Local Hearings

(1) Local Rules. The Board shall adopt rules, not inconsistent with M.G.L. c. 40B, §§ 20 through 23, for the conduct of its business and shall file a copy of said rules with the city or town clerk. Such rules shall be consistent with the purpose of M.G.L. c. 40B, §§ 20 through 23 to provide a streamlined permitting process that overcomes regulatory barriers to the development of Low or Moderate Income Housing. The Committee may in the course of an appeal properly before it pursuant to 760 CMR 56.06(1) determine that a particular local rule is consistent or not consistent with M.G.L. c. 40B, §§ 20 through 23, but no appeal shall be heard solely for the purpose of determining the validity of a rule, unless the rule is the sole basis for the denial or conditioning of a Comprehensive Permit. (For related requirements applying to Boards, see M.G.L. c. 44, § 53G.) Rules adopted by a Board shall be presumed consistent with M.G.L. c. 40B, §§ 20 through 23 to the extent that they conform with 760 CMR 56.05. A Board may seek non-binding advice from the Department as to whether a proposed set of local rules is consistent with M.G.L. c. 40B, §§ 20 through 23 and 760 CMR 56.05. If a Board does not adopt and file rules, it shall conduct business pursuant to 760 CMR 56.05. (2) Elements of Submission, Filing Fees. The Applicant shall submit to the Board an application and a complete description of the proposed Project. Normally the items listed below will constitute a complete description. Failure to submit a particular item shall not necessarily invalidate an application. The Board shall not require submissions for a Comprehensive Permit that exceed those required by the rules and procedures of Local Boards for review under their respective jurisdictions. (a) preliminary site development plans showing the locations and outlines of proposed buildings; the proposed locations, general dimensions and materials for streets, drives, parking areas, walks and paved areas; and proposed landscaping improvements and open areas within the site. An Applicant proposing to construct or rehabilitate four or fewer units may submit a sketch of the matters in 760 CMR 56.05(2)(a) and (c) which need not have an architect's signature. All Projects of five or more units must have site development plans prepared by a registered architect or engineer; (b) a report on existing site conditions and a summary of conditions in the surrounding areas, showing the location and nature of existing buildings, existing street elevations, traffic patterns and character of open areas, if any, in the neighborhood. This submission may be combined with that required in 760 CMR 56.05(2)(a); (c) preliminary, scaled, architectural drawings. For each building the drawings shall be prepared by a registered architect, and shall include typical floor plans, typical elevations, and sections, and shall identify construction type and exterior finishes; (d) a tabulation of proposed buildings by type, size (number of bedrooms, floor area) and ground coverage, and a summary showing the percentage of the tract to be occupied by buildings, by parking and other paved vehicular areas, and by open areas; (e) where a subdivision of land is involved, a preliminary subdivision plan; (f) a preliminary utilities plan showing the proposed location and types of sewage, drainage, and water facilities, including hydrants; (g) the Project Eligibility letter, showing that the Applicant fulfills the requirements of 760 CMR 56.04(1); (h) a list of requested Waivers. The Board may require the payment of a reasonable filing fee with the application, if consistent with subdivision, cluster zoning, and other fees reasonably assessed by the municipality for costs designed to defray the direct costs of processing applications, and taking into consideration the statutory goal of M.G.L. c. 40B, §§ 20 through 23 to encourage affordable housing development. (3) Conduct of Board Hearing. Within seven days of receiving a complete application, the Board shall notify each Local Board of the application by sending such Local Board a notice of the application and a copy of the list of Waivers required by 760 CMR 56.05(2)(h). Based upon that list, it shall also, within the same seven days, invite the participation of each Local Board as is deemed necessary or helpful in making its decision upon such application by providing such Local Board with a copy of the entire application (such copies to be provided by the Applicant upon request). The Board shall open a hearing within 30 days of its receipt of a complete application, and it shall thereafter pursue the hearing diligently. The Board shall open hearings for Projects in the order in which a complete application is filed. In order to further the purpose of M.G.L. c. 40B, §§ 20 through 23 to provide a streamlined permitting process that overcomes regulatory barriers to the development of Low or Moderate Income Housing, a hearing shall not extend beyond 180 days from the date of