to have frontage on a public way, the way must physically exist on the ground. Additionally, the Planning Board may require documentation evidencing the layout and acceptance of the way as a public way.
F.
Adequacy of access. In addition to determining that all lots shown on a plan presented for endorsement under § 194-5 have the required frontage on one of the three types of ways specified in MGL c. 41, § 81L, before endorsing an ANR plan, the Planning Board must also determine that each lot shown on the plan has practical access from the way upon which the lot fronts, in that there are no legal or physical impediments that prevent present adequate access to the lot.
G.
Time limit. Pursuant to MGL c. 41, § 81P, if the Board fails to act upon a plan submitted under § 194-5, or fails to notify the Town Clerk and the applicant of its action within twenty-one (21) days after the plan submission, the Board shall be deemed to have determined that approval under the Subdivision Control Law is not required and shall forthwith make such endorsement on the plan. If the Board fails to make such endorsement, the Town Clerk shall issue a certificate to the same effect.
Prior to investing in extensive professional design efforts
for subdivision plans, it will often prove useful to review the proposed
development of a parcel of land with the Planning Board in order that
general approaches, possible use of cluster development and potential
problems can be freely explored. Pencil sketches, which need not be
professionally prepared, will assist the discussion and might show
some, but not all, of the information shown on a preliminary plan.
For one- and two-lot subdivisions, this presubmission review may eliminate
the need for such a preliminary plan.
A.
General. In the case of a proposed nonresidential subdivision, a
preliminary plan of the proposed subdivision shall be submitted to
the Planning Board and to the Board of Health. In the case of a proposed
subdivision with lots in a residential zoning district, a preliminary
plan of the proposed subdivision may be submitted to the Planning
Board and to the Board of Health. The submission of such a preliminary
plan will enable the subdivider, the Planning Board, the Board of
Health, other municipal agencies and owners of property abutting the
subdivision to discuss and clarify the problems of such subdivision
before costly engineering drawings for a definitive plan are prepared.
Therefore, even if not required by these regulations or MGL c. 41,
§ 81S, it is strongly recommended that a preliminary plan
be filed, except for one- and two-lot subdivisions when a presubmission
review has adequately clarified all issues.
B.
Application procedure. Anyone submitting a preliminary subdivision
plan to the Planning Board for review shall file with the plan a completed
application Form B,[1] along with eight (8) copies of the preliminary plan and
a filing fee as specified in Appendix B,[2] and shall also file the preliminary plan with the Board
of Health. The Board shall distribute copies to the Highway Superintendent,
Fire Department, Conservation Commission and Selectboard for their
comments and suggestions.
[Amended Ch. 141 of the Acts of 2019, approved 12-12-2019]
[1]
Editor's Note: Form B is on file in the Town offices.
[2]
Editor's Note: Appendix B is included at the end of this chapter.
C.
Contents.
(1)
The preliminary plan shall be drawn on Mylar or paper at a scale
of one hundred (100) feet to at least one (1) inch or greater on twenty-four-inch-by-thirty-six-inch
sheets and shall be identified as a preliminary plan. As a minimum,
a preliminary plan shall include the following information:
(a)
The subdivision name, boundaries, North point, date, scale,
legend, and the title "preliminary plan";
(b)
The name(s) of the record owner(s), the applicant(s), and the
designer, engineer or surveyor;
(c)
The names of all abutters as determined from the most recent
local tax list;
(d)
The existing and proposed lines of streets, ways, easements,
and any public areas within the subdivision in a final or near final
alignment;
(e)
The proposed system of drainage, sewage disposal and water supply,
as well as showing adjacent existing natural waterways, in a general
manner, and indicating whether streams shown are perennial or intermittent
and whether the Conservation Commission has approved the determination;
(f)
The approximate boundary lines of proposed lots, with approximate
areas and dimensions;
(g)
The names, location and widths of adjacent streets;
(h)
The topography of the land in a general manner;
(i)
Proposed names of roads, which may not be similar to any other
roads in Town, as well as all information described under the definition
of the "preliminary plan";
(j)
The existing and proposed topography at a five-foot contour
interval (lines of equal elevation) or better (using NAVD 1988 datum);
(k)
Major site features, such as existing stone walls, fences, buildings,
specimen large trees, rock ridges and ledge, swamps, historic features
and wooded areas;
(l)
A sketch of abutting land (regardless of ownership), showing
possible or contemplated development and road layout, if applicable.
