Marblehead City Zoning Code
ARTICLE X
Smart Growth Overlay District SG
[Added 5-4-2009 ATM by Art. 40[1]]
[1]
Editor's Note: Former Art. X, Validity, which included former §§ 200-41 through 200-43, was repealed 5-6-2019 ATM by Art. 26. Article 26 also renumbered former Arts. XI through XIII as Arts. X through XII, respectively.
§ 200-44 Smart Growth Overlay District (SG).
A.
Purposes. The purposes of Smart Growth Overlay Districts are:
(1)
To promote low-impact, green, and sustainable development that is pedestrian friendly.
(2)
To ensure high-quality site planning, architecture and landscape design that is consistent with SG's visual character and identity of the Town of Marblehead.
(3)
To establish development standards that ensure context-sensitive design and creative site planning in the reuse of existing buildings and construction of new buildings.
(4)
To provide for diversified housing stock at a variety of costs in close proximity to the local bus lines, including affordable housing, that meets the needs of the Town's population and promotes diversity.
(5)
To generate positive tax revenue, and to benefit from the financial incentives provided by MGL c. 40R, while providing the opportunity for housing choice among households of varying incomes, ages and sizes.
B.
Scope and authority. An SG is established pursuant to the authority of MGL c. 40R and 760 CMR 59.00, and shall be deemed to overlay the parcels as shown on the Zoning Map of the Town of Marblehead, as amended. At the option of the owner, development of land within an SG may be undertaken by means of a plan approval pursuant to the zoning controls set forth in this § 200-44 or by complying with all applicable zoning controls set forth in the Zoning Bylaw of the Town of Marblehead (underlying zoning). When a building permit is issued for any development project for which plan approval has been granted, all of the land shown on the plan which was submitted pursuant to § 200-44K of this bylaw shall be developed pursuant to this § 200-44 and shall not be developed pursuant to the underlying zoning. Development projects proposed pursuant to this § 200-44 shall be subject to all other applicable local, state and federal regulations.
C.
Establishment and delineation of Smart Growth Overlay Districts. There are two districts identified as SG Pleasant Street District (assessor map 129 parcel 20) and SG Vinnin Square District (assessor map 1 parcel 1). The boundaries of the two districts are delineated as SG Pleasant Street District and SG Vinnin Square District on the Zoning Map.
D.
Definitions. All definitions are as they appear in § 200-7 of the Marblehead Zoning Bylaw in effect as of the date of adoption of this Bylaw, May 4, 2009, with the exception of the following terms:
CONSTRUCTION, START OR COMMENCEMENT | |
NONCONFORMING BUILDING OR LOT | |
NONCONFORMING USE | |
SITE PREPARATION | |
As used in this § 200-44, the following terms shall have the meanings set forth below. To the extent that there is any conflict between this § 200-44 and MGL c. 40R and/or 760 CMR 59.00 et seq., the latter shall control: |
AFFORDABLE HOMEOWNERSHIP UNIT — An affordable housing unit required to be sold to an eligible household in accordance with the requirements of this Bylaw. | |
AFFORDABLE HOUSING — Housing that is affordable to and occupied by eligible households. | |
AFFORDABLE HOUSING RESTRICTION — A deed restriction of affordable housing meeting the requirements in MGL c. 184, § 31, and the requirements of this Bylaw. | |
AFFORDABLE RENTAL UNIT — An affordable housing unit required to be rented to an eligible household in accordance with the requirements of this Bylaw. | |
APPLICANT — A landowner or other petitioner that files a plan for a development project subject to the provisions of the SG. | |
APPROVING AUTHORITY — The Planning Board of the Town of Marblehead acting as the authority designated to review projects and issue approvals under this Bylaw. | |
AS-OF-RIGHT DEVELOPMENT — A development project allowable under this Bylaw without recourse to a special permit, variance, zoning amendment, or other form of zoning relief. A development project that is subject to the plan review requirement of this Bylaw shall be considered an as-of-right development. | |
DESIGN STANDARDS — The document entitled Marblehead Smart Growth Overlay District Design Standards, as amended, approved by DHCD May 1, 2009, pursuant to MGL c. 40R, § 10. The design standards are applicable to all development projects within an SG that are subject to plan review by the approving authority. | |
