Code of Massachusetts Regulations
760 CMR - HOUSING AND LIVABLE COMMUNITIES, EXECUTIVE OFFICE OF
Title 760 CMR 59.00 - Smart growth zoning districts and starter home zoning districts
Section 59.04 - Approval Requirements

Universal Citation: 760 MA Code of Regs 760.59

Current through Register 1531, September 27, 2024

To issue a Letter of Eligibility under 760 CMR 59.05(2), or a Letter of Approval under 760 CMR 59.05(4), DHCD must find that a proposed District satisfies each of the relevant requirements set forth in 760 CMR 59.04(1), and that no uncured Letter of Noncompliance has been issued to the Municipality under 760 CMR 59.07(3). Any area waiver request by a Municipality under 760 CMR 59.04(2) or any density reduction request under 760 CMR 59.04(3) must have been previously approved by DHCD under the procedure set forth in 760 CMR 59.05(6), no more than three years prior to the date of the 40R Zoning Application. DHCD may approve, disapprove, or approve with conditions, a request for the determination of eligibility for a District.

(1) Requirements. The Municipality shall establish, by narrative and exhibits, that a proposed District satisfies each of the following requirements.

(a) Eligible Location. The proposed District shall be located in an Eligible Location. DHCD shall find that a proposed District is located in an Eligible Location if it is in a Highly Suitable Location by virtue of meeting one or more of the following criteria:
1. Substantial Transit Access Area.
a. The District comprises part or all of a Substantial Transit Access Area, plus any qualifying Adjacent Area, if applicable; and

b. For Smart Growth Zoning Districts only, Pedestrian Access to transit within a distance of 1/2 mile must be existing Infrastructure or Planned Infrastructure. The District may also include additional contiguous areas with comparable Pedestrian Access located within 3/4 of a mile distance of any rapid transit or commuter rail station, bus or ferry terminal (measured from the entry point(s) to the passenger platforms) that would not otherwise constitute a qualifying Adjacent Area; and

c. For Starter Home Zoning Districts only, the District may also include additional contiguous areas located within 11/2 mile distance of any rapid transit or commuter rail station, bus or ferry terminal (measured from the entry point(s) to the passenger platforms).

2. Area of Concentrated Development.
a. The District comprises part or all of the land located within an Area of Concentrated Development, plus any qualifying Adjacent Area, if applicable.

b. A District itself does not need to meet all of the criteria for an Area of Concentrated Development as long as it is located within an Area of Concentrated Development and meets the applicable criteria set forth in 760 CMR 59.02: Area of Concentrated Development.

c. A Municipality may have multiple qualifying Areas of Concentrated Development.

3. Starter Home Additional Criteria. For Starter Homes only, the District meets the criteria for a Highly Suitable Location under 760 CMR 59.02: Highly Suitable Location (a)3.

4. Other Highly Suitable Location. The proposed District otherwise qualifies as a Highly Suitable Location where development would promote Smart Growth pursuant to 760 CMR 59.02: Highly Suitable Location(a)4.

(b) Land Area of District. The total land area (excluding open water bodies) of the proposed District does not exceed 15% of the total land area in the Municipality, unless DHCD has previously approved an area waiver under 760 CMR 59.05(6).

(c) Land Area of All Districts. The aggregate total land area (excluding open water bodies) of all approved or proposed Districts in the Municipality does not exceed 25% of the total land area in the Municipality.

(d) Density.
1. 40R Zoning may allow Mixed-use Developments As-of-right in part or all of the District (excluding all sub-Districts in which the only permitted use is commercial) provided that at least 51% of the gross floor area of any such Mixed-use Development must be devoted to residential use. The minimum number of residential units that must be provided in a Mixed-use Development is determined by multiplying the minimum number of housing units that would have been required if the Mixed-use Development were an entirely residential Project as set forth in 760 CMR 59.04(1)(d)3. or 760 CMR 59.04(1)(d)4., as applicable, by the higher of the minimum percentage of residential use required under 760 CMR 59.04(1)(d)1. or the minimum percentage of residential use required by the 40R Zoning, rounded up to the next highest integer.

