Current through Register 1531, September 27, 2024
DHCD will be responsible for administration, review, and reporting
on the 40R Zoning District Programs as provided in M.G.L. c. 40R and
760 CMR 59.00. To enable DHCD to
undertake an annual review and the preparation of a report on the program, and to
ensure certification of compliance, DHCD will require each Municipality with an
Approved District to provide information in the form of an annual update, as
described in 760 CMR 59.07(1).
(1)
Annual Update by Municipality. On or before July
31st of each year, each Municipality that either contains
a District that had been Approved by the end of the previous fiscal year ending on
June 30th, or had filed a 40R Zoning Application for a
proposed District within that fiscal year, shall file its annual update with DHCD,
in a form to be prescribed by DHCD. Unless otherwise permitted by guidance issued by
DHCD, the Municipality shall provide the following information in the annual update:
(a) A list of all Approved Districts and proposed
new Districts within the Municipality, with a tabulation for each District of the
total land area, the Developable Land area and the Substantially Developed Land
area, the number of Incentive Units, and the amount of Developable and Substantially
Developed Land zoned at various allowable As-of-right residential densities under
the applicable 40R Zoning.
(b) For
Projects in each Approved District, the total number of units and the number of
Bonus Units:
1. for which building permits had
been issued during the previous fiscal year;
2. completed during the previous fiscal year;
and
3. completed in total since the
District was approved, as documented by issuance of occupancy permits, with a
tabulation in each case of the types of such Bonus Units (Affordable,
Income-Restricted, market rate, accessible, and bedroom-size). The annual update
shall also contain a written narrative describing whether each Approved District is
being developed in a manner that reasonably complies with the residential density,
Affordability and Income-restriction standards for such District.
(c) For each Approved District, the
amounts of the Zoning Incentive Payment and Bonus Payments received during the prior
fiscal year, and for each Approved District or proposed new District, the amounts
and anticipated timing of any Zoning Incentive Payment and Bonus Payments
anticipated to be received during the current fiscal year.
(d) For each Approved District, the number and
category of Projects for which the Plan Review procedure was completed during the
previous fiscal year, including:
1. the number of
Projects both approved and disapproved; and
2. the total number and types of proposed total
units and Bonus Units in each category of Project. For each proposed Project that
was disapproved, the annual update shall contain sufficient documentation to
demonstrate that the Plan Approval Authority did not unreasonably deny its approval,
and that it only denied its approval in a reasonable manner consistent with M.G.L.
c. 40R,
760 CMR 59.00, the 40R Zoning and
the Comprehensive Housing Plan or current Housing Production Plan, or Housing
Production Summary, as applicable. The annual update shall also indicate the number
and category of Projects currently under review and the total number and types of
proposed total units and Bonus Units in such Projects.
(e) For the then-current and the subsequent fiscal
years, an estimate of:
1. the number and size
(both total land area and Developable Land area) of any new Districts anticipated to
be submitted to DHCD;
2. the potential
number of Incentive Units in each new District; and
3. the anticipated number of Bonus Units for which
building permits would be issued within those years.
(f) If no building permit has been issued for the
Bonus Units in an Approved District within three years of the date of the Zoning
Incentive Payment, or if a building permit was issued within such three-year period,
but no certificate of occupancy for such Bonus Unit was issued within two years
after issuance of the building permit, then the Municipality must submit
satisfactory documentation, in the form of certification by the Plan Approval
Authority, Municipal zoning enforcement officer, or public works official, of the
Start of Construction within that two-year time period of one or more Projects, or
of a Planned Infrastructure upgrade identified in the 40R Zoning Application or a
related utility relocation, or it shall be subject to revocation under 760 CMR
59.07(3) and the repayment of monies under
760 CMR
59.06(3)(d).
The three-year time period shall be extended by the time that a
Project or Planned Infrastructure upgrade on which construction would otherwise have
started within the three-year time period shall be subject to legal or
administrative appeal or challenge, or if the proponent is actively pursuing other
required permits or there is other good cause for the failure to Start
Construction.
(g) At the request
of DHCD, the Municipality shall provide for each Approved District the number of
children residing in 40R Projects and attending grades K through 12 public schools
or charter schools, or receiving Municipal school district financial assistance to
attend out-of district schools, and copies of submissions to the Department of
Education and DOR pursuant to M.G.L. c. 40S, § 3.
(h) Data regarding income and any protected class
status of households occupying Affordable and Income-restricted units and of
households assigned Affordable and Income-restricted units during the year, provided
that the Municipality shall comply with M.G.L. c. 66A with respect to personal data
of each household and each household member.
(i) A list and copies of text and maps of any
adopted amendments of the 40R Zoning, any Design Standards, or the boundary of any
Districts or sub-districts; any amendment to or adoption of the Plan Approval
Authority's administrative rules; or any adoption or enlargement of a Historic
District within the boundary of any Districts, which the Municipality has not
submitted to DHCD for review pursuant to
760 CMR
59.05(5).
