In the interest of time, the following summary and
proposed home rule legislation (act) are being released for review prior to
the Board of Selectmen voting to recommend this to Town Meeting. The Board
will meet at 6:30 PM on May 28, 2008 to give final consideration to this
warrant article.
Overview of Proposed Arlington Board of
Survey Law
May 27, 2008
The intent of this proposed law is to
create a fair and efficient system to review the impacts of small-scale
residential subdivisions (fewer than 6 units), replacing the current Board
of Survey law that was adopted in 1897, but without imposing the
complexities and costs of the state subdivision control law, M.G.L. ch. 41,
§§ 81K – 81GG (the
“SCL”).
The current board of survey law was adopted in 1897, and it
has remained essentially unchanged ever since. The law has significant
drawbacks. It limits the board’s jurisdiction to the location, direction,
width and grade of roadways, so that the board cannot review utilities,
drainage, or environmental issues.
The burden of review is placed on the Board of Selectmen.
Although the SCL does provide a broader scope of review, it
too has drawbacks that make it less than desirable for the town. The SCL
contains detailed and complex requirements for multiple stages of plan
review, and for the recording of those plans, that are more appropriate for
very large subdivisions with 100 or more lots. The SCL is not explicit on a
board’s ability to review environmental issues. Review under the SCL is
entirely independent of zoning review, imposing the costs of multiple
procedures on the same project. Finally, the SCL contains the longest
provisions for vested rights of any statute in the entire country (8 years)
– potentially frustrating the ability of the town to implement sound new
land use policies through changes in its zoning.
For these reasons, the proposed law adopts the most valuable
provisions of the SCL, but in a form that is much shorter, simpler, and more
efficient. The proposed law
contains 13 sections, as opposed to 23 sections in the SCL, and the text is
only about one-third the length of the SCL. However, the law does adopt
wherever possible the language of the SCL, so that all parties can look to
current practice and prior court decisions under the SCL in interpreting the
proposed law. Here are key provisions of the proposed law:
·
The law is a regulatory
system, requiring review and approval of developments by the Arlington
Redevelopment Board (the “board’), in its capacity as the town’s Board
of Survey. A certified copy of the board’s decision would be recorded with
the registry of deeds, in the same manner as a zoning special permit.
·
The law affects the same
types of development as the SCL: subdivisions of land into two or more lots,
where the lots do not have adequate access and frontage from an existing
way. Like the SCL, the law would not require review of the subdivision of
“approval not required (ANR)” lots that have adequate existing frontage.
·
Like the SCL, the law
would involve the review of roadways, utilities, drainage, and other site
improvements. The law is more explicit than the SCL in addressing the
protection of environmental resources, and in furthering the goals of the
town’s plans and policies.
·
Developments that already
are subject to board review under zoning, through a special permit or other
process (including all residential projects with 6+ units), would
consolidate their review with the zoning process, and the procedures and
timelines of zoning would govern.
·
The law provides for more
limited vested rights of approved developments, compared with the SCL:
approved developments would be protected against subsequent zoning changes
for a period of three years from the date of approval.
Section-by-Section Summary
Section 1: Preamble. The law would effectively replace the
existing Board of Survey law, adopted in 1897.
Section 2: Definitions. The key definitions of
“development” and “way” clarify that the board’s jurisdiction will
be triggered when a tract of land is subdivided into two or more lots that
require the construction of a private way to satisfy the access and frontage
requirements of zoning.
Section 3: Purposes of Law. The purposes are similar to
those of the SCL, but with greater emphasis on environmental protection and
advancing the goals of local plans and policies.
Section 4: Rules and Regulations. As with the
SCL, the board has the power to adopt rules and regulations that contain
detailed requirements for the contents of submissions, the design and
construction of site improvements, and the board’s procedures and review
standards.
Section 5: Submission and Review of Plans. The provisions for review and
approval of plans after public notice and hearing are adopted from those of
the SCL. , including
the requirement for abutter notice.
For
developments located within a historic district, the historic district
commission will receive a copy of the plan and the opportunity to comment to
the board. However, the
requirement for abutter notice is broader, as under zoning (abutters to
abutters within 300 feet), and the time period for
review is considerably shorter –the board must issue its decision within
60 days of the filing, or the plan is deemed approved. This compares with
135 days under the SCL.
Section 6: Waivers. As under the SCL, the board may waive
provisions of the law or its rules and regulations where such action is in
the public interest.
Section 7: Modification of Plans. The plan modification
provisions are adopted from those of the SCL. A specific clause has been
added to allow administrative review of minor modifications, without the
need for public notice and hearing.
