Conformance with Municipal Zoning and Approved Municipal Harbor Plans

(1) Zoning Law. Any project located on private tidelands or filled Commonwealth tidelands must be determined to comply with applicable zoning ordinances and bylaws of the municipality(ies) in which such tidelands are located. The Department shall find this requirement is met upon receipt of written certification issued by the municipal clerk, or by another municipal official responsible for administering said zoning ordinances and bylaws, and signed by the municipal clerk, stating that the activity to be licensed is not in violation of said ordinances and bylaws. Compliance with zoning does not apply to any public service project that is exempted from such requirements by law including, but not limited to, action of the Department of Public Utilities pursuant to M.G.L. c. 40A, § 3. (2) Approved Municipal Harbor Plan. (a) If the project is located within an area covered by an Approved Municipal Harbor Plan, said project must conform to the provisions of said plan to the degree applicable under plan approval at 301 CMR 23.00: Review and Approval of Municipal Harbor Plans, including substitute provisions adopted by the Department and listed in 310 CMR 9.57. In making this determination the Department shall take into account all relevant information in the public record, and shall act in accordance with the following provisions: 1. the Department shall consult with the planning board or other municipal body with lead responsibility for plan implementation, as appropriate and in accordance with the provisions of 310 CMR 9.11(1). In the event a written recommendation as to plan conformance is submitted by such board or other body, the Department shall presume that the requirement is met or not met in accordance with said recommendation, except upon a clear showing to the contrary and except as otherwise provided in 310 CMR 9.34(2)(a)2.; 2. the Department shall not find the requirement has been met if the project requires a variance or similar form of exemption from the substantive provisions of the Approved Municipal Harbor Plan, unless the Department determines the deviation to be de minimis or unrelated to the purposes of M.G.L. c. 91 or 310 CMR 9.00; (b) If the project conforms to the Approved Municipal Harbor Plan, the Department shall: 1. apply the use limitations or numerical standards specified in the Approved Municipal Harbor Plan and listed in 310 CMR 9.57 as a substitute for the respective limitations or standards contained in 310 CMR 9.32(1)(b)3., 9.51(3), 9.52(1)(b)1., and 9.53(2)(b) and (c), in accordance with the criteria specified in 310 CMR 9.32(1)(b)3., 9.51(3), 9.52(1)(b)1., and 9.53(2)(b) and (c) and in associated plan approval at 301 CMR 23.00: Review and Approval of Municipal Harbor Plans and associated guidelines of CZM; 2. adhere to the greatest reasonable extent to applicable guidance specified in the Approved Municipal Harbor Plan which amplifies any discretionary requirements of 310 CMR 9.00, in accordance with the criteria specified in 301 CMR 23.00: Review and Approval of Municipal Harbor Plans and associated guidelines of CZM; and 3. determine that the requirement of 310 CMR 9.54, governing consistency with CZM policies, has been met, if applicable, except upon a written showing by CZM for a project identified in 310 CMR 9.13(2)(a) for CZM participation that the project conflicts with CZM policy in effect when the license application was completed, in a manner that was not reasonably foreseeable at the time of plan approval.