(2)
In addition, to promote better understanding, the following must
be submitted:
(a)
A locus plan of the subdivision, showing its street configuration
in relation to the surrounding area, at a scale of one (1) inch equals
six hundred (600) feet using orthophotos (available from, e.g., MassGIS).
(b)
In the case of a subdivision covering less than all of the land
owned by the subdivider in the area of the subdivision, a plan showing
in a general manner the proposed overall development of all of said
land.
(c)
Preliminary findings, in a general way, of the environmental impact analysis required by § 194-8D.
(d)
A written request for any proposed waivers of subdivision requirements,
providing all reasons and rationales for such waivers.
D.
Approval or disapproval of preliminary plan. Within forty-five (45)
days after submission of a preliminary plan, the Planning Board shall
approve such plan, with or without modifications suggested by it or
agreed upon by the person submitting the plan, or the Board shall
disapprove such preliminary plan and, in the case of disapproval,
shall state its reasons therefor. The Planning Board shall notify
the Town Clerk of its decision and shall notify the applicant by certified
mail.
E.
Relation of preliminary plan to definitive plan and zoning provisions.
Approval of a preliminary plan does not constitute approval of a subdivision,
and a preliminary plan may not be recorded in the Registry of Deeds.
Provided that a definitive plan is duly submitted within seven (7)
months from the date of submission of the preliminary plan, the subdivision
rules and regulations in effect at the time of submission of the preliminary
plan shall govern the definitive plan, and if the definitive plan
is ultimately approved, the zoning provisions in effect at the time
of submission of the preliminary plan shall govern the land shown
on the plan for eight (8) years from the date of endorsement of approval
of the subdivision plan (MGL c. 40A, § 6).
A.
Application procedure. Any person who submits a definitive plan of
a subdivision to the Planning Board for approval shall file with the
Board the following:
(1)
Ten (10) contact prints of the definitive plan and other required
drawings, dark line on white background.
(2)
Two (2) copies of properly executed application Form C.[1] The applicable filing fee according to the fee schedule
provided in Appendix B of these regulations and on file with the Town
Clerk shall be provided.[2]
[1]
Editor's Note: Form C is on file in the Town offices.
[2]
Editor's Note: Appendix B is included at the end of this chapter.
B.
Definitive plan contents. The definitive plan shall be clearly and
legibly drawn in black India ink upon mylar or paper. The sheet size
shall not exceed twenty-four (24) inches by thirty-six (36) inches.
The plan shall be at the scale of one (1) inch equals forty (40) feet
or such other scale as the Board may accept to show details clearly
and adequately. If multiple sheets are used, they shall be accompanied
by an index sheet showing the entire subdivision. The definitive plan
shall contain the following:
(1)
The subdivision name, boundaries, North point, legend, date and scale.
(2)
The name and address of the record owner and of the subdivider; the
stamp and signature of the registered land surveyor and any other
professionals engaged in the design.
(4)
Existing and proposed lines of streets, ways (including ancient ways),
paths, lots, easements and public or common areas within the subdivision.
(The proposed names of proposed streets shall be shown in pencil until
they have been approved by the Selectboard.)
[Amended by Ch. 141 of the Acts of 2019, approved 12-12-2019]
(5)
Plans shall clearly display the location, direction and length of
every street and right-of-way line, easements, lot lines and boundary
lines and to establish those lines on the ground. Plans must also
indicate the location of all permanent monuments and control points,
identified as to whether existing or proposed, and identified according
to the Massachusetts State Plane Coordinate System (NAD 1983 Datum).
At least two permanent concrete or granite monuments must be placed
on site and shown in the plans prior to construction. Bounds are required
at all intersections of road lines, angle points and changes of curvature
of road lines. All control points shall be tied to and employ NAVD
1988 and the Massachusetts State Plane Coordinate System (NAD 1983
Horizontal Datum), with horizontal control using said published control
points or the global positioning system (with horizontal coordinates
provided in metric). Vertical bench marks separate from horizontal
control points may be provided, provided that these points are also
tied to permanent concrete or granite monuments.
(6)
Road center-line stationing, referenced to the street plans and profiles.
(7)
The existing location of the base flood elevation as shown on flood
insurance maps issued by the Federal Insurance Administration, on
file with the Building Inspector and Town Clerk.
