Current through Register 1531, September 27, 2024
(1)
Local
Rules. The Board shall adopt rules, not inconsistent with M.G.L. c.
40B, §§ 20 through 23, for the conduct of its business and shall file a
copy of said rules with the city or town clerk. Such rules shall be consistent with
the purpose of M.G.L. c. 40B, §§ 20 through 23 to provide a streamlined
permitting process that overcomes regulatory barriers to the development of Low or
Moderate Income Housing. The Committee may in the course of an appeal properly
before it pursuant to
760
CMR 56.06(1) determine that a
particular local rule is consistent or not consistent with M.G.L. c. 40B,
§§ 20 through 23, but no appeal shall be heard solely for the purpose of
determining the validity of a rule, unless the rule is the sole basis for the denial
or conditioning of a Comprehensive Permit. (For related requirements applying to
Boards, see M.G.L. c. 44, § 53G.)
Rules adopted by a Board shall be presumed consistent with M.G.L. c.
40B, §§ 20 through 23 to the extent that they conform with 760 CMR 56.05.
A Board may seek non-binding advice from the Department as to whether a proposed set
of local rules is consistent with M.G.L. c. 40B, §§ 20 through 23 and 760
CMR 56.05. If a Board does not adopt and file rules, it shall conduct business
pursuant to 760 CMR 56.05.
(2)
Elements of Submission, Filing Fees. The Applicant shall
submit to the Board an application and a complete description of the proposed
Project. Normally the items listed below will constitute a complete description.
Failure to submit a particular item shall not necessarily invalidate an application.
The Board shall not require submissions for a Comprehensive Permit that exceed those
required by the rules and procedures of Local Boards for review under their
respective jurisdictions.
(a) preliminary site
development plans showing the locations and outlines of proposed buildings; the
proposed locations, general dimensions and materials for streets, drives, parking
areas, walks and paved areas; and proposed landscaping improvements and open areas
within the site. An Applicant proposing to construct or rehabilitate four or fewer
units may submit a sketch of the matters in 760 CMR 56.05(2)(a) and (c) which need
not have an architect's signature. All Projects of five or more units must have site
development plans prepared by a registered architect or engineer;
(b) a report on existing site conditions and a
summary of conditions in the surrounding areas, showing the location and nature of
existing buildings, existing street elevations, traffic patterns and character of
open areas, if any, in the neighborhood. This submission may be combined with that
required in 760 CMR 56.05(2)(a);
(c)
preliminary, scaled, architectural drawings. For each building the drawings shall be
prepared by a registered architect, and shall include typical floor plans, typical
elevations, and sections, and shall identify construction type and exterior
finishes;
(d) a tabulation of proposed
buildings by type, size (number of bedrooms, floor area) and ground coverage, and a
summary showing the percentage of the tract to be occupied by buildings, by parking
and other paved vehicular areas, and by open areas;
(e) where a subdivision of land is involved, a
preliminary subdivision plan;
(f) a
preliminary utilities plan showing the proposed location and types of sewage,
drainage, and water facilities, including hydrants;
(g) the Project Eligibility letter, showing that
the Applicant fulfills the requirements of
760
CMR 56.04(1);
(h) a list of requested Waivers.
The Board may require the payment of a reasonable filing fee with
the application, if consistent with subdivision, cluster zoning, and other fees
reasonably assessed by the municipality for costs designed to defray the direct
costs of processing applications, and taking into consideration the statutory goal
of M.G.L. c. 40B, §§ 20 through 23 to encourage affordable housing
development.
(3)
Conduct of Board Hearing. Within seven days of receiving a
complete application, the Board shall notify each Local Board of the application by
sending such Local Board a notice of the application and a copy of the list of
Waivers required by 760 CMR 56.05(2)(h). Based upon that list, it shall also, within
the same seven days, invite the participation of each Local Board as is deemed
necessary or helpful in making its decision upon such application by providing such
Local Board with a copy of the entire application (such copies to be provided by the
Applicant upon request).
The Board shall open a hearing within 30 days of its receipt of a
complete application, and it shall thereafter pursue the hearing diligently. The
Board shall open hearings for Projects in the order in which a complete application
is filed. In order to further the purpose of M.G.L. c. 40B, §§ 20 through
23 to provide a streamlined permitting process that overcomes regulatory barriers to
the development of Low or Moderate Income Housing, a hearing shall not extend beyond
180 days from the date of opening the hearing, presuming that the Applicant has made
timely submissions of materials in response to reasonable requests of the Board that
are consistent with its powers under 760 CMR 56.05, except with the written consent
of the Applicant.