DEVELOPMENT LOT — One or more lots meeting the dimensional requirements of this Bylaw which are designated as a development lot on a plan for a development project proposed within an SG and for which plan approval is required under the provisions of this Bylaw. The lots comprising a development lot need not be in the same ownership but within the application review period the applicant must demonstrate site control of all land shown on the plan. | |
DEVELOPMENT PROJECT — A residential or mixed-use development undertaken under this § 200-44. The limits of a development project shall be identified on the plan which is submitted to the approving authority for plan review. | |
DHCD — The Massachusetts Department of Housing and Community Development (DHCD) or any successor agency. | |
ELIGIBLE HOUSEHOLD — An individual or household whose annual income is below 80% of the area-wide median household income as determined by the United States Department of Housing and Urban Development (HUD), adjusted for household size, with income computed using HUD's rules for attribution of income to assets. | |
HOUSEHOLD INCOME, MEDIAN — The median income, adjusted for household size, as reported by the most recent information from, or calculated from regulations promulgated by, the United States Department of Housing and Urban Development (HUD). | |
MIXED-USE DEVELOPMENT PROJECT — A development that includes a building or buildings with a minimum of 25% of the floor area on the street level devoted to one or more nonresidential use. A minimum of 50% of the total gross floor area in a mixed-use development project shall be devoted to residential uses. | |
MONITORING AGENT — A qualified housing organization designated by the Marblehead Select Board with the power to monitor and to enforce compliance with the provisions of this Bylaw related to affordable housing units, including but not limited to computation of rental and sales prices; income eligibility of households applying for affordable housing units; administration of an approved housing marketing and resident selection plan; and recording and enforcement of an affordable housing restriction for each affordable housing unit in an SG. | |
MULTIFAMILY DEVELOPMENT PROJECT — A residential development that contains a building or buildings(s) with more than three dwelling units. | |
NONRESIDENTIAL USE — A use that is listed as an allowed retail and consumer service use or an allowed institutional and recreational use in the B1 Zoning District, without need for a special permit, in the Zoning Bylaws, Table 1, Land Use Regulations,[1] in effect as of the date of adoption of this § 200-44. | |
OFFICE — A place of business of a professional organization or the administration facility of a commercial or industrial organization. | |
PLAN — Plans depicting a proposed development project for all or a portion of the SG and which is submitted to the approving authority for its review and approval in accordance with the provisions of this Bylaw and the design standards. | |
PLAN APPROVAL — The approving authority's authorization for a proposed development project based upon a finding of compliance with this Bylaw and design standards after the conduct of a plan review. | |
PLAN REVIEW — The review procedure established by § 200-44K of this Bylaw and administered by the Planning Board of the Town of Marblehead as the approving authority. | |
RENOVATION — Physical improvement that adds to the value of the real property. Painting, ordinary repairs, and other normal maintenance do not constitute a renovation. | |
SETBACK — Please refer to Article V, Dimensional Regulations, § 200-15B(3), of the Marblehead Zoning Bylaw in effect as of the date of adoption of this Bylaw. | |
SG or DISTRICT — The Smart Growth Overlay District, an overlay zoning district adopted pursuant to MGL c. 40R, in accordance with the procedures for zoning adoption and amendment as set forth in MGL c. 40A and approved by the Department of Housing and Community Development pursuant to MGL c. 40R and 760 CMR 59.00. | |
UNDERLYING ZONING — The zoning requirements adopted pursuant to MGL c. 40A that are otherwise applicable to the geographic area in which the SG is located, as said requirements may be amended from time to time. | |
UNDULY RESTRICT — A provision of the SG or a design standard that adds unreasonable costs or unreasonably impairs the economic feasibility of a proposed development project in an SG. | |
UNRESTRICTED UNIT — A dwelling unit that is not restricted as to rent, price or eligibility of occupants. | |
ZONING BYLAW — The Zoning Bylaw of the Town of Marblehead, Massachusetts, adopted in accordance with and pursuant to the provisions of MGL c. 40A. | |
ZONING MAP — The Zoning Map of the Town of Marblehead, Massachusetts, adopted in accordance with and pursuant to the provisions of MGL c. 40A. |
[1]
Editor's Note: Table 1, Land Use Regulations, is included at the end of this chapter.
