Town of Fairhaven, MA Part 6 Procedures for Submission of Definitive Plans

§ 322-14 Submission; contents; approval procedures; guarantees.

A. General.

(1) A definitive plan of a subdivision must be submitted to the Planning Board. Said plan shall be governed by the Subdivision and Zoning Regulations in effect at the time of submission of such plan, or the regulations in effect at the time of submission of a preliminary plan, provided that the definitive plan, which evolved, is submitted to the Planning Board within seven months from the date of submission of the preliminary plan.

(2) A definitive plan of a subdivision must be submitted for the improvement of a paper street.

B. Submission.

(1) Any person who submits a definitive plan of a subdivision to the Planning Board for approval shall either file with the Planning Board agent, or send by registered mail to the Planning Board, care of the Town Clerk, the following:

(a) The applicant shall submit 10 prints of the plans, accompanied by two copies of a completed application Form C[1] and the appropriate fee.

[1] Editor's Note: Copies of Form C are available at the Planning Board's office and Town Clerk's office.

(b) Form G,[2] Subdivision Plan Checklist, shall be filled out and submitted with the application.

[2] Editor's Note: Copies of Form G are available at the Planning Board's office and Town Clerk's office.

(c) A narrative describing how and why the proposal meets the criteria for a subdivision.

(d) A list of abutters, taken from the most recent tax list, and certified by the Assessor's Office.

(2) The applicant must also file a print of the plan with the Board of Health, and must file with the Town Clerk a notice of the date of submission and a copy of the completed application Form C.

C. Contents. The definitive plan shall be prepared by a registered civil engineer and registered land surveyor, and shall be clearly and legibly drawn in black India ink upon Mylar film/sheets. The plan shall be at the scale of one-inch equals 40 feet, or such scale as the Board may accept to show details clearly and adequately. Sheet sizes shall be 24 inches by 36 inches minimum and shall conform to Registry of Deeds requirements in overall dimensions, with proper margins for filing. If multiple sheets are used, they shall be accompanied by an index sheet showing the entire subdivision. The definitive plan shall contain the following information:

(1) Subdivision name, boundaries, North point, benchmark at U.S.G.S. datum, date and scale, legend and title, "Definitive Plan."

(2) A locus plan of the subdivision showing relationship of the subdivision to the surrounding area, at a scale of one inch equals 600 feet.

(3) Suitable space to record the action of the Board, including eight signature lines, a date line and the Town Clerk's certification as defined in MGL c.41, § 81X.

(4) Name and address of the record owner, subdivider, engineer and surveyor.

(5) Location and names of all abutters as they appear in the most recent tax list.

(6) Zoning classification and location of any zoning district boundaries that may lie within the locus of the plan. Dimensional regulations currently in effect shall also be listed, including any conflicts. All lots must conform to all zoning requirements.

(7) Location of all wetland resource areas per local and state regulations, and River Protection Act resource areas, per state regulations.

(8) Indication of all easements, covenants or restrictions applying to the land and their purposes, including any decision on appeal or variances made by the Zoning Board of Appeals applicable to the subdivision of land or any building thereon.

(9) Location of any monument and/or subdivision entrance sign(s).

(10) If waivers are proposed, a separate letter requesting all waivers of the subdivision rules and regulations.

(11) Existing and proposed lines of streets, ways, lots, easements and public or common areas within the subdivision. The Assessor's Office shall approve all proposed street names.

(12) Lot line and boundary lines, areas in square feet, and dimensions of all proposed lots, with all lots designated numerically and in sequence. Lot numbers are to be enclosed in circles; street numbers are to be enclosed in squares.

(13) Show on each lot the approximate anticipated location for the house and driveway, and suggested grading and spot elevations. This information will be used to ascertain whether the lot can comply with applicable sections of the Fairhaven Zoning Bylaw.

