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Town of Lenox, MA

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Section IV - Procedure For The Submission And Approval Of Plans
A subdivision plan shall be considered as submitted to the Planning Board when delivered at a meeting of the Board of when sent by Certified or Registered Mail to the Planning Board, care of the Town Clerk, together with properly filled out application form, fee and supporting documents.
1.  General:

Prior to the submission of a Preliminary Plan, a developer is encouraged to discuss his intentions with the Board. The submission of a Preliminary Plan will enable the subdivider, the Board, other municipal agencies, and the owners of the property abutting the subdivision to discuss and clarify issues regarding such subdivision before a Definitive Plan is prepared. Therefore, it is strongly recommended that a Preliminary Plan be filed in each case. A Preliminary Plan of a subdivision should be submitted by the subdivider to the Planning Board and to the Board of Health. The Water Department, Sewer Commissioners, Highway Superintendent, Conservation Commission and Fire Department may also review the Preliminary Plan for discussion and approval, modification, or disapproval by each Board.
For all Preliminary Plans filed, the Board shall have forty five (45) days in which to review and act on the plan. During discussion of the Preliminary Plan, the complete information required for the Definitive Plan (Section IV B. 2 - Contents) and the financial arrangements (Section IV B. 6 - Performance Guarantee) will be developed.

The applicant shall file with the Board the following:

a.  Application form (Form B)
b.  The appropriate fee (see Section II-D)
2.  Contents:

The Preliminary Plan shall be drawn on mylar at a scale not smaller than one (1) inch equals 100 feet and two (2) prints shall be filed with the Planning Board showing the following information:

a.  The subdivision name, boundaries, north point, date, scale, legend, and title - "Preliminary Plan";

b.  The names of the record owner, applicant, and the Professional Civil Engineer, and Land Surveyor;

c.  The names of all abutters as determined from the most recent tax list;

d.  The existing and proposed lines of streets, ways, easements, and any public areas within the subdivision in a general manner;

e.  A locus or location plan at U.S.G.S. scale showing the subdivision and its location to the surrounding roadways and physical features.

f.  The location, size, and direction of flow of existing and proposed sewers, culverts, and storm drains;

g.  The approximate boundary lines of proposed lots with approximate areas and dimension;

h.  The names, approximate location and widths of adjacent streets and any intersecting streets within 300 feet of the boundary of the subdivision;

i.  The topography of the land in a general manner as well as a study of the natural surface and sub-surface drainage and its effect on the total project design;

j.  Proposed street names for all new streets and numbers for all new lots, even numbers on right side of street, and odd numbers on left side of street.

k.  Zoning districts of all areas shown on the plan.

l.  The applicant is urged to prepare a Development Impact Statement with the Preliminary Plan in order to expedite Planning Board Review.
3.  Approval:

Within forty-five (45) days after submission, the Planning Board shall notify the applicant either that the plan has been given approval, with or without modification, and shall notify the Town Clerk of their actions thereon. One copy of the plan shall be retained by the Planning Board and the others returned to the subdivider. Such approval does not constitute approval of a subdivision.
1.  General:

A.  Definitive Plan of a subdivision must be submitted to the Planning Board. Said plan shall be governed by the Subdivision Regulations in effect at the time of submission of such plan, or in effect at the time of submission of a Preliminary Plan, provided that a Definitive Plan evolved therefrom shall have been submitted to the Planning Board within seven (7) months from the date of submission of the Preliminary Plan.

B.  Definitive Plan shall also be governed by the zoning in effect at the time of submission of such plan or at the time of submission of a Preliminary Plan from which a Definitive Plan is evolved, in accordance with the appropriate provisions of Chapter 40A of the Generals Laws, as amended.

Any person submitting a Definitive Plan shall give written notice thereof to the Town Clerk by delivery or registered mail; such notice shall identify the tract, the date of submission and the name and address of the owner (Form C). The applicant shall file the original drawing of the Definitive Plan Map, six (6) contract prints, and six (6) copies of a Development Impact Statement (DIS) with the Planning Board. The applicant shall also file one set of contract prints and a DIS with the Board of Health. The Land Use Clerk shall distribute one copy to each of the following agencies: Building Inspector, Water Department, Sewer Commissioners, Highway Superintendent, and Conservation Commission.

