A.
The SCL requires that every plan showing a division of land be endorsed
by the Planning Board before it can be recorded. The SCL defines all
divisions of land which produce two or more "areas of land in one
ownership, with definite boundaries, used, or available for use, as
the site for one or more buildings" to be subdivisions, subject to
exceptions. Section 81P of the SCL provides conditions and, in connection
with § 81T, procedures by which a plan can be promptly endorsed
by the Planning Board as not requiring an approval process under the
SCL.
B.
Definitions.
(1)
APPROVED WAY
ROADWAY
STREET
For the purposes of this article, terms shall have the following
interpretation unless another is required by the context or is specifically
prescribed:
Either a public way or an approved subdivision way.
Includes only that portion of the street that is intended,
used, and maintained for vehicular travel. In addition to the roadway,
the street may also include (unpaved) shoulders, footpaths, embankments,
and other improvements or open space.
Includes the entire width of the right-of-way or taking but
does not ordinarily include ancillary easements such as slope or drainage
easements. The term "street design" does include such easements.
(2)
The date "1953" which appears below is the date by which the Subdivision
Control Law became effective in Harvard.
C.
Presumption that approval is required.
(1)
Under the SCL, all divisions of land into lots are subdivisions,
and all plans require approval, unless they fall under the exceptions
set forth in that law. The Planning Board presumes that all plans
show subdivisions and require approval unless it is clear that:
(a)
The parcels shown are not usable or available for use, by themselves,
as sites for one or more buildings and are therefore not lots (SCL
§ 81L); or
(b)
The divisions provide separate lots for each of several buildings
that were standing before 1953 (SCL § 81P); or
(c)
The divisions of land into lots include area(s) available for
use as the site(s) for one or more buildings and access frontage which
is substantially free of obstruction for the minimum required length.
D.
Submission of plans to Board.
(1)
Plans believed not to require approval (approval not required plans,
hereafter abbreviated "ANR plans") must be submitted to the Board
at a regularly scheduled meeting or at a special meeting. Such plans
may not be submitted at public hearings on other matters, meetings
with other boards, Town Meetings, or at meetings which are posted
to deal with a limited agenda, unless the posted agenda includes receiving
ANR plans. Regular meetings of the Board are held on the first Monday
of each month, except when such Monday is a legal holiday, in which
case the regular monthly meeting is held on the first subsequent non-holiday
Monday.
(2)
Plans mailed to the Board will be regarded as submitted on the date
of the next regular meeting (or special meeting having the submission
of such plans on the agenda) following the date of their receipt by
the Clerk of the Board.
E.
Land partly in Harvard. All plans of land wholly or partly in Harvard
shall be endorsed by the Harvard Planning Board (whether or not other
endorsements are appropriate) before they are recorded.
F.
Boundaries incompletely shown. All tracts of land within Harvard
are presumed to have definite boundaries.
G.
Adjoining parcels. Adjoining parcels of land will be assumed to be
held in common by any principal who has the power to force, consummate,
or prevent their individual or collective sale.
A.
Endorsement that approval is not required. The Board will act within
21 days after the plan has been duly submitted, and, if the Board
finds that the plan does not require approval under the Subdivision
Control Law, it will so endorse the plan. If the Board determines
that, in its opinion, the plan shows a subdivision and requires approval
under the Subdivision Control Law, it will withhold its endorsement
and give notice of its determination to the Town Clerk and the person
submitting the plan within the above twenty-one-day period.
[Amended 7-12-1999]
B.
Other endorsements.
(1)
If a note or explanation or condition required by this chapter is
omitted from the plan or is ambiguous, the Planning Board may, on
its own motion, correct such omission or ambiguity, but the failure
to make such a correction shall not waive the corresponding requirement
of this chapter.
(2)
On its own motion the Board has the statutory right to add to the
plan an explanation of its endorsement (SCL § 81P). (Bloom
vs. Planning Board of Brookline, 346 Mass 278, 191 NE 2d 684).
(3)
The Board shall also inscribe on the plan such conditions and restrictions
as may result from action under § 81R of the SCL and/or
exception (c) to the definition of "subdivision" in § 81L
of the SCL.
The following is intended to expedite action on plans by providing
for complete information at the time of their submission.
A.
