[HISTORY: Adopted by the Zoning Board of Appeals of the Town
of Nantucket 11-12-2015. Amendments
noted where applicable.[1]]
[1]
Editor's Note: The Zoning Board of Appeals approved the codification
of its regulations, as revised, 7-14-2022.
A.
These rules establish procedures for an application to the Zoning
Board of Appeals for comprehensive permits granted under MGL c. 40B,
§ 20 through § 23 and the regulations promulgated
thereunder. They are required by MGL c. 40B, § 21 and by
760 CMR 56.00, to facilitate the development of affordable housing
in Massachusetts.
B.
These 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 MGL c.
40B, § 20 through § 23. In addition, the Board's
general rules for conduct of hearings under MGL c. 40A apply to comprehensive
permit applications. In case of inconsistency or conflict between
those general rules for conduct and these rules, these rules shall
govern.
As used in these rules, the following terms shall have the meanings
indicated:
The Zoning Board of Appeals established under MGL c. 40A,
§ 12.
Any applicant which proposes to sponsor housing under MGL c. 40B; and is not a public agency; and is eligible to receive a subsidy from a state or federal agency and which agrees to limit the dividend on its actual invested equity to the maximum amount allowed by the applicable statute or regulations governing the pertinent housing program [see § 238-3A(9).]
Any local board or official, including, but not limited to,
any Board of Survey; Board of Health; Planning Board; Conservation
Commission; Historical Commission; water, sewer, or other commission;
fire, police, traffic, or other department; Building Inspector or
similar official or board; Select Board.
A.
The application for a comprehensive permit shall consist of:
(1)
Preliminary site development plans showing the locations and outlines of proposed buildings; the proposed locations, general dimensions and materials for streets, drives, parking areas, walks and paved areas; and proposed landscaping improvements and open areas within the site. An applicant proposing to construct or rehabilitate four or fewer units may submit a sketch of the matters in Subsection A(1) and (3), below, which need not have an architect's signature. All structures of five or more units must have site development plans signed by a registered architect.
(2)
A report on existing site conditions and a summary of conditions in the surrounding areas, showing the location and nature of existing buildings, existing street elevations, traffic patterns and character of open areas, if any, in the neighborhood. This submission may be combined with that required in Subsection A(1) above.
(3)
Preliminary, scaled, architectural drawings. For each building, the
drawings shall be signed by a registered architect, and shall include
typical floor plans, typical elevations, and sections, and shall identify
construction type and exterior finish.
(4)
A tabulation of proposed buildings by type, size (number of bedrooms,
floor area) and ground coverage, and a summary showing the percentage
of the tract to be occupied by buildings, by parking and other paved
vehicular areas, and by open areas.
(6)
A utilities plan showing the proposed location and types of sewage,
drainage, and water facilities, including hydrants. Adequate supporting
information, including pre-construction and post-construction drainage
calculations and soil test results (which results shall have been
witnessed by an appropriate and qualified Town official or a qualified
Town consultant), shall be provided to demonstrate that the proposed
drainage system shall meet all Stormwater Management Guidelines promulgated
by the Massachusetts Department of Environmental Protection, or best
management practices, whichever is more stringent, and shall result
in no net increase in the rate or volume of stormwater runoff.
(7)
A project eligibility letter that satisfies all of the requirements
of 760 CMR 56.
(8)
A list of requested exceptions to local requirements and regulations,
including local codes, ordinances, bylaws or regulations.
(9)
A complete copy of any and all materials and applications submitted
by the applicant to any prospective subsidizing agency or source,
including, but not limited to, applications for site approval.
(10)
A list 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 also be required to
disclose its relationship to all such entities.
(11)
A list of all prior development projects completed by the applicant,
along with a brief description of each such project.
B.
The application shall be accompanied by a filing fee as set from
time to time by the Zoning Board of Appeals.
C.
Within seven days of filing of the application, the Board shall notify each local official of the application by sending such official a copy of the list required by Subsection A(8), above, as well as any other information that will enable such local official to assess the proposed project. Based upon that information, it shall also invite the participation of each local official who has a substantial interest in the application by providing such official with a copy of the entire application. In order to allow review by local officials, the applicant shall provide the Board with 25 copies of the completed application, so that all boards, officials and departments may review the same; and one unbound copy for copying purposes. The applicant shall provide an electronic copy of the plans so that the plans can be distributed electronically. Additionally an 11-inch by 17-inch copy of all plans (with matchlines) shall be made available to the Board for copying purposes.
A.
