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Comprehensive Permit Rules 2-7-2006.DOC

COMPREHENSIVE PERMIT RULES

OF THE

SUNDERLAND ZONING BOARD OF APPEALS

Originally Adopted – October 2, 1991

Revised – February 7, 2006

Obsoleted Original Rules

Amended & Adopted New Model Rules

Comprehensive Permit Rules 2-7-2006.DOC

Comprehensive Permit Rules

of the

Sunderland Zoning Board of Appeals

Section

1.00 - Purpose and Context

2.00 - Definitions

3.00 - Filing, Time Limits, and Notice

4.00 - Review of Applications and Review Fee

5.00 - Public Hearing and Decision

6.00 - Changes in Application

7.00 - Appeals

1.00: Purpose and Context

These Rules establish procedures for applications to the zoning board of appeals for

comprehensive permits granted under M.G.L. c. 40B, §§ 20-23 and the regulations

promulgated thereunder. They are required by M.G.L. 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.

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 G.L. c. 40B, §§20-23. In addition, the Board's general Rules for

conduct of hearings under M.G.L. 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.

2.00: Definitions

(a) Board means the zoning board of appeals established under M.G.L. c. 40A, § 12.

(b) Local board means 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; board of selectmen.

housing under M.G.L. 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 Section 3.01(i)).

Comprehensive Permit Rules 2-7-2006.DOC

3.00: Filing, Time Limits, and Notice

3.01: The application for a comprehensive permit shall consist of:

(a) 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 sections 3.01(a) and 3.01(c), 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;

(b) 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 section 3.01(a), above;

signed by a registered architect, and shall include typical floor plans, typical elevations,

and sections, and shall identify construction type and exterior finish;

(d) 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;

(e) where a subdivision of land is involved, a Preliminary Subdivision Plan conforming

to all of the applicable requirements of the Sunderland Regulations for the Subdivision of

Land, Chapter 194;

(f) a utilities plan showing the proposed location and types of sewage, drainage, and

water facilities, including hydrants. Adequate supporting information shall be provided

to demonstrate that the drainage system will meet all Stormwater Management

Guidelines promulgated by the Massachusetts Department of Environmental Protection,

or best management practices, whichever is more stringent;

(g) documents showing that the applicant fulfills the jurisdictional requirements of 760

CMR 31.01, that is,

(i) the applicant shall be a public agency, a non-profit organization, or a limited

dividend organization.

(ii) the project shall be fundable by a subsidizing agency under a low and

moderate income housing subsidy program. The Board may review this documentation

to ensure that the applicable subsidizing agency has performed the due diligence required

under 760 CMR 31.01.

Comprehensive Permit Rules 2-7-2006.DOC

(iii) the applicant shall control the site and the means of access thereto. This

documentation must adequately demonstrate that the Applicant possesses the necessary

control over the site and the site access to develop the project as proposed in the

Application.

(h) a list of requested exceptions to local requirements and regulations, including local

codes, ordinances, by-laws or regulations;

(i) 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 by-laws

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;

(j) a complete copy of any and all materials and applications submitted by the applicant

to any prospect subsidizing agency or source, including, but not limited to applications

for site approval;

(k) 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;

(l) a list of all prior development projects completed by the Applicant, along with a brief

description of each such project;

(m) evidence of local need for the type and number of housing units being proposed by

this Application.

3.02: The application shall be accompanied by a filing fee based upon

the number of proposed housing units of:

(a) for Limited Dividend Organizations - $1000 flat fee plus $50.00 per unit

(b) for Non-Profit Organizations - $1000 flat fee plus $25.00 per unit

Additionally, the application fee shall include $5,000.00 to pay for the services of legal

counsel for assistance in any project of 25 units or less, and $7,500.00 for any project in

excess of 25 units but not exceeding 75 units and $10,000.00 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

Comprehensive Permit Rules 2-7-2006.DOC

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

G.L. c. 40B, §§20-23, the application fee shall include an additional $5,000.00 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 G.L. c. 44, §53G and Section 4.00

hereof.

3.03: 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 § 3.01(h),

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 Town Clerk with twenty-five copies of the complete

application so that all boards, officials and departments may review the same; and one

unbound copy for copying purposes. Additionally 11”x17” copies of all plans (with

match-lines) shall be made available to the Town Clerk for copying purposes

4.00: Review Fees

4.01: 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.

4.02: In hiring outside consultants, the Board may engage engineers, scientists, financial

analysts, planners, lawyers (see Section 3.00 hereof), 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.

4.03: 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 G.L. 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

Comprehensive Permit Rules 2-7-2006.DOC

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.

4.04: 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.

4.05: Any applicant may make an administrative appeal from the selection of the outside

consultant to the Board of Selectmen. 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 process 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 Board of Selectmen within one month following the filing of the appeal, the selection

made by the Board shall stand.

5.00: Public Hearing and Decision

5.01: The Board shall hold a public hearing on the application within thirty days of its

receipt, unless such time period is extended by written agreement of the Board and the

Applicant. It may request the appearance at the hearing of such representatives or 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.

5.02: The Board shall render a decision, based on a majority vote of the Board, within

forty 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.

5.03: The Board may dispose of the application in the following manner:

(a) approve a comprehensive permit on the terms and conditions set forth in the

application,

(b) 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

number of permitted housing units, the height, size, shape or general appearance of the

Comprehensive Permit Rules 2-7-2006.DOC

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. 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.

5.04: It shall be the applicant’s burden to demonstrate that the waiver of any particular

local regulation, by-law or ordinance is necessary in order to maintain the project’s

economic viability. There shall be a presumption that the waiver of any local by-law,

ordinance or regulation will adversely affect local concerns.

5.05: If a subdivision of land is involved, the following shall apply: 1.) No construction

is permitted until a Definitive Subdivision Plan has been submitted to and approved by

the Board; 2.) The Definitive Subdivision Plan shall be prepared and submitted in

accordance with Sunderland’s regulations governing the Subdivision of Land, Chapter

194. The Zoning Board and not the Planning Board is the permit granting agency.

5.06: No comprehensive permit shall take effect until a copy of the decision, bearing the

certification of the Town Clerk, that twenty (20) days have elapsed after the filing of the

decision and no appeals have been filed, is recorded in the Registry of Deeds and is

indexed under the name of the owner of record of the land.

6.00 Changes in Application

6.01: 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 provide a new site-eligibility letter

from the designated subsidizing agency.

6.02: In the event of material or substantial changes, the Board may request, and the

Applicant shall provide, any and all information specified in Section 3.00 hereof that is

deemed by the Board to be necessary to evaluate such changes.

6.03: 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 Section 3.03, above.

6.04: 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.

Comprehensive Permit Rules 2-7-2006.DOC

7.00: Appeals

7.01: If the Board approves the comprehensive permit, any person aggrieved may appeal

within the time period and to the court provided in M.G.L. c. 40A, § 17.

7.02: 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 M.G.L. c. 40B,

§ 22.