opening the hearing, presuming that the Applicant has made timely submissions of materials in response to reasonable requests of the Board that are consistent with its powers under 760 CMR 56.05, except with the written consent of the Applicant. If the Board wishes to deny an application on one or more of the grounds set forth in 760 CMR 56.03(1), it must do so in accordance with the procedure set forth in 760 CMR 56.03(8), or it shall be deemed to have waived its rights. A Board may stay the commencement of a hearing if three or more Comprehensive Permit applications are concurrently undergoing hearings before the Board, and the total number of housing units in those pending Projects exceeds the numerical threshold for a large project within that municipality, as set forth in 760 CMR 56.03(6). (4) Scope of Board Hearing. (a) General Principle. Consistency with Local Needs is the central issue in all Comprehensive Permit applications before the Board. Not only must all Local Requirements and Regulations applied to the Applicant be Consistent with Local Needs, but decisions of the Board must also be Consistent with Local Needs. The Board shall not address matters in the hearing that are beyond its jurisdiction under M.G.L. c. 40B, §§ 20 through 23 and 760 CMR 56.00 and that lie solely within the authority of the Subsidizing Agency. (b) Commentary. In its conduct of a hearing, the Board should make itself aware of the detailed provisions for burden of proof and evidence, set forth in 760 CMR 56.07(2) and (3), that the Committee would apply to the appeal of a Board decision. (c) Denial. In the case of the denial of a Comprehensive Permit, the issue shall be whether the decision of the Board is Consistent with Local Needs. (d) Approval with Conditions. In the case of 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 such Project Uneconomic; and 2. second, if so, whether such conditions and/or requirements are Consistent with Local Needs. A condition which makes a Project Uneconomic will not be removed or modified if as a result of such action the Project would not be Consistent with Local Needs. (5) Consultant Review. (a) If, after receiving an application, the Board determines that in order to review that application it requires technical advice in such areas as civil engineering, transportation, environmental resources, design review of buildings and site, and (in accordance with 760 CMR 56.05(6) review of financial statements that is unavailable from municipal employees, it may employ outside consultants. Whenever possible it shall work cooperatively with the Applicant to identify appropriate consultants and scopes of work and to negotiate payment of part or all of consultant fees by the Applicant. Alternatively, the Board may, by majority vote, require that the Applicant pay a reasonable review fee in accordance with 760 CMR 56.05(b) for the employment of outside consultants chosen by the Board alone. The Board should not impose unreasonable or unnecessary time or cost burdens on an Applicant. Legal fees for general representation of the Board or other Local Boards shall not be imposed on the Applicant. (b) A review fee may be imposed only if: 1. the work of the consultant consists of review of studies prepared on behalf of the Applicant, and not of independent studies on behalf of the Board; 2. the work is in connection with the Applicant's specific Project; and 3. all written results and reports are made part of the record before the Board. 4. a review fee may only be imposed in compliance with applicable law and the Board’s rules. (c) All fees assessed pursuant to 760 CMR 56.05(5)(b) shall be reasonable in light of: 1. the complexity of the proposed Project as a whole; 2. the complexity of particular technical issues; 3. the number of housing units proposed; 4. the size and character of the site; 5. the projected construction costs; and 6. fees charged by similar consultants and scopes of work in the area. As a general rule, the Board may not assess any fee greater than the amount which might be appropriated from town or city funds to review a project of similar type and scale in the town or city. (d) The Board’s rules shall set out procedures for inviting proposals by qualified outside consultants, and for the deposit of review fees in a special municipal account. The Board’s rules may provide that if the Applicant fails to pay the review fee within the stated time period, the Board may deny the Comprehensive Permit. Any unspent excess in the account, including accrued interest, shall be reimbursed to the Applicant upon the issuance of the Board’s decision or withdrawal of the application. (e) An administrative appeal from the selection of the outside consultant may be lodged within 20 days of the consultant’s selection, with the city council or town board of selectmen. The grounds for such an appeal shall be limited to claims that the consultant selected has a conflict of interest or does not possess the minimum, required