[HISTORY: Adopted by the Board of Zoning Appeals of the Town of Harvard 9-16-2009. Amendments noted where applicable.]
The Comprehensive Permit Rules and Regulations (the Rules) establish procedures for submittal and review of an application to the Zoning Board of Appeals for a comprehensive permit (an application) granted under MGL c. 40B, §§ 20 through 23 (the Act) and the regulations promulgated thereunder. They are required by MGL c. 40B, § 21 and by 760 CMR 56.05(1). The purpose of the Act and the Rules is to facilitate the development of affordable housing in Massachusetts.
The Rules alone are not sufficient to describe comprehensive permit procedures before the Zoning Board of Appeals. They must be read in conjunction with and implemented in a manner consistent with the Act. In addition, the Board's general rules for the conduct of hearings under MGL c. 40A apply to all applications. In the event of inconsistency or conflict between those general rules and these Rules, these Rules shall govern.
The Rules supersede and replace all prior rules and regulations of the Board relative to comprehensive permits.
As used in this chapter, the following terms shall have the meanings indicated:
- The Zoning Board of Appeals of the Town of Harvard, established by MGL c. 40A, § 12, and acting in its capacity to issue a comprehensive permit under the powers granted by the Act.
- LIMITED DIVIDEND ORGANIZATION
- Any entity which proposes to sponsor housing under the Act, is not a public agency or a nonprofit, is eligible to receive a subsidy from a state or federal agency after a comprehensive permit has been issued and which, unless otherwise governed by a federal law or regulation, agrees to comply with the requirements of said subsidizing agency relative to a reasonable return for building and operating its proposed housing project.
- LOCAL BOARD
- Any local board or official, including but not limited to the Board of Health; Planning Board; Conservation Commission; Historical Commission; Historical District Commission, Board of Water Commissioners; Fire Department, Police Department or other Town department; Building Inspector; and Board of Selectmen. All boards and commissions performing functions usually performed by locally created boards and commissions shall be deemed local boards.
Submission materials. The Code of the Town of Harvard, Chapter 135, Zoning Board of Appeals, lists plans and other reports required to be submitted to the Board in support of an application. The materials listed below shall be submitted to the Board simultaneously with the application in document (hard copy) form and in electronic format. The Board recognizes that for many proposed projects, plans may not be at a definitive stage of development when the application is filed. However, the Board must receive the following information from which it can determine the impact(s) of the proposed development on the Town and the surrounding area. Providing information and materials promptly with the application will result in a quicker process and enable the Board to become better informed.
The following materials shall be submitted simultaneously with an application to the Board:
Preliminary site development plans:
A set of preliminary site development plans showing the locations and outlines of proposed buildings; the proposed locations, general dimensions and materials for streets, drives, lined dimensional parking, parking areas, guest parking, vehicle turnaround areas (if applicable), walks and paved areas; landscaping and open areas within the site; and other improvements. An applicant proposing to construct or rehabilitate four or fewer units may submit a sketch of the matters in §§ 136-3A(1)(a)[b][i] through [xi] and 136-3A(1)(a) below, which need not bear an architect's signature and seal. All structures of five or more units must have site development plans signed and sealed by a registered architect or engineer.
The following information shall be shown on the site development plans:
Zoning district boundaries;
Floodplain and W (Watershed Protection and Floodplain) and WFH (Watershed Protection and Flood Hazard) District boundaries;
Existing wetland areas, including vernal pools, whether certified or not, within 100 feet of the site, orders of resource area determinations and orders of conditions determinations;
Existing and proposed topography at two-foot intervals;
Existing structures on adjacent properties within 50 feet of the property line;
Existing significant environmental features, such as ledge outcrops, scenic views and large trees (i.e., greater than 24 inches dbh);
Proposed stormwater management system with sufficient information to determine compliance with DEP's best management practices relative to stormwater;
Proposed property lines and rights-of-way of any proposed streets;
Proposed location of utilities; and
Proposed lighting and photometric analysis;
All witnessed percolation and deep hole tests for sewage disposal systems and stormwater systems shown on a plan.
Report on existing site conditions: a written report on and summary of existing site conditions and those in the surrounding areas.
Scaled architectural drawings: a set of scaled architectural drawings for each building, which shall be signed and sealed by a registered architect. Said drawings shall include typical floor plans, typical elevations and sections, and shall identify construction type materials and exterior finishes drawn at a scale of one inch equals one foot.