(14) Curb cut widths shall meet BPW standards. Curb openings shall be graded in such a way as to prevent normal runoff water from entering the driveway from the street right-of-way. For corner lots, driveways shall be provided on the lesser-classified street. The distance between the driveway and the beginning of the corner shall be noted on corner lots. Curb cuts shall also be provided where sidewalks connect to the street so that wheeled access is provided.

(15) Location of all permanent monuments properly 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 street lines, angle points and changes of curvature of street 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 benchmarks separate from horizontal control points may be provided, provided these points are also tied to permanent concrete or granite monuments.

(16) Location, names and present widths of streets bounding, approaching or within reasonable (300 feet) proximity of the subdivision, showing both roadway and right-of-way widths.

(17) Existing watercourses, water bodies, wetlands and existing and proposed topography at two-foot contour interval, or as required by the Planning Board.

(18) Location and species of proposed street trees shall be shown, including those trees to be retained as determined in the field by the Planning Board agent.

(19) Major features of the land, such as, but not limited to, existing walls, fences, monuments, structures, underground structures, utilities, wells, septic systems, large trees, wooded areas, rock outcroppings, wetlands, water bodies, natural waterways and drainage ditches.

(20) Elevation and limits of the base flood.

(21) Cross-sections typical of each street, roadway and sidewalk to be constructed.

(22) Separate plan and profiles of every street, showing the following data:

(a) Exterior lines of the way, with sufficient data to determine the location, direction and length.

(b) Existing center line profile to be shown as black full line, right side line as dashed black, left side line as black dots.

(c) Finished designed center line profile to be full line, with elevations shown every 50 feet, except on vertical curves, where the elevations shall be shown every 25 feet.

(d) All drainage facilities to be shown on plan and profiles, showing invert elevations, slopes, capacity and velocity.

(e) All sanitary sewer facilities to be shown on plan and profiles, showing invert elevations and slopes.

(f) Water system to be shown, including pipe sizes, shutoff locations and hydrants.

(g) Scales shall be horizontal one inch equals 40 feet; vertical one inch equals four inches.

(h) Elevations shall refer to mean sea level.

(i) All design work shall be done in accordance with accepted good engineering practice.

D. Additional subdivision submittal requirements. In addition to the above plans, submission of definitive plans may be required to include the following:

(1) Environmental impact analysis: required for all subdivisions over 10 acres and all subdivisions within the Naskatucket Overlay District (NRB). In order to insure the protection of the general public against any possible undesirable impact of the development on natural resources, the developer shall submit an analysis of any such matters of environmental concern, such as preservation of wetlands, surface water and groundwater quality and air quality. Said analysis shall be conducted by a qualified professional and include a summary table of the impacts and proposed mitigation. Items to be addressed shall be wetlands, floodplains, open space and recreation, historical archeological features, fisheries and wildlife, water pollution, water supplies.

(2) Development impact statements: required for subdivisions 20 acres or greater. The developer shall submit an analysis of the impact of the proposed development by qualified professionals. Each of the sections of said analysis (water, sewer, etc.) shall be presented as a separate document so that it can be forwarded by the Planning Board to the appropriate Town department for review. The purpose of said analysis is to assist the Town in assessing the cumulative impact of development of the Town. Regardless of the above, the Planning Board's decision shall be based on criteria set in these regulations:

(a) Water and sewer:

[1] Projected generation of sewage based on standards in 314 CMR by the Massachusetts Department of Environmental Protection.

[2] Projected consumption of water based on standards in "DESIGN," latest edition, Elwyn E. Seelye, or other respected reference source.

[3] Fire flow standards cited in these regulations.

[4] Explain impacts of project on sewerage facilities, public water facilities (including impacts on fire flow requirements), and on private facilities.

(b) Public works:

[1] Additional costs for future plowing and sanding per lane mile (costs based upon average of past five years for BPW).

[2] Cost of annual cleaning services (street sweeping and catch basin cleaning) for the new street.

[3] Miles of additional pavement added by the subdivision.

