Comprehensive
Permit Rules
Adopted
Revised
ARTICLE VI- COMPREHENSIVE PERMITS
SECTION 6.0-PURPOSE
6.0.1 These Rules
set forth substantive and procedural
requirements for review of applications by the
6.0.2 The ZBA’s general rules of conduct of hearings under M.G.L. c.
40A apply to comprehensive permit applications.
In case of inconsistency or conflict between those general rules for
conduct and these Rules, these Rules shall govern.
6.0.3 These Rules
apply to all applications for all projects requiring a comprehensive
permit. Additional rules and
requirements which apply only to New England Fund (NEF) projects are described
herein below in Sections 6.8 through 6.12.
SECTION 6.1- DEFINITIONS
6.1.1
ZBA means the zoning board of appeals established under M.G.L.
c. 40A, §12.
6.1.2
Local Board means any local board or official, including, but not
limited to any board of health; planning board; conservation commission;
historical commission; water, sewer, or other commission or district; fire,
police, traffic, or other department; building inspector or similar official or
board; board of selectmen. All boards,
regardless of their geographical jurisdiction or their source of authority
(that is, including boards created by special acts of the legislature or by
other legislative action) shall be deemed local boards if they perform
functions usually performed by locally created boards.
6.1.3
Local Housing Partnership (LHP) means a committee formed by the
Board of Selectmen to promote the growth of Affordable Housing in accordance
with State mandates and to serve as the initial screening authority for
proposed Comprehensive Permits under Chapter 40B.
SECTION 6.2-COMPLETE APPLICATION
6.2.1 A complete application for a comprehensive permit shall include
(760 CMR 31.02):
A.
An application form;
B.
A site approval letter from the subsidizing agency;
C.
Documentation
of site control (e.g., preliminary determination by the subsidizing agency that
the applicant has a sufficient interest in the site or a purchase and sale
agreement or deed);
D.
Evidence that the project applicant is a nonprofit
organization, a public agency or a limited dividend organization;
E.
Preliminary site development plans (signed by a
registered architect or other pertinent design/engineering professional)
showing the location and footprints of
all proposed buildings, changes in grading and topography, parking,
landscaping, roads, walkways and driveways (including building materials), open
space, wetlands, and infrastructure and utilities;
F.
An existing conditions plan showing the location of
all existing buildings, streets, metes and bounds description of the site, open
spaces, topography, wetlands and buffer areas, on-site infrastructure, parking,
roads, driveways, stormwater facilities, street
elevations, traffic patterns and the character of open areas, if any, in the
neighborhood;
G.
Preliminary architectural drawings (scaled and signed
by a registered architect) including the location and use of all buildings,
typical floor plans, elevations, sections, construction type and exterior
finish;
H.
Building tabulations (including the number and type
of buildings, number and size of units, number of bedrooms per building, floor
area of units, building and impervious surface coverage);
I.
Preliminary subdivision plan (if applicable);
J.
Preliminary utilities plan showing the proposed
location and types of water, wastewater and stormwater
facilities, including hydrants;
K.
List of waivers and exceptions sought by applicant
from any and all local regulations, policies and by-laws;
L.
Payment of filing fee:
(i)
Limited dividend organizations that are using the
Local Initiative Program (LIP) (760 CMR 45.00) and nonprofit organizations and
governmental entities: $300;
(ii)
Limited dividend organizations utilizing any other
type of subsidy, (i.e. New England Fund, Mass Housing programs, Mass
Development, etc): Base fee of $500 plus 8-20 market rate units $100 per market
rate unit and for 21 and more market rate units, $110 per market rate unit.
M. Advertising
costs and postage for abutter notification shall be borne directly by the
applicant;
N.
Documentation that the applicant has notified DHCD (per 760 CMR 31.01)
within 10 days of filing its application with the subsidizing agency for
preliminary approval of the project;
O.
Documentation that the applicant has notified DHCD
(per 760 CMR 31.01) within 10 days of receipt of a written determination of
project eligibility (or site approval) from the subsidizing agency;
P.
First level hazardous waste assessment (M.G.L. 21E)
(if applicable);
Q.
List of state or other local approvals necessary to
be sought and granted prior to the issuance of a building permit for the
project;
R.
Additional information the ZBA reasonably determines
is necessary to make a decision.
S.
First Level Environmental Assessment (MGL Chapter
21E).
SECTION 6.3-REVIEW FEES
6.3.1 The ZBA may
employ outside consultants to provide technical or legal assistance in
reviewing a comprehensive permit application in the event municipal staff
cannot provide these services in-house. Whenever feasible, as determined by the
ZBA, the ZBA will work cooperatively with the applicant to identify appropriate
consultants. The ZBA may require the applicant to pay all or part of the
consultant’s fees. Consultants shall include special counsel to the ZBA,
traffic consultants, design review consultants, and/or, financial reviews (for
New England Fund projects only).