Within forty-five (45) days after the date of submission, the Board of Health, Building Inspector, Water Department, Sewer Commissioners, Highway Superintendent, and Conservation Commission shall notify the Planning Board of their approval or disapproval of the Plan, and shall list their reasons in writing.

Two (2) prints of the proposed subdivision shall have the significant features illustrated according to the following color scheme:

a.  Roads – dark grey
b.  Streams and Water bodies – blue
c.  Open space and Recreation areas – green
        d.  Wetlands - solid red;
e.  One hundred year floodplains - orange;
f.  Pedestrian and Bicycle paths – brown
g.  Subdivision boundaries – black
In addition, the applicant shall file with the Board the following:

a.  Application form (Form C)
b.  Professional Civil Engineer or Land Surveyor’s Seal  (Form D)
c.  Certified List of Abutters (Form F)
d.  Approval with Covenant Contract, notarized in duplicate, if no performance bond or certified check is to be posted (Form I)

e.  The appropriate fee (see Section II-D)
2.  Contents:

The Definitive Plan shall be prepared by a professional civil engineer or land surveyor registered in Massachusetts and shall be clearly and legibly drawn on mylar. If multiple sheets are used, they shall be accompanied by an index sheet showing the entire subdivision. The Definitive Plan shall contain the following information:              
        a.  Subdivision name, boundaries, north point, date, and scale.                 
b.  Name and address of record owner, subdivider and engineer or surveyor.      

c.  Names of all abutters as they appear on the most recent tax list.                   

d.  Lines and widths of existing and proposed streets, ways, lots, easements, public or common areas within the subdivision, and intersections within 300 feet. The proposed names of proposed streets shall be shown in pencil until the Planning Board has approved them.             

e.  Boundary lines, areas and dimension of all proposed lots.                           

f.  Sufficient data to determine the location, direction and length of every street and way line, lot line, and boundary line, and to establish these lines on the ground.              

g.  Location of all permanent monuments properly identified as to whether existing or proposed.

h.  Location, names and present widths of streets bounding, approaching, or within reasonable proximity of the subdivision.

i.  Indication of purpose of easements or restrictions.

j.  Suitable space to record the action of the Planning Board, the Board of Health, and the Town Clerk. Items k, l, m, n, o, and p may be submitted on the same sheet as the Definitive Plan or on separate sheets.     

k.  Existing and proposed topography at a suitable contour interval determined by discussion with the Planning Board.           

l.  Existing (if not changed) and proposed (if changed) locations, cross sections and profiles of all brooks, streams, drainage, and the method of stabilization.                               
m.  Directly above or below the layout plan of each road, a profile showing existing and proposed grades along the centerline and sidelines of that road, together with figures of elevation at the top and bottom of all even grades and at 25-foot intervals along all vertical curves. Intersecting roads shall be clearly indicated on the profile. The horizontal scale of the profiles shall be 40 feet to one inch, and the vertical scale shall be four feet to one inch. Only one road plan and profile shall be drawn on a sheet except by permission of the Planning Board.

n.  Proposed layout of storm drainage, water supply, sewage disposal systems and electrical service giving size and type of all lines and inverts as appropriate.

o.  Location and species of trees intended for preservation within the street right of way.

p.  Watercourses, ponds, marshes, rock outcrops, stone walls, trees of over eight (8) inch caliper (unless otherwise specified by the Board) and other significant natural features.

q.  Zoning districts of all areas shown on the plan, including adjoining properties.

r.  Any other information pertaining to the natural characteristics of the site that may be needed in the opinion of the Planning Board or the Board of Health for determination of the suitability of the land for proposed purposes shall be furnished at the developer's expense.
C.  Impact Statement