qualifications. The minimum qualifications shall consist either of an educational degree in or related to the field at issue or three or more years of practice in the field at issue or a related field. The required time limits for action upon an Application by the Board shall be extended by the duration of the administrative appeal. In the event that no decision on the appeal is made by the city council or the town board of selectmen within one month following the filing of the appeal, the selection made by the Board shall stand. (6) Review of Financial Statements. (a) A Board may request to review the pro forma or other financial statements for a Project only after the following preconditions have been met: 1. other consultant review has been completed; 2. the Applicant has had an opportunity to modify its original proposal to address issues raised; 3. the Board has had an opportunity to propose conditions to mitigate the Project’s impacts and to consider requested Waivers; and 4. the Applicant has indicated that it does not agree to the proposed condition(s) or Waiver denial(s) because they would render the Project uneconomic. A Board may not conduct review of a pro forma in order to see whether a Project would still be economic if the number of dwelling units were reduced, unless such reduction is justified by a valid health, safety, environmental, design, open space, planning, or other local concern that directly results from the size of a project on a particular site, consistent with 760 CMR 56.07(3). (b) If the Applicant does not agree to some or all of the proposed permit conditions or Waiver denials because they would render the Project Uneconomic, the Board may ask the Applicant to submit its pro forma, in form satisfactory to the Subsidizing Agency, and revised as necessary to reflect the additional cost of meeting these conditions and/or denials. The revised pro forma may be subjected to the same consultant review as any other technical information submitted to the Board, in accordance with 760 CMR 56.05(5) and the Board’s rules. The Board may then use this information to decide whether to adopt or modify its originally proposed conditions and/or denials. Pro forma review should conform to recognized real estate and affordable housing industry standards, consistent with the policies of the Subsidizing Agency and guidelines adopted by the Department. (c) Related financial issues, including related-party transactions, the estimated sales price or rental rates of market-rate units, and land acquisition costs, shall be addressed in accordance with the Department’s guidelines. Disagreements between the Applicant and the Board’s consultant should be resolved in accordance with the Department’s guidelines. The Subsidizing Agency has the sole responsibility to establish and enforce reasonable profit and distribution limitations on the Applicant, as set forth in 760 CMR 56.04(8). (7) Waivers from Local Requirements and Regulations. The Applicant may request Waivers, as listed in its application or as may subsequently arise during the hearing, and the Board shall grant such Waivers as are Consistent with Local Needs and are required to permit the construction and operation of the Project. Zoning waivers are required solely from the “as-of- right” requirements of the zoning district where the project site is located; there shall be no requirement to obtain waivers from the special permit requirements of the district. If a Project does not request a subdivision approval, waivers from subdivision requirements are not required (although a Board may look to subdivision standards, such as requirements for road construction, as a basis for required project conditions, in which case the Applicant can seek Waivers from such requirements). (8) Board Decisions. (a) The Board shall render a decision, based on a majority vote of the Board, within forty days after termination of the public hearing, unless such time period is extended by written agreement of the Board and the Applicant. The hearing is deemed terminated when all public testimony has been received and all information requested by the Board that it is entitled to receive has been submitted. In making its decision, the Board shall take into consideration the recommendations of Local Boards, but shall not be required to adopt same. The Board shall file its decision within 14 days in the office of the city or town clerk , and it shall forward a copy of any Comprehensive Permit to the Applicant or its designated representative and to the Department when it is filed. (b) The Board may dispose of the application in the following manner: 1. approve a Comprehensive Permit on the terms and conditions set forth in the application; 2. approve a Comprehensive Permit with conditions with respect to height, site plan, size, shape or building materials that address matters of Local Concern; or 3. deny a Comprehensive Permit as not Consistent with Local Needs if the Board finds that there are no conditions that