Section 8: Consolidated Review. Developments that already
are subject to board review under zoning, through a special permit or other
process (including all residential projects with 6+ housing units), would
consolidate their review with the zoning process into a
single hearing, and the procedures and timelines of
zoning would govern. This means that the law would only substantially affect
subdivisions with fewer than 6 housing units. The law does not affect the
jurisdiction of the zoning board of appeals.
For developments located within a historic district and requiring review and
approval by the historic district commission, the two agencies will
receive the same application and hold a joint hearing, but
without limiting the ability of each agency to make a decision under its own
bylaw.
Section 9: Security. As under the SCL, the board may impose conditions
and require the posting of security to ensure that site improvements are
completed in accordance with its approval and within a specified time
period.
Section 10: Enforcement. As under the SCL, the local building inspector
would not be permitted to issue building permits for developments that fail
to comply with the law.
Section 11: Vested Rights. The law provides for more
limited vested rights of approved developments, compared with the SCL:
approved developments would be protected against subsequent zoning changes
of which there had been no prior notice, so long as construction of the ways
and other site improvements has been completed
begins within three years from the date of approval. By
contrast, under the SCL any development on a tract of land is protected
against subsequent zoning changes for eight years after the date of approval
– even if the approved development plan is entirely changed.
Section 12: Appeals. As under the SCL, appeals must be
filed with the superior court or land court within 20 days of the
decision. A
court will decide whether the board’s decision is supported by the
evidence, rather than the more lengthy and costly process of
rehearing the entire case under de novo review.
Section 13: Application of law;
damages; other powers of board; severability; effective date. These
provisions are adopted from those of the SCL. The law would take effect
immediately upon passage.
AN ACT ESTABLISHING THE ARLINGTON
REDEVELOPMENT BOARD AS THE
BOARD OF SURVEY IN THE TOWN OF ARLINGTON
SECTION 1: PREAMBLE
Notwithstanding any general or special law to the contrary, including,
without limitation, any provision of Chapter 41 of the General Laws,
including Sections 81K through Section 81GG of the subdivision control law,
the provisions of Chapter 247 of the Acts of 1897 establishing a Board of
Survey in the Town of Arlington, Chapter 738 of the Acts of 1971
establishing the Arlington Redevelopment Board for the Town of Arlington and
Chapter 503 of the Acts of 1952 establishing a Town Manager Form of
Government for the Town of Arlington as each has been from time to time
amended, there is hereby established a Board of Survey for the Town of
Arlington. The Arlington
Redevelopment Board shall constitute the Board of Survey. The responsibility of such Board
shall be to protect the safety, convenience and welfare of the inhabitants
of the Town, in regard to the laying out and construction of private ways.
The process of the Board’s review will be initiated by the filing of a
plan of the proposed development.
SECTION 2: DEFINITIONS
The following words shall have the following meaning,
unless a contrary intention clearly appears:—
“Applicant” shall include an owner or his agent or
representative, or his assigns.
“Board” shall mean the Arlington Redevelopment
Board, acting in its capacity as the Board of Survey under this law.
“Commission” shall mean the Arlington
Historic District
Commission.
“Day” shall mean a calendar day.
“Development” shall mean the division
of a tract of land into two or more lots, where such division shall require
the construction of one or more ways to ensure the development’s
compliance with the access and/or frontage requirements of the town’s
zoning by-law, and provided that a deed evidencing such division has not been
recorded at the registry of deeds prior to the effective date of the
law.
“Lot” shall mean an area of land in one ownership, with
definite boundaries, used, or available for use, as the site of one or more
buildings.
“Notice” shall mean, for the purposes of the law, publication in a
newspaper of general circulation in the Town of Arlington once in each of
two successive weeks, the first publication to be not less than fourteen
days before the day of the hearing, and posting such notice in a conspicuous
place in the town hall for a period of not less than fourteen days before
the day of the hearing.
“Plan” shall mean a plan of the private way or ways and the development
that such ways will serve, including all utilities, drainage systems, and
other site improvements, together with such elements of an application as
the board may require, and submitted to the board for its approval in
accordance with the provisions of the law and the board’s rules and
regulations.
“Registered mail” shall mean registered or certified mail.
“Registry of deeds” shall mean the
Middlesex County (Southern District) Registry of Deeds, or, for registered
land, the Middlesex County (Southern District) Registry District of the Land
Court.
“Utility” shall mean public or
private utilities serving a development, including water, sewerage, gas, and
electricity.
“Way” shall mean a private way that
provides access to one or more lots, the construction of which is required
to ensure the compliance of a development with the access and frontage
requirements of the town’s zoning by-law.