(8)
Lot numbers.
(9)
The location of all permanent monuments, properly identified as to
whether existing or proposed.
(10)
The location, names and present widths of streets bounding,
approaching or within reasonable proximity of the subdivision.
(11)
Existing and proposed watercourses, ponds and wetlands.
(12)
Suitable space to record the action of the Board and the Town
Clerk's certification, as defined in MGL c. 41, § 81V.
(13)
Metes and bounds and standard surveying, including lengths,
bearings, and curve data to determine the exact location, direction,
and length of every road line, easement, lot line and boundary line,
and to establish these lines on the ground. All surveys must tie to
the Massachusetts State Plane Coordinate System (NAD 1983 Datum),
using said published control points or the global positioning system.
Boundary lines, areas in square feet, and dimensions of all proposed
lots, with all lots designated numerically and in sequence.
C.
Street plans and profiles. For every street there shall be a separate
plan at one (1) inch equals forty (40) feet and a profile at one (1)
inch equals forty (40) feet horizontal, one (1) inch equals four (4)
feet vertical, showing the following data:
(1)
The exterior lines of the way, with sufficient data to determine
their location, direction and length.
(2)
The existing center-line profile, to be shown as a fine full line.
The existing center-line profile for intersecting streets shall be
shown for at least one hundred (100) feet on each side of the intersection
of street center lines. Elevations shall be tied to the United States
Geodetic Survey bench marks, if such exist within one thousand (1,000)
feet of the subdivision.
(3)
The finished, designed profile to be a heavy full line with proposed
center line grades and elevations shown every fifty (50) feet [twenty-five
(25) feet on vertical curves].
(4)
Existing and proposed watercourses, ponds and wetlands.
(5)
All drainage facilities shall be shown on the plan and profiles,
showing length and pipe sizes, rim and invert elevations, and slopes,
with low-impact development (LID) drainage system (preferred) or justification
of why a traditional curb and underground drainage system is more
appropriate for the site.
(6)
The location and size of existing and proposed water mains, hydrants
and main gate valves.
(7)
The location of existing and proposed cable utilities and their appurtenances.
(8)
The location of the following, unless waived by the Board: existing
and proposed street paving, sidewalks, streetlighting, curbs and gutters.
D.
Environmental analysis. An environmental analysis shall be submitted
for every subdivision creating frontage for ten (10) or more lots
or potential lots. Environmental analyses shall be prepared by an
interdisciplinary team, to include a land surveyor, civil engineer,
and architect or landscape architect, unless otherwise agreed to by
the Planning Board. The following documentation is required from each
such analysis. Drawings shall be at uniform scale on sheets not larger
than forty-two (42) inches by sixty (60) inches.
(1)
A site analysis, showing the following:
(a)
The location and boundaries of the site.
(b)
Topography at two-foot contour intervals, with graphic drainage
analysis; distinction between upland and wetland; an indication of
annual high-water mark; the location of existing structures, including
fences and walls. Datum to be NAVD 1988 or later.
(c)
A vegetative cover analysis, including identification of general
cover type (wooded, cropland, freshwater wetland, etc.), the location
of all major tree groupings, plus other outstanding or specimen trees
or other botanical features, and important wildlife habitats.
(d)
Soil types, based on the United States Department of Agriculture
soils study, approximate groundwater level, location and results of
soil percolation or other subsurface tests.
(e)
A visual analysis, including identification of landscape type
based on the categories of Appendix A,[3] an analysis of scenic vistas, and locations of visual
prominence. The analysis shall show both current representative views
and how those views will appear once the project is completed.
[3]
Editor's Note: Appendix A is included at the end of this chapter.
(f)
Location of community water system aquifers, wetlands, perennial
and intermittent streams, certified vernal pools, potential vernal
pools (as identified on maps prepared by MassGIS), certified and potential
vernal pool upland habitat areas, NHESP Estimated and Core Habitats,
and waterways and water bodies within three hundred (300) feet of
the subdivision. The plans shall note whether the streams shown are
perennial or intermittent and how that determination was made, and
shall include documentation that the Conservation Commission has approved
the determination.
(g)
In all of the areas likely to be developed on the site, all
relevant existing conditions, including a detailed ecological assessment
of wetland resources and wildlife, rare species, and amphibian habitat.