If the Board wishes to deny an application on one or more of the
grounds set forth in
760
CMR 56.03(1), it must do so in
accordance with the procedure set forth in
760
CMR 56.03(8), or it shall be
deemed to have waived its rights. A Board may stay the commencement of a hearing if
three or more Comprehensive Permit applications are concurrently undergoing hearings
before the Board, and the total number of housing units in those pending Projects
exceeds the numerical threshold for a large project within that municipality, as set
forth in
760
CMR 56.03(6).
(4)
Scope of Board
Hearing.
(a)
General
Principle. Consistency with Local Needs is the central issue in all
Comprehensive Permit applications before the Board. Not only must all Local
Requirements and Regulations applied to the Applicant be Consistent with Local
Needs, but decisions of the Board must also be Consistent with Local Needs. The
Board shall not address matters in the hearing that are beyond its jurisdiction
under M.G.L. c. 40B, §§ 20 through 23 and
760 CMR 56.00 and that lie solely
within the authority of the Subsidizing Agency.
(b)
Commentary. In its
conduct of a hearing, the Board should make itself aware of the detailed provisions
for burden of proof and evidence, set forth in
760 CMR
56.07(2) and (3), that the
Committee would apply to the appeal of a Board decision.
(c)
Denial. In the case
of the denial of a Comprehensive Permit, the issue shall be whether the decision of
the Board is Consistent with Local Needs.
(d)
Approval with
Conditions. In the case of approval of a Comprehensive Permit with
conditions or requirements imposed, the issues shall be:
1. first, whether the conditions and/or
requirements considered in aggregate make the building or operation of such Project
Uneconomic; and
2. second, if so,
whether such conditions and/or requirements are Consistent with Local Needs.
A condition which makes a Project Uneconomic will not be removed or
modified if as a result of such action the Project would not be Consistent with
Local Needs.
(5)
Consultant Review.
(a) If, after receiving an application, the Board
determines that in order to review that application it requires technical advice in
such areas as civil engineering, transportation, environmental resources, design
review of buildings and site, and (in accordance with 760 CMR 56.05(6) review of
financial statements that is unavailable from municipal employees, it may employ
outside consultants. Whenever possible it shall work cooperatively with the
Applicant to identify appropriate consultants and scopes of work and to negotiate
payment of part or all of consultant fees by the Applicant. Alternatively, the Board
may, by majority vote, require that the Applicant pay a reasonable review fee in
accordance with 760 CMR 56.05(b) for the employment of outside consultants chosen by
the Board alone. The Board should not impose unreasonable or unnecessary time or
cost burdens on an Applicant. Legal fees for general representation of the Board or
other Local Boards shall not be imposed on the Applicant.
(b) A review fee may be imposed only if:
1. the work of the consultant consists of review
of studies prepared on behalf of the Applicant, and not of independent studies on
behalf of the Board;
2. the work is in
connection with the Applicant's specific Project; and
3. all written results and reports are made part
of the record before the Board.
4. a
review fee may only be imposed in compliance with applicable law and the Board's
rules.
(c) All fees assessed
pursuant to 760 CMR 56.05(5)(b) shall be reasonable in light of:
1. the complexity of the proposed Project as a
whole;
2. the complexity of particular
technical issues;
3. the number of
housing units proposed;
4. the size and
character of the site;
5. the projected
construction costs; and
6. fees charged
by similar consultants and scopes of work in the area. As a general rule, the Board
may not assess any fee greater than the amount which might be appropriated from town
or city funds to review a project of similar type and scale in the town or
city.
(d) The Board's rules
shall set out procedures for inviting proposals by qualified outside consultants,
and for the deposit of review fees in a special municipal account. The Board's rules
may provide that if the Applicant fails to pay the review fee within the stated time
period, the Board may deny the Comprehensive Permit. Any unspent excess in the
account, including accrued interest, shall be reimbursed to the Applicant upon the
issuance of the Board's decision or withdrawal of the application.