E.
Permitted uses. The following uses shall be permitted in the following districts as-of-right upon plan approval, and at residential densities specified in Table G, Table of Dimensional and Density Requirements:
Table E | |||
|---|---|---|---|
Allowable Uses | |||
Residence Uses | SG Pleasant Street District | SG Vinnin Square District | |
Multifamily development project | No1 | Yes | |
Mixed-use development project | Yes | Yes | |
NOTES: | |
1 The approving authority may grant a waiver pursuant to § 200-44L of this Bylaw to allow a multifamily development project in the SG Pleasant Street District upon a finding that the inclusion of a nonresidential use at the street level would unduly restrict opportunities for development. |
F.
Prohibited uses or activities in the SG.
(1)
Any use prohibited by the underlying zoning in effect as of the date of adoption of this Bylaw.
(2)
Any use not listed in § 200-44E of this Bylaw is expressly prohibited.
(3)
Nonresidential uses permitted as-of-right pursuant to the underlying zoning are permitted pursuant to this Bylaw as part of a mixed-use development project.
G.
Dimensional and other requirements.
(1)
New buildings within the SG shall be subject to the bulk, dimensional and density requirements in Table G, Table of Dimensional and Density Requirements:
Table G | |||||||||
|---|---|---|---|---|---|---|---|---|---|
Table of Dimensional and Density Requirements | |||||||||
District | Min. Lot Area (sq. ft.) | Max. Residential Density (units/ acre) | Min. Frontage (linear ft.) | Min. Front Setback (linear ft.) | Min. Side Setback (linear ft.) | Min. Rear Setback (linear ft.) | Min. Open Area (%) | Max. Height (ft.) | |
SG Pleasant Street District | 10,000 | 51 | 35 | N | (1) | (1) | N | 50 | |
SG Vinnin Square District | 10,000 | 30 | 35 | N | (1) | (1) | (2) | 42 | |
NOTES: | |
N — None | |
(1) — Except as to any boundary abutting any other business district, six feet; as to any boundary abutting any residential district, nine feet. May be reduced at the discretion of the approving authority. | |
(2) — One square foot of open land area (in addition to the areas of required parking spaces for such lot) for each two square feet of gross floor area. |
(2)
Building renovation. Renovation of existing buildings may maintain existing building footprints, and may only expand such footprints insofar as such expansion is in compliance with the required dimensional requirements for new buildings.
(3)
Portions of the lot in the SG Vinnin Square District are located in the Town of Swampscott and in the City of Salem. If a development project proposed in the SG Vinnin Square District includes development in another municipality, allowable density in the Town of Marblehead will be calculated based on the area of land within the Town of Marblehead.
(4)
Fractional units. When the application of the allowable densities specified in Table G, Table of Dimensional and Density Requirements, results in a number that includes a fraction, the fraction shall be rounded up to the next whole number if the fraction is 0.5 or more. If the result includes a fraction below 0.5, the fraction shall be rounded down to the next whole number.
(5)
Signage. Commercial signage proposed within a mixed-use development project shall be subject to the procedures and requirements of the Marblehead Sign Bylaw, Chapter 148 of the Marblehead General Bylaws, in effect as of the date of adoption of this Bylaw.
(6)
Noise. An Application proposing the installation of exterior venting air conditioners, ventilators, blowers and similar equipment shall be required to demonstrate to the approving authority that the noise produced by such equipment will not be in excess of 60 decibels at 20 feet in any direction, or the distance to the nearest building having a residential use, whichever is the lesser. Upon construction and occupancy, noise from the development project, including resulting from air conditioners, ventilators, blowers and similar equipment, shall at all times comply with this requirement.
(7)
Stormwater. Proposed development projects shall be subject to Marblehead Bylaw Chapter 195, Stormwater Management and Erosion Control, in effect as of the date of adoption of this § 200-44, as applicable.
H.
Off-Street parking.
