Current through Register 1531, September 27, 2024
(1) A decision by a Board to deny a Comprehensive
Permit, or (if the Statutory Minima defined at 760 CMR 56.03(3)(b)
or (c) have been satisfied) grant a Comprehensive Permit with conditions, shall be
upheld if one or more of the following grounds has been met as of the date of the
Project's application:
(a) the municipality has
achieved one or more of the Statutory Minima, in accordance with
760 CMR 56.03(3);
(b) the Department has
certified the municipality's compliance with the goals of its approved Housing
Production Plan, in accordance with 760 CMR 56.03(4);
(c) the municipality has made recent progress
toward the Statutory Minima, in accordance with 760 CMR
56.03(5);
(d) the project is a large
project, as set forth in 760 CMR 56.03(6); or
(e) a related application has previously been
received, as set forth in 760 CMR 56.03(7).
For the purposes of 760 CMR 56.03, units of SHI Eligible Housing
shall be counted only if they satisfy the requirements for listing on the SHI in
accordance with 760 CMR 56.03(2). A Board decision based on one or more of the
grounds set forth in 760 CMR 56.03(1) shall be made solely in accordance with the
procedure set forth in 760 CMR 56.03(8). Such a denial shall be without prejudice,
and it shall not preclude re-filing of the Comprehensive Permit application at a
later date.
Notwithstanding the foregoing, a Board may at its sole discretion
elect to proceed with the full local hearing, and ultimately to approve a
Comprehensive Permit, even though one or more of the above grounds have been met. If
a Board so elects, such election shall not be grounds for an appeal taken pursuant
to 760 CMR 56.03(8)(a).
(2)
Subsidized Housing
Inventory.
(a) The Department shall
maintain the SHI to measure a municipality's stock of SHI Eligible Housing. The SHI
is not limited to housing units developed through issuance of a Comprehensive
Permit; it may also include SHI Eligible Housing units developed under M.G.L. chs.
40A, c. 40R, and other statutes, regulations, and programs, so long as such units
are subject to a Use Restriction and an Affirmative Fair Marketing Plan, and they
satisfy the requirements of guidelines issued by the Department.
(b) Units shall be eligible to be counted on the
SHI at the earliest of the following:
1. For units
that require a Comprehensive Permit under M.G.L. c. 40B, § 20 through 23, or a
zoning approval under M.G.L. c. 40A or completion of plan review under M.G.L. c.
40R, the date when:
a. the permit or approval is
filed with the municipal clerk, notwithstanding any appeal by a party other than the
Board, but subject to the time limit for counting such units set forth at 760 CMR
56.03(2)(c); or
b. on the date when the
last appeal by the Board is fully resolved;
2. When the building permit for the unit is
issued;
3. When the occupancy permit for
the unit is issued; or
4. When the unit
is occupied by an Income Eligible Household and all the conditions of 760 CMR
56.03(2)(b) have been met (if no Comprehensive Permit, zoning approval, building
permit, or occupancy permit is required.)
(c)
Time Lapses. If more
than one year elapses between the date of issuance of the Comprehensive Permit or
zoning approval under M.G.L. c. 40A or completion of plan review under M.G.L. c.
40R, as that date is defined in 760 CMR 56.03(2)(b)1., and issuance of the building
permit, the units will become ineligible for the SHI until the date that the
building permit is issued. If more than 18 months elapse between issuance of the
building permits and issuance of the certificate of occupancy, the units will become
ineligible for the SHI until the date that the certificate of occupancy is issued.
If a Comprehensive Permit or zoning approval lapses permanently, the units become
permanently ineligible for the SHI. Notwithstanding the foregoing, if a
Comprehensive Permit or zoning approval permits a project to be constructed in
phases, and provided that:
1. each phase contains
at least 150 units;
2. each phase
contains the same proportion of SHI Eligible Housing units as the overall project;
and
3. the projected average time period
between the start of successive phases does not exceed 15 months, then the entire
project shall remain eligible for the SHI so long as the phasing schedule set forth
in the permit approval continues to be met.
