Methods to Measure Progress Toward Local Affordable Housing Goals

(1) A decision by a Board to deny a Comprehensive Permit, or (if the Statutory Minima defined at 760 CMR 56.03(3)(b) or (c) have been satisfied) grant a Comprehensive Permit with conditions, shall be upheld if one or more of the following grounds has been met as of the date of the Project’s application: (a) the municipality has achieved one or more of the Statutory Minima, in accordance with 760 CMR 56.03(3); (b) the Department has certified the municipality’s compliance with the goals of its approved Housing Production Plan, in accordance with 760 CMR 56.03(4); (c) the municipality has made recent progress toward the Statutory Minima, in accordance with 760 CMR 56.03(5); (d) the project is a large project, as set forth in 760 CMR 56.03(6); or (e) a related application has previously been received, as set forth in 760 CMR 56.03(7). For the purposes of 760 CMR 56.03, units of SHI Eligible Housing shall be counted only if they satisfy the requirements for listing on the SHI in accordance with 760 CMR 56.03(2). A Board decision based on one or more of the grounds set forth in 760 CMR 56.03(1) shall be made solely in accordance with the procedure set forth in 760 CMR 56.03(8). Such a denial shall be without prejudice, and it shall not preclude re-filing of the Comprehensive Permit application at a later date. Notwithstanding the foregoing, a Board may at its sole discretion elect to proceed with the full local hearing, and ultimately to approve a Comprehensive Permit, even though one or more of the above grounds have been met. If a Board so elects, such election shall not be grounds for an appeal taken pursuant to 760 CMR 56.03(8)(a). (2) Subsidized Housing Inventory. (a) The Department shall maintain the SHI to measure a municipality’s stock of SHI Eligible Housing. The SHI is not limited to housing units developed through issuance of a Comprehensive Permit; it may also include SHI Eligible Housing units developed under M.G.L. chs. 40A, c. 40R, and other statutes, regulations, and programs, so long as such units are subject to a Use Restriction and an Affirmative Fair Marketing Plan, and they satisfy the requirements of guidelines issued by the Department. (b) Units shall be eligible to be counted on the SHI at the earliest of the following: 1. For units that require a Comprehensive Permit under M.G.L. c. 40B, § 20 through 23, or a zoning approval under M.G.L. c. 40A or completion of plan review under M.G.L. c. 40R, the date when: a. the permit or approval is filed with the municipal clerk, notwithstanding any appeal by a party other than the Board, but subject to the time limit for counting such units set forth at 760 CMR 56.03(2)(c); or b. on the date when the last appeal by the Board is fully resolved; 2. When the building permit for the unit is issued; 3. When the occupancy permit for the unit is issued; or 4. When the unit is occupied by an Income Eligible Household and all the conditions of 760 CMR 56.03(2)(b) have been met (if no Comprehensive Permit, zoning approval, building permit, or occupancy permit is required.) (c) Time Lapses. If more than one year elapses between the date of issuance of the Comprehensive Permit or zoning approval under M.G.L. c. 40A or completion of plan review under M.G.L. c. 40R, as that date is defined in 760 CMR 56.03(2)(b)1., and issuance of the building permit, the units will become ineligible for the SHI until the date that the building permit is issued. If more than 18 months elapse between issuance of the building permits and issuance of the certificate of occupancy, the units will become ineligible for the SHI until the date that the certificate of occupancy is issued. If a Comprehensive Permit or zoning approval lapses permanently, the units become permanently ineligible for the SHI. Notwithstanding the foregoing, if a Comprehensive Permit or zoning approval permits a project to be constructed in phases, and provided that: 1. each phase contains at least 150 units; 2. each phase contains the same proportion of SHI Eligible Housing units as the overall project; and 3. the projected average time period between the start of successive phases does not exceed 15 months, then the entire project shall remain eligible for the SHI so long as the phasing schedule set forth in the permit approval continues to be met. If more than one year elapses between the date of issuance of the Comprehensive Permit or zoning approval under M.G.L. c. 40A or completion of plan review under M.G.L. c. 40R, as that date is defined in 760 CMR 56.03(2)(b)1., and final resolution of any pending appeal by a party other than the Board, the units will become ineligible for the SHI until the date that the last appeal is fully resolved. (d) Enforcement and Termination of Use Restrictions. Use Restrictions shall be enforced in accordance with 760 CMR 56.05(13), except that an agency of municipal government may enforce the Use Restriction for a unit not subject to a Comprehensive Permit. Units shall no longer be eligible for inclusion on the SHI upon expiration or termination of the initial Use Restriction, unless a subsequent Use Restriction has been imposed in accordance with the requirements of 760 CMR 56.05(13). (e) Municipal Certification. Each municipality shall provide to the Department, once every two years, a statement certified by the Chief Executive Officer, in such form and upon such schedule as may be required by the Department, as to the number of SHI Eligible Housing units eligible to be listed on the SHI, other than those within a Project subject to a Comprehensive Permit. (f) Biennial Updates. The SHI shall be updated by the Department once every two