(e) An administrative appeal from the selection of
the outside consultant may be lodged within 20 days of the consultant's selection,
with the city council or town board of selectmen. 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 limits for action upon an Application by the Board shall be extended
by the duration of the administrative appeal. In the event that no decision on the
appeal is made by the city council or the town board of selectmen within one month
following the filing of the appeal, the selection made by the Board shall
stand.
(6)
Review
of Financial Statements.
(a) A Board
may request to review the
pro forma or other financial statements
for a Project only after the following preconditions have been met:
1. other consultant review has been
completed;
2. the Applicant has had an
opportunity to modify its original proposal to address issues raised;
3. the Board has had an opportunity to propose
conditions to mitigate the Project's impacts and to consider requested Waivers;
and
4. the Applicant has indicated that
it does not agree to the proposed condition(s) or Waiver denial(s) because they
would render the Project uneconomic. A Board may not conduct review of a pro
forma in order to see whether a Project would still be economic if the
number of dwelling units were reduced, unless such reduction is justified by a valid
health, safety, environmental, design, open space, planning, or other local concern
that directly results from the size of a project on a particular site, consistent
with
760 CMR
56.07(3).
(b) If the Applicant does not agree to some or all
of the proposed permit conditions or Waiver denials because they would render the
Project Uneconomic, the Board may ask the Applicant to submit its pro
forma, in form satisfactory to the Subsidizing Agency, and revised as
necessary to reflect the additional cost of meeting these conditions and/or denials.
The revised pro forma may be subjected to the same consultant
review as any other technical information submitted to the Board, in accordance with
760 CMR 56.05(5) and the Board's rules. The Board may then use this information to
decide whether to adopt or modify its originally proposed conditions and/or denials.
Pro forma review should conform to recognized real estate and
affordable housing industry standards, consistent with the policies of the
Subsidizing Agency and guidelines adopted by the Department.
(c) Related financial issues, including
related-party transactions, the estimated sales price or rental rates of market-rate
units, and land acquisition costs, shall be addressed in accordance with the
Department's guidelines. Disagreements between the Applicant and the Board's
consultant should be resolved in accordance with the Department's guidelines. The
Subsidizing Agency has the sole responsibility to establish and enforce reasonable
profit and distribution limitations on the Applicant, as set forth in
760
CMR 56.04(8).
(7)
Waivers from Local
Requirements and Regulations. The Applicant may request Waivers, as
listed in its application or as may subsequently arise during the hearing, and the
Board shall grant such Waivers as are Consistent with Local Needs and are required
to permit the construction and operation of the Project. Zoning waivers are required
solely from the "as-of-right" requirements of the zoning district where the project
site is located; there shall be no requirement to obtain waivers from the special
permit requirements of the district. If a Project does not request a subdivision
approval, waivers from subdivision requirements are not required (although a Board
may look to subdivision standards, such as requirements for road construction, as a
basis for required project conditions, in which case the Applicant can seek Waivers
from such requirements).
(8)
Board Decisions.
(a) The
Board shall render a decision, based on a majority vote of the Board, within forty
days after termination of the public hearing, unless such time period is extended by
written agreement of the Board and the Applicant. The hearing is deemed terminated
when all public testimony has been received and all information requested by the
Board that it is entitled to receive has been submitted. In making its decision, the
Board shall take into consideration the recommendations of Local Boards, but shall
not be required to adopt same. The Board shall file its decision within 14 days in
the office of the city or town clerk , and it shall forward a copy of any
Comprehensive Permit to the Applicant or its designated representative and to the
Department when it is filed.
(b) The
Board may dispose of the application in the following manner:
1. approve a Comprehensive Permit on the terms and
conditions set forth in the application;
2. approve a Comprehensive Permit with conditions
with respect to height, site plan, size, shape or building materials that address
matters of Local Concern; or
3. deny a
Comprehensive Permit as not Consistent with Local Needs if the Board finds that
there are no conditions that will adequately address Local Concerns.