(1)
Off-street parking in the districts shall be provided in order to meet or exceed the following minimum requirements:
Table H | |||
|---|---|---|---|
Off-Street Parking Minimum Required Parking | |||
Use | Vinnin | Pleasant | |
Dwelling unit (1 bedroom) | 2.0 spaces | 1.0 space | |
Dwelling unit (2 bedrooms) | 2.0 spaces | 1.5 spaces | |
Dwelling unit (3 bedrooms) | 2.0 spaces | 2.0 spaces | |
Dwelling unit (4 bedrooms) | 2.0 spaces | 2.5 spaces | |
Nonresidential use | 1.0 space/300 square feet | 1.0 space/500 square feet | |
(2)
Fractional spaces. When the application of the minimum required parking standards in this § 200-44H results in a number that includes a fraction, the fraction shall be rounded up to the next whole number if the fraction is 0.5 or more. If the result includes a fraction below 0.5, the fraction shall be rounded down to the next whole number.
(3)
Location of parking. Any surface parking lot shall be located at the side or rear of a building, relative to any public right-of-way or public open space. In no case shall surface parking for new construction be permitted within the required front setbacks. Subsurface parking that requires blasting may be disallowed if the approving authority finds, based on the results of a geotechnical analysis, that it is not possible to mitigate any extraordinary adverse impact of blasting on nearby properties.
(4)
The approving authority may grant a plan approval making such modifications in the parking standards or prescribe safeguards and conditions as it shall warrant appropriate, provided that it finds that it is impractical to meet the standards and that such modifications are appropriate by reason of the proposed use and will not result in or worsen parking or traffic problems in or in proximity to the SG. The approving authority may impose conditions of use or occupancy appropriate to such modifications.
(5)
Shared use of required parking. At the discretion of the approving authority, shared use may be made of required parking spaces by intermittent use establishments such as churches, assembly halls, or theaters whose peak parking demand is only at night or on Sundays and by other uses whose peak demand is only during the day. In order for such shared parking to be eligible to satisfy required off-street parking standards in whole or in part, prior to plan approval a formal agreement shall be made in writing by the owners of the uses involved concerning the number of spaces involved, substantiation of the fact that such shared use is not overlapping or in conflict, and the duration of the agreement. Required spaces shall be within 300 feet of the main entrance to the principal buildings served by the shared parking.
(6)
The approving authority may require additional visitor parking beyond the maximum required spaces per unit if deemed appropriate given the design, layout, use and/or density of the proposed development project.
(7)
Construction standards. Each parking space shall be at least nine feet wide and 20 feet long and shall be designed with appropriate means of vehicular access to a street as well as maneuvering areas. Access and maneuvering areas shall not be obstructed or used for the parking of motor vehicles. Parking shall be designed and constructed to comply with all applicable disability access requirements including but not limited to the Americans with Disabilities Act (ADA) and the Massachusetts Architectural Access Board (AAB).
I.
Design standards. To ensure that new development shall be of high quality, and shall meet the standards envisioned by the Town of Marblehead in adopting this Bylaw, the approving authority shall adopt the Marblehead Smart Growth Overlay District design standards as approved by DHCD on May 1, 2009 governing the issuance of plan approvals for development projects within the SG and shall file a copy with the Town Clerk. In addition to the standards set forth in this Bylaw, the physical character of development projects within the SG shall comply with such design standards. In the event of any conflict between this Bylaw and the design standards, this Bylaw shall govern and prevail.
(1)
The approving authority may adopt, by simple majority vote, amendments to the design standards.
(2)
Before adopting any amendment to the design standards, the approving authority shall submit the proposed amendment to DHCD for approval. Any amendment to the design standards shall not take effect until approved by DHCD and filed with the Town Clerk.
(3)
Any amendment to the design standards must be objective and not subjective and may only address the scale and proportions of buildings, the alignment, width, and grade of streets and sidewalks, the type and location of infrastructure, the location of building and garage entrances, off-street parking, the protection of significant natural site features, the location and design of on-site open spaces, exterior signs, and buffering in relation to adjacent properties. DHCD may, at its discretion, require any amendment to the design standards to contain graphics illustrating a particular standard or definition in order to make such standard or definition clear and understandable.
(4)
An application for plan approval that has been submitted to the Town Clerk pursuant to § 200-44K shall not be subject to any design standard that has not been approved by DHCD and filed with the Town Clerk.