years, or more frequently if information is provided by the municipality or otherwise received and verified by the Department. The Department shall administer the SHI in accordance with its own procedures, as set forth in 760 CMR 56.00 and guidelines of the Department. (3) Computation of Statutory Minima (a) Housing Unit Minimum. For purposes of calculating whether the city or town's SHI Eligible Housing units exceed 10% of its total housing units, pursuant to M.G.L. c. 40B, § 20 and 760 CMR 56.00, there shall be a presumption that the latest SHI contains an accurate count of SHI Eligible Housing and total housing units. In the course of a review procedure pursuant to 760 CMR 56.03(8), a party may introduce evidence to rebut this presumption, which the Department shall review on a case-by-case basis, applying the standards of eligibility for the SHI set forth in 760 CMR 56.03(2). The total number of housing units shall be that total number of year-round units enumerated for the city or town in the latest available United States Census. (b) General Land Area Minimum. For the purposes of calculating whether SHI Eligible Housing exists in the city or town on sites comprising more than 1½% of the total land area zoned for residential, commercial, or industrial use, pursuant to M.G.L. c. 40B, § 20: 1. Total land area shall include all districts in which any residential, commercial, or industrial use is permitted, regardless of how such district is designated by name in the city or town's zoning bylaw; 2. Total land area shall include all unzoned land in which any residential, commercial, or industrial use is permitted; 3. Total land area shall exclude land owned by the United States, the Commonwealth or any political subdivision thereof, the Department of Conservation and Recreation or any state public authority, but it shall include any land owned by a housing authority and containing SHI Eligible Housing; 4. Total land area shall exclude any land area where all residential, commercial, and industrial development has been prohibited by restrictive order of the Department of Environmental Protection pursuant to M.G.L. c. 131, § 40A. No other swamps, marshes, or other wetlands shall be excluded; 5. Total land area shall exclude any water bodies; 6. Total land area shall exclude any flood plain, conservation or open space zone if said zone completely prohibits residential, commercial and industrial use, or any similar zone where residential, commercial or industrial use are completely prohibited. 7. No excluded land area shall be counted more than once under the above criteria. Only sites of SHI Eligible Housing units inventoried by the Department or established according to 760 CMR 56.03(3)(a) as occupied, available for occupancy, or under permit as of the date of the Applicant's initial submission to the Board, shall be included toward the 1½% minimum. For such sites, that proportion of the site area shall count that is occupied by SHI Eligible Housing units (including impervious and landscaped areas directly associated with such units). (c) Annual Land Area Minimum. For purposes of calculating whether the application before the Board would result in the commencement in any one calendar year of construction of Low or Moderate Income Housing on sites comprising more than 0.3 of 1% of the city or town's land area or ten acres, whichever is larger, pursuant to M.G.L. c. 40B, § 20: 1. Total land area of the municipality and the land area occupied by Low or Moderate Income Housing shall be calculated in the manner provided in 760 CMR 56.03(3)(b); 2. If 0.3 of 1% of total land area is less than ten acres, the minimum for sites occupied by Low or Moderate Income Housing shall be ten acres; 3. The relevant calendar year shall be the calendar year period of January 1 through st December 31 that includes the Applicant's projected date for initiation of construction; st 4. Any Low or Moderate Income Housing for which construction is expected to commence within the calendar year, other than that proposed by the Applicant, must have received a final approval by the Subsidizing Agency prior to the date of the Applicant's initial submission to the Board, in order to be included towards the 0.3 % or ten acres; 5. Development and construction work in connection with Low or Moderate Income Housing shall be proceeding in good faith to completion insofar as is reasonably practicable, in order for such housing to be included towards the 0.3% or ten acres minimum. Only sites of SHI Eligible Housing units inventoried by the Department or established according to 760 CMR 56.03(3)(a) as under permit as of the date of the Applicant's initial submission to the Board, and expected to commence construction within the relevant calendar year, shall be included toward the 0.3 % or ten acres minimum. For such sites, that proportion of the site area shall count that is occupied by SHI Eligible Housing units (including impervious and landscaped areas directly associated with such units). (d) Evidence regarding Statutory Minima submitted under 760 CMR 56.03(3) shall comply with any guidelines issued by the Department. (4) Housing Production Plans. (a) A Housing Production Plan (HPP) may shall be developed and reviewed in accordance with 760 CMR 56.03(4) and guidelines adopted by the Department. The HPP shall contain at a minimum the following elements, covering a time period of five years: 1. Comprehensive housing needs assessment; 2. Affordable housing goals; and 3. Implementation strategies. (b) Comprehensive Housing Needs Assessment. The HPP must establish a strategic plan for municipal action with regards to housing, based upon a comprehensive housing needs assessment that