[Town Meeting] Draft Proposed Vote, Article 16

[Kevin O'Brien]

Proposal by Board of selectmen
Regarding Warrant Article 16
home rule legislation / subdivision control law
 
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 completedbegins 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 mitigatelessen 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 an 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  continues 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 mayshall 
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.
 
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