6.3.2
A review fee may be imposed only if:
A.
The work is in connection with the applicant’s
project
B.
All written results and reports are made part of the ZBA’s record
C.
The ZBA has complied with the Uniform Procurement Act
(M.G.L. c. 30B, §§1-19, where applicable.
6.3.3
All fees assessed pursuant to this Section 6.3 shall
be reasonable in light of the:
A.
Complexity of the proposed project,
B.
Complexity of the particular issues,
C.
Number of dwelling units proposed, and
D.
Size and character of the site.
SECTION 6.4- PROCEDURES
6.4.1
Negotiation/Mediation
Applicant
should meet with the Local Housing Partnership to review and negotiate the
proposal for a Comprehensive Permit before an application is filed with the
ZBA.
6.4.2 The ZBA
shall notify all Local Boards of the application for a Comprehensive Permit
upon receipt of the application and forwards copies of the application and the
ZBA should request that representatives of Local Boards attend the public
hearing(s) to provide input and advice to the applicant.
6.4.3 The ZBA give
public notice, beginning at least 14 days prior to the date of the hearing, by
(1) advertising the Comprehensive Permit hearing in a local newspaper of
general circulation, (2) notifying interested parties, and (3) posting a copy
of the hearing notice in the Town Hall.
SECTION 6.5- DECISIONS
6.5.1 The ZBA shall render a decision based on a majority vote, within
40 days of the
close of the public hearing, unless such time period is
extended by written agreement of the ZBA and the applicant.
6.5.2 Any
decision approving a comprehensive permit shall, at minimum, contain the
following conditions:
A. For
condominium projects, legal review and approval by the Town of final
condominium documents;
B.
For all projects, legal review and approval by the
Town of deed riders;
C.
A requirement that the units remain affordable for 99
years or the maximum time period allowed by law, whichever is greater.
D.
The project has the written support of the Local
Housing Partnership.
E.
A requirement that the project
qualify under State Laws and Regulations such as Wetlands Protection Act, Title
5, and the State Building Code prior to construction.
6.5.3
The ZBA may deny a comprehensive permit as not
consistent with local needs. “Consistent
with local needs” is defined in M.G.L. c. 40B, §20. Evidentiary standards, presumptions and the
balancing of housing need and local concerns are described in 760 CMR 31.07.
6.5.4
The burdens of proof for ZBA decisions (denial,
approval or approval with conditions) are described in 760 CMR 31.06 (5)-(8).
SECTION 6.6- CONDOMINIUM DOCUMENTS
6.6.1 All condominium documentation shall state that:
A. Unit
owner’s percentage interest in the condominium shall be based on unit sales
price (not square footage of the unit).
B.
There shall be one vote per unit owner, unless M.G.L.
c. 183A requires otherwise.
C.
Condominium documents shall prohibit amendments to
affordability provisions.
D.
Affordable units shall not be rented without the
approval of the Town.
SECTION 6.7- AMENDMENTS TO
APPROVED PERMIT
6.7.1 If after the
issuance of a comprehensive permit a applicant seeks
to change its proposal as approved by the ZBA, it shall promptly notify the ZBA
in writing, describing such change. Within 20 days the ZBA shall determine and
notify the applicant whether it deems the change substantial or insubstantial
(see 760 CMR 31.03(2) for Examples of substantial and insubstantial changes).
6.7.2 If the ZBA
determines the change is insubstantial, the comprehensive permit shall be modified to
incorporate the change.
6.7.3 If the ZBA determines the change is substantial, it shall hold a
public hearing
within 30
days of its determination and issue a decision within 40 days of the close of
the hearing, in accordance with Section 6.5 of these Rules. Only the changes in the proposal or aspects
of the proposal affected thereby shall be at issue in the hearing.
SECTION 6.8-
6.8.0 The Federal
Home Loan Bank Board of Boston (FHLBB) and its member banks (a member bank is
hereinafter referred to as “the Bank”) provide comprehensive permit applicants
with construction financing at below-market interest rates through the New
England Fund (NEF). The Housing Appeals Committee (HAC) in Stuborn v. Town of Barnstable determined that NEF qualifies as a subsidy
for purposes of the Act and outlined the type of issues that should be
considered by towns when reviewing comprehensive permit applications.
6.8.1 The Rules
set forth herein below in Sections 6.9 through 6.18 apply to NEF projects only
and are in addition to those Rules listed herein above and below, which apply
to all comprehensive permit projects. These Rules are consistent with the
framework established by HAC in the Stuborn decision.
6.8.2 Where these
Rules do not answer a particular question, the ZBA will refer for guidance to
the Department of Housing and Community Development Local Initiative Program
guidelines for homeownership projects and to the Massachusetts Housing Finance
Agency 80/20 program for rental projects.