J.
Affordable housing.
(1)
Number of affordable housing units. Twenty percent of all dwelling units constructed in a development project shall be affordable housing units provided, however, that 25% of all rental dwelling units in a development project shall be affordable housing units. For development projects in which all of the dwelling units are limited to occupancy by elderly persons and/or by persons with disabilities, 25% of the dwelling units shall be affordable housing units, whether the dwelling units are rental or ownership units.
(2)
Fractional units. When the application of the percentages specified in Subsection J(1) results in a number that includes a fraction, the fraction shall be rounded up to the next whole number if the fraction is 0.5 or more. If the result includes a fraction below 0.5, the fraction shall be rounded down to the next whole number.
(3)
Affordable housing units shall comply with the following requirements:
(a)
The monthly rent payment for an affordable rental unit, including utilities and parking, shall not exceed 30% of the maximum monthly income permissible for an eligible household, with price determined assuming a family size equal to the number of bedrooms in the unit plus one unless other affordable program rent limits approved by DHCD shall apply;
(b)
For an affordable homeownership unit the monthly housing payment, including mortgage principal and interest, private mortgage insurance, property taxes, condominium and/or homeowners' association fees, insurance, and parking, shall not exceed 30% of the maximum monthly income permissible for an eligible household, assuming a family size equal to the number of bedrooms in the dwelling unit plus one; and
(c)
Affordable housing units required to be offered for rent or sale shall be rented or sold to and occupied only by eligible households.
(4)
Design and construction.
(a)
Design. Affordable housing units must be comparable in initial construction quality and exterior design to the unrestricted units. However, nothing in this section is intended to limit a homebuyer's rights to renovate a dwelling unit under applicable law. The affordable housing units must have access to all on-site amenities. The total number of bedrooms in the affordable housing units shall be at least proportionate to the total number of bedrooms in all units in the development project.
(b)
Timing. All affordable housing units must be constructed and occupied not later than concurrently with construction and occupancy of unrestricted units. For any development project that is approved in phases, the proportion of affordable housing units shall be consistent across all phases.
(5)
Affordable housing restriction. Each affordable housing unit shall be subject to an affordable housing restriction which is recorded with the Essex County Registry of Deeds or Land Court Registry District of Essex County. The affordable housing restriction shall provide for the implementation of the requirements of this Bylaw. All affordable housing restrictions must include, at minimum, the following:
(a)
Description of the development project, including whether the affordable housing unit will be rented or owner-occupied.
(b)
A description of the affordable homeownership unit, if any, by address and number of bedrooms; and a description of the overall quantity and number of bedrooms and number of bedroom types of affordable rental units in a project or portion of a project which are rental. Such restriction shall apply individually to the specifically identified affordable homeownership unit and shall apply to a percentage of rental units of a rental project or the rental portion of a project without specific unit identification.
(c)
The term of the affordable housing restriction shall be the longest period customarily allowed by law but shall be no less than 30 years.
(d)
The name and address of the monitoring agent with a designation of its power to monitor and enforce the affordable housing restriction. In a case where the monitoring agent cannot adequately carry out its administrative duties, upon certification of this fact by the Marblehead Select Board or by DHCD such duties shall devolve to and thereafter be administered by a qualified housing entity designated by the Marblehead Select Board.
(e)
Reference to a housing marketing and resident selection plan, to which the affordable housing unit is subject, and which includes an affirmative fair housing marketing program, including public notice and a fair resident selection process. If approved by DHCD, the housing marketing and selection plan may provide for preferences in resident selection. The plan shall designate the household size appropriate for a unit with respect to bedroom size and provide that preference for such unit shall be given to a household of the appropriate size.
(f)
A requirement that buyers or tenants will be selected at the initial sale or initial rental and upon all subsequent sales and rentals from a list of eligible households compiled in accordance with the housing marketing and selection plan.
(g)
Reference to the formula pursuant to which rent of a rental unit or the maximum resale price of a homeownership unit will be set.
(h)
A requirement that only an eligible household may reside in an affordable housing unit and that notice of any lease or sublease of any affordable housing unit to another eligible household shall be given to the monitoring agent.
(i)
Provision for effective monitoring and enforcement of the terms and provisions of the affordable housing restriction by the monitoring agent.