If more than one year elapses between the date of issuance of the
Comprehensive Permit or zoning approval under M.G.L. c. 40A or completion of plan
review under M.G.L. c. 40R, as that date is defined in 760 CMR 56.03(2)(b)1., and
final resolution of any pending appeal by a party other than the Board, the units
will become ineligible for the SHI until the date that the last appeal is fully
resolved.
(d)
Enforcement and Termination of Use Restrictions. Use
Restrictions shall be enforced in accordance with
760 CMR
56.05(13), except that an agency
of municipal government may enforce the Use Restriction for a unit not subject to a
Comprehensive Permit. Units shall no longer be eligible for inclusion on the SHI
upon expiration or termination of the initial Use Restriction, unless a subsequent
Use Restriction has been imposed in accordance with the requirements of
760 CMR
56.05(13).
(e)
Municipal
Certification. Each municipality shall provide to the Department, once
every two years, a statement certified by the Chief Executive Officer, in such form
and upon such schedule as may be required by the Department, as to the number of SHI
Eligible Housing units eligible to be listed on the SHI, other than those within a
Project subject to a Comprehensive Permit.
(f)
Biennial Updates. The
SHI shall be updated by the Department once every two years, or more frequently if
information is provided by the municipality or otherwise received and verified by
the Department. The Department shall administer the SHI in accordance with its own
procedures, as set forth in
760 CMR 56.00 and guidelines of
the Department.
(3)
Computation of Statutory Minima
(a)
Housing Unit Minimum.
For purposes of calculating whether the city or town's SHI Eligible Housing units
exceed 10% of its total housing units, pursuant to M.G.L. c. 40B, § 20 and
760 CMR 56.00, there shall be a
presumption that the latest SHI contains an accurate count of SHI Eligible Housing
and total housing units. In the course of a review procedure pursuant to 760 CMR
56.03(8), a party may introduce evidence to rebut this presumption, which the
Department shall review on a case-by-case basis, applying the standards of
eligibility for the SHI set forth in 760 CMR 56.03(2). The total number of housing
units shall be that total number of year-round units enumerated for the city or town
in the latest available United States Census.
(b)
General Land Area
Minimum. For the purposes of calculating whether SHI Eligible Housing
exists in the city or town on sites comprising more than 11/2% of the total
land area zoned for residential, commercial, or industrial use, pursuant to M.G.L.
c. 40B, § 20:
1. Total land area shall include
all districts in which any residential, commercial, or industrial use is permitted,
regardless of how such district is designated by name in the city or town's zoning
bylaw;
2. Total land area shall include
all unzoned land in which any residential, commercial, or industrial use is
permitted;
3. Total land area shall
exclude land owned by the United States, the Commonwealth or any political
subdivision thereof, the Department of Conservation and Recreation or any state
public authority, but it shall include any land owned by a housing authority and
containing SHI Eligible Housing;
4.
Total land area shall exclude any land area where all residential, commercial, and
industrial development has been prohibited by restrictive order of the Department of
Environmental Protection pursuant to M.G.L. c. 131, § 40A. No other swamps,
marshes, or other wetlands shall be excluded;
5. Total land area shall exclude any water
bodies;
6. Total land area shall exclude
any flood plain, conservation or open space zone if said zone completely prohibits
residential, commercial and industrial use, or any similar zone where residential,
commercial or industrial use are completely prohibited.
7. No excluded land area shall be counted more
than once under the above criteria.
Only sites of SHI Eligible Housing units inventoried by the
Department or established according to 760 CMR 56.03(3)(a) as occupied, available
for occupancy, or under permit as of the date of the Applicant's initial submission
to the Board, shall be included toward the 11/2% minimum. For such sites, that
proportion of the site area shall count that is occupied by SHI Eligible Housing
units (including impervious and landscaped areas directly associated with such
units).
