Current through Register 1531, September 27, 2024
(1)
Preliminary Municipal Review
Procedure. The chief executive of the Municipality or duly authorized
designee shall hold a preliminary public hearing on whether the provisions of the
proposed 40R Zoning should be adopted by the Municipality. Notice shall be given in
accordance with M.G.L. c. 40A, § 11 and by posting on the Municipality's
website, if any, on the date of the first newspaper publication through the date of
the hearing. Following the hearing, comments shall be considered by the Municipality
in preparation of the proposed 40R Zoning Application.
(2)
Preliminary Determination of
Eligibility by DHCD. Upon receipt of a 40R Zoning Application by a
Municipality, DHCD will make a preliminary determination, before the Municipality
votes on its proposed 40R Zoning, whether the application satisfies the approval
requirements set forth in
760 CMR
59.04(1). DHCD's review will be
an informal, non-adjudicatory procedure.
(a) DHCD
will accept 40R Zoning Applications on the last day of each month. Upon its receipt
of a 40R Application, DHCD will conduct a completeness review, except that DHCD will
notify a Municipality in writing or by electronic communication within 30 days after
receipt if any required element of its application is missing or incomplete. Such
notification shall constitute a denial of the application unless the missing or
incomplete elements are addressed within 30 days after the notification or other
reasonable time period established at DHCD's discretion. Applications shall be
deemed complete if such written notice is not given within the 30-day completeness
review time period. The 30-day period may be extended only with the written consent
of the Municipality.
(b) Upon expiration
of the completeness review period, DHCD will conduct a review as to whether the 40R
Zoning Application satisfies the approval requirements set forth in
760 CMR
59.04(1). DHCD will issue its
decision upon an application within 60 days of the start of this review period. The
60-day period may be extended only with the written consent of the Municipality. If
DHCD does not act upon a complete and approvable application within the 60-day
period, subject to any extension, the application shall be deemed
approved.
(c) DHCD will communicate its
determination on a 40R Zoning Application to the Municipality by issuing one of the
following:
1. a Letter of Eligibility, approving
the application without conditions;
2. a
Letter of Conditional Eligibility, approving the application with conditions that
must be satisfied prior to final approval under 760 CMR 59.05(4) and, as applicable,
subject to a Letter of Conditional Approval; or
3. a Letter of Denial.
(d) A Letter of Conditional Eligibility may, among
other matters, require modification to the proposed 40R Zoning; require modification
of the calculation of Incentive Units; require the reclassification of Developable
Land; or condition the issuance of the Letter of Approval upon submission of
sufficient documentation that:
1. the development
of a proposed 40R Zoning District is feasible;
2. such proposed District otherwise satisfies the
threshold approval criteria set forth in
760 CMR
59.04(1);
3. the impacts of Future Zoned Units within the
District will not overburden Infrastructure (which for the purposes of 760 CMR
59.05(2)(d) shall also include improvements to public Dedicated Open Space and
public recreational facilities) as it exists or may be practicably upgraded to
provide adequate accommodation of the demands of the District's existing and future
residents and uses. See
760 CMR
59.03(1)(j); or
4. the Municipality takes the actions contemplated
under 760 CMR 59.05(2)(e).
(e)
Additional Municipal Standards
Applicable to Development Under Starter Home Zoning. If DHCD determines
that the Municipality has not shown that Additional Municipal Standards applicable
in a Starter Home District do not Render Development Infeasible, DHCD will not issue
an unconditional Letter of Eligibility. Any Letter of Conditional Eligibility
pursuant to 760 CMR 59.05(2)(d) will, in addition to any conditions under 760 CMR
59.05(2)(d)1. through 3., condition the issuance of a Letter of Approval on either:
1. modification of the Additional Municipal
Standards, through the Starter Home Zoning or otherwise, so that no Additional
Municipal Standards will apply to development under the Starter Home Zoning,
or
2. demonstration that the Additional
Municipal Standards applicable in a Starter Home District do not Render Development
Infeasible. DHCD will also inform the Municipality that it may seek DEP
determination that the Municipality has demonstrated the existence of specific local
conditions that warrant imposition of such Additional Municipal Standards to
development under the Starter Home Zoning.