The 40R Zoning shall specify the minimum percentage of each Mixed-use Development that shall be devoted to residential use, which shall be no less than 51%. Zoning Incentive Payments for Mixed-use Developments shall be based on the applicable minimum residential density using the formula in 760 CMR 59.04(1)(d)1. Municipalities may mandate a certain percentage of commercial use in 40R Zoning as long as Mixed-use Developments meet the applicable minimum residential densities set forth in 760 CMR 59.04(1)(d)3. and 760 CMR 50.04(1)(d)4. as affected by the requirements set forth in 760 CMR 59.04(1)(d)1.

Example. A Mixed-use Development in a Smart Growth Zoning District is located on two acres of Developable Land (87,120 square feet) on which at least 40 Multi-family Residential units would be permitted if it were an entirely residential Project. The applicable Smart Growth Zoning requires a minimum residential density of 51% for Mixed-use Developments in the District.

Calculating the minimum number of residential units. If the Mixed-use Development were entirely residential, the minimum allowable density for the Project would provide for at least 40 Multi-family Residential units (two acres x 20 Multi-family Residential units). The applicable minimum residential density in this Mixed-use Development is 51%. A minimum of 21 residential units must be provided (40 residential units x 51% = 20.4, rounded up to the next highest integer).

2. 40R Zoning may apply the residential densities set forth in 760 CMR 50.04(1)(d)3. or 760 CMR 59.04(1)(d)4., as applicable, to some or all of the Substantially Developed Land within a proposed District. The allowable residential densities in such Substantially Developed sub-district shall be no less than those in the Underlying Zoning, and the 40R Zoning shall differ from the dimensional and other applicable standards of the Underlying Zoning as necessary to permit As-of-right within such Substantially Developed sub-district the construction of infill housing on existing lots, and of additional housing units in existing residential buildings or additions thereto or replacements thereof. The 40R Zoning may impose reasonable lot area, frontage, setback and other dimensional requirements within such Substantially Developed sub-districts, consistent with neighborhood building and use patterns. If a Project within a Substantially Developed sub-district contains units in excess of the number of Existing Zoned Units for the site, those units shall qualify as Bonus Units for the purposes of the Bonus Payments, and the Project shall be subject to all applicable Affordability, Income-Restricted and other standards of the 40R Zoning.

3. For Smart Growth Zoning Districts only:
a. A Smart Growth Zoning District shall provide for any one or more of the following minimum allowable As-of-right density requirements, as applicable, unless DHCD has previously approved a density reduction under 760 CMR 59.04(3):
i. allowing a density of at least eight units per acre for Developable Land zoned for single-family residential use;

ii. allowing a density of at least 12 units per acre for Developable Land zoned for two- and/or three-family residential use; or

iii. allowing a density of at least 20 units per acre for Developable Land zoned for Multi-family Residential Use.

b. A Smart Growth Zoning District may contain two or more sub-districts, zoned separately for single-family, two- and/or three-family, and/or Multi-family Residential Uses, or with varying allowable densities for the same residential use, as long as each sub-district individually meets the applicable minimum allowable density requirement set forth in 760 CMR 59.04(1)(d)3.a.i. through iii.

4. For Starter Home Zoning Districts only:
a. A Starter Home Zoning District shall provide for a minimum allowable As-of-right density of no less than four units per acre of Developable Land.

b. A Starter Home Zoning District shall provide for the utilization of either Cluster Development or Low Impact Development Techniques, except that in an area zoned for residential use that is not otherwise eligible to be a Highly Suitable Location, the District must comply with the requirements of 760 CMR 59.02: Highly Suitable Location(a)3.

c. A Starter Home Zoning shall provide that at least 50% of the Starter Homes to be developed in a proposed Starter Home Zoning District, excluding Accessory Dwelling Units, must contain three or more bedrooms. These three or more-bedroom units shall be equitably integrated and dispersed among the Starter Homes throughout the Starter Home Zoning District and within each Project including by unit type and construction phase.