will adequately address Local Concerns. (c) Conditions. The Board shall not issue any order or impose any condition that 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, or that would deviate from the project eligibility requirements of the Subsidizing Agency, or that would require the Project to provide more Low or Moderate Income Housing units than the minimum threshold required by the Department’s guidelines. The Board, 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 56.04(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 Board shall not delay or deny an application on the grounds that any state or federal approval has not been obtained; 4. complete or partial waiver ordered by the Board of fees otherwise assessed or collected by Local Boards; 5. any other condition consistent with M.G.L. c. 40B, §§ 20 through 23 and with 760 CMR 56.00. (d) Uneconomic Conditions. The Board shall not issue any order or impose any condition that would cause the building or operation of the Project to be Uneconomic, including a requirement imposed by the Board on the Applicant: 1. to incur costs of public infrastructure or improvements off the project site that: a. are not generally imposed by a Local Board on unsubsidized housing; b. address a pre-existing condition affecting the municipality generally; or c. are disproportionate to the impacts reasonably attributable to the Project; or 2. to reduce the number of units for reasons other than evidence of Local Concerns within the purview of the Board (see 760 CMR 56.05(4)(e); see also 760 CMR 56.07(3)(c) through (h)) regarding evidence that would be heard by the Committee on an appeal), such as design, engineering, or environmental deficiencies that directly result from the impact of a Project on a particular site. If a proposed nonresidential element of a Project is not allowed by-right under applicable provisions of the current municipal zoning code, a condition shall not be considered Uneconomic if it would modify or remove such nonresidential element. (9) Appeals from Board Decisions. (a) If the Board approves the Comprehensive Permit, any person aggrieved may appeal within the time period and to the court provided in M.G.L. c. 40A, § 17. (b) If the Board denies the Comprehensive Permit or approves the permit with unacceptable conditions or requirements, the Applicant may appeal to the Housing Appeals Committee as provided in M.G.L. c. 40B, § 22 and 760 CMR 56.06. (c) If the Board takes action adverse to the Applicant under 760 CMR 56.03(8), 760 CMR 56.05(11), or a similar provision of 760 CMR 56.00, or otherwise violates or fails to implement M.G.L. c. 40B, §§ 20 through 23, the Applicant may appeal to the Housing Appeals Committee as provided in M.G.L. c. 40B, § 22 and 760 CMR 56.06. (10) Enforcement. (a) The Board shall have the same power to issue permits or approvals as any Local Board which would otherwise act with respect to an application, including but not limited to waivers, consents, and affirmative actions such as plan endorsements and requests for waivers from regional entities. (b) A Comprehensive Permit issued by a Board, including by order of the Committee pursuant to 760 CMR 56.07(5), shall be a master permit which shall subsume all local permits and approvals normally issued by Local Boards. Upon presentation of the Comprehensive Permit, subsequent more detailed plans (to the extent reasonably required relative to the local permit in question), and final approval from the Subsidizing Agency pursuant to 760 CMR 56.04(7), all Local Boards shall take all actions necessary, including but not limited to issuing all necessary permits, approvals, waivers, consents, and affirmative actions such as plan endorsements and requests for waivers from regional entities, after reviewing such plans only to insure that they are consistent with the Comprehensive Permit (including any Waivers), the final approval of the Subsidizing Agency, and applicable state and federal codes. (c) After the issuance of a Comprehensive Permit, the Board may issue directions or orders to Local Boards designed to effectuate the issuance of a Comprehensive Permit (including any Waivers) and the construction of the Project, in accordance with 760 CMR 56.05(10)(b). (11) Changes after Issuance of a Permit. (a) If after a Comprehensive Permit is granted by the Board, including by order of the Committee pursuant to 760 CMR 56.07(5), an Applicant desires to change the details of its Project as approved by the Board or the Committee, it shall promptly notify the Board in writing, describing such change. Within 20 days the Board shall determine and notify the Applicant whether it deems the change substantial or insubstantial, with reference to the factors set forth at 760 CMR 56.07(4). (b) If the change is determined to be insubstantial or if the Board fails to notify the Applicant by the end of such 20-day period, the Comprehensive Permit shall be deemed modified to incorporate the Change. (c) If the change is