Plans submitted under §§ 81P and 81T of the Subdivision Control Law shall conform to the provisions of Article I and shall also:
(1)
Show all existing buildings, boundaries of W or WFH Districts, and
any other streams, or water bodies, or swamps within the lots.
(2)
Show or be accompanied by information on abutting land sufficient
in the opinion of the Planning Board to determine whether a subdivision
is involved.
(3)
Show all existing roadways, driveways, cart tracks, etc. (see § 130-4), within the locus, whether or not recently used, with notes describing availability for use by vehicles.
(4)
Show obstructing ledge and rock outcroppings, guardrails, retaining walls, and any other obstruction of access between the interior of lots and the roadway(s) of the streets on which they have frontage. (See § 130-11C, Obstructed frontage.)
(5)
Designate as such any parcels which are not building lots under the
Protective Bylaw of the Town of Harvard.
(6)
Include, among other things, a legend "Approval Under the Subdivision
Control Law Not Required" with provision for Planning Board endorsement
(five members) and date of endorsement.
(7)
If an inland wetlands determination has been made for the locus,
indicate the boundaries and date from that determination; otherwise
indicate the boundaries of inland wetlands to the same degree of accuracy
as could be obtained by scaling from the Massachusetts Inland Wetlands
Base Maps.
(8)
Be accompanied by information, such as a general plan of the locus,
which may be viewed by the Board in assessing the status of the remainder
of land being divided, if its frontage is not shown in the plan.
(9)
If the division of land is subject to special permit, be accompanied
by a photostatic copy of such special permit as it has been recorded,
giving book and page number as well as date of recording.
B.
Any data shown on a plan which is not the result of a survey, or
whose location is only approximate, shall be so identified. Four copies
of each plan shall be furnished to the Board. One of these shall have
lot width circles drawn on each lot.
C.
Clarity of information supplied. Information supplied on plans and
in notes on plans shall be unambiguous.
(1)
Information supplied about land adjacent to, or crossed by, Town
lines shall be correct with respect to the locus as a whole, on both
sides of the Town line.
(2)
A parcel of land shall be labeled as a lot only if it is presented
as a lot within the meaning of the SCL.
(3)
The statement that a lot or parcel is not a building lot shall be
unambiguous and unqualified: "Lot (Parcel) ____ is not a building
lot."
A.
The frontage of lots shown on an ANR plan must be one of the four
types specified in the three exceptions to the definition of "subdivision"
in § 81L of the SCL.
(1)
Briefly summarized, such frontage must be either:
(a)
On a way which is a public way, or on a way which is maintained
and used as a public way and is so certified by the Town Clerk [see
Cassagrande vs. Town Clerk of Harvard et al, 387 NE 2d 571 (1979)];
or
(b)
On an approved subdivision way; or
(c)
On a way in existence in 1953 which the Planning Board judges
to be adequate for the expected traffic and intensity of the proposed
use.
(2)
Even though duly laid out, a statutory private way is not a public
way within the meaning of the SCL.
(3)
The Planning Board will not endorse an ANR plan showing lots for
new construction on a privately owned way which is not an approved
subdivision way. Such plans should instead be prepared for approval
so that the Planning Board can determine whether such a roadway meets
current standards applicable to approved subdivision streets under
this chapter. (See SCL § 81O.)
B.
Frontage. Under the SCL the requirement of frontage necessarily includes
the requirement of useful access (SCL §§ 81L and 81M).
C.
Obstructed frontage. Court decisions [Gifford vs. Planning Board
of Nantucket, 383 Mass NE 2d 1123; Hrenchuk vs. Planning Board of
Walpole, 397 NE 2nd 1292 (1979)] have held that the Subdivision Control
Law contemplates adequate, safe, convenient, and readily usable access
to lots, not mere paper frontage. The access standard to be applied
to ANR plans, in this respect, is that of the SCL.
(1)
In order that landowners and developers are properly warned of the
standards of accessibility to be applied here, there is considered
to be no frontage for access within the meaning of the SCL where the
access to the interior of the lot from the traveled way:
(a)
Is across a cut blasted into a hillside.
(b)
Is across a retaining wall more than five feet high holding
back the uphill side of a cut.