(j)
Provision that the restriction on an affordable homeownership unit shall run in favor of the monitoring agent and the Town of Marblehead, in a form approved by municipal counsel, and shall limit initial sale and resale to and occupancy by an eligible household.
(k)
Provision that the restriction on affordable rental units in a rental development project or rental portion of a development project shall run with the rental development project or rental portion of a development project and shall run in favor of the monitoring agent and the Town of Marblehead, in a form approved by municipal counsel, and shall limit rental and occupancy to an eligible household.
(l)
Provision that the owner(s) or manager(s) of affordable rental unit(s) shall file an annual report to the monitoring agent, in a form specified by that agent certifying compliance with the provisions of this Bylaw and containing such other information as may be reasonably requested in order to ensure affordability.
(m)
A requirement that residents in affordable housing units provide such information as the monitoring agent may reasonably request in order to ensure affordability eligibility and compliance.
(n)
Designation of the priority of the affordable housing restriction over mortgages and other restrictions.
(6)
Administration. The monitoring agent shall ensure the following:
(a)
Prices of affordable homeownership units are properly computed; rental amounts of affordable rental units are properly computed.
(b)
Income eligibility of households applying for affordable housing units is properly and reliably determined.
(c)
The housing marketing and resident selection plan conforms to all requirements and is properly administered.
(d)
Sales and rentals are made to eligible households chosen in accordance with the housing marketing and resident selection plan with appropriate unit size for each household being properly determined and proper preference being given.
(e)
Affordable housing restrictions meeting the requirements of this section are recorded with the Essex County Registry of Deeds or Land Court Registry District of Essex County.
(7)
The housing marketing and selection plan may make provision for payment by the applicant of reasonable costs to the monitoring agent to develop, advertise, and maintain the list of eligible households, to conduct the housing lottery, and to monitor and enforce compliance with affordability requirements over time.
K.
Administration. The approving authority shall adopt and file with the Town Clerk administrative rules relative to the application requirements and contents for plan review. Such administrative rules may be included as a separate section within the approved design standards. Such administrative rules and any amendment thereto must be approved by the Massachusetts Department of Housing and Community Development. The plan review process encompasses the following, as may be supplemented by the administrative rules:
(1)
Preapplication review. The applicant is encouraged to participate in a preapplication review with the approving authority at a regular meeting(s) of the approving authority. The purpose of the preapplication review is to obtain the advice and direction of the approving authority prior to filing the application, including determining whether additional technical analyses listed in § 200-44K(2)(c) may be required. At the preapplication review the applicant shall outline the proposal and seek preliminary feedback from the approving authority, other municipal review entities, and other members of the public. The applicant is also encouraged to request a site visit by the approving authority and/or its designee in order to facilitate preapplication review.
(2)
Application procedures.
(a)
An application for plan approval shall be filed by the applicant with the Town Clerk and a copy of the application including the date of filing certified by the Town Clerk shall be filed forthwith with the approving authority. The applicant shall also file the required number of copies of the application with the Building Inspector and with the approving authority. Said filing shall include any required forms provided by the approving authority.
(b)
As part of any application for plan approval, the applicant must submit the following documents to the approving authority and the administering agency:
[1]
Evidence that the development project complies with the cost and eligibility requirements of § 200-44J(3), Affordable housing;
[2]
Development project plans that demonstrate compliance with the requirements of § 200-44J(4), Affordable housing; and
[3]
A form of affordable housing restriction that satisfies the requirements of § 200-44J(5), Affordable housing.
(c)
As part of any application for plan approval, the applicant may be required to submit one or more of the following technical analyses to the approving authority:
[1]
Surface and water pollution. A report on the impact of stormwater runoff on adjacent and downstream surface water bodies, subsurface groundwater and the water table.
[2]
Soils. The potential dangers of erosion and sedimentation caused by the operation and maintenance of the proposed development.
[3]
Geotechnical analysis. If subsurface blasting is proposed an analysis by a certified geotechnical engineer shall be required in accordance with MGL c. 148 showing whether such blasting will have any extraordinary adverse impacts on nearby property.