(2)
Certification by
DHCD. Upon its review of a timely annual update submitted in accordance
with 760 CMR 59.07(1), on or before October 1st of each
year DHCD will send to each Municipality with an Approved District a Certificate of
Compliance, unless it finds that:
(a) A prior
Certificate of Compliance had previously been revoked by DHCD, and the cause for
such revocation had not been cured;
(b)
The Approved District is not being developed or permitted to be developed as a
result of subsequent Municipal actions that restrict development in the Approved
District, in a manner that would preclude compliance with the requirements set forth
in M.G.L. c. 40R and
760 CMR
59.04(1)(d), (e) and (g) for
housing density, Affordability, Income-restriction, and accessibility;
(c) The Plan Approval Authority has unreasonably
denied or conditioned Plan Review applications for Projects, in a manner
inconsistent with the 40R Zoning, M.G.L. c. 40R, or
760 CMR 59.00;
(d) The Start of Construction has not occurred for
any Project or Planned Infrastructure upgrade within an Approved District,
consistent with 760 CMR 59.07(1)(f);
(e)
The Municipality has been found responsible for a violation of federal, state, or
Municipal fair housing laws with respect to a Project within an Approved District,
as determined by a state or federal court, HUD, the Massachusetts Commission Against
Discrimination, or a Municipal fair housing commission; or
(f) The Municipality has adopted amendments to the
40R Zoning, any Design Standards, or the boundary of any Districts or sub-districts;
amended or adopted the Plan Approval Authority's administrative rules; or adopted or
enlarged a Historic District within the boundary of any Districts which render(s) an
Approved District noncompliant with M.G.L. c. 40R and
760 CMR 59.00.
(3)
Letter of
Noncompliance; Revocation of Certification. If DHCD is unable to
certify compliance, either because it has made any of the findings specified under
760 CMR 59.07(2) or because the Municipality has failed to submit a timely annual
update as required under 760 CMR 59.07(1), DHCD will issue a Letter of
Noncompliance, stating the grounds for noncompliance, and granting the Municipality
60 days in which to furnish DHCD with satisfactory documentation that the grounds
for noncompliance set forth in the letter have been cured or measures to cure have
been commenced and that such measures will be prosecuted with diligence to
completion within a reasonable period. If DHCD finds within a further 30 days that
the documentation provided by the Municipality is satisfactory, DHCD will issue a
Certificate of Compliance.
If the Municipality has failed to show within the 60-day period that
it has cured or has commenced measures to cure its noncompliance, then DHCD will
give notice of an adjudicatory hearing to be conducted subject to M.G.L. c. 30A. If
upon the conclusion of the hearing DHCD concludes that the Municipality is in
substantial non-compliance with the requirements set forth in 760 CMR 59.07(2), DHCD
may revoke a Letter of Approval or Certificate of Compliance by issuing a
Certificate of Revocation.
A Certificate of Revocation shall be filed with the town or city
clerk of the Municipality. Any issuance of a Letter of Noncompliance or Certificate
of Revocation by DHCD will not affect the validity of the 40R Zoning, or the
application of such 40R Zoning to any land or Project within the Approved District,
but no Zoning Incentive Payment for any Approved District or Bonus Payment for any
units shall be made while a Letter of Noncompliance or Certificate of Revocation is
in effect.
(4)
Annual Reports to Legislature. No later than November
15th of each year, DHCD will submit to the general court
and make available to the general public a report on the status of the program
through the end of the prior fiscal year. The report shall contain the following
information:
(a) A list of each Municipality that
contains an Approved District, or that had applied to DHCD for a proposed District
during the prior year (and the status of such applications), along with the total
number of Approved Districts and currently proposed Districts.
(b) The aggregate size of all Approved and all
proposed Districts (including for each category the aggregate total land area,
Developable Land area, Substantially Developed Land area, and the total amount of
such land zoned at the allowable residential densities set out in
760 CMR
59.04(1)(d)) , and the aggregate
number of Incentive Units for each category.
(c) The number of Bonus Units:
1. for which building permits had been issued
during the previous fiscal year;
2.
completed during the previous fiscal year; and
3. completed since the inception of the program,
as documented by issuance of occupancy permits, with a tabulation in each case of
the types of such Bonus Units (Affordable, Income-restricted, market rate,
accessible, and bedroom-size).
(d) The total amounts of all Zoning Incentive
Payments and Bonus Payments made during the prior fiscal year, and the amounts and
anticipated timing of any Zoning Incentive Payments and Bonus Payments anticipated
to be made during the current fiscal year.
(e) The number of Projects currently being
reviewed, indicating the number and type of proposed residential units and Bonus
Units, and the number of Projects for which the Plan Review procedure was completed
during the previous fiscal year, including:
1. the
number of Projects both approved and disapproved; and
2. the number and types of proposed residential
units and Bonus Units in each category of Projects.
(f) For the then-current and the subsequent fiscal
years, an estimate of:
1. the number and size
(both total land area and Developable Land area) of all new Districts anticipated to
be submitted to the DHCD;
2. the
aggregate potential number of Incentive Units in such new Districts; and
3. the anticipated number of Bonus Units for which
building permits would be issued within those time frames.
(g) At the discretion of DHCD, the number of
children residing in 40R Projects within Approved Districts and attending grades
K-through-12 public schools, charter schools, or receiving Municipal school district
financial assistance to attend out-of district schools.
(h) Data regarding income and any protected class
status of households occupying Affordable and Income-restricted units and of
households assigned Affordable and Income-restricted units during the year, provided
that DHCD will comply with M.G.L. c. 66A with respect to personal data of each
household and each household member.