(c)
Is from a street or roadway running alongside exposed ledge
or rock with an upward slope greater than 1:2 (vertical:horizontal)
to an elevation more than 10 feet above the roadway.
(d)
Is across an embankment where the roadway or its shoulder is
supported by a retaining wall more than five feet high or where a
retaining wall or guardrail maintained by the county or Commonwealth
caps an embankment having a side slope greater than 1:2 through a
vertical distance of 10 feet or more below the roadway.
(e)
Is from a limited access highway or its interchanges.
(f)
Is from a street to the "buildable land" of the lot (as defined
in the Protective Bylaw) which is more than 30 feet above or below
the roadway at an average slope of more than 1:4 from the shoulder
of the roadway, or the edge of the street, to the nearest part of
said "buildable land."
(g)
Requires the granting of a special permit, until the special
permit has been issued and recorded.
(h)
Is to an island, or otherwise where the physical access to the
buildable area of the lot is blocked, obstructed, or prevented.
(2)
The Planning Board may apply more stringent standards regarding access to the design and approval of new streets (see § 130-23, Street design), since the opportunity then exists to avoid obstructions at the outset. The Board will also apply more stringent standards regarding access to lots with constricted access width (see § 130-13, Guidelines for special permits for hammerhead and backland lots, below).
(3)
Where the required length of frontage is partially, but not wholly, obstructed, the applicant may prepare his plan as a definitive (or, at his option, as a preliminary) plan of a subdivision for consideration and approval by the Planning Board in the exercise of its special powers in the public interest pursuant to SCL § 81R. Developers who have land having substantial lengths of obstructed frontage are urged to hold preliminary discussions with the Board (see § 130-16 of this chapter) to determine which type of plan will be appropriate.
In 1981, the Town of Harvard amended its Protective Bylaw to
make the division of land into certain alternative lot types subject
to special permit under the Zoning Act (MGL c. 40A). New divisions
of land using Type 2 (hammerhead) and Type 4 (backland) lots now require
a special permit from the Planning Board. In addition, the Protective
Bylaw created a new optional alternative lot type, a Type 5 lot, for
use in mini-subdivisions, also subject to special permit.
A.
To avoid any possible confusion in the processing of plans showing
lots of these lot types, or any other type requiring a special permit,
the Board adopts the following procedures:
(1)
The boundaries of lots now subject to special permit, which were
created before March 27, 1981, or which for some other reason are
not subject to special permit action, may be altered on an ANR plan,
without a special permit proceeding, provided the preexisting status
of the lot is made clear by a note on the plan.
(2)
The boundaries of a lot which has been authorized by the terms of
a special permit may be altered by an ANR plan, so long as no one
entitled to notice of the original hearing is prejudiced by the change
and so long as the change is within the scope of the original petition
and does not change the result of the original decision. (Potter v.
Board of Appeals of Mansfield, 1 Mass App Ct 89, 1973.)
(3)
ANR plans may not show a lot of a type which requires a special permit
until the special permit becomes effective.
(4)
A plan which is delivered to the Planning Board for its use in considering
an application for a special permit to develop land is not an ANR
plan submitted for endorsement under SCL § 81P. It shall
be a sufficient finding for declining to endorse an ANR plan submitted
before the special permit becomes effective that it shows lots for
which a special permit is required.
(5)
The use of a special permit to develop land will be deemed to have
begun upon the recording in the Registry of Deeds or the Land Court
of a definitive plan (SCL § 81O) or an ANR plan (SCL § 81P),
endorsed by the Planning Board, conforming to the special permit.
B.
All ANR plans which show lots authorized by a special permit shall
bear on their face a condition, to run with the land: "Lots are to
be used only in accordance with the terms of the special permit under
which the lot is permitted."
A.
Under the Protective Bylaw, the access frontage of a lot may be less
than that of a basic lot only if all lot requirements for one of the
optional alternative lots in the Bylaw are met. Type 2 (hammerhead)
and Type 4 (backland) lots fall in this category. Their frontage is
considerably less than the minimum frontage specified in the Bylaw.
B.
Since these optional alternative lots are exceptions to the lot standard
in the Bylaw, it is incumbent upon the person submitting a plan thereof
to show that all the requirements for the optional alternative lot
are in fact met, if he wishes to bring the lot within type exception.