[4]
Traffic impact. A report on existing street capacities, estimated average daily traffic generation, composition, peak hour levels and directional flows resulting from the proposed development, proposed methods to mitigate the estimated traffic impact and methodology and sources used to derive existing data and estimations.
[5]
Sample board. Identification of all major exterior materials, colors and finishes.
[6]
Noise. Documentation as necessary to demonstrate that the noise produced by exterior venting air conditioners, ventilators, blowers and similar equipment will not be in excess of 60 decibels at 20 feet in any direction, or the distance to the nearest building having a residential use, whichever is the lesser.
(d)
Review fees. The applicant shall be required to pay for reasonable consulting fees to provide peer review of the application for the benefit of the approving authority. Such fees shall be held by the Town of Marblehead in an interest-bearing escrow account, and shall be used only for expenses associated with the use of outside consultants employed by the approving authority in reviewing the plan application. Any surplus funds remaining after the completion of such review, including any interest accrued, shall be returned to the applicant forthwith.
(e)
Upon receipt by the approving authority, applications for plan approval shall be distributed to the Select Board, Board of Health, Fair Housing Committee, Building Inspector, Conservation Commission, Zoning Board of Appeals, Department of Public Works, the Fire and Police Departments and the Water and Sewer Commission. Any reports from these parties shall be submitted to the approving authority within 60 days of filing of the application.
(f)
Within 30 days of filing of an application with the approving authority, the approving authority or its designee shall evaluate the proposal with regard to its completeness and shall submit an advisory report, in writing, to the applicant certifying the completeness of the application. Where an application is found to be incomplete, the approving authority or its designee shall provide a statement outlining required items that were missing from the application. The approving authority or its designee shall forward to the applicant, with its report, copies of all recommendations received to date from other boards, commissions or departments.
(3)
Public hearing. The approving authority shall hold a public hearing and review all applications according to the procedure specified in MGL c. 40R, § 11.
(4)
Prior to the granting of any plan approval for a development project, the applicant must demonstrate, to the satisfaction of the monitoring agent or, in the event that a monitoring agent has not yet been named, to the satisfaction of the approving authority, that the method by which such affordable rents or affordable purchase prices are computed shall be consistent with state or federal guidelines for affordability applicable to the Town of Marblehead.
(5)
Plan approval decision.
(a)
The approving authority shall make a decision on the application for plan approval by a simple majority vote and shall file said decision with the Town Clerk, within 120 days of the receipt of the application by the Town Clerk. The time limit for public hearings and taking of action by the approving authority may be extended by written agreement between the applicant and the approving authority. A copy of such agreement shall be filed with the Town Clerk.
(b)
Failure of the approving authority to take action within 120 days or extended time, if applicable, shall be deemed to be an approval of the application.
(c)
An applicant who seeks approval because of the approving authority's failure to act on an application within the 120 days or extended time, if applicable, must notify the Town Clerk, in writing, within 14 days from the expiration of said time limit for a decision, of such approval and that a copy of that notice has been sent by the applicant to parties in interest by mail and that each such notice specifies that appeals, if any, shall be made pursuant to MGL c. 40R and shall be filed within 20 days after the date the Town Clerk received such written notice from the applicant that the approving authority failed to act within the time prescribed.
(d)
The approving authority's findings, including the basis of such findings, shall be stated in a written decision of approval, conditional approval or denial of the plan approval application. The written decision shall contain the name and address of the applicant, identification of the land affected and its ownership, and reference by date and title to the plans that were the subject of the decision.
(e)
The decision of the approving authority, together with the detailed reasons therefor, shall be filed with the Town Clerk, the Board of Appeals and the Building Inspector. A copy of the decision shall be mailed to the applicant and to the owner if other than the applicant by the approving authority certifying that a copy of the decision has been filed with the Town Clerk and that all plans referred to in the decision are on file with the approving authority. A notice of the decision shall be sent to parties in interest and to persons who requested a notice at the public hearing.
(f)
Effective date. If 20 days have elapsed after the decision has been filed in the office of the Town Clerk without an appeal having been filed or if such appeal, having been filed, is dismissed or denied, the Town Clerk shall so certify on a copy of the decision. If the application is approved by reason of the failure of the approving authority to timely act, the Town Clerk shall make such certification on a copy of the application. A copy of the decision or application shall be recorded with the title of the land in question in the Essex County Registry of Deeds or the Essex Land Registry District, and indexed in the grantor index under the name of the owner of record or recorded and noted on the owner's certificate of title. The responsibility and the cost of said recording and transmittal shall be borne by the applicant.