(e) Affordable and Income-restricted Units.
1. In a Smart Growth Zoning District, the Smart Growth Zoning shall provide that not less than 20% of all units constructed within Projects of more than 12 units shall be Affordable. In addition, the Smart Growth Zoning shall contain mechanisms to ensure that the total number of Affordable units constructed in the District equals not less than 20% of the total number of all units constructed within Projects in the District and that Affordable units are equitably integrated and dispersed throughout the District and Project (including by unit type and construction phase). The Smart Growth Zoning shall contain provisions to ensure that Projects are not segmented to evade the size threshold for Affordability, and that there shall be effective monitoring and enforcement of the Affordable housing restriction during the term of Affordability. The Smart Growth Zoning shall provide that the affordable housing restriction on an Affordable unit shall ensure that it is occupied by an eligible household paying an Affordable rent or Affordable purchase price during the term of the restriction. The Smart Growth Zoning shall provide that Affordability shall be assured for a period of no less than 30 years through the use of an affordable housing restriction as defined in M.G.L. c. 184, § 31. The Smart Growth Zoning shall contain provisions specifying the method by which such Affordable rents or Affordable purchase prices shall be computed. The Smart Growth Zoning may specify decreased maximum income limits of eligible households (below 80% of the area-wide median income as determined by HUD). Units in a project located within the geographic boundaries of the Smart Growth District which receives a project eligibility letter under M.G.L. c. 40B after the date upon which the Municipality submitted a 40R Zoning Application to DHCD, shall be counted toward the 20% overall Affordability requirement in the second sentence of 760 CMR 59.04(1)(e)1. unless such units are required to be treated as Existing Zoned Units under 760 CMR 59.02: Existing Zoned Units.

2. In a Starter Home Zoning District, the Starter Home Zoning shall provide that not less than 20% of all units constructed within any Project shall be Income-restricted units and that all Income-restricted units are equitably integrated and dispersed throughout the District and Project (including by unit type and construction phase). In addition, the Starter Home Zoning shall contain provisions to ensure that there shall be effective monitoring and enforcement of the Income-restricted requirements during the required term. The Starter Home Zoning shall provide that the affordable housing restriction on an Income-restricted unit shall ensure that it is occupied by an eligible household paying an Income-restricted rent or Income-restricted purchase price during the term of the restriction. The Starter Home Zoning shall provide that Income-restricted requirements shall be assured for a period of no less than 30 years through the use of an affordable housing restriction as defined in M.G.L. c. 184, § 31. The Starter Home Zoning shall contain provisions specifying the method by which such restricted rents or purchase prices shall be computed. The Starter Home Zoning may specify decreased maximum income limits of eligible households (below 100% of the Area Median Income).

3. If the Municipality is proposing income, rent, or sale price requirements for Affordable or Income-restricted units requiring rents, purchase prices, or income limits lower than the applicable requirements of 760 CMR 59.04(1)(e), or conversely, significantly limiting opportunities for Affordable Housing, the Municipality shall be required to prove to DHCD in its 40R Zoning Application that its use of such mechanisms will not unduly restrict opportunities for development within the proposed District under the applicable 40R Zoning by impairing the economic feasibility of proposed Projects in the District, or, as applicable, unreasonably excluding publicly-subsidized or similar types of affordable housing development.

(f) Plan Review. Plan Review is the procedure by which a proposed Project within a District is made subject to review by the Plan Approval Authority under the provisions of the 40R Zoning, in accordance M.G.L. c. 40R, § 11 and 760 CMR 59.00.
1. If the 40R Zoning provides for Plan Review of Projects within the District, it shall specify:
a. the composition of the Plan Approval Authority;

b. the categories of Projects that will be subject to Plan Review;

c. the procedures for such review, including the contents of an application for approval of a Project;

d. the criteria upon which the Plan Approval Authority may disapprove a proposed Project, or condition its approval;

e. the criteria upon which the Plan Approval Authority may grant waivers from dimensional and other restrictions (other than Affordability or Income-restriction); and

f. any Design Standards to which a Project will be subject including, if applicable, Design Standards pursuant to 760 CMR 59.03(2). If the Design Standards are not contained within the 40R Zoning, such Design Standards must be submitted to and approved by DHCD prior to their adoption by the Plan Approval Authority.