(c) Municipal services such as public works, police, fire, libraries, recreation.

(d) Schools.

[1] For purposes of future planning, to provide leeway for expected changes in school enrollment, the school enrollment impact analysis should utilize the following ratios adjusted to housing type:

[a] Single-family detached homes: 0.75 child per unit.

[b] Single-family attached homes (townhouse/rowhouse): 0.5 child per unit.

[c] Multifamily structures (per unit): 0.375 child per unit.

[2] The standards used in calculating impacts should be carefully documented and fully referenced.

(3) Traffic study: traffic analysis and mitigation: required for subdivisions 20 acres or greater. The applicant shall submit traffic analysis using "Trip Generation Standards" by the Institute of Transportation Engineers: explain traffic impacts, types of streets, opportunity for public transit access, impacts on vehicle, pedestrian, and bicycle circulation.

(a) Estimated daily and peak hour vehicle trips generated by the proposed use, traffic patterns for vehicles and pedestrians showing adequate access to and from the site, and adequate vehicular and pedestrian circulation within the site. Previously generated data may be used; however, it cannot be more than two years old.

(b) Traffic flow patterns at the site, including entrances and egresses and curb cuts on site and within 200 feet of the site.

(c) A detailed assessment of the traffic safety impacts of the proposed project or use on the carrying capacity of any adjacent highway or road, including the projected number of motor vehicle trips to enter or depart from the site for daily hour and peak hour traffic levels, road capacities, and impacts on intersections. Said assessment may be based on the proposed mitigation [in the plan required by Subsection D(2) above]. Such analysis shall include incremental impacts at all significant or constrained intersections where such impacts may be measurable. Such analysis shall also include a mitigation plan, as necessary, to mitigate such impacts, including construction of improvements, payment in lieu of the project's proportional share of such improvements, or other soft solutions.

(d) An overall network analysis showing how the project distributes traffic and enhances the flow of the existing network.

(e) An interior traffic and pedestrian circulation plan designed to minimize conflicts and safety problems.

(f) Adequate pedestrian access, including provisions for sidewalks to provide access to adjacent properties and between individual businesses within a development.

(g) Safe provision for school bus stops and, when appropriate, public transit stops.

(h) Demonstrate that the project, including any concurrent road improvements, will not decrease the level of service (LOS) of all area roads or intersections affected by the project below the existing conditions when the project is proposed and shall consider the incremental nature of development and cumulative impacts on the LOS. The project proponent must demonstrate that he/she mitigated all cumulative and incremental traffic impacts. If requested by the applicant, the Planning Board may accept in-lieu-of payments to fund a project's proportional share of necessary improvements to mitigate off-site traffic impacts, including provision of public transit and pedestrian or bicycle paths, in lieu of requiring off-site improvements, when it finds that such payments, in conjunction with funds from other projects or sources, will be used to fund improvements to mitigate traffic impacts. The Board may, in its discretion, allow minor drops in LOS when roads have surplus capacity (For example, an A LOS might drop to a B without mitigation.), but shall still consider incremental and cumulative impacts of traffic impacts. The Board may exempt residential projects that would have equal traffic impacts if they were developed as an as-of-right development without site plan approval and subdivision approval. The applicant shall provide for mitigation of all incremental traffic impacts to ensure that facilities are adequate to accommodate such traffic on area roads.

(4) Easements. Prior to the final plan endorsement, all easements to be granted by the developer to the Town of Fairhaven shall be shown on the subdivision plans with bearings and distances, and their purpose shall be clearly stated. In addition, the applicant shall submit easement documents, suitable for recording, deeding said easements to the Town. The easements shall be submitted to the Planning Board and to the Board of Public Works.

(5) Restrictive covenants. The applicant shall submit all documents, including, but not limited to, master deeds, restrictive covenants, deed restrictions, shared land, detention pond, open space, and recreation areas. A homeowners' association must be established to maintain streets and infrastructure until and unless the streets are accepted by the Town. Covenants must include the requirement that the homeowners'/landowners' association or other entity accept all responsibility under Town bylaws to keep all sidewalks in front of open space associated with the project free of snow. This requirement shall apply even if omitted from a covenant.

