Code of Massachusetts Regulations
760 CMR - HOUSING AND LIVABLE COMMUNITIES, EXECUTIVE OFFICE OF
Title 760 CMR 56.00 - Comprehensive Permit; Low Or Moderate Income Housing
Section 56.07 - Criteria for Housing Appeals Committee Decisions

Universal Citation: 760 MA Code of Regs 760.56

Current through Register 1531, September 27, 2024

(1) Scope of Committee Hearing.

(a) General Principle. Consistency with Local Needs is the central issue in all cases before the Committee. Not only must all Local Requirements and Regulations applied to the Applicant be Consistent with Local Needs, but decisions of the Board and the Committee must also be Consistent with Local Needs.

(b) Denial. In the case of the denial of a Comprehensive Permit, the issue shall be whether the decision of the Board was Consistent with Local Needs.

(c) Approval with Conditions. In the case of the 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 the Project Uneconomic; and

2. second, if so, whether such conditions and/or requirements are Consistent with Local Needs.

Commentary. A condition which causes a Project to be Uneconomic will not be removed or modified if as a result of such action the Project would not be Consistent with Local Needs.

(2) Burdens of Proof.

(a) Applicant's Case.
1. The Applicant shall have the burden of proving that it has met the project eligibility requirements of 760 CMR 56.04(1). Such burden shall be conclusively met in accordance with the procedure set forth in 760 CMR 56.04(6), except in the event of a substantial change affecting the project eligibility requirements, which shall be reviewed in accordance with 760 CMR 56.04(5).

2. In the case of a denial, the Applicant may establish a prima facie case by proving, with respect to only those aspects of the Project which are in dispute (which shall be limited), in the case of a Pre-hearing Order, to contested issues identified in the pre-hearing order, that its proposal complies with federal or state statutes or regulations, or with generally recognized standards as to matters of health, safety, the environment, design, open space, or other matters of Local Concern.

3. In the case of an approval with conditions, the Applicant shall have the burden of proving that the conditions make the building or operation of the Project Uneconomic.

4. In the case of either a denial or an approval with conditions, the Applicant may prove that Local Requirements and Regulations have not been applied as equally as possible to subsidized and unsubsidized housing. The Applicant shall have the burden of proving such inequality.

(b) Board's Case.
1. In any case, the Board may show conclusively that its decision was Consistent with Local Needs by proving that one or more of the grounds described in 760 CMR 56.03(1) has been satisfied, in accordance with the procedure set forth in 760 CMR 56.03(8). The Board shall have the burden of proving satisfaction of such grounds.

2. In the case of denial, the Board shall have the burden of proving, first, that there is a valid health, safety, environmental, design, open space, or other Local Concern which supports such denial, and then, that such Local Concern outweighs the Housing Need.

3. In the case of an approval with conditions, relative to which the Applicant has presented evidence that the conditions make the Project Uneconomic, the Board shall have the burden of proving, first, that there is a valid health, safety, environmental, design, open space, or other Local Concern which supports such conditions, and then, that such Local Concern outweighs the Housing Need.

4. In the case of either a denial or an approval with conditions, if the denial or conditions are based upon the inadequacy of existing municipal services or infrastructure, the Board shall have the burden of proving that the installation of services adequate to meet local needs is not technically or financially feasible. Financial feasibility may be considered only where there is evidence of unusual topographical, environmental, or other physical circumstances which make the installation of the needed service prohibitively costly.

(c) Applicant's Rebuttal. In the case of a denial or an approval with conditions, the Applicant shall have the burden of proving that preventive or corrective measures have been proposed which will mitigate the Local Concern, or that there is an alternative means of protecting Local Concerns which makes the project economic.

(3) Evidence.

(a) Presumptions. A determination of Project Eligibility, established in accordance with 760 CMR 56.04 or a determination that a municipality has satisfied one or more of the grounds set forth in 760 CMR 56.03(1), established in accordance with 760 CMR 56.03(8), shall be an irrebuttable presumption. Conversely, proof that a municipality has failed to satisfy any of the grounds described in 760 CMR 56.03(1) shall create a rebuttable presumption that there is a substantial Housing Need which outweighs Local Concerns.