(c)
Annual Land Area Minimum. For purposes of calculating
whether the application before the Board would result in the commencement in any one
calendar year of construction of Low or Moderate Income Housing on sites comprising
more than 0.3 of 1% of the city or town's land area or ten acres, whichever is
larger, pursuant to M.G.L. c. 40B, § 20:
1.
Total land area of the municipality and the land area occupied by Low or Moderate
Income Housing shall be calculated in the manner provided in 760 CMR
56.03(3)(b);
2. If 0.3 of 1% of total
land area is less than ten acres, the minimum for sites occupied by Low or Moderate
Income Housing shall be ten acres;
3.
The relevant calendar year shall be the calendar year period of January
1st through December 31st that
includes the Applicant's projected date for initiation of construction;
4. Any Low or Moderate Income Housing for which
construction is expected to commence within the calendar year, other than that
proposed by the Applicant, must have received a final approval by the Subsidizing
Agency prior to the date of the Applicant's initial submission to the Board, in
order to be included towards the 0.3 % or ten acres;
5. Development and construction work in connection
with Low or Moderate Income Housing shall be proceeding in good faith to completion
insofar as is reasonably practicable, in order for such housing to be included
towards the 0.3% or ten acres minimum.
Only sites of SHI Eligible Housing units inventoried by the
Department or established according to 760 CMR 56.03(3)(a) as under permit as of the
date of the Applicant's initial submission to the Board, and expected to commence
construction within the relevant calendar year, shall be included toward the 0.3 %
or ten acres minimum. For such sites, that proportion of the site area shall count
that is occupied by SHI Eligible Housing units (including impervious and landscaped
areas directly associated with such units).
(d) Evidence regarding Statutory
Minima submitted under 760 CMR 56.03(3) shall comply with any
guidelines issued by the Department.
(4)
Housing Production
Plans.
(a) A Housing Production Plan
(HPP) may shall be developed and reviewed in accordance with 760 CMR 56.03(4) and
guidelines adopted by the Department. The HPP shall contain at a minimum the
following elements, covering a time period of five years:
1. Comprehensive housing needs
assessment;
2. Affordable housing goals;
and
3. Implementation
strategies.
(b)
Comprehensive Housing Needs Assessment. The HPP must
establish a strategic plan for municipal action with regards to housing, based upon
a comprehensive housing needs assessment that examines:
1. the most recent available census data of the
municipality's demographics and housing stock, together with a projection of future
population and housing needs, taking into account regional growth factors, that
covers the entire time period of the plan;
2. development constraints and limitations on its
current and future needs, and the municipality's plans to mitigate those
constraints; and
3. the capacity of the
municipality's infrastructure to accommodate the current population and anticipated
future growth, including plans for enlargement or expansion of existing
infrastructure systems to ensure that both current and future needs are
met.
(c)
Affordable Housing Goals. The HPP shall address the matters
set out in the Department's guidelines, including:
1. a mix of types of housing, consistent with
local and regional needs and feasible within the housing market in which they will
be situated, including rental, homeownership, and other occupancy arrangements, if
any, for families, individuals, persons with special needs, and the
elderly;
2. a numerical goal for annual
housing production, pursuant to which there is an increase in the municipality's
number of SHI Eligible Housing units by at least 0.50% of its total units (as
determined in accordance with 760 CMR 56.03(3)(a)) during every calendar year
included in the HPP, until the overall percentage exceeds the Statutory Minimum set
forth in 760 CMR 56.03(3)(a).