A wetlands scientist and/or wildlife biologist and other qualified
consultants as necessary shall produce an analysis of the extent and
nature of all wetlands and vernal pools on the property; an assessment
of rare and endangered plant and animal habitat following the format
required for applications for the Massachusetts Endangered Species
Act;[4] an assessment of all wildlife habitat and movement patterns
and wildlife corridors based on sighting, scat, trails, and other
signs; and an analysis of likely movement of amphibians.
[4]
Editor's Note: See MGL c.131A.
(h)
Major site features, such as existing stone walls, fences, buildings,
large trees, rock ridges and ledge, swamps, floodplains as identified
on the Federal Insurance Rate Maps and other floodplains identified
by a professional engineer, historic features, and wooded areas on
and within one hundred (100) feet of the proposed subdivision. The
plan shall identify which of the above shall remain undisturbed and
the location and species of trees to be preserved within road rights-of-way.
(2)
Site proposals, showing the following:
(a)
Boundaries of the site, proposed lot lines, proposed streets
and ways and proposed parking areas for eight (8) or more cars, reproduced
as a clear acetate or Mylar overlay.
(b)
Proposed land and building uses.
(c)
Proposed grading plan and an indication of areas of retained
and proposed vegetation.
(d)
Proposed water, sewerage and drainage systems, in a general
manner.
(e)
The location of any proposed structures.
(3)
A narrative statement shall also be submitted, documenting the following
with references to the above maps, as germane:
(a)
The impact upon surface water quality and level.
(b)
The impact upon groundwater quality and level.
(c)
The material effects upon important wildlife habitats, outstanding
botanical features and scenic or historic environs.
(d)
The capability of soils, vegetative cover and proposed erosion
control efforts to support proposed development without danger of
erosion, silting or other instability.
(e)
The relationship to the requirements of MGL c. 131, §§ 40
and 40A (the Wetlands Protection Act).
E.
Other submissions. The following shall also accompany submission
of a definitive plan:
(1)
A typical street cross section for each class of street within the subdivision and for each subdivision district, if necessary (see § 194-9A and B), drawn at one (1) inch equals four (4) feet, showing the location of all elements within the street right-of-way and typical cross sections of any altered drainage courses or off-street paths.
(2)
A locus plan of the subdivision, showing its street configuration
in relationship to surrounding streets, at one (1) inch equals six
hundred (600) feet.
(3)
A narrative statement of the relationship to the design guidelines
of Appendix A[5] and the proposed means, if any, of ensuring compliance
with those guidelines by purchasers of lots.
[5]
Editor's Note: Appendix A is included at the end of this chapter.
(4)
If requested by the Board, drainage calculations, traverse notes,
evidence of ownership, language of any easements, covenants or restrictions
applying or proposed to apply to the area being subdivided, rights
and easements obtained for utilities or drainage outside of the subdivision
and a description of erosion control methods to be employed. Drainage
calculations shall use the rational method for closed drainage systems
and TR-55 or TR-20 (NRCS Technical Releases), showing that the proposed
conventional or low-impact development drainage system has been designed
according to these rules and documenting the impact of project drainage
on existing drainage systems downstream from the proposed point of
discharge.
(5)
If necessary in order to determine compliance with the requirements
or intent of this regulation, the Board may require further engineering
or environmental analyses to be prepared at the expense of the applicant,
employing professionals approved by the Board.
(6)
Lighting system, if used. Outdoor lighting is not required. If used,
any lighting system must comply with the recommendations of the International
Dark-Sky Association, whose goal is "to preserve and protect the nighttime
environment and our heritage of dark skies through quality outdoor
lighting." All road lights must be 50-watt high-pressure sodium, LED,
or more-energy-efficient models. All road lights must contain full
cutoffs (hoods covering the sides of the lamps) to avoid any direct
lighting off of roads and sidewalks. Maximum footcandles of any light
shall be one (1) footcandle, except within five feet of a light, where
the maximum shall be two (2) footcandles.
(7)
An operations and maintenance plan (O&M plan) for the entire
subdivision, including street cleaning, drainage and LID system maintenance,
community water systems, community sewage systems, and annual inspections.
The O&M Plan shall include whatever institutional controls and
homeowners' association covenants are necessary to ensure proper operation
and maintenance procedures are followed.