The applicant shall also submit a statement of environmental impact, the purpose of which is to enable the officials of the Town to determine what methods are used by the applicant to promote the environmental health of the community and to minimize adverse effects on the natural resources of the Town. This shall accompany any land subdivision plan of ten (10) or more lots or a lesser number if deemed appropriate by the Planning Board.
In preparing the statement, the applicant should refer to the set of Natural Resources Planning Program Maps, the Soil Survey Maps, and the Flood Hazard Maps as applicable prepared for Lenox by the Soil Conservation Service, U.S. Department of Agriculture on file with the Planning Board. The statement should include specific references to the appropriate plans and maps. The statement should be a technical document with references for all statements whenever possible.
In reviewing the statement, the Town boards will consider the degree to which water is recycled into the ground, the maintenance and improvement of the flow and quality of surface water, watersheds, and waterways and bodies; the preservation or promotion of wildlife refuges, historic sites, unique geological, botanical and archaeological features, existing or potential trails and accesses to open space areas; and the health and safety of the inhabitants of the area.
The Planning Board may waive any section, or sections, of the Statement which it deems inapplicable to the proposed project. The developer should discuss the requirements with the Board prior to preparation of the Statement, preferably prior to the submission of a preliminary plan.
The Statement shall include the following:      
1.  Description of the Project

a.  Name of the Project
b.  Address and parcel number for Project area
c.  Owner
d.  Total Acreage
e.  Zoning Districts
f.  Number of Units & Type of Ownership:
Total ____ Below 50% Median Income ____ Below 80% Median Income _____

Total _____ Single Family _____ Two Family _____ Other _____

Private ownership _____ Rental _____ Common Ownership _____ Other _____

g.  Approximate price/unit:

Private ________ Rental ________ Common Ownership _______ Other _______

2.  Physical Environment.
a.  Describe the general physical conditions of the site, including vegetation, topography, unusual geologic, scenic and historical features, trails and open space links and indigenous wildlife.      

b.  Describe how project will affect these features.            
c.  Provide a complete physical description of the project, and relationship to surrounding area.                                               

3.  Surface Water and Soils.
a.  Describe location, extent and type of existing water and wetlands, including existing surface drainage characteristics, both within and adjacent to the project.

b.  Describe the methods to be used during construction to control erosion and sedimentation; i.e., use of sediment basins and type of mulching, matting, or temporary vegetation; describe approximate size and location of land to be cleared at any given time and length of time and exposure; covering of soil stockpiles; and other control methods used. Evaluate effectiveness of proposed methods on the site and on the surrounding areas.
4.  Describe the temporary and permanent methods to be used to control erosion and sedimentation. Include description of:

a.  any areas subject to flooding or ponding;   

b.  proposed surface drainage system;

c.  proposed land grading and permanent vegetative cover;       
d.  methods to be used to protect existing vegetation;  
e.  the relationship of the development to the topography;      
f.  any proposed alterations of wetlands as defined in Ch 131, Sec 40;  
g.  any existing or proposed flood control or wetland easements;        
h.  estimated increase of peak runoff caused by altered surface conditions, and methods to be used to return water to the soils.                
5.  Completely describe sewage disposal methods. Evaluate impact of disposal methods on surface water, soils and vegetation.

6.  Sub-surface Conditions.
a.  Describe any limitations on proposed project caused by sub-surface soil and water conditions, and methods to be used to overcome them.

b.  Describe procedures and findings of percolation tests conducted on the site, if applicable.
c.  Evaluate impact of sewage disposal methods on quality of sub-surface water.                                                 
7.  Town Services                                                       

a.  Describe estimated traffic flow at peak periods and proposed circulation pattern.                                           
b.  Describe locations and number of vehicles accommodated in parking areas.                                            
c.  Describe how a pedestrian and bicycle system will be incorporated into the plan.

d.  Describe effect of project on policies and fire protection services.                                                
e.  Describe effect of project on public works department services.                                             
f.  Describe effect of project on educational services.                 
g.  Describe effect of the project on the town water supply and distribution system.    