(b) Balancing. If a municipality attempts to rebut the presumption, set forth in 760 CMR 56.07(3)(a) that there is a substantial Housing Need which outweighs Local Concerns:
1. the weight of the Housing Need will be commensurate with the regional need for Low or Moderate Income Housing, considered with the proportion of the municipality's population that consists of Low Income Persons;

2. the weight of the Local Concern will be commensurate with the degree to which the health and safety of occupants or municipal residents is imperiled, the degree to which the natural environment is endangered, the degree to which the design of the site and the proposed housing is seriously deficient, the degree to which additional Open Spaces are critically needed in the municipality, and the degree to which the Local Requirements and Regulations bear a direct and substantial relationship to the protection of such Local Concerns; and

3. a stronger showing shall be required on the Local Concern side of the balance where the Housing Need is relatively great than where the Housing Need is not as great.

(c) Evidence to be Heard. The Committee will hear evidence only as to matters actually in dispute (which shall be limited, in the case of a Pre-hearing Order, to issues identified therein). Below are examples of factual areas of Local Concern in which evidence may be heard if it is relevant to issues in dispute. These examples are not all inclusive.

(d) Health, Safety, and the Environment. The Committee may receive evidence of the following matters:
1. Structural soundness of the proposed building(s);

2. Adequacy of sewage arrangements;

3. Adequacy of water drainage arrangements;

4. Adequacy of fire protection;

5. Adequacy of the Applicant's proposed arrangements for dealing with the traffic circulation within the site, and feasibility of arrangements which could be made by the municipality for dealing with traffic generated by the Project on adjacent streets;

6. Proximity of the proposed site to airports, industrial activities, or other activities which may affect the health and safety of the occupants of the proposed housing.

(e) Site and Building Design. The Committee may receive evidence of the following matters:
1. Height, bulk, and placement of the proposed Project;

2. Physical characteristics of the proposed Project;

3. Height, bulk, and placement of surrounding structures and improvements;

4. Physical characteristics of the surrounding land;

5. Adequacy of parking arrangements;

6. Adequacy of open areas, including outdoor recreational areas, proposed within the project site.

(f) Open Space. The Committee may receive evidence of the following matters;
1. availability of existing Open Spaces, as defined in 760 CMR 56.02, in the municipality;

2. current and projected utilization of existing Open Spaces and consequent need, if any, for additional Open Spaces, by the municipality's population including occupants of the proposed housing;

3. relationship of the proposed site to any municipal open space or outdoor recreation plan officially adopted by the planning board, and to any official actions to preserve Open Spaces taken with respect to the proposed site by the town meeting or city council, prior to the date of the Applicant's initial submission. The inclusion of the proposed site in any such open space or outdoor recreation plan shall create a presumption that the site is needed to preserve Open Spaces unless the Applicant produces evidence to the contrary;

4. relationship of the proposed site to any regional open space plan prepared by the applicable regional planning agency;

5. current use of the proposed site and of land adjacent to the proposed site;

6. inventory of sites suitable for use as Open Spaces, and available for acquisition or other legal restriction as Open Spaces, in the municipality, provided that the Committee shall admit no evidence of any open space plan adopted only by the local conservation commission or other local body but not officially adopted by the planning board.

(g) Municipal and Regional Planning. The Committee may receive evidence of and shall consider the following matters:
1. a municipality's master plan, comprehensive plan, housing plan, Housing Production Plan, or community development plan;

2. the applicable regional policy plan; and

3. the results of the municipality's efforts to implement such plans.

