Current through Register 1531, September 27, 2024
(1)
Project Eligibility.
To be eligible to submit an application to a Board for a Comprehensive Permit or to
file or maintain an appeal before the Committee, the Applicant and the Project shall
fulfill, at a minimum, the following project eligibility requirements:
(a) The Applicant shall be a public agency, a
nonprofit organization, or a Limited Dividend Organization;
(b) The Project shall be fundable by a Subsidizing
Agency under a Low or Moderate Income Housing subsidy program; and
(c) The Applicant shall control the site.
Compliance with these project eligibility requirements shall be
established by issuance of a written determination of Project Eligibility by the
Subsidizing Agency that contains all the findings required under 760 CMR 56.04(4),
based upon its initial review of the Project and the Applicant's qualifications in
accordance with 760 CMR 56.04.
(2)
Elements of
Application. The Applicant shall submit an application for Project
Eligibility to the Subsidizing Agency, with a copy to the Chief Executive Officer of
the municipality and written notice to the Department, which shall include:
(a) the name and address of the
Applicant;
(b) the address of the site
and site description;
(c) a locus map
identifying the site within a plan of the neighborhood, accompanied by photographs
of the surrounding buildings and features that provide an understanding of the
physical context of the site;
(d) a
tabulation of proposed buildings with the approximate number, size (number of
bedrooms, floor area), and type (ownership or rental) of housing units
proposed;
(e) the name of the housing
program under which Project Eligibility is sought;
(f) relevant details of the particular Project if
not mandated by the housing program (including percentage of units for low or
moderate income households, income eligibility standards, the duration of
restrictions requiring Low or Moderate Income Housing, and the limited dividend
status of the Applicant);
(g) conceptual
design drawings of the site plan and exterior elevations of the proposed buildings,
along with a summary showing the approximate percentage of the tract to be occupied
by buildings, by parking and other paved vehicular areas, and by open areas, the
approximate number of parking spaces, and the ratio of parking spaces to housing
units;
(h) a narrative description of
the approach to building massing, the relationships to adjacent properties, and the
proposed exterior building materials;
(i) a tabular analysis comparing existing zoning
requirements to the Waivers requested for the Project; and
(j) evidence of control of the site.
In the case of a Local Initiative Project (LIP), the application
shall be submitted by the Chief Executive Officer of the Municipality.
(3)
Review and
Comment Process. Upon receipt of the application, the Subsidizing
Agency shall provide written notice to the Chief Executive Officer of the
municipality where the Project is located, initiating a 30-day review period of the
Project. During the course of the review period the Subsidizing Agency shall conduct
a site visit, which Local Boards may attend, and it shall accept written comments
from Local Boards and other interested parties. The Subsidizing Agency shall
consider any such comments prior to issuing a determination of Project Eligibility.
No determination of Project Eligibility shall be issued for a Project before the end
of the 30-day review period.
(4)
Findings in Determination. A determination of Project
Eligibility, to be issued by the Subsidizing Agency after the close of the 30-day
review period, shall make the following findings, based upon its review of the
application, and taking into account information received during the site visit and
from written comments:
(a) that the proposed
Project appears generally eligible under the requirements of the housing subsidy
program, subject to final approval under 760 CMR 56.04(7);
(b) that the site of the proposed Project is
generally appropriate for residential development, taking into consideration
information provided by the municipality or other parties regarding municipal
actions previously taken to meet affordable housing needs, such as inclusionary
zoning, multifamily districts adopted under M.G.L. c. 40A, and overlay districts
adopted under M.G.L. c. 40R (such finding, with supporting reasoning, to be set
forth in reasonable detail);
(c) that
the conceptual project design is generally appropriate for the site on which it is
located, taking into consideration factors that may include proposed use, conceptual
site plan and building massing, topography, environmental resources, and integration
into existing development patterns (such finding, with supporting reasoning, to be
set forth in reasonable detail);
(d)
that the proposed Project appears financially feasible within the housing market in
which it will be situated (based on comparable rentals or sales figures);
(e) that an initial pro forma has
been reviewed, including a land valuation determination consistent with the
Department's guidelines, and the Project appears financially feasible and consistent
with the Department's guidelines for Cost Examination and Limitations on Profits and
Distributions (if applicable) on the basis of estimated development costs;
(f) that the Applicant is a public agency, a
non-profit organization, or a Limited Dividend Organization, and it meets the
general eligibility standards of the housing program; and
(g) that the Applicant controls the site, based on
evidence that the Applicant or a related entity owns the site, or holds an option or
contract to acquire such interest in the site, or has such other interest in the
site as is deemed by the Subsidizing Agency to be sufficient to control the site.
The Subsidizing Agency shall provide copies of its written determination of Project
Eligibility to the Department, the Chief Executive Officer of the municipality, and
the Board.