h.  Describe effect of the project on the town sewer collection and treatment system.                                   
8.  Human Environment.
a.  Provide a tabulation of proposed buildings by type, size, (number of bedrooms, floor area), ground coverage, and a summary showing the percentage of the tract to be occupied by buildings, parking and other paved vehicular areas, and usable open space.                                                                 
b.  State proximity to transportation, shopping and educational facilities.                                             
c.  Indicate the distance, capacity, and present enrollment of the nearest elementary and secondary schools.

d.  Describe proposed recreational facilities, including active and passive types; and age groups participating, and state whether recreational facilities and open space are available to all Lenox residents.                                                 

9.  Environmental Impact

a.  Briefly summarize with supporting reasons the environmental impact on entire town. Include a description of measures taken to:  

b.  prevent surface and ground water contamination.
c.  maximize ground water recharge.
d.  prevent erosion and sedimentation.
e.  maintain  slope stability.
f.  preserve wildlife habitat.
g.  preserve significant views.

10.  Plans

Describe how the project relates to the following guidelines;

a.  Village concept and village plans
b.  Open Space and Recreation Plan
c.  Master Plan
d.  Regional Land Use Plan prepared  by the Berkshire Regional Planning Commission

D.  Definitive Plan Approval

1.      General Impact
a.  If the development of the site will take place over more than one year, supply a schedule showing how the development will be phased.

b.  Review by Board of Health as to Suitability of the Land: At the time of filing of the Definitive Plan, the subdivider shall also file with the Board of Health two contact prints of the Definitive Plan, dark line on white background. The Board of Health shall, within forty-five days after filing of the Plan, report to the Planning Board in writing approval or disapproval of said plan. The Board of Health shall determine whether the land involved can be used in whole or in part for the subdivision. The greatest stress will be laid on soil condition for septic systems and upon the effects of surface and subsurface drainage as dangers to health. In those subdivisions to be serviced by municipal sewer, the Board of Health's failure to report within 45 days shall be deemed approval. In those subdivisions to be serviced by septic systems, the Board of Health must give its decision before any Planning Board approval can be granted. If the Board of Health disapproves said plan or portion thereof, it shall make specific findings as to which, if any, of the lots shown on said plan cannot be used for building sites without injury to the public health, and include such specific findings and the reasons therefor in such report, and where possible, shall make recommendations for the adjustment thereof.
Applicant's Civil Engineer should be prepared to discuss the effects of surface and subsurface drainage and their effect not only on individual lots but between lots. The Planning Board is concerned about underground springs and heavily compacted soils.                                           
See Chapter VII "Regulation of Sewer Use" in By-Laws of the Town of Lenox, Massachusetts, as most recently amended.
The Board of Health may require as a condition of the subdivision approval that a performance bond or deposit of money or negotiable securities be furnished by the subdivider to guarantee the construction of subsurface drainage improvements recommended by the Board. Such performance guarantee may be released only after completion of the work to the satisfaction of the Board of Health. In viewing possible drainage problems the Board is not limited to lots as shown on the subdivision plan, but may in appropriate cases consider areas outside the subdivision.
2.      Public Hearing:
a.  Before approval of the Definitive Plan is given, a public hearing shall be held by the Planning Board. Notice of such hearing shall be given by the Planning Board at least 14 days prior thereto by advertisement in a newspaper of general circulation in the Town once in each of two successive weeks, the first publication being not less than 14 days before the day of such hearing or if there is no such newspaper in the town, then by posting such notice in a conspicuous place in the Town Hall for a period of not less than 14 days before the day of such hearing and by mailing a copy of such advertisement to the applicant and to all owners of land abutting upon the land included in such plan appearing on the most recent tax list.

b.  The applicant and his engineer and surveyor shall be present at the public hearing.