SECTION 3: PURPOSES OF LAW
The law has been enacted for the purpose of protecting the safety,
convenience and welfare of the inhabitants of the town by regulating the
laying out and construction of ways in developments, and to further other
public purposes including the provision of adequate utility services and the
protection of environmental resources. The Board shall require, inter alia,
that such plan for the laying out of ways, utilities, drainage, and other
site improvements shall be drawn with due consideration of the following
factors:
- To
mitigate
lessen
congestion in such ways and adjacent private or public ways.
- To
secure the public safety in the case of fire, flood, or other public
emergencies and to ensure adequate emergency vehicle access for police,
fire, and other municipal services.
- To ensure
compliance with the zoning bylaw.
- To secure
adequate provision for access to the town’s water supply.
- To
secure adequate provision of sanitary sewer service, utility services and
street lighting.
- To provide for adequate curbs, sidewalks and
side slopes as appropriate.
- To apply design standards for the
grade, width, direction and location of such roadways.
- To
ensure adequate protection of environmental resources, including open
spaces, vegetation, and wildlife habitat, along with provisions for storm
water management and drainage to prevent flooding and protect water
quality.
- To advance the goals of the town’s
comprehensive plan, its open space plan, and any special or district plan or
policy.
SECTION 4: rules and regulations
The board is authorized and directed to adopt and from time to time
thereafter to amend, after notice and a public hearing, rules and
regulations in furtherance of the purposes stated in Section 3 herein. Such rules and regulations may
prescribe the size, form, contents, style and number of copies of plans and
the standards and procedures for the submission and approval thereof. The
rules and regulations may permit the board to impose a fee in an amount
calculated to pay the cost of any engineering, inspection or other services
directly related to the proposed development.
A
true copy of the rules and regulations, with their most recent amendments,
shall be kept on file available for inspection in the office of the board,
and in the office of the town clerk.
Once a plan has been submitted to the board, and written notice has
been given to the town clerk and until final action has been taken thereon
by the board or the time for such action has elapsed, the rules and
regulations governing such plan shall be those in effect at the time of the
submission of such plan.
SECTION 5: SUBMISSION AND REVIEW OF
PLANS
No
person shall construct any way on a development unless he has first
submitted to the board for its approval a plan of such ways and development
and the board has approved such plan in the manner hereinafter provided.
After the approval of a plan the location and configuration of ways,
utilities, drainage systems, and other site improvements
shown thereon shall not be changed unless the plan is amended
accordingly as provided herein.
A
plan shall be submitted under this section when delivered by hand to the
boardtown clerk
, with a copy to the town clerkboard
. The clerk shall, if requested, give a written receipt
therefor to the person who delivered the plan. Before approval, modification
and approval, or disapproval of the plan is given, notice shall be given and
a public hearing shall be held by the board. In addition to the notice
requirements of Section 2, the applicant shall mail, at its own expense,
notice to all owners of land appearing on the most recent
tax list and abutting the parcel of land being
developed and to
abutters to the abutters within 300 feet of the property line of the
parcel, as such owners
appear on
the most recent tax list, and to such other persons as
the board shall identify in its sole discretion
. If the development is located
in whole or in part within a local historic district, the applicant shall
submit a copy of the plan to the Historic District Commission, which may
submit comments on the plan to the board prior to or during the public
hearing.
After the hearing, the board shall approve by a vote of the majority of the
board’s members, or, if such plan does not comply with the law or the
rules and regulations of the board, shall modify and approve or shall
disapprove such plan. In the event of disapproval, the board shall state in
detail wherein the plan does not conform to the rules and regulations of the
board. Within less than 15 days of a
disapproval, the applicant may resubmit a
n amended
plan, and the board
shall revoke its disapproval without
prejudice and approve within 60
days of such resubmission a plan which, as amended,
conforms to such rules and regulations or recommendations. The board shall
file a certified copy of its action with the town clerk within 15 days of
its decision, and it shall send notice of such action by registered mail,
postage prepaid, to the applicant at his address stated on the application.
The failure of the board either to take final action regarding a complete
plan submitted by an applicant within 60 days after such submission, or such
further time extension as may be agreed upon at the written request of the
applicant, or to file with the town clerk a certified copy of such action
within a further 15 days, shall be deemed to be an approval thereof. Notice
of such extension of time shall be filed forthwith by the board with the
town clerk.