Tabulation of proposed buildings: a tabulation of proposed buildings by type, size (e.g. number of bedrooms, floor area) and ground coverage, and a summary showing the percentage of the site to be occupied by buildings, by parking and other paved vehicular areas, by open areas and by other improvements.
Preliminary subdivision plan: a preliminary subdivision plan, but only where a subdivision of land is involved under MGL c. 41, §§ 81K through 81GG;
Utilities plan: a utilities plan showing the proposed location and types of sewage, drainage and water facilities, including hydrants, cisterns and fire ponds, together with electricity and/or gas. Adequate supporting information shall be provided to demonstrate that the drainage system meets either the Stormwater Management Standards promulgated by the Massachusetts Department of Environmental Protection or other best management practices, whichever are more stringent;
Project eligibility letter: a written determination of project eligibility by a subsidizing agency containing all of the findings required by 760 CMR 56.04(4);
Materials submitted to subsidizing agency: a complete copy of the application and any and all materials submitted by the applicant to the subsidizing agency, except that a pro forma detailing the projected costs and revenues of the proposed project shall only be required in accordance with § 136-3A(3), below. Said application and materials shall allow the Board to periodically confirm that the applicant continues to fulfill the project eligibility requirements of 760 CMR 56.04(1);
List of requested exceptions to local requirements and regulations: a detailed list of requested exceptions to local requirements, bylaws, rules and regulations, which shall include an analysis of each requirement or regulation for which an exception is sought, the location on the plans for which the exception is sought (if applicable) and an explanation of why the exception is required. In the event an applicant contends that denial of any such exception renders the proposed project uneconomic, the applicant shall submit a pro forma in accordance with § 136-3A(3), below, together with an explanation of the financial impact on the proposed project of adhering to each requirement or regulation from which an exception is sought.
Roster of each member of the development and marketing team: a roster 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 disclose its relationship to all such persons and/or entities.
List of all prior development projects: a list of prior development projects completed by the applicant, any related entity or any principal of either of the foregoing, along with a brief description of each such project.
Traffic impact report: for projects consisting of more than 25 units, a traffic impact report prepared by a registered professional engineer qualified in the field of traffic engineering, analyzing the proposed project's impact on the congestion, safety and overall convenience of the roadway system providing access to the proposed project. Impacts on both vehicular and pedestrian travel shall be addressed. Road intersections to be studied shall be mutually agreed upon by the Board, its consultants and the applicant.
Control of premises: documents indicating that the premises are owned or under agreement for ownership by the applicant.
All revisions to plans submitted pursuant to this subsection shall be graphically highlighted and detailed.
Requested materials. The following materials are requested to be submitted to the Board:
Environmental impact analysis.
An environmental impact analysis prepared by a qualified environmental scientist, professional wetland scientist (PWS), certified soil scientist, botanist, hydrogeologist and/or other scientific professional with demonstrated qualifications (e.g., education, training, or demonstrated experience) provided to the Board. The environmental impact analysis shall assess the impact of the development on the environment within the development and adjacent thereto. Such analysis shall include, but shall not be limited to, an evaluation of predevelopment conditions and post-development impacts on:
Surface and ground water quality;
Groundwater recharge of upper aquifers and perched groundwater layers;
Wildlife habitats and corridors;
Wetlands and bodies of water, including streams and rivers, both localized and general;
Existing and potential domestic water supplies;
Species of special concern in Massachusetts;
Historic structures or historic areas; and
Road salt and fertilizer loading.
Such analysis shall include proposed mitigation of any identified post-development impacts. Mitigation measures requiring continuing or periodic maintenance shall be identified and a proposed maintenance plan shall be included with the environmental impact analysis.
Traffic impact report: for projects consisting of less than 25 units a traffic impact report prepared by a registered professional engineer qualified in the field of traffic engineering, analyzing the proposed project's impact on the congestion, safety and overall convenience of the roadway system providing access to the proposed project. Impacts on both vehicular and pedestrian travel shall be addressed. Road intersections to be studied shall be mutually agreed upon by the Board, its consultants and the applicant.
Long-term monitoring: a long-term monitoring plan identifying the governmental agency or other entity which shall be responsible for project monitoring for the duration of the project's affordability. A cost estimate to implement the long-term monitoring plan shall be submitted.