(f)
DEP Review of Additional Municipal
Standards Applicable to Development Under Starter Home Zoning.
1. Upon receipt of a Letter of Conditional
Eligibility pursuant to 760 CMR 59.05(2)(e), a Municipality may request a review and
determination by DEP regarding whether the Municipality has demonstrated a
reasonable, objective basis, based on the documentation of specific local
conditions, for imposition of Additional Municipal Standards to development under
the Starter Home Zoning.
2. Promptly
following receipt of such request, DHCD will forward to DEP a copy of the
Municipality's 40R Zoning Application for a Starter Home Zoning District, including
any supporting materials pertaining to Additional Municipal Standards.
3. DEP's review will be an informal,
non-adjudicatory procedure. DEP may elect, in its discretion, to request that DHCD
request additional information from the Municipality, which the Municipality shall
submit to DHCD within 30 days thereafter for forwarding to DEP for its review and
determination. DEP will provide its determination concurrently to both DHCD and the
Municipality.
4. If DEP determines that
the Municipality has not demonstrated that local conditions warrant imposition of
Additional Municipal Standards to development under the Starter Home Zoning, the
requirements of the initial Letter of Conditional Eligibility remain in effect
unchanged.
5. If DEP determines that the
Municipality has demonstrated that local conditions warrant imposition of Additional
Municipal Standards to development under the Starter Home Zoning, DHCD will issue a
revised preliminary determination of eligibility in accordance with 760 CMR
59.05(2)(c) within 30 days, which may include as an alternative condition that the
Municipality submit any additional information needed to demonstrate compliance with
statutory requirements as set out in DHCD guidance.
(g) In the event of issuance of a Letter of
Denial, a Municipality may re-apply for approval after addressing any deficiencies
in a prior application, provided that such reapplication shall be treated as a new
application under
760 CMR
59.03.
(h) In the event of a constructive approval of a
40R Zoning Application due to DHCD's failure to act within the specified time
period, the Municipality may request in writing the issuance of a Letter of
Eligibility within 60 days of the date of constructive approval, and DHCD will issue
such Letter within 21 days of its receipt of the request. The Municipality must
thereafter comply with the requirements of 760 CMR 59.05(3) and (4).
(3)
Municipal Adoption of
40R Zoning. Following receipt of DHCD's preliminary determination of
eligibility, the Municipality must formally adopt its 40R Zoning pursuant to M.G.L.
c. 40A, § 5 prior to final 40R Zoning approval by DHCD. If the Municipality is
proceeding based on receipt of a Conditional Letter of Eligibility, it shall make
any changes to its 40R Zoning and other elements of the 40R Zoning Application that
have been required by DHCD prior to formally adopting the 40R Zoning pursuant to
M.G.L. c. 40A, § 5. The Municipal vote to adopt the 40R Zoning must occur
within three years of the date of the Letter of Eligibility or Letter of Conditional
Eligibility, as applicable.
(4)
Final 40R Zoning Approval by DHCD.
(a)
Submission by
Municipality. Upon adoption of the 40R Zoning, the Municipality shall
submit to DHCD proof of such adoption. If DHCD had required any amendment to the 40R
Zoning or any element of the 40R Zoning Application, or any other related matter, in
a Letter of Conditional Eligibility, the Municipality's submission shall confirm and
demonstrate that all such amendments have been made and incorporated. If any element
of the application subject to a condition in the Letter of Conditional Eligibility,
including the requirements of
760 CMR
59.03(1)(j), has not been amended
as required by that letter, the Municipality shall identify those elements remaining
unaddressed and may request a Letter of Conditional Approval from DHCD.
(b)
DHCD Review. DHCD
will accept submissions on the last day of each month. DHCD's review of the
submission will be an informal, non-adjudicatory procedure. DHCD will confirm its
final approval by issuance of a Letter of Approval, or will issue a Letter of
Conditional Approval or Letter of Denial within 30 days of receipt of the
submission. The 30-day period may be extended only with the written consent of the
Municipality.
(c)
Letter of
Approval. If the submission satisfies all of the approval criteria set
forth in
760 CMR
59.04(1), as well as all
conditions in a Letter of Conditional Eligibility, DHCD will issue a Letter of
Approval which will specify, among other matters, the number of Incentive Units and
the amount of the Zoning Incentive Payment that shall be made to the
Municipality.