(5)
Substantial Changes. If an Applicant desires to change
aspects of its proposal that would affect the project eligibility requirements set
forth at 760 CMR 56.04(1), after it has received a determination of Project
Eligibility, it shall notify the Subsidizing Agency in writing of such changes, with
a copy to the Department, the Chief Executive Officer of the municipality, and the
Board. The Subsidizing Agency shall determine within 15 days whether such changes
are substantial with reference to the project eligibility requirements. Failure to
respond shall be deemed a finding that the change is not substantial. If the
Subsidizing Agency finds that the changes are substantial, it shall ordinarily defer
any review (except if the Applicant, the Chief Executive Office of the municipality,
or the Board request otherwise) until either the Board has issued a Comprehensive
Permit or the application has been denied and the Applicant has lodged an appeal
with the Committee, at which time the Subsidizing Agency shall reaffirm, amend, or
deny its determination of the project eligibility requirements. Only the changes
affecting the project eligibility requirements set forth at 760 CMR 56.04(1) shall
be at issue in such review. In the case of a Comprehensive Permit that is not
subject to appeal, such decision may be incorporated into the Subsidizing Agency's
final approval issued pursuant to 760 CMR 56.04(7). If the Subsidizing Agency finds
that the changes are not substantial and that the Applicant has good cause for not
originally presenting such details in its application, the changes shall be
permitted if the proposal as so changed meets the requirements of M.G.L. c. 40B,
§§ 20 through 23 and 760 CMR 56.04.
(6)
Conclusive Nature of
Determination. Issuance of a determination of Project Eligibility shall
be considered by the Board or the Committee to be conclusive evidence that the
Project and the Applicant have satisfied the project eligibility requirements of 760
CMR 56.04(1). Alleged failure of the Applicant to continue to fulfill any of these
project eligibility requirements may be subsequently raised by the Board at any
time, with the burden of proof on the Board, or by the Committee during an appeal,
in either case solely upon the grounds that there has been a substantial change
affecting the project eligibility requirements set forth at 760 CMR 56.04(1). Such
challenge shall be decided by the Subsidizing Agency in accordance with the
procedure set forth in 760 CMR 56.04(5), and the Board hearing or Committee appeal
may be stayed until such challenge is decided.
(7)
Final Approval.
Following the issuance of a Comprehensive Permit, the Subsidizing Agency shall issue
its final written approval of the Project to the Applicant, with a copy to the Board
and the Department. Such approval shall, at a minimum:
(a) reaffirm each of the project eligibility
requirements enumerated in 760 CMR 56.04(1);
(b) confirm that the proposed Use Restriction is
in a form consistent with Department guidelines; and
(c) verify that cost examination requirements have
been acknowledged, that a commitment has been made by the Applicant to comply with
the cost examination requirements defined in 760 CMR 56.04(8) under the pains and
penalties of perjuy, and that adequate financial surety, as defined in guidelines
issued by the Department, has been secured by the Subsidizing Agency sufficient to
ensure completion of the cost examination to the satisfaction of the Subsidizing
Agency and the distribution of excess funds as required at 760 CMR
56.04(8)(e).
(8)
Cost Examination and Limitations on Profits and
Distributions.
(a) Following the
issuance of a Comprehensive Permit, a Project for which the Developer is a Limited
Dividend Organization shall be subject to the following limitations on reasonable
return as determined by the Subsidizing Agency, in accordance with guidelines issued
by the Department. The Subsidizing Agency shall be solely responsible for the
monitoring and enforcement of such limitations, subject to the Subsidizing Agency's
right to delegate such functions as set forth in
760 CMR
56.02: Subsidizing
Agency.
(b)
Certification of Total Development Costs. For purposes of
compliance with 760 CMR 56.04(8)(b)1. and (c), total development costs, and the
determination of qualifying inclusions and exclusions, shall be established by the
Applicant or subsequent Developer in a detailed financial statement of all material
costs of the project prepared by a certified public accountant and submitted to the
Subsidizing Agency in a form and upon a schedule determined by the Department's
guidelines. The Department's guidelines shall provide for verification of financial
statements; submission of a copy of cost certifications to the affected municipality
for its review and consideration by the Subsidizing Agency of any inaccuracies
identified by the municipality during its review; and enforcement actions, including
suspension or disqualification from state agency programs, in the event of
noncompliance with 760 CMR 56.04(8).
(c)
Distribution of Excess Funds. Any funds in excess of the
applicable limitations on profits and distributions shall be paid over to the
Subsidizing Agency or the municipality or the Subsidizing Agency, as determined
solely by the Subsidizing Agency's program requirements and the terms of a
regulatory agreement, or similar agreement, to be entered into between the
Subsidizing Agency and the Developer.
(d)
Cost Certification
Inventory. The Department shall maintain an inventory of all projects
granted a Comprehensive Permit and the respective status of each Project with
respect to the submission of the certification of total development costs as
required by 760 CMR 56.04(8)(d). For the purposes of such inventory, Subsidizing
Agencies shall provide information to the Department in the manner and form required
by the Department.