2. The Plan Review provisions of the 40R Zoning and any separate Design Standards must be clearly written, fairly and consistently applied, and allow for flexibility and creativity, consistent with the goals of M.G.L. c. 40R, 760 CMR 59.01, 59.02 and 59.04(1)(f). The Plan Review provisions of the 40R Zoning and any separate Design Standards may only provide for denial of a proposed Project on the grounds that:
a. the Project does not meet the conditions and requirements set forth in the 40R Zoning;

b. the applicant failed to submit information and fees required by the 40R Zoning and necessary for an adequate and timely review of the design of the Project or potential Project impacts; or

c. it is not possible to adequately mitigate significant adverse Project impacts on nearby properties by means of suitable conditions.

3. Provided such standards are otherwise consistent with M.G.L. c. 40R and 760 CMR 59.00, a Municipality may adopt Design Standards to ensure that the physical character of Projects within the District:
a. will be complementary to nearby buildings and structures;

b. will be consistent with the Comprehensive Housing Plan, current Housing Production Plan, or Housing Production Summary, as applicable; and

c. will provide for higher-density quality development consistent with the character of building types, streetscapes, and other community features traditionally found in densely settled areas of the Municipality or in the region of the Municipality. Design Standards may address the scale, proportions, and exterior appearance of buildings; the placement, alignment, width, and grade of streets and sidewalks; the type and location of Infrastructure; the location of building and garage entrances; off-street parking; the protection of significant natural site features; the location and design of on-site Dedicated Open Spaces, landscaping, and exterior signs; and buffering in relation to adjacent properties, to achieve the goals of 760 CMR 59.04(1)(f)3.

4. The Municipality must demonstrate to the satisfaction of DHCD that its Design Standards will not Unreasonably Impair the development of Projects in the District. Design Standards must clearly distinguish standard requirements from recommendations or guiding principles. Design Standards requirements must be articulated objectively so that compliance can be reasonably interpreted and measured. Design Standards that fail to define standard requirements that are reasonably clear, objective and measurable will be deemed to Unreasonably Impair the development of a Project in the District. DHCD may disapprove or conditionally approve a District on account of Design Standards for which the requisite demonstration has not been made.

5. For purposes of the Plan Review of a Mixed-use Development Project, provisions of the 40R Zoning and the Design Standards must ensure that the non-residential elements of any Mixed-use Development Project are planned and designed in an integral manner to complement the residential uses, and help foster vibrant, workable, livable, and attractive neighborhoods consistent with the Smart Growth goals set forth in M.G.L. c. 40R and 760 CMR 59.00.

6. The 40R Zoning may allow the Plan Approval Authority, through the Plan Review process, to waive specific dimensional and other standards (other than Affordability or Income-Restriction requirements) otherwise applicable to a Project, if it finds that such waiver will allow the Project to achieve the density, Affordability, Income-restriction, mix of uses, or physical character allowable under the 40R Zoning, and that it is consistent with the Design Standards.

(g) Diverse Populations. Subject to 760 CMR 59.04(1)(i), the 40R Zoning for the proposed District shall require the development of housing which is appropriate for diverse populations, including households with children, other households, individuals, households including individuals with disabilities, and the elderly.

(h) No Moratorium. Projects within the proposed District shall not be subject to limitation of the issuance of building permits for residential uses or a Municipal moratorium on the issuance of such permits. The 40R Zoning may permit the Plan Review approvals of proposed Projects to be phased for the purpose of coordinating development with the construction of Planned Infrastructure upgrades that are identified in the 40R Zoning Application or that are required to mitigate any extraordinary adverse Project impacts on neighboring properties. For Projects that are approved and developed in phases, unless otherwise approved by DHCD the proportion of Affordable or Income-restricted units, as applicable, shall be at least 20% of all units constructed in each phase.

(i) Occupancy Restrictions.
1. Any proposed 40R Zoning shall not impose restrictions on age or any other forms of occupancy restrictions upon the District as a whole unless otherwise required or permitted in 760 CMR 59.04(1)(i)2. or 3., as applicable.

2. For Smart Growth Zoning only:
i. A proposed Smart Growth Zoning shall impose occupancy restrictions upon Affordable units to ensure occupancy by an eligible individual or household pursuant to 760 CMR 59.04(1)(e)1.

ii. A proposed Smart Growth Zoning may allow the development of specific Projects within a Smart Growth Zoning District that may be exclusively for the elderly, persons with disabilities, or for assisted living, provided that any such Project shall be in compliance with all applicable fair housing laws. In an age-restricted Project within a Smart Growth Zoning District, not less than 25% of the housing units shall be Affordable units and the Smart Growth Zoning shall conform to the requirements of 760 CMR 59.04(1)(e) in all other respects.