(6)
Criteria for approval. The approving authority shall approve the development project upon finding that it complies with the requirements of the SG and applicable design standards.
(7)
Criteria for conditional approval. The approving authority may impose conditions on a development project as necessary to ensure compliance with this § 200-44 and applicable design standards, or to mitigate any extraordinary adverse impacts of the development project on nearby properties, insofar as such conditions are compliant with the provisions of MGL c. 40R and applicable regulations and do not unduly restrict opportunities for development. The approving authority may require construction of an approved development project to be phased for the purpose of coordinating the development project with any mitigation required to address extraordinary adverse development project impacts on nearby properties.
(8)
Criteria for denial. The approving authority may deny an application for plan approval pursuant to this Bylaw if the Board finds one or more of the following:
(a)
The development project does not meet the conditions and requirements set forth in the SG and applicable design standards.
(b)
The applicant failed to submit information and fees required by the SG and necessary for an adequate and timely review of the design of the development project or potential development project impacts.
(c)
It is not possible to adequately mitigate significant adverse development project impacts on nearby properties by means of suitable conditions.
(9)
Time limit. A plan approval shall remain valid and shall run with the land indefinitely, provided that construction has commenced within two years after the decision issues, which time shall be extended by the time required to adjudicate any appeal from such approval. Said time shall also be extended if the project proponent is actively pursuing other required permits for the project or if there is good cause for the failure to commence construction, or as may be provided in an approval for a multiphase development project.
(10)
Appeals. Pursuant to MGL c. 40R, § 11, any person aggrieved by a decision of the approving authority may appeal to the Superior Court, the Land Court Department, or the Housing Court Department within 20 days after the plan decision has been filed in the office of the Town Clerk.
L.
Waivers. The approving authority may at its discretion authorize waivers in the plan approval with respect to the dimensional and other standards set forth in this § 200-44 and in the design standards upon a finding that such waiver will allow the development project to achieve the density, affordability and/or physical character allowable under this Bylaw. However, the approving authority may not waive any portion of the affordable housing requirements in § 200-44J, Affordable housing except insofar as such waiver results in the creation of a number of affordable housing units in excess of the minimum number of required affordable housing units.
M.
Fair housing requirement. All development projects within the SG shall comply with applicable federal, state and local fair housing laws.
N.
Annual update. On or before July 31 of each year, the Select Board shall cause to be filed an annual update with the Department of Housing and Community Development (DHCD) in a form to be prescribed by DHCD. The annual update shall contain all information required in 760 CMR 59.07, as may be amended from time to time, and additional information as may be required pursuant to MGL c. 40S and accompanying regulations. The Town Clerk shall maintain a copy of all updates transmitted to DHCD pursuant to this Bylaw, with said copies to be made available upon request for public review.
O.
Notification of issuance of building permits. Upon issuance of a residential building permit within the SG, the Building Inspector shall cause to be filed an application to the DHCD in a form to be prescribed by DHCD, for authorization of payment of a one-time density bonus payment for each residential building permit pursuant to MGL c. 40R. The application shall contain all information required in 760 CMR 59.06(2), as may be amended from time to time, and additional information as may be required pursuant to MGL c. 40S and accompanying regulations. The Town Clerk shall maintain a copy of all such applications transmitted to DHCD pursuant to this Bylaw, with said copies to be made available upon request for public review.
P.
Date of effect. The effective date of this Bylaw shall be the date on which such adoption is voted upon by Town Meeting pursuant to the requirements of MGL c. 40A § 5 and MGL c. 40R; provided, however, that an applicant may not proceed with construction pursuant to this Bylaw prior to the receipt of final approval of this Bylaw and accompanying Zoning Map by both the Department of Housing and Community Development and the Office of the Massachusetts Attorney General.
Q.
Severability. The provisions of this section are severable. If any provision of this section is held invalid, the other provisions shall not be affected but shall remain in full force.