(6) Wetlands protection. In accordance with MGL c. 131, § 40, and the Fairhaven Wetlands Protection Bylaw, Chapter 192, Wetlands, no person shall remove, fill, dredge, or alter any bank, beach, dune, flat, marsh or swamp bordering on any existing creek, river, stream, pond, lake or any land under said waters or subject to flooding without receiving a negative determination of applicability or an order or conditions from the local Conservation Commission and/or Department of Environmental Protection.

(7) Construction costs. The applicant shall submit a detailed estimate for all construction within the proposed roadway layout and/or public utility easements, certified by the project's registered professional engineer. Said estimate shall be based on the "Standard Specifications for Highways and Bridges," 1988 Edition, as amended, of the Commonwealth of Massachusetts, and shall include:

(a) Quantity, item number, 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 wage rates.

(d) Costs adjusted to add an inflation/safety factor of 20%.

(e) Engineering inspection, materials testing, legal and other soft costs.

(8) Street-lighting. The applicant shall include a street-lighting plan for the proposed street in the definitive plans. Said system shall be in conformance with existing systems in the Town, as well as with the local electric company street-lighting specifications. The applicant is responsible for purchasing and installing all equipment for said system, as well as ensuring that the system is the most energy efficient. The street-lighting system will not be accepted by the Town unless Town Meeting accepts the street. The applicant shall include a complete street-lighting system for the proposed street in the definitive plans prior to endorsement of those plans. Said system shall be in conformance with existing systems in the Town, as supplied by the local electric company.

(9) Erosion/sedimentation control plan. In order to ensure, mitigate and prevent erosion/sedimentation of disturbed areas during and after construction activities, the developer shall submit a plan showing, in detail, what and when such measures will be implemented, on both a temporary and permanent basis, including land disturbances for house construction. Any site disturbing more than one acre must have a detailed stormwater pollution prevention plan (SWPPP) and an erosion control plan submitted to and approved by the EPA or its designee in accordance with EPA's NPDES Phase II regulations, the Town of Fairhaven's bylaws governing such and §  322-26, Stormwater management, Subsection E, erosion and sediment control plan.

E. Review by Board of Health as to suitability of the land. When a definitive plan of a subdivision is filed with the Planning Board, the applicant shall also file a complete copy of the submittal with the Board of Health. The Board of Health shall, within 45 days after the definitive plan has been submitted, report to the Planning Board, in writing, with a copy to the person submitting the plan, approval or disapproval of said plan, and in the event of disapproval shall make specific findings as to which, if any, of the lots shown on such plan cannot be used for building sites without injury to the public health and include such specific findings and the reasons therefor in such report, and where possible, shall make recommendations for the adjustment thereof. Failure to report shall be deemed approval by the Board of Health.

F. Staking of a subdivision. In order to facilitate on-site review by the various reviewing agencies, the applicant shall, at the time of filing of the definitive plan, stake and brush cut to a minimum of five feet of the center line of all proposed ways in the subdivision and shall stake all points where lot lines intersect rights-of-way.

G. 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 in accordance with MGL c. 41, § 81T. The Board may extend the period permitted by statute between submission of a definitive plan and action thereon upon written request of the applicant. The applicant or representative shall be present at the hearing, unless a written request is submitted.

H. Review by other officials. Before Planning Board action is taken on a definitive plan, the Board shall have submitted copies of the plan to the Board of Public Works, Board of Health, Fire and Police Departments, Conservation Commission and any other interested Town official for their comments and recommendations. It is recommended that the applicant meet with the Fire Department and Board of Public Works prior to submitting a definitive plan.

