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Planning Board refines waiver and amendment language for 40B decision, stresses use of state regulatory text
Summary
Board members reviewed and edited draft decision language addressing waivers, the savings/jurisdiction clause for Low Street improvements, amendment procedures if state/federal law prevents mitigation, and limits on blanket waivers of Chapter 5; counsel was asked to copy relevant 760 CMR text and return a redline for Wednesday.
The Planning Board devoted extensive discussion to legal and procedural language in the draft comprehensive-permit decision, focusing on waivers, the board's jurisdiction over Low Street improvements and a savings clause that would govern situations when state or federal law prevents the applicant from delivering a specified mitigation.
Members repeatedly urged that the decision mirror state comprehensive-permit regulations rather than invent new phrasing, asking counsel to copy and paste applicable 760 CMR provisions for waivers, modification and transfer (multiple citations were raised in the meeting record). Several board members warned against broad, blanket waivers of every requirement in Chapter 5; the board preferred that the applicant identify specific subsections that require waiver and that the record explicitly list granted waivers in Exhibit F.
On the savings clause, the board considered text to address an unlikely but possible scenario: if an off-site traffic mitigation (for example, a HAWK or refuge island on Low Street) cannot be constructed because of state or federal legal constraints, the applicant would not be excused outright. Instead, the board favored language requiring the applicant to apply for an amendment consistent with the regulations (cited in the meeting) and to propose alternative mitigation to address the board's finding of impact. Counsel and board lawyers discussed language to ensure that a genuine legal impossibility would be recognized while preserving the board's ability to require substitute mitigation and to revisit findings rather than voiding safety mitigation entirely.
Members also clarified several transactional and drafting points: define the signed-and-stamped final plan, make the affordable units explicitly rental units (25% of units, cited in the draft as 53 units), and correct citations and cross-references throughout the draft. The board instructed counsel to present the statutory/regulatory text for modifications and transfers (to avoid later appeals over language), to ensure easement agreements are enforceable and reviewed by board counsel, and to include specific sign and lighting plans in the record to avoid later disputes about the number or dimensions of permitted signs.
The board asked the applicant and lead attorneys to circulate a redline of the 31-page decision showing all markups and a short bullet summary of substantive changes; counsel agreed to turn the revised draft around before the Wednesday continuation so the board could review and, if acceptable, sign a clean version and finalize filing copies.