(h) Evidence Not to be Heard. The following matters shall be within the sole province of the Subsidizing Agency, and the Committee will not hear evidence concerning them except for good cause or as set forth in 760 CMR 56.07(3)(h)1. through 4.
1. Matters relating to Project Eligibility, including the marketing of the Project and the Applicant's ability to finance, construct, or manage the Project, except in the case of:
a. an alleged substantial change raised by the Board in accordance with 760 CMR 56.04(6); or

b. an alleged material inconsistency between the applicable Project Eligibility requirements and an action of the Subsidizing Agency.

2. The financial feasibility of the Project, what constitutes a reasonable return for a Limited Dividend Organization, or whether the Applicant is likely to earn reasonable return, except that evidence may be heard which is directly relevant to the issue of whether conditions would make the Project Uneconomic in accordance with 760 CMR 56.05(6) and (8)(d).

3. Resident selection procedures and other matters relating to Use Restrictions and Affirmative Fair Marketing Plans.

4. The percentage of Low and Moderate Income Housing units within a Project.

(4) Substantial Changes to Project.

(a) Substantial Changes. If an Applicant involved in an appeal to the Committee desires to change aspects of its proposal from its content at the time it made application to the Board, it shall notify the Committee in writing of such changes, and the presiding officer shall determine whether such changes are substantial. If the presiding officer finds that the changes are substantial, he or she shall remand the proposal to the Board for a public hearing to be held within 30 days and a decision to be issued within 40 days of termination of the hearing as provided in M.G.L. c. 40B, § 21. Only the changes in the proposal or aspects of the proposal affected thereby shall be at issue in such hearing. If the presiding officer finds that the changes are not substantial and that the Applicant has good cause for not originally presenting such details to the Board, 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 56.00.

(b) Commentary and Examples. The statute requires that an Applicant present its application first to a Board before appealing to the Committee. If on appeal to the Committee the Applicant wishes to make changes in its proposal from its content as originally presented to the Board, the Board should have an opportunity to review changes that are substantial. Following are some examples of what circumstances ordinarily will and will not constitute a substantial change of the kind described in 760 CMR 56.07(4)(a).

(c) The following matters generally will be substantial changes:
1. An increase of more than 10% in the height of the building(s);

2. An increase of more than 10% in the number of housing units proposed;

3. A reduction in the size of the site of more than 10% in excess of any decrease in the number of housing units proposed;

4. A change in building type (e.g., garden apartments, townhouses, high-rises); or

5. A change from one form of housing tenure to another.

(d) The following matters generally will not be substantial changes:
1. A reduction in the number of housing units proposed;

2. A decrease of less than 10% in the floor area of individual units;

3. A change in the number of bedrooms within individual units, if such changes do not alter the overall bedroom count of the proposed housing by more than 10%;

4. A change in the color or style of materials used; or

5. A change in the financing program under which the Applicant plans to receive a Subsidy, if the change affects no other aspect of the proposal.

(5) Committee Decisions.

(a) Decision. In accordance with M.G.L. c. 40B, § 22, the Committee shall render a written decision, based upon a majority vote, stating its findings of fact and conclusions, within 30 days after termination of the hearing unless such time has been extended by consent of the Applicant.
1. If the Committee finds, in the case of a denial, that the decision of the Board was not Consistent with Local Needs, it shall vacate such decision and shall direct the Board to issue a Comprehensive Permit to the Applicant.

2. If the Committee finds, in the case of conditions imposed by the Board, that the conditions render the Project Uneconomic and that the conditions are not Consistent with Local Needs, the Committee shall direct the Board to remove any such condition or to modify it so as to make the Project economic.

3. If the Committee finds, in the case of conditions imposed by the Board, that the conditions render the Project Uneconomic and that the conditions are Consistent with Local Needs, but that the conditions can be modified so as to make the Project economic and to adequately protect health, safety, environmental, design, open space, and other Local Concerns, the Committee shall so direct the Board to modify the conditions.