(8)
A sketch plan showing a realistic road layout to and for any adjacent
unsubdivided land owned or controlled by the owner/applicant/developer
of the subdivision and also showing topography, unless such a plan
has already been submitted to the Planning Board. (Project segmentation
is acceptable, but the sketch plan must show some comprehensive planning
for the entire parcel.)
F.
Plan processing.
(1)
Board of Health review. At the time of filing of the definitive plan,
the applicant shall also file a copy with the Board of Health. The
Board of Health shall report to the Planning Board, in writing, its
approval or disapproval of said plan. If the Board of Health disapproves
said plan, it shall make specific findings as to which, if any, of
the lots shown in such plan cannot be used for building sites without
injury to the public health and shall include such specific findings
and the reasons therefor in such report and, where possible, shall
make recommendations for the adjustment thereof. Any approval of the
plan by the Planning Board shall then only be given on the condition
that the lots or land as to which such specific findings were made
shall not be built upon without prior consent of the Board of Health.
The Board shall endorse on the plan such conditions specifying the
lots or land to which said conditions apply.
(2)
Public hearing. Before approval, modification and approval, or disapproval
of the definitive plan is given, a public hearing shall be held by
the Planning Board, notice of the time and place of which and of the
subject matter, sufficient for identification, shall be given by the
Planning Board by advertisement in a newspaper of general circulation
in the Town of Sunderland, once in each of two (2) successive weeks,
the first publication being not less than fourteen (14) days before
the day of such hearing, and by mailing a copy of such advertisement
to the applicant and to all owners of land abutting the land included
in such plan as appearing on the most recent local tax list.
(3)
Performance guarantee.
(a)
Before the Planning Board endorses its approval of a definitive
plan, the developer shall agree to complete, without cost to the Town,
all improvements, including, but not limited to, construction of improvements
and installation of municipal services, required by this regulation
and shall provide security that the applicant will do so, by one of
the following methods or some combination thereof as required by MGL
c. 41, § 81U. The methods are i) by a proper surety bond
sufficient in the opinion of the Planning Board to secure performance
of the construction of ways and the installation of municipal services
required for the lots, and the Planning Board may require that the
applicant specify the time frame within which such construction shall
be completed; ii) by a deposit of money (cash escrow) or negotiable
securities (U.S. Treasury notes or irrevocable letter of credit) sufficient
in the opinion of the Planning Board to secure performance of the
construction of ways and the installation of municipal services required
for the lots, and the Planning Board may require that the applicant
specify the time frame within which such construction shall be completed;
iii) by a covenant executed and duly recorded by the owner of record
and running with the land whereby such ways and services shall be
provided to serve any lot before such lot may be built upon or conveyed
other than by mortgage deed; or iv) by an agreement between the applicant
and the lender executed after the recording of the first mortgage
covering the premises shown on the plan or a portion thereof given
as security for advances to be made to the applicant by the lender,
which agreement shall provide for the retention by the lender of funds
(three-party lender agreement) sufficient in the opinion of the Planning
Board to secure the construction of ways and installation of municipal
services. The Board may grant partial release from such security for
partial completion of improvements, provided that the completed portion
provides a reasonable system for circulation and utilities pending
completion of the rest. Full security shall not be released until
the integrity of road pavement and drainage has been verified following
a full winter of use, until trees and other vegetation have been established
and are documented to be healthy one year after planting, until either
the way has been duly laid out and accepted as a public way or other
provisions for its continued maintenance have been accepted by the
Board and until the record ("as built") plans have been received.
For performance guarantees, the principal shall be in an amount determined
by the Planning Board in consultation with its advisers to be sufficient
to cover the cost of all or any part of the improvements specified
in these regulations at state "prevailing wage rates" not covered
by a covenant (below), and to cover the costs of inspections, record
plans, road layout plans, and legal work, and a twenty-five-percent
contingency/inflation factor.
(b)
Warranty principal (the amount of funds that must be guaranteed
to provide a warranty on the project after project construction is
complete) shall be not less than twenty percent (20%) of the estimated
cost of those components of the entire project which shall be dedicated
for public use and shall cover workmanship and materials.
(c)
If financial performance guarantees are used, at least two lots
that are buildable in the subdivision must be covered by a covenant
(below) to insure that all work, including legal work, is completed.