He is therefore urged to submit adequate and engineering data with
the plan.
C.
In reaching its determination on a hammerhead or backland lot, the
Board may consider, among other things:
(1)
Federal or state maps containing the locus, including topographic,
soil, soil limitation, and wetland maps, and enlargements therefrom.
(2)
Aerial photographs, and enlargements therefrom.
(3)
Members' knowledge of the land in question based on familiarity with
it or an inspection of the site.
(4)
Plans, maps, or information prepared or supplied on behalf of the
person submitting the plan by a registered land surveyor or registered
professional engineer, including profiles, contour maps, itemized
estimates (by persons independent of the applicant) of the cost of
constructing a conforming driveway in the access portion of the lot
and the comparison of such cost with the fair market value of the
lot, as verified by such surveyor or engineer, and any other surveying,
engineering, or cost data.
D.
Where the proposed access portion of a hammerhead or backland lot
crosses a W or WFH District, any construction or grading in the district
(other than a driveway less than 25 feet long in a W District or 50
feet long in a WFH District) is legally impossible under the Protective
Bylaw until a special permit therefor has been granted by the Board
of Selectmen. Likewise, no filling or alteration of a wetland of any
kind is legally possible without receiving and complying with an order
of conditions issued by the Conservation Commission or DEQE under
the Wetlands Protection Act (MGL c. 131, § 40). The Planning
Board may issue a special permit for a lot with such an access in
anticipation of favorable action by the Selectmen and by the Conservation
Commission, but only upon:
(1)
Findings that such approvals should take place and that such further
approvals will not require substantial changes in the cost, location,
length, or drainage measures for the driveway; and
(2)
Conditions in the permit prohibiting the exercise of the special
permit unless the approvals are granted in the manner anticipated.
E.
Where the grade of the proposed access portion of a hammerhead or
backland lot appears to be clearly greater, for an extended distance,
than the driveway grade permitted in the Protective Bylaw, for example
by being greater than 15% in any ten-foot contour interval shown on
the United States Geological Survey Topographic Map which includes
the locus (preferably an enlargement thereof at a scale of one inch
equals 1,000 feet), the access is not compatible with a satisfactory
driveway in the absence of sufficient evidence to establish the contrary.
F.
The fact that the proposed access portion of such a lot crosses an
area designated as "3, Severe" on the map of Harvard titled "Soils
Limitations for Roads," developed by the United States Department
of Agriculture, Soil Conservation Service, is an indication that the
access is not compatible with a satisfactory driveway.
G.
The guidelines and requirements in this section and in the preceding § 130-12 apply whether the eventual plan on which lots are shown is one which requires approval under the Subdivision Control Law or one for which approval is not required. The provisions of §§ 130-12 and 130-13 do not waive any requirement of the Protective Bylaw, or any other law, or of this chapter, nor do they waive the requirements of any rule that may be adopted by the Planning Board by other processes or in accordance with the provisions of other laws.
A.
A lot shall obtain its actual access only to a street on which it
has at least the minimum frontage required by the Protective (Zoning)
Bylaw and only by means of said frontage on such street, unless the
Planning Board explicitly waives this requirement in writing by one
or more of the following procedures:
(1)
By a finding after a public hearing that the way providing the proposed
access is adequate for the purpose under exception (c) to the definition
of "subdivision" in SCL § 81L.
(2)
As a part of the decision on a special permit authorizing a reduced
frontage lot, in accordance with the terms of the Zoning Act and the
Protective (Zoning) Bylaw.
(3)
In other cases, after a public hearing, in accordance with the provisions
of SCL § 81R, when it is in the judgment of the Planning
Board in the public interest to do so.
B.
The Planning Board shall place reasonable limits on the time for
which such alternative access may be used or within which such use
shall be initiated.
C.
Enforcement by restriction of building permits. In accordance with
the provisions of SCL § 81Y, which requires the Building
Inspector to determine that there is no impediment under the SCL before
he issues a building permit, the Building Inspector shall not issue
a building permit to a lot which has substandard frontage, or which
makes use of or contemplates the use of such frontage (even if such
use will be temporary or supplemental or has already begun), unless
he has from the Planning Board a written statement that the Board
has approved such use, describing the use and the time for which it
is permitted.
