As provided by MGL c. 44, § 53G, the Lexington Board of Appeals may impose reasonable fees for the employment of outside consultants, engaged by the Board of Appeals, for specific expert services. Such services shall be deemed necessary by the Board to come to a final decision on an application submitted to the Board of Appeals pursuant to the requirements of the Zoning Bylaw (MGL c. 40A), Comprehensive Permit (MGL c. 40B), or any other state or municipal statute, bylaw or regulation, as they may be amended or enacted from time to time. The Board of Appeals may also impose fees for other consultant services related to application review, or permit conditionings or monitoring, under any of the above-referenced laws or regulations.
Special account. Funds received pursuant to these rules shall be deposited with the Town Treasurer who shall establish a special account for this purpose. Expenditures from this special account may be made at the direction of the Board of Appeals without further appropriation as provided in MGL c. 44, § 53G. Expenditures from this account shall be made only in connection with a specific project or projects for which a consultant fee has been collected from the applicant. Expenditures of accrued interest may also be made for these purposes.
Consultant services. Specific consultant services may include, but are not limited to traffic, drainage, noise. Services may also include on-site monitoring during construction, or other services related to the project deemed necessary by the Board. The consultant shall be chosen by, and report only to the Board and/or its designee.
Notice. The Board of Appeals shall give written notice to the applicant of the selection of an outside consultant. Such notice shall state the identity of the consultant, the amount of the fee to be charged to the applicant, and a request for payment of said fee in its entirety. Such notice shall be deemed to have been given on the date it is mailed or delivered. No such costs or expenses shall be incurred by the applicant if the application or request is withdrawn within five days of the date notice is given.
Fee payment. The fee must be received prior to the initiation of consulting services. The Board may request additional consultant fees if necessary review requires a larger expenditure than originally anticipated or new information requires additional consultant services. Failure by the applicant to pay the consultant fee specified by the Board within 10 business days of the request for payment, or refusal of payment, shall be cause for the Board to deny the application based on lack of sufficient information to evaluate whether the project meets applicable performance standards in the Zoning Bylaw or its regulations. An appeal by the applicant stops the clock on the above deadline; the countdown resumes on the first business day after the appeal is either denied or upheld. A denial for lack of information may be based solely on the lack of the third party consultant review identified as necessary by the Board. Failure by the applicant to pay the consultant fee specified by the Board within 10 business days of the request for payment shall be cause for the Board to deny the permit application.
Appeals. The applicant may appeal the selection of the outside consultant to the Select Board, who may only disqualify the outside consultant selected on the grounds that the consultant has a conflict of interest or does not possess the minimum required qualifications. The minimum qualifications shall consist of either an educational degree or three or more years of practice in the field at issue or a related field. Such an appeal must be in writing and received by the Select Board and a copy received by the Board, so as to be received within 10 days of the date consultant fees were requested by the Board of Appeals. The required time limits for action upon the application shall be extended by the duration of the administrative appeal.
Return of unspent fees. When the Board's review of a project is completed and a permit/decision issued, any balance in the special account attributable to that project shall be returned within 30 days. The excess amount, including interest, shall be repaid to the applicant or the applicant's successor in interest. For the purpose of this regulation, any person or entity claiming to be an applicant's successor in interest shall provide the Board with appropriate documentation. A final report of said account shall be made available to the applicant or applicant's successor in interest.