[Adopted 7-1-1993; amended in its entirety 10-28-2005]
A.
These rules establish procedures for applications
to the Groton 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 31.02. The purpose of that act and these rules is to
facilitate the development of affordable housing in Massachusetts.
B.
These Rules alone are not sufficient to describe the entirety of comprehensive permit procedures before the Board. They must be read in conjunction with and implemented in a manner consistent with MGL C. 40B, §§ 20 through 23 and 760 CMR §§ 30.00 and 31.00 and Groton's Affordable Housing Plan. 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. Without limiting the generality of the foregoing, these rules supersede and replace those sections of the Board of Appeals Rules adopted October 26, 1988, and amended July 1, 1993, dealing with comprehensive permits [e.g., Art. III, Sec. 3(b)].
(See also 760 CMR § 30.02)
The Groton Zoning Board of Appeals established under MGL
C. 40A, § 12.
The boards, committees, commissions, and departments,
and their members, together with such other local entities or groups
as the Board determines have a material interest in the proposed 40B
project and including, but not limited to:
[Amended 10-1-2018 ATM
by Art. 14]
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Board of Health
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Select Board
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Building Commissioner/Zoning Enforcement Officer
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Conservation Commission
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Earth Removal Committee
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Electric Light Department
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Fire Department
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Highway Department
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Housing Authority
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Housing Partnership
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Historic District Commission (if applicable)
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Planning Board
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Police Department
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Sewer Commission
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Water Commission/Department or West Groton Water
Supply
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Only those boards, committees, and officials
which comprise the government of the Town of Groton shall be considered
"local boards."
A.
The application for a comprehensive permit shall consist
of:
(1)
A written statement demonstrating consistency with
the Town's Affordable Housing Plan.
(2)
Preliminary site development plans (25 copies, 8.5
x 11 preferred) showing the locations and outlines of proposed buildings;
the proposed locations, general dimensions and materials for streets,
drives, parking areas, walks and paved areas; type and location of
proposed sewage disposal and proposed landscaping improvements; trash
disposal; open areas within the site, including but not limited to
school bus shelters and parks or other play areas for children; proposed
stormwater management system; proposed property lines and rights-of-way
of any proposed streets; and proposed lighting plans.
(3)
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 and shall include, without limitation:
(a)
Zoning district boundaries;
(b)
Water Resources Protection Overlay District
boundaries;
(d)
Existing and proposed topography at five-foot
intervals;
(e)
Existing structures on adjacent properties within
150 feet of the property line; and
(f)
Existing significant environmental features
such as ledge outcrops, scenic views and large trees.
(4)
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. The architectural
plans shall also describe base interior amenities.
(5)
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 or impervious areas, and by open areas.
(6)
If a subdivision of land is involved, a preliminary
subdivision plan, conforming to the Rules and Regulations of the Groton
Planning Board.
(7)
A preliminary utilities plan showing the proposed
location and types of utilities, sewage, drainage and water facilities,
including hydrants. Drainage plans shall be accompanied with preliminary
drainage calculations and shall describe how the project conforms
to best management practices and the DEP's Stormwater Management guidelines.
(8)
Documents showing that the applicant fulfills the
jurisdictional requirements of 760 CMR 31.01: that is:
(a)
The applicant shall be a public agency, a nonprofit
organization, or a limited dividend organization;
(b)
The project shall be fundable by a subsidizing
agency under a low- and moderate-income housing subsidy program; and
(c)
The applicant shall control the site. In order
to establish site control, an applicant must prove that it controls
the site and the means of access thereto, sufficient to establish
that it possesses the requisite rights to construct the project as
described in the application;
(d)
Copy of site eligibility letter.
(9)
A detailed list of requested waivers and exceptions
to local requirements and regulations, including references to local
codes, ordinances, bylaws or regulations. Overly broad or "blanket"
waiver requests will not be accepted.
(10)
A list of all persons and entities having a
financial or ownership interest in the project, including, but not
limited to, those persons and entities involved in project design,
planning, development, construction, marketing and sales, and any
relationships between and among the persons and entities that might
result in a commonality of interest with respect to the project (e.g.,
affiliate relationship; direct family relationship; contractual relationship).
List should include names, phone numbers, addresses, and e-mail addresses.
(11)
A list of all prior affordable housing projects
and other residential developments completed by the applicant, with
a brief description of each such project.
(12)
Any and all materials that are necessary to
respond to conditions of approval or other comments included with
the subsidizing agency's project eligibility letter.
(13)
A complete pro-forma, detailing the projected
costs and revenues of the proposed project. In preparing its pro-forma,
the applicant shall limit its costs to actual investment in the property.
Acquisition costs shown in the pro-forma shall be limited to the lesser
of the existing as-is fair market value of the property (i.e., the
value under existing bylaws and regulations without the benefit of
waivers or variances) or the amount of last arm's length sale (with
all reasonable and demonstrable carrying costs), whichever is less.