examines: 1. the most recent available census data of the municipality’s demographics and housing stock, together with a projection of future population and housing needs, taking into account regional growth factors, that covers the entire time period of the plan; 2. development constraints and limitations on its current and future needs, and the municipality’s plans to mitigate those constraints; and 3. the capacity of the municipality’s infrastructure to accommodate the current population and anticipated future growth, including plans for enlargement or expansion of existing infrastructure systems to ensure that both current and future needs are met. (c) Affordable Housing Goals. The HPP shall address the matters set out in the Department’s guidelines, including: 1. a mix of types of housing, consistent with local and regional needs and feasible within the housing market in which they will be situated, including rental, homeownership, and other occupancy arrangements, if any, for families, individuals, persons with special needs, and the elderly; 2. a numerical goal for annual housing production, pursuant to which there is an increase in the municipality’s number of SHI Eligible Housing units by at least 0.50% of its total units (as determined in accordance with 760 CMR 56.03(3)(a)) during every calendar year included in the HPP, until the overall percentage exceeds the Statutory Minimum set forth in 760 CMR 56.03(3)(a). (d) Implementation Strategies. The HPP shall address the matters set out in the Department’s guidelines, including an explanation of the specific strategies by which the municipality will achieve its housing production goal, and a schedule for implementation of the goals and strategies for production of units, including all of the following strategies, to the extent applicable: 1. the identification of zoning districts or geographic areas in which the municipality proposes to modify current regulations for the purposes of creating SHI Eligible Housing developments to meet its housing production goal; 2. the identification of specific sites for which the municipality will encourage the filing of Comprehensive Permit applications; 3. characteristics of proposed residential or mixed-use developments that would be preferred by the municipality (examples might include cluster developments, adaptive re-use, transit-oriented housing, mixed-use development, inclusionary housing, etc.); and/or 4. municipally owned parcels for which the municipality commits to issue requests for proposals to develop SHI Eligible Housing; and/or 5. participation in regional collaborations addressing housing development. (e) Review and Approval of Housing Production Plans. A HPP shall be adopted by the municipality’s planning board, its conservation commission, and its select board or city council, following which the Chief Executive Officer may submit the HPP to the Department for its approval. The Department shall conduct an initial 30-day completeness review, and it will notify the municipality of any deficiency and offer an opportunity to remedy the deficiency. Within 90 days after the Department’s finding that the HPP is complete, the Department shall approve the HPP if it meets the requirements specified herein; otherwise, it shall disapprove the HPP. The Department shall notify the municipality of its decision to either approve or disapprove a HPP in writing. If the Department disapproves a HPP, the notification shall include a statement of reasons for the disapproval. If the Department fails to mail notice of approval or disapproval of a HPP within 90 days after its receipt, it shall be deemed to be approved. A municipality that originally submitted a HPP that had been disapproved may submit a new or revised HPP to the Department at any time. A municipality may amend its HPP from time to time if the Department approves the amendment upon the finding that the amended HPP meets the requirements of 760 CMR 56.03(4). The Department shall have the discretion to require the full 90-day review process for a major amendment to a HPP. A HPP shall be updated and renewed within five years of the date of its approval by the Department, through the full 90-day review process set forth above, or as the Department may otherwise require. The Department may, at its sole discretion, elect to treat a major amendment as a renewed HPP. (f) Certification of Municipal Compliance. A municipality may request that the Department certify its compliance with an approved HPP if it has increased its number of SHI Eligible Housing units in an amount equal to or greater than its 0.50% production goal for that calendar year. SHI Eligible Housing units shall be counted for the purpose of certification in accordance with the provisions for counting units under the SHI set forth in 760 CMR 56.03(2). Requests for certification may be submitted at any time, and the Department shall determine whether a municipality is in compliance within 30 days of receipt of the municipality’s request. If the Department determines the municipality is in compliance with its HPP, the certification shall be deemed effective on the date upon which the municipality achieved its numerical target for the calendar year in question, in accordance with the rules for counting units on the SHI set forth in 760 CMR 56.03(2). A certification shall be in effect for a period of one year from its effective date. If the Department finds that the municipality has increased its number of SHI Eligible Housing units in a calendar year by at least 1.0% of its total housing units, the certification shall be in effect for two years from its effective date. (5) Recent Progress Toward Housing Unit Minimum. Recent progress