7.00 DEFINITIVE PLAN
7.06 Approval of Definitive Plan
- Public Hearing.
- Approval, Modification or Disapproval.
- Within ninety (90) days of the filing of a non-residential Definitive Subdivision Plan.
- Within ninety (90) days of the filing of a residential Definitive Subdivision Plan.
- Within one hundred thirty-five (135) days of the filing of a residential Definitive Subdivision Plan where no Preliminary Plan was filed.
- Posted the necessary performance guarantee. The monetary value of said guarantee, using any method other than a covenant, shall be based on a revised construction quantity estimate (see §7.04 (14)) if conditional approval of the subdivision was given and if said approval changed the original quantities. In addition, the monetary value of the performance guarantee shall be adequate to cover all costs the Town would incur to complete the project at the expiration of said guarantee, including but not limited to construction costs at State (or, if required, Federal) "prevailing" wages, record plans, street acceptance plans, and legal costs.
- Made necessary corrections, where applicable, on the plan, easements, master deeds, restrictive covenants, etc., if conditional approval was given by the Planning Board.
- Submitted to the Planning Board any additional information required as part of a conditional approval, and received approval of said information from that board.
- Paid any necessary inspection fee.
- Presented to the Planning Board for their approval, two sets of plans showing the complete electrical, telephone and cable TV supply systems (including pipes, pumps, valves, gates, hand-holes, transformer padmounts and other relevant equipment). Said plans will be accompanied by endorsements from the respective utilities that the plans have received their approval.
- Presented to the Planning Board for their approval, if applicable, two sets of a complete street lighting system for the proposed subdivision.
- Delivered to the Planning Board two (2) sets of reproducible drawings of the Definitive Plan with the necessary corrections. After endorsement by the Planning Board, the applicant shall deliver to that board, six (6) sets of copies (unless the Board specifies fewer copies) of the endorsed Definitive Plan.
- Delivered an Irrevocable Offer of Dedication of all facilities to be dedicated to the public. Said offer must be accompanied by a lawyer’s title opinion that the offer is free of any liens and encumbrances and all mortgages must be subordinated to the Offer. The Offer shall be irrevocable, except the offer can be withdrawn if the project proponent does not proceed with the project and requests that the subdivision approval be rescinded or otherwise amended such that the dedication is no longer necessary.
- Failure of the applicant to meet the above requirements shall be full and sufficient reason to withhold endorsement.
- If the applicant fails to submit the required Performance Guarantees, easements and other documentation, and the endorsement of the Plan by the Planning Board is delayed more than six (6) months after the expiration of the twenty (20) day appeal period, the Planning Board, on its own motion, shall exercise its power to modify, amend, or rescind its approval of the subdivision plan or to require a change in the plan as a condition of said plan retaining the status of an approved plan.
- Performance Guarantee.
Approval with Financial Performance Guarantees (Surety Bonds, Money, Three Party Lender Agreement, or Letters of Credit). The applicant shall either file a surety company performance bond or provide a deposit of money or negotiable securities, including letters of credit, in an amount determined by the Planning Board (see §7.04 (14) and §7.06 (3a)) in consultation with the appropriate Town departments, to be sufficient to cover the cost of all or any part of the improvements specified in in these regulations at State (or, if applicable, Federal) “prevailing wage rates” not covered by a covenant under §7.06 (4b) below, and to cover the costs of inspections, record plans, street acceptance plans, and legal work, and a 20% contingency/inflation factor. Warranty principal shall be not less than 15% of the estimated cost of those components of the entire project which shall be dedicated for public use and shall cover workmanship and materials.
If financial performance guarantees are used, at least two lots in a subdivision which can be built on must be covered by a covenant (under §7.06 (4b) below) to insure that all work, including legal work, is completed.