(c)
Conditions. The Board shall not issue any order or impose
any condition that would allow the building or operation of the Project in
accordance with standards less safe than the applicable building and site plan
requirements of the Subsidizing Agency, or that would deviate from the project
eligibility requirements of the Subsidizing Agency, or that would require the
Project to provide more Low or Moderate Income Housing units than the minimum
threshold required by the Department's guidelines. The Board, in its decision, may
make a Comprehensive Permit subject to any of the following conditions or
requirements:
1. the grant of the Subsidy by the
Subsidizing Agency;
2. issuance of final
approval by the Subsidizing Agency pursuant to
760
CMR 56.04(7);
3. the securing of the approval of any state or
federal agency with respect to the Project which the Applicant must obtain before
building, provided, however, that the Board shall not delay or deny an application
on the grounds that any state or federal approval has not been obtained;
4. complete or partial waiver ordered by the Board
of fees otherwise assessed or collected by Local Boards;
5. any other condition consistent with M.G.L. c.
40B, §§ 20 through 23 and with
760 CMR 56.00.
(d)
Uneconomic
Conditions. The Board shall not issue any order or impose any condition
that would cause the building or operation of the Project to be Uneconomic,
including a requirement imposed by the Board on the Applicant:
1. to incur costs of public infrastructure or
improvements off the project site that:
a. are not
generally imposed by a Local Board on unsubsidized housing;
b. address a pre-existing condition affecting the
municipality generally; or
c. are
disproportionate to the impacts reasonably attributable to the Project; or
2. to reduce the number of units for
reasons other than evidence of Local Concerns within the purview of the Board
(
see760 CMR 56.05(4)(e);
see also
760 CMR
56.07(3)(c) through (h))
regarding evidence that would be heard by the Committee on an appeal), such as
design, engineering, or environmental deficiencies that directly result from the
impact of a Project on a particular site.
If a proposed nonresidential element of a Project is not allowed
by-right under applicable provisions of the current municipal zoning code, a
condition shall not be considered Uneconomic if it would modify or remove such
nonresidential element.
(9)
Appeals from Board
Decisions.
(a) If the Board approves
the Comprehensive Permit, any person aggrieved may appeal within the time period and
to the court provided in M.G.L. c. 40A, § 17.
(b) If the Board denies the Comprehensive Permit
or approves the permit with unacceptable conditions or requirements, the Applicant
may appeal to the Housing Appeals Committee as provided in M.G.L. c. 40B, § 22
and
760
CMR 56.06.
(c) If the Board takes action adverse to the
Applicant under
760
CMR 56.03(8), 760 CMR 56.05(11),
or a similar provision of
760 CMR 56.00, or otherwise
violates or fails to implement M.G.L. c. 40B, §§ 20 through 23, the
Applicant may appeal to the Housing Appeals Committee as provided in M.G.L. c. 40B,
§ 22 and
760
CMR 56.06.
(10)
Enforcement.
(a) The Board shall have the same power to issue
permits or approvals as any Local Board which would otherwise act with respect to an
application, including but not limited to waivers, consents, and affirmative actions
such as plan endorsements and requests for waivers from regional entities.
(b) A Comprehensive Permit issued by a Board,
including by order of the Committee pursuant to
760 CMR
56.07(5), shall be a master
permit which shall subsume all local permits and approvals normally issued by Local
Boards. Upon presentation of the Comprehensive Permit, subsequent more detailed
plans (to the extent reasonably required relative to the local permit in question),
and final approval from the Subsidizing Agency pursuant to
760
CMR 56.04(7), all Local Boards
shall take all actions necessary, including but not limited to issuing all necessary
permits, approvals, waivers, consents, and affirmative actions such as plan
endorsements and requests for waivers from regional entities, after reviewing such
plans only to insure that they are consistent with the Comprehensive Permit
(including any Waivers), the final approval of the Subsidizing Agency, and
applicable state and federal codes.
(c)
After the issuance of a Comprehensive Permit, the Board may issue directions or
orders to Local Boards designed to effectuate the issuance of a Comprehensive Permit
(including any Waivers) and the construction of the Project, in accordance with 760
CMR 56.05(10)(b).
(11)
Changes after Issuance of a Permit.
(a) If after a Comprehensive Permit is granted by
the Board, including by order of the Committee pursuant to
760 CMR
56.07(5), an Applicant desires to
change the details of its Project as approved by the Board or the Committee, it
shall promptly notify the Board in writing, describing such change. Within 20 days
the Board shall determine and notify the Applicant whether it deems the change
substantial or insubstantial, with reference to the factors set forth at
760 CMR
56.07(4).
(b) If the change is determined to be
insubstantial or if the Board fails to notify the Applicant by the end of such
20-day period, the Comprehensive Permit shall be deemed modified to incorporate the
Change.