toward a municipality’s Statutory Minima shall mean that the number of SHI Eligible Housing units that have been created within the municipality during the 12 months prior to the date of the Comprehensive Permit application, evidenced by being inventoried by the Department or established according to 760 CMR 56.03(3)(a) as occupied, available for occupancy, or under permit as of the date of the Applicant's initial submission to the Board, is equal to or greater than 2% of the municipality’s total housing units, as determined in accordance with 760 CMR 56.03(3)(a). (6) Review of Large Projects. A large project shall be defined as follows: (a) in a municipality which has a total number of 7,500 or more housing units (as determined in accordance with 760 CMR 56.03(3)(a)), the application for a Comprehensive Permit involves construction of more than 300 housing units or a number of housing units equal to 2% of all housing units in the municipality, whichever number is greater; or (b) in a municipality which has between 5,000 and 7,500 housing units exclusive, as so enumerated, the application for a Comprehensive Permit involves construction of more than 250 housing units; or (c) in a municipality which has between 2,500 and 5,000 housing units inclusive, as so enumerated, the application for a Comprehensive Permit involves construction of more than 200 housing units; or (d) in a municipality which has less than 2,500 housing units, as so enumerated, the application for a Comprehensive Permit involves construction of a number of housing units equal to 6% of all housing units in the municipality. (7) Related Applications. For the purposes of 760 CMR 56.03(7), a related application shall mean that less than 12 months has elapsed between the date of an application for a Comprehensive Permit and any of the following: (a) the date of filing of a prior application for a variance, special permit, subdivision, or other approval related to construction on the same land, if that application was for a prior project that was principally non-residential in use, or if the prior project was principally residential in use, if it did not include at least 10% SHI Eligible Housing units; (b) any date during which such an application was pending before a local permit granting authority; (c) the date of final disposition of such an application (including all appeals); or (d) the date of withdrawal of such an application. An application shall not be considered a prior application if it concerns insubstantial construction or modification of the preexisting use of the land. (8) Procedure for Board Decision. (a) If a Board considers that, in connection with an Application, a denial of the permit or the imposition of conditions or requirements would be consistent with local needs on the grounds that the Statutory Minima defined at 760 CMR 56.03(3)(b) or (c) have been satisfied or that one or more of the grounds set forth in 760 CMR 56.03(1) have been met, it must do so according to the following procedures. Within 15 days of the opening of the local hearing for the Comprehensive Permit, the Board shall provide written notice to the Applicant, with a copy to the Department, that it considers that a denial of the permit or the imposition of conditions or requirements would be consistent with local needs, the grounds that it believes have been met, and the factual basis for that position, including any necessary supportive documentation. If the Applicant wishes to challenge the Board’s assertion, it must do so by providing written notice to the Department, with a copy to the Board, within 15 days of its receipt of the Board’s notice, including any documentation to support its position. All written notices, including copies and supporting documentation, must be submitted electronically pursuant to guidance issued by the Department during the COVID-19 State of Emergency to ensure timely receipt by the deadlines herein. The Department shall thereupon review the materials provided by both parties and issue a decision within 30 days of its receipt of all materials. The Board shall have the burden of proving satisfaction of the grounds for asserting that a denial or approval with conditions would be consistent with local needs, provided, however, that any failure of the Department to issue a timely decision shall be deemed a determination in favor of the municipality. This procedure shall toll the requirement to terminate the hearing within 180 days. (b) For purposes of 760 CMR 56.03(8), the total number of SHI Eligible Housing units in a municipality as of the date of a Project’s application shall be deemed to include those in any prior Project for which a Comprehensive Permit had been issued by the Board or by the Committee, and which was at the time of the application for the second Project subject to legal appeal by a party other than the Board, subject however to the time limit for counting such units set forth at 760 CMR 56.03(2)(c). (c) If either the Board or the Applicant wishes to appeal a decision issued by the Department pursuant to 760 CMR 56.03(8)(a), including one resulting from failure of the Department to issue a timely decision, that party shall file an interlocutory 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 its receipt of the decision, with a copy to the other party and to the Department. The Board’s hearing of the Project shall thereupon be stayed until the conclusion of the appeal, at which time the Board’s hearing shall proceed in accordance with 760 CMR 56.05. Any appeal to the courts of the Committee’s ruling shall not be taken until after the Board has completed its hearing and the Committee has rendered a decision on any subsequent appeal.