Letters of Credit, three-party agreement for lender retention of funds, surety bonds and other financial performance guarantees must be drafted so that the only requirement that must be met for the Planning Board to draw on the letter is to notify the financial institution (grantor) that:
"We have incurred liability by reason of the failure of the applicant/developer/owner, within ninety days of the expiration of this letter, to complete the construction of their project (insert name of subdivision and plans) in accordance with the definitive subdivision plans and submittal, the subdivision approval, the Huntington Zoning Bylaw, and the Rules and Regulations Governing the Subdivision of Land in Huntington. The amount drawn, which may be more than required to complete the project, will be held in a segregated bank account until the work can be bid competitively and the bid awarded and paid for or until the contract for the work is otherwise let and the work paid for. Any excess, over the cost of completing the work will be returned to the grantor."
Such bond, deposit of money or negotiable securities, shall be approved as to form, the surety or financial institution, and manner of execution by the Planning Board.
For any surety bond:
- The surety must agree that any litigation stemming out of the bond will take place in Massachusetts.
- The bond must include the name and address of the person to be served for any legal action.
- The bond must specifically include the terms above.
- No expiration date may be allowed in the bond (the bond must be valid until the work is complete) and the warranty performance period has been completed..
Approval with Covenant. Instead of filing a bond or depositing money, the applicant may fulfill a covenant (see Appendix, Form I), executed and duly recorded concurrent with recording the subdivision approval by the owner of record, running with the land, that no lot in the subdivision shall be sold and no building erected thereon until such ways, services and, whenever applicable, temporary turnarounds are constructed and installed, and until record plans, street acceptance plans, and other required work are accepted by the Planning Board in accordance with these Rules and Regulations so as to adequately serve the lots.
Such covenant shall be inscribed on the Definitive Plan or on a separate document referred to on the plan and delivered to the Planning Board. The Planning Board shall turn over the covenant agreement to the Town’s Legal Counsel, who shall review its contents and forward his comments in writing to the Planning Board. Upon approval of the covenant by the Planning Board, the applicant shall note the Planning Board's action on the Definitive Plan (see §7.04 (9)) and the Planning Board shall record the covenant, endorsed Definitive Plan, and other appropriate documents at the Hampshire County Registry of Deeds (see §7.06(6)).
- Completion Time Schedule.
- Recording of Plan.
- Pre-Construction Conference
Before approval, modification and approval or disapproval of a Definitive Plan is given, a Public Hearing shall be held by the Planning Board. Notice of the time and place of the hearing, and of the subject matter, sufficient for identification, shall be posted by the Planning Board in Town Hall and at all normal posting locations in town. A legal notice shall also be posted in a newspaper of general circulation in the Town of Huntington, at the expense of the applicant, once in each of two successive weeks. The first publication of said legal notice shall not be less than fourteen (14) days prior to said hearing. Notice shall be mailed to the applicant and, by certified mail, at the expense of the applicant, to all owners of land abutting upon the subdivision and abutters to abutters within 300 feet. The applicant, or his or her representative must be present at the hearing.
After the required hearing, but within the period specified, the Planning Board shall take action thereon. The Board shall take final action on such plan in accordance with the following schedule:
The Board may approve, modify and approve, or disapprove said plan, as provided by statute. Any approval of the plan by the Planning Board shall only be given on condition that the designated lots or land shall not be built upon or served with any utilities, such as septic tanks or cesspools, and drainage without prior consent of the Board of Health. The Planning Board shall endorse on the plan such conditions as set forth by the Board of Health and the lots and land affected by such conditions. The action of the Planning Board in respect to such plan shall be certified and filed with the Town Clerk and sent by mail, postage prepaid, to the applicant at his address as stated on the application (see Appendix, Form F).