I. Certification of approval.

(1) The action of the Board in respect to such plan shall be by vote, copies of which shall be certified and filed with the Town Clerk and sent by mail, postage prepaid, to the applicant at his/her address as stated on the application. If the Board modifies or disapproves such plan, it shall state in its vote the reasons for its action. Final approval, if granted, shall be endorsed on the Mylar and/or the original reproducible of the definitive plan by the signatures of a majority of the Board (or by the signature of the person officially authorized by the Board) but not until the statutory twenty-day appeal period has elapsed following the filing of the certificate of the action of the Board with the Town Clerk and said Clerk has notified the 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. After the definitive plan has been approved and endorsed, the applicant shall furnish the Board with five prints thereof.

(2) Final approval of the definitive plan does not constitute the laying out or acceptance by the Town of streets within a subdivision. Such laying out or acceptance shall be by action of the Town Meeting upon recommendation of the Planning Board, Board of Selectmen and the Board of Public Works.

(3) Any amended plans, which are resubmitted for approval, shall follow the same procedures as the original submission (filing fee, public hearing, etc.). Any amended plans submitted later than three months following the date of the expiration of the appeal period or appeal(s) on the disapproval of the originally submitted plan must conform to the Subdivision Rules and Regulations and procedures (filing fee, public hearing, etc.) that are in effect at the time of the amended plan's filing.

J. Failure of the developer to record the definitive plan within six months of its endorsement, or to either initiate construction of improvements or sell lots in a subdivision or major portion thereof within seven years of the approval of the definitive plan, shall constitute sufficient reason for the rescission of such approval for the plan or major portion thereof, in accordance with the requirements of MGL c. 41, § 81W.

K. After endorsement, the applicant shall submit a CD-ROM or DVD containing geographic data in accordance with the Standard for Digital Plan Submittals to Municipalities (Version 1.0) issued by the Office of Geographic and Environmental Information (MassGIS).

L. Performance guarantee. Before endorsement of the Planning Board's approval of a definitive plan of a subdivision, the applicant shall agree to complete the required improvements specified in Parts 7 and 8 for all lots in the subdivision, such construction and installation to be secured in accordance with MGL c. 41, § 81U of the Subdivision Control Law by one, or in part by the other, of the following methods which may from time to time be varied with the applicant.

(1) Approval with financial performance guarantees (surety bonds, money, three-party lender agreement, or letters of credit). The applicant shall either file a surety company performance bond or provide a deposit of money or negotiable securities, including letters of credit, in an amount determined by the Planning Board, in consultation with the Board of Public Works, to be sufficient to cover the cost of all or any part of the improvements specified in these regulations at state (or, if applicable, federal) prevailing wage rates not covered by a covenant, Form D, and to cover the costs of inspections, record plans, street acceptance plans, and legal work, and a contingency/inflation factor of 20%. Warranty principal shall be not less than 15% of the estimated cost of those components of the entire project, which shall be dedicated for public use and shall cover workmanship and materials.

(2) 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 90 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 Fairhaven Zoning Bylaw, and the Rules and Regulations Governing the Subdivision of Land in Fairhaven. 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 for. Any excess over the cost of completing the work will be returned to the grantor."

(3) 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. For any surety bond:

(a) The surety must agree that any litigation stemming out of the bond will take place in Massachusetts.

(b) The bond must include the name and address of the person to be served for any legal action.

(c) The bond must specifically include the terms above.

(d) No expiration date may be allowed on the bond, or, in the alternative, the applicant must provide the Board with adequate financial assurance that the bond will be renewed and kept current until the project and warranty performance period has been completed. The determination of whether or not the financial assurance is adequate shall be in the sole discretion of the Board.

(4) Approval with covenant.

(a) Instead of filing a bond or depositing money, the applicant may fulfill a covenant Form D,[3] executed and duly recorded concurrent with recording the subdivision approval by the owner of record, running with the land, that no lot in the subdivision shall be sold and no building erected thereon until such ways, services and, whenever applicable, temporary turnarounds are constructed and installed, and until record plans, street acceptance plans, and other required work are accepted by the Planning Board in accordance with these rules and regulations so as to adequately serve the lots.