(b) Conditions. The Committee shall not issue any order which 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. The Committee, 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 56.03(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 Committee shall not delay or deny an appeal on the grounds that any state or federal approval has not been obtained;

4. Complete or partial waiver ordered by the Committee of fees otherwise assessed or collected by Local Boards;

5. Other directions or orders to Local Boards designed to effectuate the issuance of a Comprehensive Permit (including any Waivers) and the construction of the Project; or

6. Any other condition consistent with M.G.L. c. 40B, §§ 20 through 23 and 760 CMR 56.00.

(c) Massachusetts Environmental Policy Act (MEPA). All Projects before the Committee are potentially subject to compliance with the MEPA, M.G.L. c. 30, §§ 61 through 62H.
1. Where no Environmental Impact Report (EIR) is required, no M.G.L. c. 30, § 61 finding shall be required in the Committee's decision. In any such case, however, pursuant to 301 CMR 11.12(2)(b), prior to issuance of a decision, the Applicant may serve upon the Committee pursuant to 760 CMR 56.06(6) the following:
a. a Certificate of the Secretary of Environmental Affairs pursuant to 301 CMR 11.06(7) that no EIR is required, or

b. an advisory opinion obtained from the Secretary of Environmental Affairs pursuant to 301 CMR 11.01(6). (Also see 301 CMR 11.05(3), 12(2).)

If neither a Certificate nor an advisory opinion is available, the Committee may rely on evidence or testimony admitted at the hearing or thereafter or on other information contained in the record.

2. Where an EIR is required and a Single or Final EIR has received a Certificate of the Secretary of Environmental Affairs of compliance pursuant to 301 CMR 11.08(8)(a), the presiding officer may take official notice of the Certificate without prior notice to the parties pursuant to 760 CMR 56.06(8)(2), and shall include in its decision findings as required by M.G.L. c. 30, § 61. (See 301 CMR 11.01(4)(c), 11.12(5)) .

3. Where an EIR is required and the Secretary of Environmental Affairs has not issued a Certificate of compliance pursuant to 301 CMR 11.08(8)(a), the Committee may delay its decision or it may render its decision, pursuant to 301 CMR 11.02 ("agency action"(c)), provided that the decision shall be subject to the following conditions:
a. that the Comprehensive Permit shall not be implemented until the Committee has fully complied with MEPA, and

b. that the Committee shall retain authority to modify the decision based upon findings or reports prepared in connection with MEPA.

(d) Decisions Involving Constructive Grant of Permit. The Committee may determine, upon motion pursuant to 760 CMR 56.06(5)(b) and after hearing, that a Comprehensive Permit has been granted constructively due to failure of the Board to meet one of the deadlines in M.G.L. c. 40B, § 21 or the 180-day deadline for termination of the hearing set forth in 760 CMR 56.05(3). In any such case, the permit shall be deemed granted for the number of housing units proposed in the application to the Board, and the Committee shall impose reasonable conditions upon the permit sufficient to address health, safety, environmental, design, open space, and all other material local concerns.

(e) Appeal. Any decision of the Committee may be reviewed in the superior court in accordance with the provisions of M.G.L. c. 30A.

(f) Appeal in MEPA Cases. Judicial review of a Committee decision which does not contain Massachusetts Environmental Policy Act findings, but rather contains the conditions required by 760 CMR 56.08(3)(c), shall not be delayed by such conditions.

(6) Enforcement.

(a) The Board shall carry out an order of the Committee within 30 days of its entry, and, upon failure to do so, the order of the Committee shall for all purposes be deemed the action of the Board.

(b) The Committee shall have the same power to issue permits or approvals as any Local Board which would otherwise act with respect to an application.

(c) A Comprehensive Permit issued by order of the Committee shall be a master permit which shall subsume all local permits and approvals normally issued by Local Boards, in accordance with 760 CMR 56.05(10).

(d) After the issuance of a Comprehensive Permit, the Committee may issue such orders as may aid in the enforcement of its decision. If a party fails to comply with an order issued by the Committee, it may impose appropriate sanctions, including the imposition of costs. Also see 760 CMR 56.06(7)(g).

(e) The Committee or the Applicant may enforce an order of the Committee in the Superior Court.

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