3. For Starter Home Zoning Only:
i. A proposed Starter Home Zoning shall impose occupancy restriction uponIncome-restricted units to ensure occupancy by an eligible individual or household pursuant to 760 CMR 59.04(1)(e)2.

ii. No restrictions on age shall be imposed in any Project developed under StarterHome Zoning.

(j) Fair Housing. Projects within the proposed District shall comply with federal, state, and Municipal fair housing laws. See 760 CMR 59.07(2)(e). Affordable and Income-restricted units within Projects shall be subject to an affirmative fair housing marketing plan and affordable housing restrictions that are approved by DHCD, in accordance with DHCD guidance.

(k) Infrastructure. The impacts of Future Zoned Units within the District shall not overburden Infrastructure (which for the purposes of 760 CMR 59.04(1)(k) shall also include improvements to public Dedicated Open Space and public recreational facilities) as it exists or may be practicably upgraded. See 760 CMR 59.03(1)(j).

(l) 40R Zoning to Be All-inclusive. The development of a Project within a District shall be governed solely by the 40R Zoning, without any reference to the standards or procedures of the Underlying Zoning that would otherwise be applicable to developments within the same geographic area as the District. Without limitation, the 40R Zoning shall set out the dimensional, use, parking, and other standards applicable to Projects within the District (including, as applicable, within any Substantially Developed sub-district, in compliance with 760 CMR 59.04(1)(d)), including but not limited to height limits, setbacks, lot areas, lot dimensions, unit to lot ratios, floor area ratios, lot coverage ratios, open space ratios, parking ratios, parking locations, and roadway design standards. Such provisions may differ from the dimensional and other standards contained in the Underlying Zoning in order to allow the densities, Affordability, Income-restriction, mix of uses, and physical character of Projects which are permitted As-of-right under the 40R Zoning. The 40R Zoning may allow the Plan Approval Authority, through the Plan Review process, to waive specific dimensional and other standards (other than Affordability and Income-restriction requirements) otherwise applicable to a Project.

(m) No Disqualifying Factors. A proposed District that DHCD has determined to be disqualified as a Highly Suitable Location based on the factors set forth in 760 CMR 59.02: Highly Suitable Location(b) through (d) shall not qualify as an Eligible Location.

(2) Area Waiver. Any Municipality may request that the total land area of a proposed District (calculated as the sum of the Developable Land Area, the Substantially Developed Land Area, and other land excluded pursuant to 760 CMR 59.02: Developable Land) be allowed to exceed 15% of the total land area in the Municipality. The burden shall be on the Municipality to reliably demonstrate to DHCD, by narrative and exhibits, that such an increased size is consistent with the documentation submitted under 760 CMR 59.03(1)(h), that it will help to meet the anticipated regional demand for housing, and that it will be consistent with the Smart Growth goals set forth in M.G.L. c. 40R and 760 CMR 59.00.

(3) Density Reduction. Any Municipality with a population of fewer than 10,000 persons, as determined by the most recent federal decennial census, may request that DHCD reduce the minimum allowable density standards required by 760 CMR 59.04(1)(d) for a Smart Growth Zoning District, provided that its 40R Zoning Application complies with 760 CMR 59.05(6). he burden shall be on the Municipality to demonstrate to DHCD, by narrative and exhibits, that compliance with the minimum density criteria would constitute a hardship because development at the required minimum density would either:

(a) Be highly inconsistent with the existing physical environment of the community; or

(b) Create significant risks for water pollution due to poor soils, shallow aquifers or other factors specific to the existing physical environment, or create other significant health and safety risks specific to the existing physical environment where such risks cannot reasonably be ameliorated by appropriate septic system design; or

(c) Be unable feasibly to be served by a piped water supply system.

In its 40R Zoning Application, the Municipality must also demonstrate that the District as developed at the proposed reduced density will be consistent with the Smart Growth goals set forth in M.G.L. c. 40R and 760 CMR 59.00. Approval of a density reduction will not be withdrawn by DHCD solely because, in a future census, the population of the Municipality exceeds 10,000.

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