(d)
Letter of
Conditional Approval. If a Letter of Conditional Approval is issued, it
will specify all conditions necessary to ensure consistency with M.G.L. c. 40R and
760 CMR 59.00 which must be met
and demonstrated to DHCD before the Municipality is eligible to receive a Letter of
Approval. A Letter of Conditional Approval may provide that, with respect to an
identified geographic area within the District, DHCD has determined that a
Municipality has met all conditions necessary to ensure minimum compliance with
M.G.L. c. 40R and
760 CMR 59.00, and therefore may
be entitled to receive a partial Zoning Incentive Payment based on the number of
Incentive Units within the identified geographic area that can be developed prior to
satisfaction of any outstanding conditions and, if so, the amount of such partial
Zoning Incentive Payment. Upon satisfaction of any outstanding conditions specified
in the Letter of Conditional Approval pertaining to Infrastructure, Smart Growth or
other matters necessary to ensure consistency with M.G.L. c. 40R and
760 CMR 59.00, a Municipality
shall submit to DHCD proof of such satisfaction for review pursuant to 760 CMR
59.05(4)(a). The Letter of Conditional Approval will specify the amount of Zoning
Incentive Payment that is conditioned upon satisfaction of outstanding
conditions.
(e)
Changes to
40R Zoning. The Municipality shall identify in its submission under 760
CMR 59.05(4) all differences between the proposed 40R Zoning that had been submitted
to DHCD for review as part of DHCD's preliminary determination of eligibility under
760 CMR 59.05(2), and the 40R Zoning as adopted by the Municipality (see
760 CMR 59.05(3)), as well as any other changes to the original
application. If there has been any change to the 40R Zoning or any other element of
the original 40R Zoning Application, other than changes that DHCD had required in a
Letter of Conditional Eligibility, then DHCD may treat the submission as an
amendment to the application, and it will notify the Municipality of its decision to
do so in writing. In such event DHCD will conduct its review under 760 CMR 59.05(4)
within 60 days of receipt of the submission. The 60-day period may be extended only
with the written consent of the Municipality.
(f)
Constructive
Approval. In the event of a constructive approval of a final submission
due to DHCD's failure to act within the specified time period, the Municipality may
request in writing the issuance of a Letter of Approval within 60 days of the date
of constructive approval, and DHCD will issue such Letter within 21 days of its
receipt of the request.
(5)
Amendments and Repeals With Respect to an Approved
District. Any proposed amendment or repeal of the 40R Zoning, any
Design Standards, or the boundary of the District or any sub-districts; or any
amendment or adoption of the Plan Approval Authority's administrative rules, if
adopted after issuance of a Letter of Approval, shall not take effect under M.G.L.
c. 40R and
760 CMR 59.00 without written
approval by DHCD in accordance with 760 CMR 59.05(5). In addition, any proposed
adoption or enlargement of an Historic District within the boundary of the District,
if adopted after issuance of a Letter of Approval, shall be subject to DHCD review
to determine whether the adoption or enlargement of the Historic District would
cause the Approved District to fail to comply with the approval criteria set forth
in
760 CMR
59.04. Each request for an amendment, enlargement,
repeal or adoption must be submitted to DHCD on the last day of a month, upon the
form of application or in the format determined by DHCD. DHCD's review will be an
informal, non-adjudicatory procedure, to be conducted in accordance with 760 CMR
59.05(2). DHCD will, as applicable, issue an amended Letter of Eligibility for a
proposed amendment only if, and to the extent that, DHCD finds in its discretion
that the Approved District as amended will remain in compliance with the approval
criteria set forth in
760 CMR
59.04(1). An amendment to the 40R
Zoning, any Design Standards, or the boundary of the District or any sub-districts,
or any amendment or adoption of the Plan Approval Authority's administrative rules
that would have the effect of decreasing the number of Incentive Units within an
Approved District shall not take effect under M.G.L. c. 40R and
760 CMR 59.00 until DHCD has
issued written confirmation that all repayment of monies required under
760 CMR
59.06(3) has occurred. DHCD may,
in its discretion, determine that it is appropriate to issue a Letter of Conditional
Eligibility based on the changes to the Approved District as amended. If DHCD
determines that the adoption of enlargement of the Historic District would cause the
Approved District to fail to comply with the approval criteria set forth in
760 CMR
59.04, DHCD may, in its discretion, determine that
it is appropriate to issue a Letter of Noncompliance or Certificate of Revocation in
accordance with
760
CMR 59.07(3).