SECTION 6.9-NEF APPLICATIONS
6.9.1 A complete
application for a project receiving New England Fund financing, in addition to
the requirements for a complete application listed herein above in Section 6.2,
shall include:
A. A project eligibility letter that
provides the following information:
1.
Name of applicant;
2.
Address of site;
3.
Number of units proposed;
4.
Type of housing proposed (ownership or rental);
5.
Name of housing program under which project
eligibility letter or site approval letter is sought;
6.
Relevant details of the proposed project (e.g.,
percentage of affordable units, income-eligibility standards, duration of the
affordable housing restrictions, how the applicant will comply with the limited
dividend aspect of the program, etc.);
7.
A statement that the proposed project is generally
eligible under the requirements of the NEF program, pending final review and
approval;
8.
A statement by the Bank that it has not exceeded its
lending limits with the FHLBB;
9.
A statement by the Bank that it has performed an
on-site inspection of the property as well as a review of the
project-eligibility application and has found that:
(a)
The proposed housing design is generally appropriate
for the site on which
it is located;
(b)
The proposed project appears financially feasible
within the
(c)
housing market in
which it will be situated (based on comparable rental or sales figures);
(d)
An initial pro forma has been reviewed and that the
project appears viable from a development cost perspective; and
(e)
The applicant
meets the general eligibility standards of the NEF program.
B. A
statement that the entity issuing the project eligibility letter has (1)
notified the ZBA and Board of Selectmen,
(2) provided a 30-day review period for local comment and (3) provided a list
of comments from Local Boards and officials and neighbors;
C. The
information provided by the applicant to the entity issuing the project
eligibility letter;
D.
Project pro forma (for “allowable acquisition costs”
see Section 6.11 of these Rules; for “reasonable profits” see Section 6.10 of these Rules);
E.
Proposed regulatory agreement;
F.
Proposed monitoring agreement;
G.
Market feasibility report;
H. General
information on the applicant and projects that the applicant has completed,
including comprehensive permit projects.
SECTION 6.10- NEF REASONABLE PROFITS
6.10.1The applicant’s profits shall be reasonable and
shall be limited as follows:
A. Homeownership
Projects:
20% of
total development costs (TDC) –TDC does not include overhead, profits and
management consulting fees. Overhead shall not be more than 5% of the total
development costs (net of profits, management consulting fees and overhead).
B. Rental
Projects:
Annual return of 10% of equity (equity being the difference between TDC,
as defined by the NEF construction loan documents, and the amount of the
construction loan. This difference may not be equal to the applicant’s
cash invested. TDC includes an allowable fee for applicant’s overhead (5% of
TDC, excluding site acquisition and applicant overhead and fee) and applicant
fees (20% of TDC, excluding site acquisition and applicant overhead and fees)).
SECTION 6.11- NEF ALLOWABLE ACQUISITION COSTS
6.11.1 The
development pro forma must list a land value that is the lower of the (i) last “arm’s length transaction” (if within 3 years) plus
reasonable carrying and/or maintenance costs or (ii) the value under the
pre-existing zoning regulations, plus reasonable carrying costs.
A. “Last arm’s
length transaction” shall not involve an
identity of interest between the seller and the buyer or any party related to
the buyer.
B. “Pre-existing
zoning regulations” concerns the time the option or purchase and sale agreement
is executed.
C. “Reasonable
carrying costs” include interest, taxes, insurance and the costs related to
option agreements. These costs plus the acquisition costs cannot exceed the
appraised value of the land under the density permitted by a comprehensive
permit.
SECTION 6.12- NEF DECISIONS
6.12.1
Any decision by the ZBA regarding a comprehensive
permit application for an NEF project shall comply with the Rules set forth
herein above in Section 6.5.
6.12.2
A decision by the ZBA approving a comprehensive
permit application for an NEF project shall also contain ,
but not be limited to, the following conditions:
A. The
applicant shall provide documentation that NEF funding has been obtained.
B. Legal
review and approval by the Town of the regulatory and monitoring agreements.
SECTION 6.13- REGULATORY AGREEMENTS
6.13.1 The purpose
of the regulatory agreement is to provide legal assurances that the applicant
will (i) construct and maintain the units in
accordance with these Rules and (ii) be limited to a reasonable profit for the
project (as set forth in Section 6.10 herein above) subject to the regulatory
agreement.
6.13.2 The regulatory agreement shall:
A. Include a definition of “profit;”
B. Limit
profits on homeownership projects to 20% (see Section 6.10.1(A) herein above);
C. Limit
profits on rental projects to an annual return of 10% of equity (see Section 6.10.1(B)
herein above);
D. Require a
full compilation and certification of total development costs (net of
related-party expenses) and total revenue, on a federal income tax basis,
prepared and certified by a CPA, acceptable to the monitoring agent and the
Town; and
E.