The board’s
approval of a plan, or any
modification, amendment, or renewal thereof, shall not take effect until a
copy of the decision bearing the certification of the town clerk that 20
days have elapsed after the decision has been filed in the office of the
town clerk and that no appeal has been filed, or if it is a plan which has
been approved by reason of the failure of the board to act thereon within
the time prescribed, a copy of the application accompanied by the
certification of the town clerk stating the fact that the board failed to
act within the time prescribed, and that no appeal has been filed within
that time, and that the grant of the application resulting from the failure
to act has become final, is recorded in the registry of deeds and indexed in
the grantor index under the name of the owner of record or is recorded and
noted on the owner’s certificate of title.
SECTION 6: Waivers
The board may
in any particular case, where such action is in the public interest and not
inconsistent with the intent and purpose of the law, waive strict compliance
with its rules and regulations, upon such conditions as it may reasonably
impose.
SECTION 7: ModificationS of
plans
The board may on its own motion, or on the petition of any person
interested, have the power to modify, amend or rescind its approval of any
plan or to require a change in a plan as a condition of its retaining the
status of an approved plan, in accordance with the standards and procedures
set forth in Section 5 and subject to all other provisions of the law. No such modification, amendment or
rescission of the approval of a plan or change in such plans shall affect
lots in such development which have been sold or mortgaged for valuable
consideration without the approval of the owner of such lots and the
mortgagee in question. The board may identify, in its rules and regulations
or as a condition of a plan approval, categories of minor modifications that
may be reviewed and approved administratively, without the requirements for
notice and public hearing set forth in Section 5. A minor modification shall
not affect the vested rights of a plan accruing under Section 11.
SECTION 8: CONSOLIDATED REVIEW
If
a development is otherwise subject to review by the board under the special
permit or other provisions of the zoning by-law, then the review of the
development for the purposes of this law shall be consolidated with such
zoning review into a single hearing
, and the time periods and other procedures of such zoning
review shall govern. However, the board’s decision in such zoning review
shall incorporate all of its powers of review set forth in this law and the
board’s rules and regulations.
If
the development is located in whole or in part within a local historic
district, the applicant shall submit a copy of the plan to the
commission, along with such other materials as the commission may require
for an application pursuant to its own by-law. If the commission
determines within 14 days
, in
accordance with Section 11 of M.G.L. ch.
40C, that the development involves any features which are subject to its
approval, then the review of the development for the purposes of
this law shall be consolidated with such historic district review
into a single hearing, and the time periods and
other procedures of such historic district review shall govern.
The
commission and the board shall alternate the chair from one
hearing to the next. Notwithstanding the
consolidated review procedure, nothing in this section shall
expand or limit the powers of the board and the commission
each to render a decision pursuant to
its own bylaw, nor shall anything in this section limit the power of the
commission to subsequently review any building or
structure, the design of which had not yet been determined as of the time of
the consolidated review.
SECTION 9: SECURITY
As a condition of its approval of a plan, the
board may require such security as it deems necessary to guarantee the
completion of proposed improvements and the time within which such
improvements shall be completed. Such security may include one or all of the
following methods: (1) a proper bond; (2) a deposit of money, letter of
credit, or negotiable securities; (3) a covenant, executed and duly recorded
by the owner of record, running with the land; or (4) an agreement executed
after the recording of a first mortgage covering the premises shown on the
plan or a portion thereof, which agreement shall be executed by the
applicant and the lender and shall provide for the retention by the lender
of funds sufficient in the opinion of the board and otherwise due the
applicant, to secure the completion of proposed improvements. All work shall be subject to the
approval of the Town Engineer.
Such security shall from time to time be reduced or increased by the board
so that the amount bonded, deposited or retained continues to reflect the
actual expected cost of work remaining to be completed.
Upon the completion of the improvements in
accordance with the rules and regulations of the board and the conditions of
the board’s approval of the plan, and subject to the approval of the Town
Engineer, the board shall, upon written request by the applicant, agree to
release the security. If the Town Engineer determines that said improvements
have not been completed, the board shall so specify in a notice sent by
registered mail to the applicant and to the town clerk. Upon failure to
issue such agreement or notice within 45 days after the receipt by the board
of the applicant’s request, all obligations under the bond shall cease and
terminate by operation of law, any deposit shall be returned, and any such
covenant or agreement shall become void, and the town clerk shall issue a
certificate to such effect, duly acknowledged. Any such security may be
applied by the board for the benefit of the town, upon failure, following reasonable notice and opportunity to cure,
of the performance for which any such bond or deposit was
given to the extent of the reasonable cost to the town of completing such
construction and installation.