(d)
Letters of credit, three-party agreement for lender retention
of funds, surety bonds and other financial performance guarantees
must be drafted so that the only requirement that must be met for
the Planning Board to draw on the letter is to notify the financial
institution (grantor) that "We have incurred liability by reason of
the failure of the applicant/developer/owner, within ninety days of
the expiration of this letter, to complete the construction of their
project (insert name of subdivision and plans) in accordance with
the definitive subdivision plans and submittal, the subdivision approval,
the Zoning, and the Subdivision Rules and Regulations. The amount
drawn, which may be more than required to complete the project, will
be held in a segregated bank account until the work can be bid competitively
and the bid awarded and paid for or until the contract for the work
is otherwise let and the work paid. Any excess over the cost of completing
the work will be returned to the grantor."
(e)
Such bond, deposit of money or negotiable securities shall be
approved as to form, the surety or financial institution, and manner
of execution by the Planning Board. The Planning Board has the right
to deny any such financial performance guarantee based on the rating
of the third-party guarantee, the compliance of the third-party guarantee
or the financial instrument with all of the terms included in these
regulations.
(f)
For any surety bond:
[1]
the surety must agree that any litigation stemming out of the
bond will take place in Massachusetts;
[2]
The bond must include the name and address of the person to
be served for any legal action;
[3]
The bond must specifically include the terms above; and
[4]
No expiration date may be allowed in the bond (the bond must
be valid until the work is complete) and the warranty performance
period has been completed.
(g)
The covenant or financial performance guarantee shall be contingent
upon both the completion of such improvements and the required one-year
warranty after said completion, as required in these rules and regulations,
within a maximum period of three (3) years of the date of such bond,
deposit of money, or covenant. After the completion date of all improvements
and the one-year warranty period, there shall be at least a three-month
warranty settlement period before the expiration date of any bond,
deposit of money, or letter of credit. Said three-month period shall
give the Planning Board the opportunity to collect the financial performance
guarantee so that it will be able to complete the necessary improvements
in case a) the applicant/developer is unable to do so and/or b) the
Planning Board denies any requests for an extension of time. "Warranty"
shall include all workmanship and materials.
[1]
Upon written request from the applicant/developer, the Planning
Board may, at its discretion, grant an extension of time, and such
agreement shall be executed and affixed to the financial performance
guarantee or covenant.
[2]
In the case of a surety company bond, such an agreement for
an extension shall not be effective until the surety delivers to the
Planning Board a written statement that the surety agrees to the proposed
alteration of the completion schedule and that such alteration shall
not relieve or affect the liability of the surety company.
[3]
Failure to complete all improvements as required by these rules
and regulations within the time allotted shall cause the Planning
Board:
(h)
The applicant may request a release of lots from covenant in
exchange for a financial guarantee, provided that the lots run consecutively
and are released on both sides of the road simultaneously, beginning
with the lots nearest any intersection of the subdivision road and
an existing municipal road and the amount of the financial guarantee
and the financial guarantee process shall be determined by the Planning
Board, as described above.
(i)
The applicant/developer must provide an irrevocable right of
entry to allow the Town's agents, board members, and representatives
to enter the property to make any necessary improvements required
in the subdivision approval and regulations and address any safety
issues on the site if the Town finds that it must call the financial
performance guarantees. Accepting, calling, or using financial performance
guarantees does not provide the Town with any responsibility to complete
a project beyond that for which the Town is willing to undertake and
for which there are sufficient performance guarantee funds. The property
owner shall subordinate all property mortgages to the irrevocable
right of entry and record it in the chain of title at the Registry
of Deeds or Land Court, as applicable.
(4)
Approval, modification or disapproval. The action of the Board with
respect to such definitive plan shall be by vote. The Board shall
take final action on the definitive plan within one hundred and thirty-five
(135) days if no preliminary plan was filed or within ninety (90)
days if a preliminary plan was filed. Copies of said vote shall be
certified and filed with the Town Clerk and a copy sent by delivery
or registered mail to the applicant. If the Board modifies or disapproves
such plan, it shall state in its vote the reasons for its action.
(a)
Criteria for action by the Board shall be the following:
[1]
Completeness and technical adequacy of all submissions.
[2]
A determination that development at this location does not entail
unwarranted hazard to the safety, health and convenience of future
residents of the development or to others because of possible natural
disasters, traffic hazard or environmental degradation.