(c) If the change is determined
to be substantial, the Board shall hold a public hearing within 30 days of its
determination and issue a decision within 40 days of termination of the hearing, all
as provided in M.G.L. c. 40B, § 21. Only the changes in the Project or aspects
of the Project affected thereby shall be at issue in such hearing. An Applicant
shall have the right at any time to withdraw its request for a change and to rely on
the previously issued Comprehensive Permit. A decision of the Board denying the
change or granting it with conditions which make the housing Uneconomic may be
appealed to the Committee pursuant to M.G.L. c. 40B, § 22; a decision granting
the change may be appealed to the superior court pursuant to M.G.L. c. 40B, §
21 and M.G.L. c. 40A, § 17.
(d) The
Applicant shall raise to the Board any objection to the determination by the Board
that the change is substantial within 20 days of such determination, subject to the
provisions of the next sentence. The Applicant may elect to continue the proceedings
before the Board and preserve its right to raise the objection in context of its
appeal to the Committee, if any, of the Board's denial of the Comprehensive Permit
or approval with unacceptable conditions or requirements, or the Applicant may
appeal a determination that a change is substantial by filing an 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 being so notified. Such an appeal will stay the proceedings before
the Board.
1. If the presiding officer rules that
the change is insubstantial, the Comprehensive Permit shall be deemed modified by
the Committee.
2. If the presiding
officer rules that the change is substantial, he or she shall remand the proposal
for a hearing pursuant to 760 CMR 56.05(11)(c).
(12)
Finality, Transfers, and Lapses
of Comprehensive Permits.
(a)
Finality of Permits. A Comprehensive Permit shall become
final on the date that the written decision of the Board is filed in the office of
the municipal clerk, if no appeal is filed. Otherwise, it shall become final on the
date the last appeal is decided or otherwise disposed of, provided however that if a
Comprehensive Permit is issued by the Board or the Committee and is subsequently
subject to legal appeal, an Applicant may elect to proceed at risk with construction
of the Project. A Comprehensive Permit that is issued by constructive grant pursuant
to
760 CMR
56.07(5)(d) shall be deemed
final upon the expiration of the applicable deadline.
(b)
Transfer of Permits.
Prior to substantial completion of a Project or a phase thereof, a Comprehensive
Permit may be transferred to a person or entity other than the Applicant, upon
written confirmation from the Subsidizing Agency that the transferee meets the
requirements of
760
CMR 56.04(1)(a) and (b), and upon
written notice to the Board and the Committee (in the case of a Project granted a
Comprehensive Permit under
760 CMR
56.07) . Transfer of a permit shall not, by
itself, constitute a substantial change pursuant to
760 CMR
56.07(4). After substantial
completion, a Comprehensive Permit shall be deemed to run with the land.
(c)
Lapse of Permits. If
construction authorized by a Comprehensive Permit has not begun within three years
of the date on which the permit becomes final except for good cause, the permit
shall lapse. This time period shall be tolled for the time required to pursue or
await the determination on any appeal on any other state or federal permit or
approval required for the Project. The Board or the Committee may set a later date
for lapse of the permit, and it may extend any such date. An extension may not be
unreasonably denied or denied due to other Projects built or approved in the
interim. Extension of a permit shall not, by itself, constitute a substantial change
pursuant to
760 CMR
56.07(4).
(13)
Enforcement of Use
Restrictions.
(a) For Projects
receiving a Comprehensive Permit, the Subsidizing Agency shall be the initial holder
of the Use Restriction, with the sole right and obligation to enforce it during its
initial term. The Subsidizing Agency shall give written notice to the Chief
Executive Officer of the municipality at least six months prior to the expiration of
the term of the Subsidy. After such expiration, during the balance of the term of
affordability the holder may be a local public or quasi-public entity, or other
entity approved by the Department.
(b)
The holder(s) of the Use Restriction shall provide for its monitoring and
enforcement; they may do so themselves or enter into a contract for monitoring
services with an entity experienced in affordable housing operation, although the
holders shall retain responsibility for ensuring compliance with the Use
Restriction. A contract for monitoring services may charge reasonable fees, as
allowed in guidelines issued by the Department. The holder of a Use Restriction
shall respond to the reasonable request from the Chief Executive Officer of the
Municipality to provide information on the status of its monitoring and enforcement
activities.