(d)
Implementation
Strategies. The HPP shall address the matters set out in the
Department's guidelines, including an explanation of the specific strategies by
which the municipality will achieve its housing production goal, and a schedule for
implementation of the goals and strategies for production of units, including all of
the following strategies, to the extent applicable:
1. the identification of zoning districts or
geographic areas in which the municipality proposes to modify current regulations
for the purposes of creating SHI Eligible Housing developments to meet its housing
production goal;
2. the identification
of specific sites for which the municipality will encourage the filing of
Comprehensive Permit applications;
3.
characteristics of proposed residential or mixed-use developments that would be
preferred by the municipality (examples might include cluster developments, adaptive
re-use, transit-oriented housing, mixed-use development, inclusionary housing,
etc.); and/or
4.
municipally owned parcels for which the municipality commits to issue requests for
proposals to develop SHI Eligible Housing; and/or
5. participation in regional collaborations
addressing housing development.
(e)
Review and Approval of Housing
Production Plans. A HPP shall be adopted by the municipality's planning
board, its conservation commission, and its select board or city council, following
which the Chief Executive Officer may submit the HPP to the Department for its
approval. The Department shall conduct an initial 30-day completeness review, and it
will notify the municipality of any deficiency and offer an opportunity to remedy
the deficiency. Within 90 days after the Department's finding that the HPP is
complete, the Department shall approve the HPP if it meets the requirements
specified herein; otherwise, it shall disapprove the HPP. The Department shall
notify the municipality of its decision to either approve or disapprove a HPP in
writing. If the Department disapproves a HPP, the notification shall include a
statement of reasons for the disapproval. If the Department fails to mail notice of
approval or disapproval of a HPP within 90 days after its receipt, it shall be
deemed to be approved. A municipality that originally submitted a HPP that had been
disapproved may submit a new or revised HPP to the Department at any time.
A municipality may amend its HPP from time to time if the Department
approves the amendment upon the finding that the amended HPP meets the requirements
of 760 CMR 56.03(4). The Department shall have the discretion to require the full
90-day review process for a major amendment to a HPP. A HPP shall be updated and
renewed within five years of the date of its approval by the Department, through the
full 90-day review process set forth above, or as the Department may otherwise
require. The Department may, at its sole discretion, elect to treat a major
amendment as a renewed HPP.
(f)
Certification of Municipal Compliance. A municipality may
request that the Department certify its compliance with an approved HPP if it has
increased its number of SHI Eligible Housing units in an amount equal to or greater
than its 0.50% production goal for that calendar year. SHI Eligible Housing units
shall be counted for the purpose of certification in accordance with the provisions
for counting units under the SHI set forth in 760 CMR 56.03(2). Requests for
certification may be submitted at any time, and the Department shall determine
whether a municipality is in compliance within 30 days of receipt of the
municipality's request. If the Department determines the municipality is in
compliance with its HPP, the certification shall be deemed effective on the date
upon which the municipality achieved its numerical target for the calendar year in
question, in accordance with the rules for counting units on the SHI set forth in
760 CMR 56.03(2).
A certification shall be in effect for a period of one year from its
effective date. If the Department finds that the municipality has increased its
number of SHI Eligible Housing units in a calendar year by at least 1.0% of its
total housing units, the certification shall be in effect for two years from its
effective date.
(5)
Recent Progress Toward Housing Unit Minimum. Recent
progress toward a municipality's Statutory Minima shall mean that
the number of SHI Eligible Housing units that have been created within the
municipality during the 12 months prior to the date of the Comprehensive Permit
application, evidenced by being inventoried by the Department or established
according to 760 CMR 56.03(3)(a) as occupied, available for occupancy, or under
permit as of the date of the Applicant's initial submission to the Board, is equal
to or greater than 2% of the municipality's total housing units, as determined in
accordance with 760 CMR 56.03(3)(a).