determined to be substantial, the Board shall hold a public hearing within 30 days of its determination and issue a decision within 40 days of termination of the hearing, all as provided in M.G.L. c. 40B, § 21. Only the changes in the Project or aspects of the Project affected thereby shall be at issue in such hearing. An Applicant shall have the right at any time to withdraw its request for a change and to rely on the previously issued Comprehensive Permit. A decision of the Board denying the change or granting it with conditions which make the housing Uneconomic may be appealed to the Committee pursuant to M.G.L. c. 40B, § 22; a decision granting the change may be appealed to the superior court pursuant to M.G.L. c. 40B, § 21 and M.G.L. c. 40A, § 17. (d) The Applicant shall raise to the Board any objection to the determination by the Board that the change is substantial within 20 days of such determination, subject to the provisions of the next sentence. The Applicant may elect to continue the proceedings before the Board and preserve its right to raise the objection in context of its appeal to the Committee, if any, of the Board’s denial of the Comprehensive Permit or approval with unacceptable conditions or requirements, or the Applicant may appeal a determination that a change is substantial by filing an 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 being so notified. Such an appeal will stay the proceedings before the Board. 1. If the presiding officer rules that the change is insubstantial, the Comprehensive Permit shall be deemed modified by the Committee. 2. If the presiding officer rules that the change is substantial, he or she shall remand the proposal for a hearing pursuant to 760 CMR 56.05(11)(c). (12) Finality, Transfers, and Lapses of Comprehensive Permits. (a) Finality of Permits. A Comprehensive Permit shall become final on the date that the written decision of the Board is filed in the office of the municipal clerk, if no appeal is filed. Otherwise, it shall become final on the date the last appeal is decided or otherwise disposed of, provided however that if a Comprehensive Permit is issued by the Board or the Committee and is subsequently subject to legal appeal, an Applicant may elect to proceed at risk with construction of the Project. A Comprehensive Permit that is issued by constructive grant pursuant to 760 CMR 56.07(5)(d) shall be deemed final upon the expiration of the applicable deadline. (b) Transfer of Permits. Prior to substantial completion of a Project or a phase thereof, a Comprehensive Permit may be transferred to a person or entity other than the Applicant, upon written confirmation from the Subsidizing Agency that the transferee meets the requirements of 760 CMR56.04(1)(a) and (b), and upon written notice to the Board and the Committee (in the case of a Project granted a Comprehensive Permit under 760 CMR 56.07). Transfer of a permit shall not, by itself, constitute a substantial change pursuant to 760 CMR 56.07(4). After substantial completion, a Comprehensive Permit shall be deemed to run with the land. (c) Lapse of Permits. If construction authorized by a Comprehensive Permit has not begun within three years of the date on which the permit becomes final except for good cause, the permit shall lapse. This time period shall be tolled for the time required to pursue or await the determination on any appeal on any other state or federal permit or approval required for the Project. The Board or the Committee may set a later date for lapse of the permit, and it may extend any such date. An extension may not be unreasonably denied or denied due to other Projects built or approved in the interim. Extension of a permit shall not, by itself, constitute a substantial change pursuant to 760 CMR 56.07(4). (13) Enforcement of Use Restrictions. (a) For Projects receiving a Comprehensive Permit, the Subsidizing Agency shall be the initial holder of the Use Restriction, with the sole right and obligation to enforce it during its initial term. The Subsidizing Agency shall give written notice to the Chief Executive Officer of the municipality at least six months prior to the expiration of the term of the Subsidy. After such expiration, during the balance of the term of affordability the holder may be a local public or quasi-public entity, or other entity approved by the Department. (b) The holder(s) of the Use Restriction shall provide for its monitoring and enforcement; they may do so themselves or enter into a contract for monitoring services with an entity experienced in affordable housing operation, although the holders shall retain responsibility for ensuring compliance with the Use Restriction. A contract for monitoring services may charge reasonable fees, as allowed in guidelines issued by the Department. The holder of a Use Restriction shall respond to the reasonable request from the Chief Executive Officer of the Municipality to provide information on the status of its monitoring and enforcement activities.