Be executed by the Town, the lending Bank, and the
applicant.
F.
Establish re-sale and re-rental controls to preserve
long term affordability and to ensure its availability to Low or Moderate
Income Households.
SECTION 6.14- MONITORING AGREEMENTS
6.14.1 The purpose
of the monitoring agreement is to provide legal assurances that there is a
public entity (or a private entity responsible to a public entity) to oversee
compliance with the terms of the regulatory agreement.
6.14.2 The
6.14.3 The per unit
fees for monitoring the affordable units shall be set by the Tewksbury Housing
Authority.
SECTION 6.15- AFFORDABILITY RESTRICTIONS-all applications
6.15.1 Restrictions for Homeownership Projects:
A. The formula
for determining resale price shall be the lesser of (i) the appraised
value of the unit multiplied by a discount rate (established by a ratio between
the original sales price of the affordable unit compared to the sales price of
a market-rate unit), or (ii) a price
based on an annual debt service on a mortgage plus taxes, insurance and
condominium fees (assuming a 10% down payment) that does not exceed 30% of the
annual income of a household earning 70% of the median income for the Boston
Metropolitan area.
B. Upon resale, the owner of the affordable
unit shall be required to actively market the affordable unit to eligible
purchasers for up to 120 days.
C. The Town
shall have a right of first refusal to purchase the affordable units.
D. Excess
profits shall be returned to the Town to be used for affordable housing
purposes.
E. Approval by the Department of Housing and
Community Development of deed riders shall be required.
F. There
shall be a deed restriction that the affordable unit shall remain affordable
for 99 years or the maximum time period allowed by law, whichever is greater.
6.15.2 Restrictions for Rental Projects:
A.
Affordable rents shall be limited to 30% of the
annual income of a renter
whose income is 70% of the median income or established
pursuant to a rent schedule set by the
Town.
B. Tenant
selection, income guideline changes, and annual verification of income shall be
by Tewksbury Housing Authority Rules.
SECTION 6.16- BUYER/ TENANT SELECTION- all applications
6.16.1 Buyers of affordable units shall:
A.
Be first time homebuyers and not have had an
ownership interest in a residence in three years preceding the date o f the
closing of the loan except that a single parent, with one or more children
living with him or her, who has been divorced or widowed within the preceding
three years and who no longer owns a home, or, who in the case of a divorced
person, is subject to a court order or separation agreement to sell the home
and divide the proceeds, or, in the case of a widowed person, whose home is
subject to a binding purchase and sale agreement for sale, will be considered a
first time homebuyer, notwithstanding prior home ownership during those
preceding three years, provided such widowed or divorced person is eligible in
other respects.
B. Have a
household income of less than 80% of the median income of the Boston
Metropolitan Area.
6.16.2 Renters of affordable units shall:
A. Have a
household income of less than 80% of the median income of the Boston Metropolitan
Area.
6.16.3 Applicants
shall have a Town-approved affirmative marketing plan for sale and rental of
the affordable units.
SECTION 6.17- OWNER-OCCUPANCY REQUIREMENTS-all applications
6.17.0 These requirements shall apply to Homeownership Projects.
6.17.1 All units shall be owner-occupied.
6.17.2 Rentals of
owner-occupied affordable units shall be limited to two years and to “renters
of affordable units” (see
Section 6.16.2 herein above) and are subject to approval by the
Town.
SECTION 6.18- AFFORDABLE UNIT DESIGN AND LOCATION- all applications
6.18.1 The exterior
of the affordable units shall be indistinguishable from the exterior of the
market-rate units.
6.18.2
Affordable units shall be dispersed throughout the
project.
SECTION 6.19-APPEALS
6.19.1
If the ZBA approves a comprehensive permit, any
person aggrieved may appeal within the time period and to the court provided in
M.G. L. c. 40A, §17.
6.19.2
If the ZBA 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.
SECTION 6.20-LAPSE OF
PERMITS
6.20.1
If construction authorized by a comprehensive permit
has not begun with three years of the date on which the permit becomes final,
the permit shall lapse. The permit shall
become final on the date of the ZBA decision if no appeal is filed. Otherwise, it shall become final on the date
the last appeal is decided or otherwise disposed of.
6.20.2 The ZBA may set an earlier or later expiration date for the permit and may extend any expiration date. An extension may not be unreasonably denied.
SECTION 6.21-TRANSFER OF PERMITS
6.21.1 No
comprehensive permit shall be transferred to a person or entity other than the
applicant without the written approval of the ZBA.
SECTION 6.22 CONVERSION FROM
AFFORDABLE RENTAL TO
AFFORDABLE HOME
OWNERSHIP PROJECT