301 CMR 23.04 - Review Procedures

(1) Submission Requirements. The planning representative of the municipality shall submit a proposed MHP to the Secretary within two years of the date of issuance of the Notice to Proceed, unless written approval is obtained from the Secretary for an extension of the submission deadline by an additional six months. The proposed MHP shall be prepared in accordance with content and format instructions provided by CZM, with whom advance consultation is encouraged to obtain guidance as to the information necessary to allow the review process to commence. At a minimum such content shall include the following:
(a) text encompassing all basic elements of an MHP as defined in 301 CMR 23.02 and addressing all matters discussed in the Notice to Proceed; and
(b) supporting documentation containing, among other things, the data and analysis establishing how the MHP complies with the standards for approval set forth in 301 CMR 23.05.
(2) Public Notice and Distribution Requirements. Upon the submission of a proposed MHP that meets the requirements of 301 CMR 23.04(1), the Secretary shall publish notice of the submission and of the location and date of the public hearing scheduled in accordance with 301 CMR 23.04(3)(b) in the next available edition of the Environmental Monitor. The municipality shall, on or before the date of such publication:
(a) publish the notice in a local newspaper of general circulation, and provide a copy of the notice to all persons and organizations identified in 301 CMR 23.08(4)(a) and (b), and to all persons who submitted written comments on the proposed planning program; and
(b) distribute copies of the proposed MHP in accordance with 301 CMR 23.08(4)(c).
(3) Public Comment, Hearing, and Consultation with Municipality.
(a) For a period of 30 days after publication of the notice in the Environmental Monitor, the Secretary shall accept public comments on the proposed MHP. The Secretary may extend the public comment period upon the request of any interested person and shall publish notice of any such extension in the next available edition of the Environmental Monitor. Generally, extensions shall not exceed 30 days.
(b) A public hearing shall be held by the Secretary prior to the close of the public comment period and within the municipality submitting the proposed MHP. In the case of a jointly submitted MHP for a harbor shared by more than one municipality, a single hearing shall be held.
(c) Upon the close of the public comment period, the Secretary shall arrange a consultation session involving one or more meetings with the planning representative of the municipality and members of the Harbor Planning Group in order to obtain further input for purposes of developing a written decision by the Secretary on the proposed MHP. As appropriate, such consultation shall involve other state agencies with legal jurisdiction or special expertise relative to the matters under consideration, including, but not limited to, DEP, DCR, and state agencies owning real property or otherwise responsible for the implementation of plans or projects within the Harbor Planning Area. The consultation shall be completed within 60 days of the close of the public comment period, unless the period is extended at the request of the municipality or by the Secretary as necessary to review any additional information submitted by the municipality more than 30 days after the close of the comment period.
(4) Issuance of Written Decision. No later than 21 days after the close of the consultation session, or at such later time as the municipality may request, the Secretary shall issue a written decision on the proposed MHP and shall send a copy of such decision to the planning representative of the municipality and to all persons who submitted written comments during any comment period under 301 CMR 23.03 and 23.04. The written decision shall indicate whether the Secretary has approved the MHP and shall set forth the basis for such determination, in accordance with the following provisions:
(a) no portion of a proposed MHP shall be approved unless it meets the standards for approval set forth in 301 CMR 23.05, provided however that the Secretary may qualify, limit, or otherwise condition such approval in any manner that serves the purposes of 301 CMR 23.00; such conditions may govern both substantive and procedural matters, including but not limited to:
1. the effective date and duration of the approval;
2. the applicability of specified provisions of the MHP to the review of license or permit applications under 310 CMR 9.00: Waterways; and
3. the legislative, administrative, and other steps that must be taken by the municipality to fulfill any implementation commitments necessary for MHP approval, in accordance with 301 CMR 23.05(4);
(b) notwithstanding any provision to the contrary in 301 CMR 23.04(4)(a), the Secretary shall renew the approval of any provisions of an existing Approved MHP submitted in accordance with 301 CMR 23.06(2), except upon a determination that:
1. the continued implementation of said provisions under the Secretary's existing approval would result in significant detriment to any water-related public interest protected by the standards set forth in 301 CMR 23.05; and
2. such significant detriment cannot be avoided reasonably through sole reliance on further conditions to the Secretary's existing approval;
(c) if any portion of a proposed MHP does not meet the standards for approval, the written decision shall identify the issues that have not been adequately addressed, shall indicate what modifications to the MHP or the planning process would be appropriate to remedy the inadequacies noted, and shall provide such additional guidance as the Secretary deems appropriate; upon revision and resubmission, the proposed MHP shall be reviewed in accordance with the procedures of 301 CMR 23.04;
(d) if the Secretary of any State Executive Office certifies in writing during public comment or the consultation session pursuant to 301 CMR 23.04(3) that incompatibility cannot be avoided between one or more provisions of the MHP and the planned activities of any state agency under such Executive Office owning real property or otherwise responsible for the implementation of plans or projects within the Harbor Planning Area, the Secretary shall determine that such incompatible MHP provision(s) are not applicable to the property or projects in question; and
(e) in the event the Secretary decides not to renew the approval of an Approved MHP or portion thereof, pursuant to 301 CMR 23.06(2), the applicable provisions of said MHP shall remain in full force and effect for any project for which a license or permit application was filed pursuant to 310 CMR 9.00: Waterways on or before the effective date of such decision.
(5) Reconsideration of Decision. The Secretary may reconsider the decision issued pursuant to 301 CMR 23.04(4) only if a compelling basis for such reconsideration is presented in a written petition submitted within 21 days of the Secretary's decision by the planning representative of the municipality, any state agency, or ten or more citizens of the Commonwealth. Such petition must include a clear and concise statement of the specific objections to the Secretary's decision and the relief sought, including specifically any changes that are proposed for consideration. The Secretary shall respond in writing to any such petition within 21 days of the close of the petition period, and shall set forth the basis for such response, including the reasons for any modification of the decision. When the Secretary's decision is final, notice thereof shall be published in the next available edition of the Environmental Monitor.
(6) Effective Date of Approval. An Approved MHP or portion thereof shall be effective for purposes of 310 CMR 9.00: Waterways when the Secretary has determined that the municipality has met all relevant conditions of the approval decision, including but not limited to those related to implementation of any ordinances/bylaws, regulations, capital improvements, programmatic initiatives, or organizational measures. When such implementation requires adoption or other formal action by a municipal body, the Secretary shall make this determination only if the municipal clerk has certified in writing that all such actions have been taken and has submitted copies of the enactments in question to the Secretary. The Secretary's approval shall remain in effect until an amendment or renewal decision becomes effective in accordance with 301 CMR 23.06, except upon a clear showing that the municipality has not continued to meet all relevant conditions of such approval.


301 CMR 23.04
Amended by Mass Register Issue 1334, eff. 3/10/2017.

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