c.  A hearing by the Conservation Commission may be required under the provisions of the Wetlands Protection Act, Chapter 131, Section 40, of the General Laws.                                         
3.      Performance Guarantee: Before approval of a Definitive Plan of a subdivision, the subdivider shall agree to complete the required improvements specified in Section V for any lots, in a subdivision, such construction and installation to be secured by one, or in part by one and in part by the other, of the following methods which may from time to time be varied by the applicant:

a.  Final Approval with Bonds or Surety. The subdivider shall either file a letter of credit, performance bond or a deposit of money or negotiable securities in an amount determined by the Planning Board to be sufficient to cover the cost of all or any part of the improvements specified in Section V not covered by a covenant under "b" hereof. Such bond or security, if filed or deposited, shall be approved as to form and manner of execution by the Town Counsel and as to sureties by the Town Treasurer, and shall be contingent on the completion of such improvements within two (2) years of the date of the bond.

b.  Final Approval with Covenant. The subdivider shall file a covenant, executed and duly recorded by the owner of record, running with the land, whereby such ways and services as specified in Section V, not covered by bond or deposit under "a" hereof, shall be provided and approved to serve any lot before such lot may be built upon or conveyed, other than by mortgage deed.
4.      Reduction of Bond or Surety: The penal sum of any such bond, or the amount of any deposit held under clause "a" above, may, from time to time, be reduced by the Planning Board and the obligations of the parties thereto released by the Board in whole or in part. If release is by reason of covenant, a new plan of the portion to be subject to the covenant may be required.

5.      Release of Performance Guarantee:

a.  Upon the completion and approval by appropriate town officials of improvements required under Section 6, security for the performance of which was given by bond, deposit or covenant, or upon the performance of any covenant with respect to any lot, the subdivider may make a written request and agree upon terms of release with the Planning Board, or he shall send by Certified Mail to the Town Clerk a written statement in duplicate that the said construction or installation in connection with which such bond, deposit or covenant has been given has been completed in accordance with the requirements contained under Section 6, such statement to contain the address of the applicant, and the Town Clerk shall forthwith furnish a copy of said statement to the Planning Board. If the Planning Board determines that said construction or installation has not been completed, it shall specify in a notice sent by Certified Mail to the applicant and to the Town Clerk the details wherein said construction and installation fails to comply with the requirements under Section 6. Upon failure of the Planning Board to act within forty-five (45) days after receipt by the Town Clerk of the applicant's said statement, all obligations under the bond shall cease and terminate by operation of law, any deposit shall be returned and any such covenant shall become void. In the event that said 45-day period expires without such specification, or without the release and return of the bond or return of the deposit or release of the covenant as aforesaid, the Town Clerk shall issue a certificate to such effect, duly acknowledged, which may be recorded.  

b.  Before the final release by the Planning Board of the Town's interest in a performance bond, deposit or covenant, the applicant shall file two (2) “As Built” plans of water, sewer, storm water system, and roads with the Town Clerk. In addition, the applicant shall file a certificate (Form E) by a registered Massachusetts professional civil engineer and land surveyor declaring that streets, storm drains and all other construction on the ground have been properly completed in accordance with plans approved by the Board.

c.  Release of Bond or Covenant During Poor Weather Conditions: No bond, deposit or covenant shall be recommended for release during any period of time which requires that inspection of the work performed be conducted under weather conditions not amenable to the proper inspection of such work by the appropriate Town departments.

d.  See Section V-A-11-a "Street Trees" for reference to financial arrangement.

6.      Certificate of Approval:

The action of the Planning Board in respect to such plan shall be by vote, copies of which shall be certified with the Town Clerk and sent by Certified Mail to the applicant. If the Planning Board modifies or disapproves such plan, it shall state in its vote the reasons for its action. Final approval, if granted, shall be endorsed on original drawing of the Definitive Plan by the signatures of a majority of the Planning Board but not until the statutory twenty-day appeal period has elapsed following the filing of the certificate of the action of the Planning Board with the Town Clerk and said Clerk has notified the Planning Board that no appeal has been filed. After the Definitive Plan has been approved and endorsed, the applicant shall furnish the Planning Board with four prints thereof for distribution to the Assessors, Building Inspector and Fire Department, and one for the Planning Board. Final approval of the Definitive Plan does not constitute the laying out or acceptance by the Town of streets within a subdivision, nor does it indicate compliance with the provisions of the Wetlands Protection Act, Chapter 131, Section 40, of the General Laws, as most recently amended.      