Additionally, the applicant shall fully disclose any costs ascribed
to related entities. Profits generated by any related entities in
the development of any aspect of the project shall not be allowable
as project costs.
(14)
A list, certified by the Town Assessor, of the
names and mailing addresses as they appear on the most recent applicable
tax list of the following:
(15)
A list of any infrastructure and site improvements,
services, programs, facilities, or amenities designed to mitigate
impacts associated with the temporary construction or permanent development
impacts of the project, or as general enhancements to the neighborhood
or community character.
B.
Additional materials. The Board may require any and
all materials, reports, analysis and information it deems necessary
for a thorough review and analysis of the project. Such information
typically includes but is not limited to:
(1)
A traffic impact report, prepared by a registered
professional engineer qualified in the field of traffic engineering,
on the impact the development will have on the congestion, safety
and overall impact of the project on the roadway system/network providing
access to the development. Impacts on both vehicular and pedestrian
travel shall be addressed, including but not limited to impacts within
the site. A traffic report shall address issues regarding traffic
volume, site distances and the adequacy of access by emergency vehicles.
(2)
A detailed analysis showing why the project would
be "uneconomic" without the requested waivers and exceptions (individually
and cumulatively) from local requirements.
(3)
An analysis comparing the project if built in compliance
with applicable zoning regulations (e.g., for condominium projects,
a comparison to the § 218-27B or § 218-27C requirements
may be appropriate) to the proposed project if built with the requested
waivers and exceptions.
(4)
Environmental analysis.
(a)
An environmental analysis, prepared by a qualified
environmental scientist. The environmental scientist shall have such
qualifications, including education and/or training as reasonably
required by the Board. The environmental analysis shall assess the
impact of the development on the environment within and adjacent to
the development. The analysis shall include, but shall not be limited
to, evaluation of pre-development conditions and post-development
impacts on:
[1]
Surface and groundwater quality;
[2]
Groundwater recharge of upper aquifers and perched
groundwater layers;
[3]
Wildlife habitats and corridors;
[4]
Wetlands and bodies of water, including streams
and rivers, both localized and general;
[5]
Existing and potential domestic water supplies;
[6]
Endangered, threatened or species of special
concern in Massachusetts; and
[7]
Road salt and fertilizer loading.
(b)
The environmental analysis shall include proposed
mitigation of the post-development impacts identified. Mitigation
measures requiring ongoing or periodic maintenance shall be identified
and a maintenance plan shall be included with the analysis.
C.
Filing fees. The application shall be accompanied by a filing fee of $1,000 to cover administrative costs, payable to the Town of Groton General Fund. Additionally, the application fee shall include $5,000 to pay for the services of legal counsel for assistance in any project of 25 units or less, and $7,500 for any project in excess of 25 units but not exceeding 75 units and $10,000 for any project in excess of 75 units. This cost is a reasonable estimate of the administrative costs for counsel retained to assist the Board with the multitude of legal issues that must be explored in the C. 40B process. Furthermore, in order to assist the Board in the determination of whether or not any proposed conditions will render the project uneconomic, as required under MGL C. 40B, §§ 20 through 23, the application fee shall include an additional $5,000 for the retention of a financial expert. The Board, in its sole and unfettered discretion, may waive any or all of these additional fees if it is determined that legal and/or financial review is not necessary. Alternatively, the applicant may opt to pay for the Board's legal counsel or financial consultant in the manner prescribed by MGL C. 44, § 53G and § 338-36 hereof.
D.
Notification to other boards/copies.
(1)
Within 14 days of filing of the application, the Board
shall notify each relevant local board of the application by sending
such local board a copy of the application. The Board shall invite
the participation of such local boards and request each to submit
its comments in writing. Upon request, it shall provide a complete
copy of the application to any local board having a substantial interest
in the project.
(2)
In order to facilitate review by the Board and by
the local boards, the applicant shall provide the Town Clerk with
25 copies of the complete application and one unbound copy for copying
purposes. Additionally 11" x 17" copies of all plans (with matchlines)
shall be made available to the Town Clerk 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 from time to time.
B.
In hiring outside consultants, the Board may engage
architects, engineers, lawyers, financial analysts, planners, scientists,
urban designers or other appropriate professionals who can assist
the Board in analyzing a project to ensure compliance with all relevant
laws, bylaws, 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 continuance
or 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.
[Amended 10-1-2018 ATM
by Art. 14]
A.
Unless otherwise prohibited by law, the Board's decision
may allocate at least 70% of the affordable units to eligible residents
of the Town of Groton, or their children or parents, and Town employees.
B.
Unless, otherwise agreed to by the Board, deed riders
and/or other recorded restrictions governing the affordable units
shall specify that the units shall remain subject to the affordability
guidelines in perpetuity. Deed riders and/or other restrictions shall
include provisions giving the Town the right of first refusal should
an income qualified buyer not be found for a unit. Affordable units
shall be the same as the market rate units in terms of floor area,
exterior finishing and bedroom mix. Affordable units shall also contain
the same base interior fixtures and finishes as the market-rate units.