Pro forma. A complete pro forma detailing the projected costs and revenues of the proposed project shall be required if, following independent consultant review of the project, modification of the project by the applicant as necessary and discussion by the Board of both the applicant's requested exceptions from local requirements and regulations and possible conditions to mitigate project impacts, the applicant contends that denial of any requested exception or inclusion of any condition contemplated by the Board renders the proposed project uneconomic. The pro forma shall itemize all development costs, including hard costs, soft costs and site development costs, and all profits and distributions, in accordance with the Department of Housing and Community Development's (DHCD) Comprehensive Permit Guidelines, (the Guidelines) dated February 22, 2008, and as amended from time to time. The applicant shall fully disclose to the Board all related party transactions, as defined by the Guidelines.
Administrative fee. An application shall be accompanied by an administrative fee, which varies according to the size of said project. The administrative fee shall include the following:
The fee shall be $500 for each dwelling unit proposed.
Consultant review fee. In addition to the administrative fee above, an applicant shall pay $20,000 into a revolving account established pursuant to MGL c. 44, § 53G (the 53G Account), to be used for consultant review of the application in accordance with 760 CMR 56.05(5) and § 136-4, below. If, during the Board's review of the application, the initial payment of $20,000 is deemed insufficient to complete said review, the applicant shall pay into the 53G Account such additional funds as are determined by the Board to be necessary to cover consultant review.
Two separate checks shall be made payable to the Town of Harvard for the administrative fee and the consultant fee.
Waiver. The Board, in its sole and unfettered discretion, may waive any or all of the aforesaid fees.
Within seven days of receiving a complete application, the Board shall notify each local board of the application by sending each such local board notice thereof, together with a copy of the list of requested exceptions to local requirements and regulations required by § 136-3A(1)(a), above. Based upon said requested exceptions, the Board shall invite the participation of each local board as is deemed necessary or helpful in making its decision upon the application by providing such local board with a copy of the complete application, including the items required by § 136-3A(1), above.
In order to allow review by local boards, an applicant shall provide the Town Clerk with 20 copies of its complete application.
Consultant fee. When reviewing an application for, or when conducting inspections in relation to, a comprehensive permit, the Board may determine that the assistance of outside consultants is warranted because the necessary expertise is unavailable from municipal employees. Whenever possible, the Board shall work cooperatively with the applicant to identify appropriate consultants and to negotiate payment of the consultants' fees. Alternatively, the Board may, in its sole discretion, require that the applicant pay a reasonable review fee sufficient to enable the Board to retain consultants chosen by the Board alone. All payments by the applicant toward consultants' fees shall be deposited into the 53G Account, as per § 136-3B, above.
Selection and assistance of consultants.
Technical consultants. The Board may engage, as outside consultants, engineers, scientists, architects, environmental consultants, planners, urban designers and/or other appropriate professionals to assist the Board in analyzing a proposed project and the effect(s) on the project of all applicable laws, requirements, bylaws and rules and regulations. Such assistance may include, but not be limited to, reviewing an application, monitoring or inspecting a project or site for compliance with the Board's decision or applicable laws, requirements, bylaws and rules and regulations or inspecting a project during construction or implementation. Additionally, the Board may engage legal counsel to provide nongeneral representation including, but not limited to, review of legal documents and opinions submitted by the applicant. All such consultants shall be compensated in accordance with § 136-4, above.
Financial analyst. Where a pro forma is required by § 136-3A(3), above, the Board may engage a financial analyst to perform the same consultant review permitted in connection with other technical information submitted to the Board. Said financial analyst shall be compensated in accordance with § 136-4, above.
Legal counsel. The Board may engage legal counsel for general representation of the Board and/or other local boards at public hearings, work sessions and other meetings on the proposed project, and to perform a general review of the legal aspects of said project. Said legal counsel shall be compensated through consultant review fees, § 136-3B(2), above.
Special account. Funds received by the Board for consultant review shall be deposited with the Town Treasurer, who shall establish the 53G Account. Expenditures from the 53G Account may be made at the direction of the Board without further appropriation, but only for services rendered in connection with the specific project or projects for which the consultant fee has been or will be collected from the applicant. Accrued interest may also be spent for this purpose. Failure of an applicant to pay any review fee requested by the Board within 30 days of such request shall be grounds for denial of the application.
Remaining funds. At the completion of the Board's review of a proposed project, the remainder of the 53G Account attributable to said project, including any accrued interest, shall be repaid to the applicant or the applicant's successor in interest. A final accounting shall be made available to the applicant or applicant's successor in interest. For the purpose of this section, any person or entity claiming to be an applicant's successor in interest shall provide the Board with all reasonably requested documentation establishing same.
Appeals. An applicant may appeal the selection of any outside consultant by the Board to the Board of Selectmen. Such appeal must be made in writing within 20 days from the date the Board mailed or hand-delivered notice to the applicant of the selection of said consultant(s). The grounds for such an appeal shall be limited to claims that the consultant selected has a conflict of interest or does not possess the minimum required qualifications. The minimum qualifications shall consist either of an educational degree in, or related to, the field at issue or three or more years of practice in the field at issue or a related field. The required time limits for action upon an application by the Board shall be extended by the duration of the administrative appeal. In the event that no decision is made by the Board of Selectmen within one month from the date of filing of the appeal, the selection made by the Board shall stand.
Number of affordable units. Comprehensive permit developments shall include at least 25% affordable units, as defined by the Act and Regulations. Affordable units shall be identical to the market rate units in floor area, interior and exterior finishing and bedroom mix, unless the Board approves otherwise.
Restrictions on affordability. Restrictions shall be imposed on record title to the project, specifying that said units shall remain affordable in perpetuity. For affordable homeownership units, the restrictions shall include provisions granting the Town of Harvard a right of first refusal in the event that an income-qualified buyer is not found. Such restrictions shall also include a provision that if the Town does not exercise its right of first refusal, the difference between the price which an income-qualified buyer would have paid and the market price actually paid shall be deposited with the Town into an account to be used for affordable housing programs. Units shall be owner-occupied.
Local preference. The development plan shall reflect all legally permissible efforts to provide 70% of the affordable units to eligible residents of the Town of Harvard, their children or parents, eligible Town employees and eligible employees of Town businesses (the local preference). The local preference shall not have a disparate impact on protected classes, as defined by the Guidelines. The applicant shall obtain approval from its subsidizing agency and/or Department of Housing and Community Development (DHCD) (if required), prior to issuance of a comprehensive permit by the Board, of the local preference for a project.
Initial public hearing. The Board shall hold an initial session of a public hearing on the application within 30 days from the date of its filing. The Board may request the appearance at the hearing of each local board, or representative(s) thereof, as is deemed necessary or helpful in making its decision upon the application. In making its decision, the Board shall consider the recommendations, if any, of said local boards.
Length of public hearing. Presuming that the applicant has made timely submissions of materials in response to reasonable requests of the Board, in the Board's determination, the public hearing on an application shall not extend beyond 180 days from the date of the initial public hearing; provided, however, that said 180 days may be extended with the written consent of the applicant.
Decision. The Board shall render a decision, by majority vote, 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 shall be deemed terminated when all public testimony has been received and all information requested by the Board has been received. The Board's decision shall be filed with the Town Clerk within 14 days from the date of said decision. The Board may vote to approve, approve with conditions or deny a comprehensive permit to the applicant.
Approval. The Board may approve a comprehensive permit on the terms and conditions set forth in the application.
Approval with conditions. The Board may approve a comprehensive permit subject to conditions and limitations, including but not limited to those necessary to protect the health or safety of the occupants of the proposed project or of the residents of the Town, to protect the natural environment, to promote better site and building design in relation to the surroundings and municipal and regional planning and to preserve open spaces (the "local concerns"). A comprehensive permit issued by the Board may be subject to the grant of a subsidy by the applicant's subsidizing agency, the issuance of final approval by said subsidizing agency, the receipt of permit or approval required from any state or federal agency and/or the receipt of any waiver ordered by the Board from fees normally imposed by local boards.
The Board may deny a comprehensive permit if it finds that there are no conditions that will adequately address local concerns, or for any other reason which may be provided for by the Act or the Regulations, as amended from time to time.
Additionally, an application may be denied because the Town has achieved one or more of the statutory minima, as per 760 CMR 56.03(3), the Town has obtained from the DHCD certification of compliance with its Housing Production Plan, as per 760 CMR 56.03(4), the Town has made recent progress toward the statutory minima, as per 760 CMR 56.03(5), the project qualifies as a large project, as defined by 760 CMR 56.03(6), or a related application has previously been received, as per 760 CMR 56.03(7). In such event, the Board shall provide written notice to the applicant of the grounds for its denial within 15 days from the opening of the public hearing, with a copy to the DHCD. Any appeal of said assertion by the applicant shall be in accordance with the procedures set forth in 760 CMR 56.03(8).
Burden of proof. It shall be the applicant's burden to demonstrate that the waiver of any particular local requirement or regulation is necessary to maintain the project's economic viability. There shall be a presumption that the waiver of any such local requirement or regulation will adversely affect legitimate municipal interests and local concerns.
Project eligibility. Should an applicant propose any change(s) to its application or any other aspect of its proposal that may affect the project eligibility requirements of 760 CMR 56.04(1), it shall immediately notify its subsidizing agency of said change(s). In the event the subsidizing agency finds that the change(s) is/are substantial, the Board may request that the subsidizing agency review said change(s) and reaffirm, amend or deny its determination of project eligibility.
Additional information. In the event that an applicant proposes substantial change(s) to its proposed project, the Board may request, and the applicant shall submit, any and all information specified in §§ 136-3 and 136-4, above, deemed by the Board to be necessary to evaluate said change(s). Such information shall be submitted to the Town Clerk as provided in § 136-3C, above.
Approval. If the Board approves the application and issues a comprehensive permit to the applicant, any person aggrieved may appeal within the time period and to the Trial Court as set forth in MGL c. 40A, § 17.
Approval with conditions; denial. If the Board approves the application and issues a comprehensive permit with conditions or requirements unacceptable to the applicant, or denies the application and does not issue a comprehensive permit to the applicant, the applicant may appeal to the Housing Appeals Committee as provided in MGL c. 40B, § 22.
Commencement of construction. The applicant shall notify the Board and the Building Inspector of the construction start date at least two weeks prior to commencement of construction. Commencement of construction shall include site preparation, including removal of vegetation or altering the earth. The Town shall thereafter retain the services of a consulting engineer selected by the Board to inspect the construction work. Prior to the commencement of construction, the applicant shall deposit with the Town sufficient funds to cover the cost of such inspections, in accordance with §§ 136-3B(2) and 136-4, above.
Prior to the issuance of any building permit for a project, the applicant shall provide a performance guarantee of a type agreed upon by the Board and the applicant from among those enumerated MGL c. 41, § 81U. Said performance guarantee shall allow the Town to complete remaining infrastructure improvements associated with a development in the event that the applicant fails to do so or refuses to address public safety hazards caused by the project.
The Board may, from time to time, increase or reduce the performance guarantee held by it to reflect additional work required to correct or address problems arising subsequent to the establishment of said performance guarantee, or to reflect work already completed by the applicant.
Modifications. If an applicant desires to change the details of a project approved by the Board, it shall promptly notify the Board, in writing, of the details of said change(s). Within 20 days, the Board shall determine and notify the applicant as to whether the change(s) is/are insubstantial or substantial, according to the following:
Insubstantial changes. If, in the opinion of the Board, the change(s) is/are insubstantial, or if the Board fails to respond within 20 days following notification by the applicant of said change(s), the comprehensive permit granted by the Board shall be deemed modified to incorporate said change(s). Matters generally characterized as insubstantial changes are set forth in 760 CMR 56.07(4)(d).
Substantial changes. If, in the opinion of the Board, the change(s) is/are substantial, the Board shall hold a public hearing on said change(s) within 30 days of its determination and proceed in accordance with § 136-6, above. The Board may request, and the applicant shall submit, any and all information specified in §§ 136-3 and § 136-4, above, deemed by the Board to be necessary to evaluate said change(s). Matters generally characterized as substantial changes are set forth in 760 CMR 56.07(4)(c).
Violations. Either the Building Inspector or the Board may issue a stop-work order in the event that there is any violation of the comprehensive permit conditions, noncompliance with the plan(s) of record or serious environmental damage due to erosion, sedimentation or other site conditions. Said stop-work order shall remain in effect until such time as the violation(s) or damage(s) is/are corrected.
Plans. Upon completion of the project, the applicant shall submit an original and seven copies of an as-built plan to the Board. Said as-built plans shall be signed and sealed by a registered architect or engineer; be signed by the Building Inspector; and show deviations from the plans approved by the Board.
These Rules shall become effective upon filing with the Town Clerk.