[3] Editor's Note: Copies of Form D are available at the Planning Board's office and Town Clerk's office.

(b) Such covenant shall be a separate document referred to on the plan and delivered to the Planning Board. Upon approval of the covenant by the Planning Board, the applicant shall note the Planning Board's action on the definitive plan, and the applicant shall record the covenant, endorsed definitive plan, and other appropriate documents at the Bristol County S. D. Registry of Deeds.

(5) Completion time schedule.

(a) The performance guarantee, whether by bond, deposit of money, letter of credit, or covenant, as previously described herein, shall be contingent upon the completion of such improvements, and the required one-year warranty as required in these rules and regulations within a maximum period of two years of the date of such bond, deposit of money, or covenant. There shall be at least a three-month period between the completion date of all improvements and one-year warranty period and the expiration date of any bond, deposit of money, or letter of credit. Said three-month period shall give the Town the opportunity to collect the financial performance guarantee so that it will be able to complete the necessary improvements in case a) the 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.

(b) Upon written request from the applicant, 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.

(c) 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.

(d) Failure to complete all improvements as required by these rules and regulations within the time allotted shall cause the Planning Board a) to draw upon the performance guarantee (surety bond, deposit of money, letter of credit) in order to complete said improvements; and/or b) schedule a public hearing in order to rescind approval of the subdivision in accordance with appropriate sections of MGL c. 41, § 81.

(6) Surety extensions.

(a) When a subdivision is not able to meet the above requirement of two years, then the security must be extended to a future date certain. If requesting a subdivision security extension, the developer of the subdivision shall be required to notify, by certified mail, all residents, property owners and parties of interest within the affected subdivision of the date, time and place of the Planning Board meeting at which the extension request will be reviewed. The Planning Board will take all parties' concerns in the review of such request, and a majority of the Board will be needed to obtain approval.

(b) All securities requests will be scrutinized at this time for their financial stability, and more appropriate forms of securities may be necessary. The surety company must be listed as licensed to transact business in Massachusetts and shall appear on the most recent list as published by the Massachusetts Division of Insurance.

(c) The Planning Board reserves the right to consult other resources, such as but not limited to, state insurance department, insurance agents, brokers, or other sources of such information in determining solvency or financial strength of surety companies. Requests for extensions of surety bonds will trigger further proof of the above requirements to determine continued solvency and financial strength.

M. Release of performance guarantee.

(1) Procedures for partial release. The subdivider may, upon partial completion and installation of required improvements in a subdivision, as specified in these rules and regulations, request the security for the performance of which was given by bond, deposit of money, letter of credit, or covenant and make a formal application, in writing, to the Planning Board for partial release of his/her performance guarantee, in accordance with the procedures set forth herein:

(a) Financial performance guarantee. The amount of such bond, or deposit of money, or letter of credit or three-party agreement for lender fund retention, held may, from time to time, be reduced by the Planning Board. The applicant shall present to the Planning Board a list of all construction items performed and/or completed, said list to be based on the subdivision approval, and the subdivision regulations in their entirety. The amount to be reduced by the Planning Board, after consultation with the Board of Public Works, shall be based upon federal or state prevailing wage construction costs at the time the application for reduction is made. The Planning Board shall withhold adequate funds to complete the project, as approved, but shall withhold no less than 20% of the original approved cost estimate. At the completion of the project (based on a written acceptance from the Planning Board that the project has been completed) and a one-year warranty period, the amount withheld shall be released.

(b) Covenant.

[1] The subdivider may request a release of conditions, Form E,[4] for lots where the required improvements have been completed for that section of roadway beginning at any intersection with a Town road and abutting lots up through the last lot to be released. Lots may only be released if they abut the completed portion of the road. No partial release from the covenants will be approved if the total length of roadway, including a temporary turnaround, abutting said designated lots, exceeds the Town's maximum allowable length for dead-end streets, as mentioned in § 322-16, unless the Planning Board has already approved within the limits of the development a dead-end street exceeding said limits.