SECTION 10: ENFORCEMENT
No public way shall be laid out, accepted or
constructed, and no municipal service or improvement shall be constructed in
a way within a development, to serve the land therein, unless such way
appears on a plan approved under the law, except by or in accordance with
the affirmative vote of two thirds of those present and voting at a town
meeting; provided,
however, that this section shall not prevent the laying of a utility or
drainage system if required by engineering necessity
.
The town’s inspector of buildings shall not issue any permit
for the erection of a building until first satisfied that the lot on which
the building is to be erected is not within a development, or that a way
furnishing the access to such lot as required by the law is shown on a duly
approved plan, and that any condition of a plan approval limiting the right
to erect or maintain buildings on such lot have been satisfied, or waived by
the board.
The Middlesex County superior court and the land court shall have
jurisdiction in equity on petition of the board, or of ten taxable
inhabitants of the town, to review any action of any municipal board or
officer in disregard of the provisions of this section and to annul and
enjoin such action, to enjoin the erection of a building in violation of
this section, and otherwise to enforce the provisions of the law and any
rules or regulations lawfully adopted and conditions on the approval of a
plan lawfully imposed thereunder, and may restrain by injunction violations
thereof or make such decrees as justice and equity may require. No
proceeding under this paragraph shall be instituted more than one year after
the act or failure to act upon which such petition is based.
SECTION 11: VESTED RIGHTS
When a plan has been submitted to the board and is subsequently
approved under Section 5, the development shown on such plan shall be
subject to any subsequent zoning amendment for which the first notice of
public hearing was published prior to the date of the plan’s submission,
unless construction of the ways and other site improvements (but not
buildings) identified in the approved plan is
completedcommenced within a period of not more than three
years from the date of filing such approval of the plan with the town clerk
or from the date of final judgment in any legal appeal
, and
such construction c
ontinues
through to completion as continuously and expeditiously as is
reasonable.
SECTION 12: APPEALS
Any person, whether or not previously a party
to the proceedings, or any municipal officer or board, aggrieved by any
decision of the board concerning a plan, or by the failure of the board to
take final action concerning a plan within the required time, may appeal to
the Middlesex County superior court or to the land court; provided, that
such appeal is entered within 20 days after such decision has been recorded
in the office of the town clerk or within 20 days after the expiration of
the required time as aforesaid, as the case may be, and notice of such
appeal is given to such town clerk so as to be received within such 20 days.
The court shall hear all pertinent evidence and determine
the facts, and upon the facts so determined, shall annul
such decision if found to be unsupported by the
evidence or to exceed the authority of the board, or remand the
case for further action by the board, or make such other
decree as justice and equity may require. The foregoing remedy shall be
exclusive, but the parties shall have all rights of appeal and exceptions as
in other equity cases.
Costs shall
not be allowed against the board unless it shall appear that the board acted
with gross negligence or in bad faith. The court may
shall require nonmunicipal appellants to post a surety
or cash bond in a sum of not less than two thousand nor more than fifteen
thousand dollars to secure the payment of any costs incurred by the appellee
as a result of the appeal of a decision approving a plan
, if it appears to the court that said appellant or
appellants acted in bad faith or with malice in making the appeal to the
court. All issues in any proceeding under this section may be advanced for
speedy trial over other civil actions and proceedings.
SECTION 13: APPLICATION OF LAW; DAMAGES; OTHER POWERS OF BOARD;
EFFECTIVE DATE; SEVERABILITY
The law shall not abridge the
powers of the selectmen, or any other municipal officer, in regard to public
ways in any manner except as herein provided, and shall not authorize the
taking of land nor authorize the town to lay out or construct any way which
may be indicated on any plan until such way has been laid out as a public
way in the manner prescribed by law; nor shall action under such law render
the town liable for damages. The modification, amendment or rescission of
the approval of a plan shall not entitle any person to damages, unless and
to the extent that he shall have changed his position or made expenditures
in reliance upon such approval. No damages shall be awarded for the
modification, amendment or rescission of the approval of a plan obtained as
a result of material misrepresentation of facts, whether willful or
otherwise, by the persons submitting the plan.
The board and its officers and agents may, as far as they deem it necessary
in carrying out the law, enter upon any lands and there make examinations
and surveys and place and maintain monuments and marks.
The law shall take effect upon passage. If a court of competent jurisdiction
should determine that any provision of this law is invalid, then such
decision of invalidity shall not render invalid any other provision.
News 
Show includes 38 Arlington teens
On the heels of the spring production of Shakespeare's...
Here are substitute motions submitted for the 2008 Town Meeting by meeting members (any meeting member may e-mail a motion to
This email address is being protected from spam bots, you need Javascript enabled to view it
)*:
