After the Public Hearing the Board will approve, modify and approve or disapprove the plan as submitted. Findings for action by the Board shall be the following:

a) completeness and technical adequacy of the plans and supporting material;

b) due regard for the provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel

c) for lessening congestion in such ways and in the adjacent public ways

d) for reducing danger to life and limb in the operation of motor vehicles

e) for securing safety in the case of fire, flood, panic and other emergencies

f) for ensuring compliance with the applicable zoning by-laws or by-laws

g) for securing adequate provisions for water, sewerage, drainage, underground utility services, fire, police, and other similar municipal equipment, and street lighting and other requirements where necessary in a subdivision

h) for coordinating the ways in neighboring subdivisions

i) conformity with the design and construction standards described in these Rules and Regulations and in attached Appendices;

j) conformity with all applicable zoning requirements;

Following such action, and within ninety (90) days of receipt of the Definitive Plan, the Board shall file a certificate of its action with the Town Clerk and send notices of its action by certified mail to the applicant. In the event a Preliminary Plan has not been filed, or in the event that a Preliminary Plan previously had been filed and disapproved by the Board, the Board shall file a certificate of vote within one hundred thirty-five (135) days of receipt of the Definitive Plan.

5.6.1 Time Extensions:

Further time, as may be agreed upon by the Board and the applicant, may be allowed for the Board's decision. Such time extensions shall be at the written request of the applicant and such notice(s) of time extension shall be filed forthwith by the Board with the Town Clerk.

5.7.1 Requirement For Posting

Pursuant to MGL Section 81-U, before endorsement of the Board's approval of a Form C plan, the applicant shall secure the construction of ways and installation of municipal services in an amount sufficient to cover the cost of all or any agreed upon portion of such construction and installation and of the subdivision improvements specified in Section VII of these regulations or as may be shown on the Form C plan.

1. The amount of the performance guarantee shall be established by the Board in a sum sufficient to cover the cost of construction of the required subdivision improvements and the cost of legal and engineering work necessary for street acceptance. The amount shall be adjusted to include a reasonable inflation factor as shown in the latest Engineering News-Record Construction Cost Index with a minimum ten (10%) percent for a two (2) year guarantee.

2. The performance guarantee shall be in the form of a passbook account, established in the name of the applicant, titled "Trust Account" from which withdrawals shall not be allowed without the approval of the Board. The passbook together with a signed withdrawal slip shall be delivered to the Board within 30 days of approval of the amount by the Board. (see section IVB.2)

3. Guarantees for terms longer than two years shall not be established except under extenuating circumstances which shall be demonstrated to the Board by the applicant.

4. The Board may approve a plan without establishment of a passbook account guarantee, if, but only if, the applicant records, and provides the Board with a certified copy of such recording, a covenant by the owner of record of land, running with the land, whereby such ways and services and improvements shall be provided to serve any lot before such lot may be built upon or conveyed, other than by mortgage deed.

5. Simultaneously, a Performance Guarantee Agreement and Bond form must be signed in the Planning Office, along with the set of Road Construction Guidelines (sample attached).

6. If an applicant is to deposit a performance guarantee in the form a surety,

5.7.2. Performance Guarantee Procedure

The applicant shall request, in writing to the Board, the establishment of a performance guarantee amount for any or all of the required subdivision improvements, including ways and municipal services, shown on the Form C plan. The applicant shall specify the time period in which he intends to have completed all such subdivision improvements. Completion shall include all physical construction of such subdivision improvements and those legal and engineering documents needed for acceptance of streets, utilities and any open spaces by the Town .

1. The Board's Designee shall compute the amount estimated to be required to complete such subdivision improvements shown on the plan. This amount shall be adjusted to include a reasonable inflation factor under Section 5.7.1.1. above and such fees deemed by the Board to be sufficient to cover legal fees and engineering fees necessary to have streets accepted by the town. In no case shall these legal and engineering fees be less than two hundred ($200) dollars per lot in the subdivision.

2. The Board shall consider approval of the figure submitted by the Board's Designee at a public meeting. If approved by majority vote, the board shall notify the developer of the term of the performance guarantee (not to exceed two years) and the amount, which shall be a valid figure for a period of thirty (30) days.

3. The applicant shall provide the performance guarantee in passbook account form, as required by Section 5.7.1.2. of these regulations, by delivery to the Board's office in the Town Office Building, the passbook and withdrawal slip shall be held by the Town Treasurer.

5.7.3 Performance Guarantee -- Fees for Project Review and Inspectional Services:

a. When conducting inspections in relation to, a preliminary subdivision, a definitive subdivision, or a Special Permit under the provisions of the North Andover Zoning Bylaws, the Planning Board may determine that the assistance of outside consultants is warranted due to the size, scale or complexity of a proposed project, because of a project's potential impacts, or because the Town lacks the necessary expertise to perform the work related to a preliminary subdivision, a definitive subdivision, or a Special Permit under the provisions of the North Andover Zoning Bylaws. The Planning Board may require that applicants pay a "project review fee" consisting of the reasonable costs incurred by the Planning Board for the employment of outside consultants

b. In hiring outside consultants, the Planning Board may engage engineers, planners, lawyers, urban designers or other appropriate professionals who can assist the Planning Board in analyzing a project to ensure compliance with all relevant laws, ordinances/bylaws, and regulations. Such assistance may include, but not be limited to, monitoring or inspecting a project or site for compliance with the Planning Board's decision or regulations, or inspecting a project during construction or implementation.

c. Prior to any expense being incurred, which would be chargeable to the developer, the Planning Board shall provide the developer with an estimate of the expected costs. The developer shall deposit with the Town a cash amount equal to the total estimated cost of review and inspection of the proposal.

d. Funds received by the Planning Board pursuant to this section shall be deposited with the municipal treasurer who shall establish a special account for this purpose. Expenditures from this special account may be made at the discretion of the Planning Board without further appropriation. Expenditures from this special account shall be made only for services rendered on connection with a specific project or projects for which a project review fee has been or will be collected from the applicant. Accrued interest may also be spent for this purpose. These funds will be disbursed by the Planning Board to the reviewing/inspecting party until expended.

e. Upon completion of all review and inspection services, the Planning Board shall examine all records to ensure that all payments have been made. In the case of an estimate being too low the developer shall make a final deposit to the Town in the amount of the shortfall. In the case of an estimate being too high the Planning Board shall refund to the developer any unused funds, including accrued interest. The failure of the developer to provide funds for all outstanding costs shall be cause for a stop work order of the proposal. A final report of said account shall be made available to the applicant or the applicant's successor in interest. For the purpose of the regulation, any person or entity claiming to be an applicant's successor in interest shall provide the Planning Board with documentation establishing such succession in interest.

f. Any applicant may make an administrative appeal from the selection of the outside consultant to the Board of Selectmen. Such appeal must be made in writing and must be made within 20 days after the Planning Board has mailed or hand-delivered notice to the applicant of the selection. The grounds for such an appeal shall be limited to claims that the consultant selected has a conflict of interest or does not possess the minimum, required qualifications. The minimum qualifications shall consist either of an educational degree in, or related to, the field at issue or three or more years of practice in the field at issue or a related field. The required time limit for action upon an application by the Planning Board shall be extended by the duration of the administrative appeal. In the event that no decision is made by the Board of Selectmen within 30 days following the filing of the appeal, the selection made by the Planning Board shall stand.

5.8.1 Written Request:

Upon completion of improvements required by these Regulations, the applicant may request either partial or full release of the bond, deposit or covenant by filing a statement of completion and a request for release to the Town Clerk and the Board. The statement shall include:

a) written evidence from the Board Designee that the streets and drainage conform to the Board's requirements in accordance with the approved Definitive Subdivision;

b) written evidence from the Board Designee that the underground wiring, water mains, sanitary sewers, storm sewers, hydrants and/or other site improvements conform to the specifications and the Board's requirements in accordance with the approved Definitive Plan;

c) written evidence from both the Board Designee and the Director of Engineering of the Department of Public Works that as-built and road layout plans have been submitted and reviewed;

d) written evidence from the Board Designee that the improvements have been exposed to one complete winter environment (Dec. 1 to April 30) without damage, or that damage, if incurred, has been repaired to the satisfaction of the Subdivision Inspector and the Department of Public Works; and

e) written evidence from the Board Designee that installation of street trees and other plants as described in Section 6 have been completed satisfactorily, the plant materials are in healthy condition and that the warranty has been assigned to the Town.

f) Owners of record of all lots within a subdivision for which release of all performance guarantee monies is requested, shall be given timely notice prior to the meeting at which the Board shall vote on such release.

5.8.2 Partial Release:

Prior to final release of security, the Board may, at its discretion, grant up to three (3) partial releases from the required security for partial completion of improvements provided that:

a) no reduction shall reduce the bond, deposit or covenant to a value below the estimated cost of completing the unfinished portions of the improvements;

b) no lot shall be released from the covenant unless and until construction of ways and installation of municipal services up to and including the base course of asphalt to serve said lot both have been completed to the Board's satisfaction;

c) no partial release of security shall be granted until the Board has received written verification from the the Board Designee that substantially more than fifty percent (50%) of the required improvements have been completed satisfactorily;

d) no partial release shall reduce the security by more than fifty percent (50%) of the amount being held at the time the release is requested; and

e) no partial release of security shall be granted until the Board has received stamped record plans documenting construction completed to date.

5.8.3 Final Release of Security:

If the Board determines that the required improvements have been completed in accordance with these Rules and Regulations, it may release the interest of the Town in any bond or deposit and return the bond or deposit to the applicant, or release the covenant by appropriate instrument.

However, the Board shall retain security in an amount equal to at least 10% of the total cost of landscaping and street improvements to ensure construction adequacy against latent defects. Such security shall not be released until the fee in the road and any related instruments have been conveyed to the town and said road has been accepted at Town Meeting.

Failure of an Applicant to record the Definitive Plan within six (6) months of its endorsement by the Board at the Essex North District Registry of Deeds or at the Land Court; or to comply with the construction schedule incorporated into the performance agreement; or to initiate construction of improvements in a subdivision within two (2) years of the approval of the Definitive Plan; or to comply with all applicable Town of North Andover Zoning By-law requirements; or to comply with the approved plans and any conditions of approval; shall constitute grounds for rescission of approval in accordance with the requirements and procedures set forth in M.G.L. c.41, s. 81-W.

Any such bond may be enforced and any such deposit may be applied by the Board for the benefit of the Town of North Andover, as provided in M.G.L. C41, s.81-Y, upon failure of the performance for which any such bond or deposit was given to the extent the reasonable cost to the Town of completing the construction and installation of the improvements.

5.11.1 Acceptance:

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

5.11.2 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 and the Town Counsel 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.

5.11.3 Maintenance by Applicant:

The Applicant shall be responsible for maintaining in good repair all streets in the subdivision after release of the security, as required in Section 5.7 and Section 5.9 or 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, as shown in Figure 1.

10) 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 two (2) years of the date of approval. For purposes of clarification, "completed" shall be defined as the utilities being installed and the streets or ways constructed to binder coat two years from the date of Definitive Plan approval. If the construction and installation is not completed within a two (2) 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.

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.

An accurate "as-built" plan and profile of the roadway(s) and associated site improvements, prepared by a registered professional engineer and registered professional land surveyor, shall be submitted to the Board after completion of the construction and prior to any partial release. Said plan shall indicate the record location of all municipal services as actually installed. Sufficient ties, including depths shown as profiles, for the proper and accurate identification and location, shall be provided. Additional information to be provided includes, but is not limited to, the location and size of sewer pump/lift stations, location and total storage provided of detention ponds, and other similar facilities.

Prior to a final bond release, a final as-built plan and profile prepared at the same scale as the approved subdivision plan drawn to the requirements of the Registry of Deeds, shall be submitted to the Planning Board for approval. The as-built plan and profile shall bear the certification from both a Registered Professional Civil Engineer and Land Surveyor that all utilities shown thereon are as-built as to location and grade, that all stone bound monuments have been properly and accurately set in accordance with Professional Land Surveying standards and that the roadway is within the right-of-way lines as shown, and that the subdivision is entirely as constructed is in accord with the proposed grading plan and that the drainage patterns conform to the drainage analysis as submitted and approved by the Planning Board. Final as-built plans and profiles shall include as a minimum the following information.

1) Rims, size, type and inverts of all drainage and sewer pipes.

2) Location, type and elevation of all water mains, including gates, tees, services and hydrants.

3) Location and type of all underground electrical, telephone, fire alarm and cable lines, including services to lots, transformers, utilities and junction boxes.

4) Water service shut-off boxes to each lot with linear ties to a permanent structure or monument.

5) Location of all gas lines including lot services and shut-offs.

6) Curbing including sizes and type.

7) Sidewalks and grass plots including type and width and handicap ramps.

8) Driveway curb cut from edge of pavement to right-of-way lines.

9) Centerline stationing with monument stationing.

10) Top and bottom of fill and cut slopes adjacent to the roadway.

11) Centerline profile elevations at every 50' station and at high and low points.

12) Width of roadway pavement.

13) Utility and light poles with guys.

14) Street signs.

15) Permanent bench marks on each sheet.

16) Landscaping and Tree plantings.

17) All off roadway drainage facilities including easements, swales, appurtenances and final landscaping. If a detention/retention basin is part of the Subdivision, provide enough spot elevations on the bottom and top of side slopes to indicate that the basin will have proper staging as approved.

18) Notation of any changes that deviate from the endorsed and recorded plans and the authority that allowed such change to be made;

19) A Mylar of the endorsed and recorded plans in the same scale required of the as-built final plans with a clear film so an overlay can be made to quickly distinguish any changes which may deviate from that of the endorsed and recorded plans.

The applicant shall submit an interim as-built drawing, with completed municipal services, for review and acceptance by the Board, before the placement of any pavement.

A statement shall be provided on the "as-built" plans that the information provided conforms to these regulations, to the design intent of the design engineer and that any exceptions, exclusive of granted waivers, shall be noted on said plan. The "as-built" plan shall be recorded in the Registry of Deeds upon the release of all lots and completion of all ways and utilities.

5.15.1 General

This section describes how conditions may be attached to the Board's approval of a Form C plan, and the types and terms of releases of those conditions.

5.15.2 Establishment of Conditions

1. In the interest of orderly development of the Town of North Andover and of preserving the health, safety and welfare of its inhabitants, the Board may attach or impose reasonable conditions to its approval of a Form C plan.

2. These conditions of approval will normally address but need not be limited to such matters as: plan recording, subdivision improvements, performance guarantees, construction scheduling, grading, earth movement, Wetland Resource Areas, construction standards, erosion and sedimentation control, stabilization of slopes and soil surfaces, drainage, location of stump dumps, protection of open space, street acceptance procedures, and compliance with the M.G.L. and with particular federal or state statutes and local bylaws deemed relevant by the Board.

3. Conditions, if any, imposed by the Board shall accompany the Board's approval endorsement upon a Form C plan, either upon the plan itself or by separate schedule attached, the existence of which schedule of conditions shall be noted on the face of the plan and be deemed an integral part of the plan as approved.

4. Where streets or ways are not otherwise deemed adequate, the board may impose conditions limiting the lots upon which buildings may be erected, and the number of the buildings that may be erected on particular lots and the length of time for which particular buildings may be maintained without further consent by the Board to the access provided.

5.15.3 Recording the Conditions

Following expiration of the twenty (20) day appeal period following approval of the plan, the applicant may record the plan and the decision containing the conditions of approval, to be recorded at the Registry of Deeds. Thereupon the conditions shall be known and referred to as Restrictions. A copy of the decision

5.15.4 Partial Release of Conditions

Upon the delivery of the performance guarantee required by Section IV to the Board, the Board may provide an instrument allowing for the conveyance, sale, or transfer of lots shown on the plan. There after the Board may provide instruments for partial releases of restrictions, meaning those restrictions which have been complied with or are not applicable to any given lot, for which a fee of twenty five ($25.00) shall be charged.

5.15.5 Clearance Certificates

Prior to the issuance of any building permits by the Inspector of Buildings for any lot created under these rules and regulations, the following conditions shall have been met:

1. The North Andover Board of Health or its agent shall have approved either connection to the municipal sanitary sewer, or the installation of an on-site sewage disposal system;

2. The North Andover Department of Public Works shall certify that properly installed water service appurtenant to the lots and adequate under standards generally applied in North Andover, has been installed and approved;

3. The construction of roads or ways shown on the subdivision plan shall be completed at least through binder pavement course and in compliance with these rules and regulations;

4. a Clearance Certificate shall have been filled out by the applicant for such building permit and shall have been approved by the agent of the Board.

5.15.6 Minor Amendments to Conditions

1.Minor amendments or changes to conditions of approval or restrictions may be made but only upon the following circumstances:

2. Field conditions may warrant minor changes which may be allowed by the Board when in its staff's opinion such change will not substantially detract from the intent of the condition or restriction. Such a change shall be reviewed and approved by the Board at the next regularly scheduled meeting.

5.15.7 Substantial Modification or Amendment of a Form C Approval or of its Condition

Any modification or amendment of a Form C plan or its conditions which is not minor shall be made only pursuant to MGL Section 41, 81-W and shall be subject to the submission, notice, hearing, and approval requirements of the MGL and these rules and regulations. (See Section 2.7.5)

5.15.8 Failure to Comply with Conditions

Failure on the part of the applicant, his agent, or contractor to comply with any condition or restriction established by the Board in regard to a Form C plan shall be dealt with in the following manner:

1. The Board, through its staff, shall have the authority to enforce the conditions of the Board's approval of the plan.

2. Infractions deemed by the Board or its staff minor in nature, shall result in the applicant being notified of such infraction and directed to take corrective actions.

3. Repeated infractions or infractions deemed by the Board or its staff to be major or having a direct impact on health, safety and welfare or upon the integrity of the rules and regulations of the Board, shall result in an immediate Stop Work Order being issued at the project site by the authorized staff or agent, and notification by certified mail of such action to the applicant.

4. A Stop Work Order with certified notice of action shall require the applicant and the agent who issued said Order to appear before the Board at a public meeting for a determination of facts and subsequent action by the Board to secure health, safety and welfare, and compliance with these rules and regulations.

5.15.9 Final Release of Conditions

Upon acceptance of the subdivision streets by the Town, the Board may release all restrictions not previously released by execution of a formal document, in recordable form, except such as are on their face intended to survive acceptance of subdivision streets.