[4] Editor's Note: Copies of Form E are available at the Planning Board's office and Town Clerk's office.

[2] In the absence of financial performance guarantees, adequate covenants will be held to insure completion of the project, including record plans, street acceptance plans, site inspections, and legal work. In addition, a covenant on two lots, which can be built on, will be held until all work in the subdivision, including the signing of all necessary legal documents, has been completed.

(2) Procedures for full release. The subdivider may, upon completion and installation of required improvements in a subdivision, the completion of record plans and street acceptance plans, as specified in these rules and regulations, and the completion of a one-year labor and materials warranty period, make formal application, in writing, to the Planning Board for full release of any outstanding performance guarantee.

(a) Before the Planning Board releases the full interest of the Town in said performance guarantee:

[1] The Planning Board shall obtain, in writing, from the Board of Public Works or from a registered professional engineer chosen by the Planning Board, a certificate or statement that all work required by these rules and regulations has been constructed in conformance with the approved construction plans. In the case where roadways will remain under private ownership, the project's registered professional engineer shall supply the above-mentioned certificate or statement.

[2] The applicant shall present the Planning Board with letters from the electric, telephone, gas and cable TV companies stating that their respective underground systems have been installed to their satisfaction.

[3] The record construction plans, per § 322-48, Record plans (as-builts), shall be reviewed and approved by the BPW.

[4] Receive from the applicant street acceptance plan or plans and necessary documents, as stated in § 322-49, Street acceptance plans. The Planning Board shall present said plans and documents, after approval by the Planning Board, Board of Selectmen and the BPW, to the Town Meeting for a formal street acceptance.

[5] The applicant may be required to execute an instrument, in a form approved by the Planning Board, transferring to the Town or to an approved public utility company, without cost, valid unencumbered title to all sanitary sewers, water mains, and appurtenances thereto, and other utilities constructed and installed in the subdivision or approved portion thereof, and conveying to the Town or to an approved public utility company, without cost and free of all liens and encumbrances, perpetual rights and easements to construct, inspect, repair, renew, replace, operate and forever maintain such sanitary sewers, water mains and other utilities, with any manholes, conduits, and other appurtenances, and to do all acts incidental thereto, in, through, and under the whole of all streets in the subdivision or approved portion thereof, and if any such sewers or water mains have been constructed and installed in land not within such streets, then in, through, and under a strip of land extending a minimum of 10 feet in width on each side of the center line of all such sewers and water mains. The Planning Board may require greater than 10 feet in width on each side of the center line where it deems necessary.

(b) If the Planning Board determines that all improvements as shown on the endorsed definitive plan and all required plans and legal documents have been completed satisfactorily, it shall release all the interest of the Town in such performance guarantee and return the bond to the person who furnished the same, or release the covenant, by appropriate instrument, duly acknowledged, which may be recorded.

(c) If the Planning Board determines after inspection that said construction or installation has not been completed, or wherein said construction or installation fails to comply with these rules and regulations, the Planning Board shall send by registered mail to the applicant and to the Town Clerk the details wherein said construction or installation fails to comply with its rules.

(d) The applicant shall have 30 days after receipt of such notice to correct all problems mentioned in the above, or to request, in writing, a time extension. Failure of the applicant to finish all the necessary work within said 30 days, or agreed upon time extension, shall cause the Planning Board to draw upon the bond or deposit of money as mentioned below.

(e) Any such bond may be enforced and any such deposit may be applied by the Planning Board for the benefit of the Town of Fairhaven, as provided in MGL c. 41, § 81, upon failure of the performance for which any bond or deposit was given, to the extent of the reasonable cost to the Town of completing such construction and installation.

(3) Release of lots from covenant in exchange for bond or deposit of money. The subdivider may request a release of lots from covenant in exchange for a financial guarantee, provided that:

(a) 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 a Town road.

(b) The amount of the financial guarantee and the financial guarantee process shall be determined by the Planning Board, as described above.

N. Deviation from approved plan.

(1) After approval of any definitive plan, the location and width of ways shown thereon, or any street or way subject to the Subdivision Control Law, shall not be changed unless the plan is amended in accordance with the provisions set forth in MGL c. 41, § 81W, as amended, and approved by the Planning Board.

(2) In the event the applicant desires to alter or change the grade of a street or the size, location or layout of a storm sanitary or water line or appurtenant structure, he/she shall:

(a) Provide the Planning Board with a written statement requesting such alteration or change.

(b) Provide the Planning Board with three prints of the original definitive plan with the proposed changes drawn on said prints in red.

(3) No change or alteration shall be permitted unless the Planning Board has approved such change or alteration.

(4) After approval of a change or alteration, the applicant shall cause such approved changes to be shown on the record plans. (See § 322-48.)

(5) Deviations from material and construction specifications shall not be allowed, except as specifically authorized by the Planning Board, upon consultation with the BPW and/or consulting engineer.

O. Submission of revised plans, additional materials, etc.

(1) Any revised plans and other additional materials submitted by the developer after the original submission must be accompanied by a Form C, with the appropriate fee, and the developer must provide the number of copies and the format required for the original submittal.

(2) The Planning Board may elect not to consider such revised plans or other additional materials if such plans/materials are not filed with the Planning Office at least 14 days prior to the date of the public hearing or meeting at which the developer wishes them to be considered. This is to ensure that the Town departments and the public have adequate time to review and comment on said materials.

(3) After approval of any definitive plan, the location and width of ways shown thereon, or any street or way subject to the Subdivision Control Law, shall not be changed unless the plan is amended in accordance with the provisions set forth in MGL c. 41, § 81W, as amended, and approved by the Planning Board.

(4) In the event the applicant desires to alter or change the grade of a street or the size, location or layout of a storm sanitary or water line or appurtenant structure, he/she shall:

(a) Provide the Planning Board with a written statement requesting such alteration or change.

(b) Provide the Planning Board with three prints of the original definitive plan with the proposed changes drawn on said prints in red.

(5) No change or alteration shall be permitted unless the Planning Board has approved such change or alteration.

(6) After approval of a change or alteration, the applicant shall cause such approved changes to be shown on the record plans. (See § 322-48.)

(7) Deviations from material and construction specifications shall not be allowed, except as specifically authorized by the Planning Board, upon consultation with the BPW and/or consulting engineer.

(8) The Planning Board shall have 30 days to respond to the applicant's request for said change or alteration.

P. Private roadway maintenance and open space management.

(1) The Planning Board shall require the formation of a homeowners' association for subdivisions containing common open areas and/or ways, which will remain private, the purpose of which is to maintain said private ways and open spaces for the protection of the lot owners in the subdivision.

(2) In cases where a homeowners' association is required, there shall be written into each deed for every building lot in the subdivision a set of covenants and restrictions, the form and content of which shall be subject to the review and approval of the Planning Board, which shall provide for the following:

(a) Establishment of a maintenance trust fund to be drawn upon from time to time by the association to perform needed maintenance and reconstruction of private roads, as well as maintenance of common open spaces in the subdivision. Said fund shall consist of two parts.

[1] A maintenance endowment shall be established by the developer in the amount of 10% of the construction improvements cost, as approved by the Board, prior to the release of any lot in the subdivision. The principal amount of the endowment shall not be drawn upon by the association for at least 25 years from the date of its establishment, at which time it may be drawn upon for maintenance or reconstruction of roads.

[2] Annual maintenance deposits shall consist of interest generated by the endowment and annual assessments made to association members, the amount of such annual assessment to be established by majority vote of the association.