(a)
Treatment of Proposed
Amendment. Except as otherwise provided in 760 CMR 59.05(5)(b) through
(d), a proposed amendment shall be treated as a new 40R Zoning Application pursuant
to
760 CMR
59.03,
59.04, and
59.05(1) through (4). The amendment will not take effect under M.G.L. c. 40R and
760 CMR 59.00 until:
1. DHCD has issued an amended Letter of Approval
or Letter of Conditional Approval; and
2. if DHCD issues a Letter of Conditional
Approval, DHCD confirms that all conditions have been satisfied. A proposed
amendment shall include an evaluation of its effect upon the Municipality's
Comprehensive Housing Plan.
(b)
Non-substantial
Modifications. DHCD may, upon written request of the Municipality,
review and approve within 30 days after the date of receipt of such request a
non-substantial modification to the 40R Zoning, Design Standards, Municipal Historic
District regulations, or a District or sub-district boundary. The Municipality
shall, in its request, certify to DHCD that the proposed modification will not have
the effect of increasing or decreasing the area of an Approved District or the
number of Incentive Units or Bonus Units, adopting or enlarging a Historic District
or substantially modifying the requirements applicable in an Historic District
within the 40R District, reducing consistency with the Comprehensive Housing Plan,
or Unreasonably Impairing the development of Projects within the Approved District.
Failure of DHCD to issue a decision on a request for approval of a non-substantial
modification within such 30-day period shall be deemed a denial. By mutual
agreement, the 30-day time period may be extended.
(c)
Boundary Change
Amendments. A Municipality may at any time propose an amendment that
solely would change the boundary of an Approved District and decrease its area,
pursuant to the following review procedure. The Municipality shall provide 60 days
prior written notice to DHCD that such boundary change amendment has been proposed
for action by the Municipal legislative body, together with a calculation of the
decrease in the number of Incentive Units within the District, an evaluation of the
effect upon the Municipality's Comprehensive Housing Plan, and certification by the
Municipality that there will be no other modification to the 40R Zoning or the
Design Standards. The Municipality shall provide subsequent written notice to DHCD
if it adopts such boundary change amendment. The amendment will not take effect
under M.G.L. c. 40R and
760 CMR 59.00 until DHCD has
issued an amended Letter of Conditional Approval, conditioned upon its confirmation
that all repayment of monies required under
760 CMR
59.06(3)(a) has
occurred.
(d)
Repeals. A Municipality may at any time repeal the 40R
Zoning for an Approved District, pursuant to the following review procedure. The
Municipality shall provide 60 days prior written notice to DHCD that such repeal has
been proposed for action by the Municipal legislative body under applicable law, and
it shall provide subsequent written notice to DHCD if such Municipal repeal action
is taken. Such prior written notice shall include a recalculation of the number of
Incentive Units still developable within the District if the 40R Zoning is repealed.
This recalculation shall count as Incentive Units all Bonus Units already
constructed or approved within the District, and all Bonus Units for which
applications have been submitted to the Plan Approval Authority prior to the date
upon which the request for repeal is submitted to DHCD. The repeal shall not take
effect under M.G.L. c. 40R and
760 CMR 59.00 until DHCD has
issued an amended Letter of Conditional Approval, conditioned upon its confirmation
that all repayment of monies required under
760 CMR
59.06(3)(b) has
occurred.
(6)
Area Waiver and Density Reduction Requests. For a Smart
Growth Zoning District, a Municipality may request that DHCD approve an area waiver
under
760 CMR 59.04(2)
or a density reduction under
760 CMR
59.04(3), according to the
following procedure. The Municipality shall submit such request in writing to DHCD
with its 40R Zoning Application, along with such supporting material as DHCD may
require. DHCD's review of the request will be an informal, non-adjudicatory
procedure. If DHCD has not approved a request in writing within 30 days of its
receipt, such request shall be deemed denied.