When reviewing an application for, or when conducting inspections
in relation to, a comprehensive permit application, the Board may
determine that the assistance of outside consultants is warranted
due to the size, scale or complexity of a proposed project, because
of a project's potential impacts, or because the Town lacks the necessary
expertise to perform the work related to the comprehensive permit
application. Whenever possible, the Board shall work cooperatively
with the applicant to identify appropriate consultants and to negotiate
payment of the consultant fees. Alternatively, the Board may, by majority
vote, require that the applicant pay a reasonable "project review
fee" of a sufficient sum to enable the Board to retain consultants
chosen by the Board alone. The Board may require that an applicant
deposit a lump sum in order to retain consultants. In the event that
such sum is insufficient to fund the necessary consulting services,
the Board may require additional deposits.
B.
In hiring outside consultants, the Board may engage engineers, scientists,
financial analysts, planners, lawyers, urban designers or other appropriate
professionals who can assist the Board in analyzing a project to ensure
compliance with all relevant laws, ordinances, and regulations. Such
assistance may include, but not be limited to, analyzing an application,
monitoring or inspecting a project or site for compliance with the
Board's decision or regulations, or inspecting a project during construction
or implementation.
C.
Funds received by the Board pursuant to this section shall be deposited
with the municipal treasurer, who shall establish a special account
for this purpose, consistent with the terms and provisions of MGL
c. 44, § 53G. Expenditures from this special account may
be made at the direction of the Board without further appropriation.
Expenditures from this special account shall be made only for services
rendered in connection with a specific project or projects for which
a project review 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 a review fee shall be grounds for denial of the comprehensive
permit application.
D.
At the completion of the Board's review of a project, any excess
amount in the account, including interest, attributable to a specific
project shall be repaid to the applicant or the applicant's successor
in interest. A final report of said account shall be made available
to the applicant or 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 documentation establishing
such succession in interest.
E.
Any applicant may take an administrative appeal from the selection
of the outside consultant to the Select Board. Such appeal must be
made in writing and may be taken only within 20 days after the Board
has mailed or hand-delivered notice to the applicant of the selection.
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 limit 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 Select Board
within one month following the filing of the appeal, the selection
made by the Board shall stand.
A.
The Board shall open the public hearing on the application within
30 days of its receipt of an application, but opening the hearing
shall not waive its right to contest the completeness of the application
nor shall a constructive grant result if the Board does not open the
hearing within 30 days if the application is not complete. To be deemed
complete, the application must include all of the information detailed
above. The Board may request the appearance at the hearing of such
representatives of local officials as it considers necessary or helpful
in reviewing the application. In making its decision, the Board shall
take into consideration the recommendations of local officials.
B.
The Board shall render a decision, based on a majority vote of the
Board, 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 is deemed terminated when all public testimony
has been received and all information requested by the Board has been
received.
C.
The Board may dispose of the application in the following manner:
(1)
Approve a comprehensive permit on the terms and conditions set forth
in the application;
(2)
Deny a comprehensive permit in the event that the proposed project
presents adverse impacts to local concerns that outweigh the community's
housing needs; or
(3)
Approve a comprehensive permit with conditions, including but not
limited to the number of permitted housing units, the height, size,
shape or general appearance of the proposed buildings, the configuration
of the site plan, and any other reasonable condition that is necessary
to address local concerns while not rendering the construction or
operation of such housing uneconomic. In order to assist the Board
with determining the permissible extent of conditions, the Board may
require that the applicant provide a revised pro-forma at the Board's
request, during the latter stages of the public hearing after the
parties have had an opportunity to review the proposed project and
any revisions thereto.
D.
It shall be the applicant's burden to demonstrate that the waiver
of any particular local regulation, bylaw or ordinance is necessary
in order to maintain the project's economic viability. There shall
be a presumption that the waiver of any local bylaw, ordinance or
regulation will adversely affect local concerns.
A.
In the event that, during the public hearing, the applicant proposes
any change in the application or project plans that, in the Board's
discretion, constitutes a material or substantial change, the applicant
shall forthwith notify its designated subsidizing agency.
B.
In the event of material or substantial changes, the Board may request, and the applicant shall provide, any and all information specified in § 238-3 hereof that is deemed by the Board to be necessary to evaluate such changes.
C.
In the event of a material or substantial change, any and all plans and supporting information shall be provided to all of the local entities identified in § 238-3C above.
D.
If the applicant submits a revised plan for the Board's consideration
and said plan is the plan that is the subject of the Board's hearing
and deliberation, then the application shall be deemed to be revised,
subject to the foregoing provisions.
A.
If the Board approves the comprehensive permit, any person aggrieved
may appeal within the required time period as provided in MGL c. 40A,
§ 17.
B.
If the Board denies the comprehensive permit or approves the permit
with conditions or requirements considered by the applicant to be
unacceptable, the applicant may appeal to the Housing Appeals Committee
as provided in MGL c. 40B, § 22 or MGL c. 40A, § 17,
as appropriate.