In the event of disapproval, the Planning Board shall state in detail wherein the plan does not conform to these Rules and Regulations or to the recommendations of the Board of Health or its officer, and shall revoke its disapproval and approve of a plan which, as amended, conforms to these Rules and Regulations or recommendations. Any amended plans which are resubmitted for approval shall follow the same procedures as the original submission (Filing Fee, Public Hearing, etc.). Any amended plans submitted later than three (3) months following the date of the expiration of the appeal period or appeal(s) on the disapproval of the originally submitted plan must conform to the Subdivision Rules and Regulations and procedures (Filing Fee, Public Hearing, etc.) that are in effect at the time of the amended plan's filing.
Final approval, if granted, shall be endorsed on the reproducible drawings of the Definitive Plan by the signatures of the majority of the Planning Board, but not until the statutory 20-day appeal period has elapsed following the filing of the certificate of the action of the Planning Board with the City Clerk and said Clerk has notified the Planning Board that no appeal has been filed, or if appeal has been taken, not until the entry of a final decree of the court sustaining the approval of such plan.
Final approval of the Definitive Plan does not constitute an agreement by the Town, for the laying out or acceptance of streets within a subdivision. Such laying out or acceptance shall be by action of Town Meeting, upon the recommendation of the Planning Board and the Selectboard.
An approved, or approved with modifications, plan shall not be endorsed until after the mandatory twenty (20) day appeal period has elapsed and not until the applicant has:
Before endorsement of the Planning Board's approval of a Definitive Plan of a subdivision, the applicant shall agree to complete the required improvements specified in §8.00 and §9.00 for all lots in the subdivision, with such construction and installation to be secured in accordance with §81U of the Subdivision Control Law by one, or in part by the other, of the following methods which may from time to time be varied with the applicant:
The Performance Guarantee, whether by bond, deposit of money, letter of credit, or covenant, as previously described herein, shall be contingent upon the completion of such improvements, and the required one year warranty or as required in these Rules and Regulations within a maximum period of three (3) years of the date of such bond, deposit of money, or covenant. There shall be at least a three (3) month period between the completion date of all improvements and the one year warranty period and the expiration date of any bond, deposit of money, or letter of credit. Said three (3) month period shall give the Town the opportunity to collect the financial performance guarantee so that it will be able to complete the necessary improvements in case (a) the developer is unable to do so; and/or (b) the Planning Board denies any requests for an extension of time. “Warranty” shall include all workmanship and materials.
Upon written request from the applicant, the Planning Board may, at its discretion, grant an extension of time (see Appendix, Form K), and such agreement shall be executed and affixed to the financial performance guarantee or covenant.
In the case of a surety company bond, such an agreement for an extension shall not be effective until the surety delivers to the Planning Board a written statement that the surety agrees to the proposed alteration of the completion schedule and that such alteration shall not relieve or affect the liability of the surety company.
Failure to complete all improvements as required by these Rules and Regulations within the time allotted shall cause the Planning Board (a) to draw upon the performance guarantee (surety bond, deposit of money, letter of credit) in order to complete said improvements; and/or (b) schedule a Public Hearing in order to rescind approval of the subdivision in accordance with appropriate sections of MGL Ch. 41, §81.
The Developer, with a representative of the Planning Board present, shall, within ten (10) days after the Definitive Plan has been endorsed, record said plan, Form F, and, whenever applicable, the Planning Board's Order of Conditions, public easements (plans and documents), restrictive covenants, master deeds, etc., at the Hampshire County Registry of Deeds, and in the case of registered land, with the recorder of the Land Court. The cost of said recording shall be borne by the developer.
Prior to construction, the developer and the contractor must meet with the Building Inspector and Planning Board to review the subdivision permit and conditions. The applicant must provide evidence that all required documents have been recorded.
Subsequent to said recording and prior to any Building Permit being issued, the Project Applicant shall file within seven (7) calendar days one (1) print of the Definitive Plan with the Building Inspector. Further, in accordance with the statute, where approval with covenant is noted thereon, the Inspector shall issue no permit for the construction of a building on any lot within the subdivision, except upon receipt from the Planning Board of a copy of the Certificate of Performance releasing the lot in question.