[HISTORY: Adopted by the Board of Zoning Appeals of the Town
of Harvard 9-16-2009. Amendments noted where applicable.]
A.
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.
B.
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.
C.
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.
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.
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.
A.
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.
(1)
Required materials.
(a)
The following materials shall be submitted simultaneously with
an application to the Board:
[1]
Preliminary site development plans:
[a]
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)[1][b][i]
through [xi] and 136-3A(1)(a)[3] 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.
[b]
The following information shall be shown on the site development
plans:
[i]
Zoning district boundaries;
[ii]
Floodplain and W (Watershed Protection and Floodplain)
and WFH (Watershed Protection and Flood Hazard) District boundaries;
[iii]
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;
[iv]
Existing and proposed topography at two-foot intervals;
[v]
Existing structures on adjacent properties within
50 feet of the property line;
[vi]
Existing significant environmental features, such
as ledge outcrops, scenic views and large trees (i.e., greater than
24 inches dbh);
[vii]
Proposed stormwater management system with sufficient
information to determine compliance with DEP's best management
practices relative to stormwater;
[viii]
Proposed property lines and rights-of-way of
any proposed streets;
[ix]
Proposed location of utilities; and
[x]
Proposed lighting and photometric analysis;
[xi]
All witnessed percolation and deep hole tests
for sewage disposal systems and stormwater systems shown on a plan.
[2]
Report on existing site conditions: a written report on and
summary of existing site conditions and those in the surrounding areas.
[3]
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.
[4]
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.
[5]
Preliminary subdivision plan: a preliminary subdivision plan,
but only where a subdivision of land is involved under MGL c. 41,
§§ 81K through 81GG;
[6]
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;
[7]
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);
[8]
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);
[9]
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.
[10]
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.
[11]
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.
[12]
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.
[13]
Control of premises: documents indicating that the premises
are owned or under agreement for ownership by the applicant.
(b)
All revisions to plans submitted pursuant to this subsection
shall be graphically highlighted and detailed.
(2)
Requested materials. The following materials are requested to be
submitted to the Board:
(a)
Environmental impact analysis.
[1]
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:
[a]
Surface and ground water quality;
[b]
Groundwater recharge of upper aquifers and perched groundwater
layers;
[c]
Wildlife habitats and corridors;
[d]
Wetlands and bodies of water, including streams and rivers,
both localized and general;
[e]
Existing and potential domestic water supplies;
[f]
Species of special concern in Massachusetts;
[g]
Historic structures or historic areas; and
[h]
Road salt and fertilizer loading.
[2]
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.
(b)
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.
(c)
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.
(3)
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.
B.
Fees.
(1)
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:
(a)
The fee shall be $500 for each dwelling unit proposed.
(2)
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.
(3)
Two separate checks shall be made payable to the Town of Harvard
for the administrative fee and the consultant fee.
(4)
Waiver. The Board, in its sole and unfettered discretion, may waive
any or all of the aforesaid fees.
C.
Notification requirements.
(1)
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)[9], 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.
(2)
In order to allow review by local boards, an applicant shall provide
the Town Clerk with 20 copies of its complete application.
A.
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.
B.
Selection and assistance of consultants.
(1)
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.
(2)
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.
(3)
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.
C.
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.
D.
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.
E.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
(1)
Approval. The Board may approve a comprehensive permit on the terms
and conditions set forth in the application.
(2)
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.
(3)
Denial.
(a)
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.
(4)
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).
D.
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.
A.
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.
B.
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.
A.
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.
B.
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.
A.
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.
B.
Performance guarantee.
(1)
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.
(2)
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.
C.
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:
(1)
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).
(2)
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).
D.
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.
A.
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.