(6)
Review of Large Projects. A large project shall be defined
as follows:
(a) in a municipality which has a total
number of 7,500 or more housing units (as determined in accordance with 760 CMR
56.03(3)(a)) , the application for a Comprehensive Permit involves construction of
more than 300 housing units or a number of housing units equal to 2% of all housing
units in the municipality, whichever number is greater; or
(b) in a municipality which has between 5,000 and
7,500 housing units exclusive, as so enumerated, the application for a Comprehensive
Permit involves construction of more than 250 housing units; or
(c) in a municipality which has between 2,500 and
5,000 housing units inclusive, as so enumerated, the application for a Comprehensive
Permit involves construction of more than 200 housing units; or
(d) in a municipality which has less than 2,500
housing units, as so enumerated, the application for a Comprehensive Permit involves
construction of a number of housing units equal to 6% of all housing units in the
municipality.
(7)
Related Applications. For the purposes of 760 CMR 56.03(7),
a related application shall mean that less than 12 months has elapsed between the
date of an application for a Comprehensive Permit and any of the following:
(a) the date of filing of a prior application for
a variance, special permit, subdivision, or other approval related to construction
on the same land, if that application was for a prior project that was principally
non-residential in use, or if the prior project was principally residential in use,
if it did not include at least 10% SHI Eligible Housing units;
(b) any date during which such an application was
pending before a local permit granting authority;
(c) the date of final disposition of such an
application (including all appeals); or
(d) the date of withdrawal of such an application.
An application shall not be considered a prior application if it
concerns insubstantial construction or modification of the preexisting use of the
land.
(8)
Procedure for Board Decision.
(a) If a Board considers that, in connection with
an Application, a denial of the permit or the imposition of conditions or
requirements would be consistent with local needs on the grounds that the
Statutory Minima defined at 760 CMR 56.03(3)(b) or (c) have been
satisfied or that one or more of the grounds set forth in 760 CMR 56.03(1) have been
met, it must do so according to the following procedures. Within 15 days of the
opening of the local hearing for the Comprehensive Permit, the Board shall provide
written notice to the Applicant, with a copy to the Department, that it considers
that a denial of the permit or the imposition of conditions or requirements would be
consistent with local needs, the grounds that it believes have been met, and the
factual basis for that position, including any necessary supportive documentation.
If the Applicant wishes to challenge the Board's assertion, it must do so by
providing written notice to the Department, with a copy to the Board, within 15 days
of its receipt of the Board's notice, including any documentation to support its
position. All written notices, including copies and supporting documentation, must
be submitted electronically pursuant to guidance issued by the Department during the
COVID-19 State of Emergency to ensure timely receipt by the deadlines herein. The
Department shall thereupon review the materials provided by both parties and issue a
decision within 30 days of its receipt of all materials. The Board shall have the
burden of proving satisfaction of the grounds for asserting that a denial or
approval with conditions would be consistent with local needs, provided, however,
that any failure of the Department to issue a timely decision shall be deemed a
determination in favor of the municipality. This procedure shall toll the
requirement to terminate the hearing within 180 days.
(b) For purposes of 760 CMR 56.03(8), the total
number of SHI Eligible Housing units in a municipality as of the date of a Project's
application shall be deemed to include those in any prior Project for which a
Comprehensive Permit had been issued by the Board or by the Committee, and which was
at the time of the application for the second Project subject to legal appeal by a
party other than the Board, subject however to the time limit for counting such
units set forth at 760 CMR 56.03(2)(c).
(c) If either the Board or the Applicant wishes to
appeal a decision issued by the Department pursuant to 760 CMR 56.03(8)(a),
including one resulting from failure of the Department to issue a timely decision,
that party shall file an interlocutory appeal with the Committee on an expedited
basis, pursuant to
760 CMR 56.05(9)(c)
and
56.06(7)(e)11.,
within 20 days of its receipt of the decision, with a copy to the other party and to
the Department. The Board's hearing of the Project shall thereupon be stayed until
the conclusion of the appeal, at which time the Board's hearing shall proceed in
accordance with
760 CMR
56.05. Any appeal to the courts of the Committee's
ruling shall not be taken until after the Board has completed its hearing and the
Committee has rendered a decision on any subsequent appeal.