7.      Submission of Documents:

Easements, and bond and/or covenant, shall be submitted within twenty (20) days from the date of approval of the Definitive Plan to the Planning Board, which then shall submit the documents to the Town Counsel for approval as to form and legality.

8.      Recording of Plan and Notification of the Board

a.  Approval of all subdivisions is subject to the condition that, unless an appeal has been taken from such approval as provided by statute, the subdivider will record the subdivision plan in the Berkshire Middle District Registry of Deeds, or the Land Court, within six (6) months from the date of its approval. If the applicant delays recording of such plan past the required six-month period, such plan shall not be accepted for recording in the Registry of Deeds or Land Court unless and until it has endorsed thereon, or recorded therewith and referred to thereon, a certificate of the Planning Board, or the Town Clerk, dated within thirty (30) days of such recording, that the approval has not been modified, amended or rescinded, nor the plan changed. Such certificate shall, upon application, be made by the Board or the Town Clerk unless the records of the Board or the Town Clerk receiving the application show that there has been such modification, amendment, rescission or change.   

b.  The applicant shall notify the Board in writing of the date of such recording and show evidence of the recording. Upon receipt of notification of recording the Board shall file one print of the Definitive Plan with the Building Inspector A copy of this plan and all subsequent modifications or amendments will be made available to the Department of Public Works. In accordance with the statute, where approval with covenant is noted thereon, the Building Inspector shall not issue any permit for the construction of a building on any lot within the subdivision without receipt of a copy of the Certificate of Performance (Use Form J) from the Board.

9.   Ownership and Maintenance of Subdivision Improvements  

a.  Acceptance: Approval by theBoard of a Definitive Subdivision Plan shall not constitute acceptance by the Town of any street, sidewalk or other municipal service within the subdivision.

b.  Ownership: The Applicant shall retain title to the fee of each street, path or easement in, or appurtenant to, the subdivision until conveyed to the Town and shall maintain and repair the streets and improvements in a manner satisfactory to the Town, acting by and through its Board, during this period. A notation shall be made on the plans which indicates the Applicant's ownership of said street(s) pending acceptance by the Town.

If the Town must maintain a portion of, or enter the subdivision for the purpose of public safety, emergency purposes, or otherwise, the Town reserves the right to charge the Applicant for services rendered.

Prior to final release of security, the Applicant shall submit to the Board all the necessary documentation for street acceptance including, but not limited to, plans in a form acceptable to the Registry of Deeds or the Land Court, a street layout plan, legal descriptions, easements, a list of owners and mortgagees of lots having rights in the street(s), and all other necessary grants, of deeds or instruments affecting a locus.

c.  Maintenance by Applicant: The Applicant shall be responsible for maintaining in good repair all streets in the subdivision after release of the security until the streets are accepted by the Town Meeting. To assure such responsibility, the Applicant shall guarantee the maintenance of the streets in the subdivision in a condition which meets all the requirements of these Rules and Regulations to the satisfaction of the Board, by posting with the Town a maintenance security, in an amount sufficient in the determination of the Board, to secure the aforesaid maintenance. The applicant shall be responsible for maintenance of all improvements within the street, from edge to edge of the right-of-way.

10.  Completion within three years  

The Board may impose as a condition of approval on a Definitive Plan that construction of all ways and all installation of municipal services shown on the plan be completed within three (3) years of the date of approval. If the construction and installation is not completed within a three (3) year period, the approval shall automatically lapse and no way shall be laid out, constructed or opened for public use unless and until a new Definitive Plan application has been filed in accordance with the Rules and Regulations then in effect and the new plan has been approved by the Board.

11. Right of Entry  

The Board, its officers and agents, may, as far as they deem necessary in carrying out the subdivision control law, enter upon any lands and there make examinations and surveys or to place and maintain monuments and marks.

Lenox Town Hall  6 Walker Street, Lenox, MA 01240   PH: (413) 637-5500