[4]
A determination, based upon the environmental analysis when
submitted, that the subdivision as designed will not cause substantial
and irreversible damage to the environment, which damage could be
avoided or ameliorated through an alternative development plan.
[5]
A determination that the subdivision plan is in conformance
with the Board of Health recommendations, if any.
[6]
Conformity with all applicable zoning requirements.
(b)
Approval, if granted, shall be endorsed on the original drawing
of the definitive plan by the signatures of a majority of the Board,
after the following has been submitted to and approved by the Planning
Board:
[1]
One (1) set of the final reproducible plans (Mylars), including
any corrections required as part of the Planning Board's approval;
[2]
All easements, master deeds, restrictive covenants, homeowners'
association documents, and any required document that was not included
with the subdivision submission;
[3]
Electronic copies of all plans, in accordance with the requirements
for Level I submission standards in the current "MassGIS Standard
for Digital Plan Submission to Municipalities." Electronic copies
must be submitted on a CD-ROM and accompanied by the completed checklist
required in the MassGIS standard.
[4]
The statutory twenty-day appeal period has elapsed following
the filing of the certificate of the action of the Planning Board
with the Town Clerk and said Clerk has notified the Planning Board
that no appeal has been filed, or if appeal has been taken, not until
the entry of a final decree of the Court sustaining the approval of
such plan.
[6]
Necessary inspection and other fees have been paid.
[7]
The applicant/developer has presented to the Planning Board,
for its approval, two sets of plans showing the complete natural gas
(if natural gas is available), electrical, telephone, cable TV or
Internet cabling, and, if applicable, road lighting (including pipes,
pumps, valves, gates, hand-holes, transformer pad mounts and similar
equipment). Said plans will be accompanied by endorsements from the
respective utilities that the plans have received their approval.
[8]
The applicant/developer has delivered an irrevocable offer of
dedication (specifying whether such dedication is in fee simple or
by easement) of all facilities to be dedicated to the public, in a
form acceptable to the Town, and recorded said offer in the chain
of title at the Registry of Deeds or Land Court, as appropriate. Said
offer must be in a form acceptable to the Planning Board and be accompanied
by a lawyer's title opinion that the offer is free of any liens and
encumbrances and that all mortgages are subordinated to the offer.
The offer shall be irrevocable, except the offer can be withdrawn
if the applicant/developer does not proceed with the project and requests
that the subdivision approval be rescinded or otherwise amended such
that the dedication is no longer necessary or if the Town votes against
accepting the offered facilities.
[9]
The applicant/developer has submitted a detailed cost estimate
for all construction within the proposed roadway layout and any utility
easements (but not within house lots), certified by the project's
registered professional engineer. Said estimate shall be based on
the current edition of the Massachusetts Highway Department's "Standard
Specifications for Highways and Bridges" and shall include:
[a]
Quantity, unit price and total amount for each
construction item;
[b]
Total amount for cost of completion of project;
[c]
Costs adjusted to account for municipal prevailing
wages rates and all municipal procurement requirements under state
law and Town bylaws and practices for construction projects (i.e.,
the costs the Town would incur if it was to undertake the project,
not the cost a private sector property owner would incur);
[d]
Costs adjusted to add a twenty-five-percent (25%)
inflation/safety factor;
[e]
Engineering inspection, materials testing, legal
and other soft costs.
(c)
After endorsement by the Planning Board, the applicant/developer
shall deliver to the Planning Board six sets of copies of the endorsed
definitive plan. After approval and endorsement, the location and
width of roads shown thereon, or any road subject to the Subdivision
Control Law, shall not be changed unless the plan is amended and approved
by the Planning Board, paying the appropriate fee and providing the
same number of copies as the original application.
G.
Rescission. Failure of the developer to record the definitive plan
at the Registry of Deeds within six (6) months of its endorsement
or to comply with the construction schedule of the performance agreement
(Form E, Covenant, or Form F, Performance Bond),[6] shall constitute sufficient reason for the rescission
of such approval, in accordance with the requirements of MGL c. 41,
§ 81W.
[6]
Editor's Note: Forms E and F are on file in the Town offices.
H.
Approval of the definitive plan or release of security does not constitute
the laying out or acceptance by the Town of streets within a subdivision.
Only Town Meeting can accept streets, and every project shall be designed
with institutional controls to ensure proper maintenance for any street
not accepted as a Town street.