Affordable units that are within ownership developments shall be owner-occupied.
In rental developments, affordable units may not be subleased.
A.
The Board shall hold a public hearing on the application
within 30 days of its receipt. It may request the appearance at the
hearing, or subsequent hearings, of such representatives of local
boards as it considers necessary or helpful in reviewing the application.
In making its decision, the Board shall take into consideration the
written and oral recommendations of local boards and officials.
B.
When all public testimony has been received and all
information requested by the Board has been received, the Board shall
declare the public hearing is deemed terminated. With the consent
of the applicant, the hearing may be reopened in order to receive
new or additional information.
C.
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.
D.
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 as not consistent with
local 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 during the
latter stages of the public hearing after the parties have had an
opportunity to review thoroughly the proposed project and any revisions
thereto. The economic viability of a project may be determined with
reference to the average profit earned by other developers of residential
housing, as adjusted for the type of housing and the geographical
area.
A.
In the event that, during the public hearing, the
applicant proposes any changes in its application or project plans
that, in the Board's discretion, constitutes a material or substantial
change to the project, the applicant shall, at the Board's request,
provide a new site-eligibility letter from the designated subsidizing
agency.
B.
In the event of material or substantial changes, the Board may request, and the applicant shall resubmit, any and all information specified in § 338-35 hereof that is deemed by the Board necessary or helpful to evaluate such changes.
C.
In the event of a material or substantial change,
any and all plans and supporting information pertaining to the change
shall be provided to all of the local boards with a substantial interest
in the project.
A.
If the Board approves the comprehensive permit, any
person aggrieved may appeal within the time period and to the court
provided in MGL C. 40A, § 17.
B.
If the Board denies the comprehensive permit or approves
the permit with conditions, the applicant may appeal to the Housing
Appeals Committee as provided in MGL C. 40B, § 22.
A.
The Town will retain the services of a consulting
engineer to inspect the construction work. The Board, Planning Board,
Highway Surveyor, Water and Sewer Commissioners and the Zoning Enforcement
Officer shall be notified of the construction start date at least
two weeks prior to the commencement of construction. Required inspections
shall be those outlined in the Subdivision Rules and Regulations,
plus any other inspections deemed necessary to ensure that the project's
infrastructure is constructed in accordance with the permit, applicable
statutes and regulations, and best management practices. The developer
shall deposit with the Town sufficient funds to cover the cost of
the inspections (including services of the consulting engineer) prior
to the commencement of work. A preconstruction conference with Town
departments shall be held prior to the commencement of construction.
The contractor shall request that the Board schedule such a conference
at least one week prior to commencing construction.
B.
The permit shall not be in effect until certified
copies of the comprehensive permit decision and, in the event of a
subdivision, a subsequently endorsed plan are recorded at the Middlesex
South Registry of Deeds as required in MGL C. 40A, § 11,
and Groton Zoning Bylaw § 218-32.1. No construction or site
alteration shall commence nor shall any necessary permits be issued
by any board or official until evidence of such recording is submitted
to the Board by the applicant. A project is considered to be under
construction when the legal clearing and grubbing (removal of stumps
and topsoil) have been initiated.
C.
During construction, if any modifications or changes
to the plan are requested or required due to unforeseen site conditions
or for any other reason, the developer shall follow the following
procedure:
(1)
Minor changes: If, in the opinion of the inspecting
engineer, the change is minor and does not involve the redesign of
any of the plan details, the developer shall submit a letter describing
the change to the engineer and the Board. The change may be made in
the field.
(2)
Major changes and design changes: If, in the opinion
of the inspecting engineer, the change is major and/or involves a
change in design of any of the plan details, the developer shall follow
the procedures outlined in 760 CMR 31.03. The developer shall be responsible
for the cost of review of the proposed change by a consultant selected
by the Town.
(3)
Inspection requests: Inspections shall be requested
by the applicant at least two full working days in advance by notice
to the Board and its duly authorized representative and not the inspector
directly.
D.
The Zoning Enforcement Officer or the Board may issue
a stop-work order in the event that there are serious violations of
the comprehensive permit approval conditions, noncompliance with the
approved plan, or serious environmental damage due to erosion, sedimentation,
or other site conditions. The stop-work order shall remain in effect
until violations or damages are corrected to the satisfaction of the
Zoning Board of Appeals and/or its engineers.
A.
Upon completion of the project, the developer shall
submit five as-built plans, and recent title certificate or title
search (one plan for the Town Clerk, one for Select Board's file,
one for the Building Inspector, one for Town Counsel and one for the
Board) and of the roads and infrastructure to the Board.
[Amended 10-1-2018 ATM
by Art. 14]
B.
All drainage easements shall be in a form approved
by Town Counsel and shall be recorded in the Registry of Deeds, with
copies submitted to the Board and the Highway Department.
