Delphic Associates, LLC; is a real estate and development consulting firm established in 1987. With over 35 years of experience in the affordable housing sector, they are considered “Pioneers in Affordable Housing.” Their experience includes the permitting, financing, and Marketing, including the preparation and implementation of Affirmative Fair Housing Marketing Plans (AFHMP).
Delphic has conducted housing lotteries for over 3,500 housing units, including single-family homes, condominiums (in a variety of building types) and rental developments all permitted in accordance with Massachusetts General Laws c.40B § 20 through 23 also known as the “Anti-Snob” zoning act. Also known as the 40B “Statute”.
THE “ANTI-SNOB” ZONING ACT
MGL 40B also known as a “Comprehensive Permit”?
In accordance with the statute; the Zoning Board of Appeals (ZBA) is the issuing authority of a Comprehensive Permit. The Zoning Board of Appeals (ZBA) issues an all-encompassing permit , regarding local rules, by-laws, regulations, zoning laws, etc. The ZBA takes the place of all LOCAL BOARDS Including but not limited to board of selectman; 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; city council or board of selectmen in addition to action taken by town meeting. 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.
Any community that, in accordance with the Executive Office of Housing and Livable Communities (EOHLC’S) (formally the Department of Housing and Community Development (DHCD) Subsidized Housing Inventory (SHI) does not have 10% of its housing stock as affordable, is subject to an application being submitted in accordance with M.G.L. c. 40B.
WHAT IS THE PROCESS OF SUBMITTING AN APPLICATION TO THE ZONING BOARD OF APPEALS?
The process is basically Three Steps.
STEP ONE – SITE ELIGIBILITY
- An application for Site Approval is submitted either to the Executive Office of Housing and Livable Communities (EOHLC, formally DHCD) or the Massachusetts Housing Finance Agency (Mass Housing), are currently the two agencies issuing project eligibility letters for most of the Commonwealth’s housing subsidy programs. EOHLC or Mass Housing staff review the proposal to determine general consistency with program guidelines. They also conduct their own evaluation of the site, including an on-site visit. At the same time, they solicit written comments from the chief elected official of the community in which the housing is proposed. No formal public hearing is required.
- The type of housing styles can include, but not limited to, single family homes, duplex units, multi-family dwellings, detached Condominiums, or rentals. A proposal may be submitted irrespective of the current zoning or density allowed by local zoning of the proposed site. However, generally 25% of the total number of units must be available to buyers whose household income does not exceed 80% of the Areal Median Income as determined by the office of the US Department of Housing and Urban Development (HUD).
Once a Site Approval is issued by an agency. the applicant will have Legal Standing to apply for a Comprehensive Permit from the local Zoning Board of Appeals.
STEP TWO – COMPREHENSIVE APPLICATION
- An applicant submits to the ZBA an application for a Comprehensive Permit in accordance with the statute, 760 CMR 56.00, and the Comprehensive Guidelines dated December 2014. The board then notifies and seeks recommendations from other local boards, including the following: Planning Board, Board of Health, Conservation Commission, Water and Sewer boards/commissions, Fire, Police, building commissioner or other appropriate boards.
The ZBA must hold a public open hearing within 30 days of receipt of a complete application. The hearing must be closed within 180 days of the opening of the hearing and render a decision within 40 days after termination of the hearing.
In making its decision, the board acts on behalf of all other town boards and officials, but only about matters where local restrictions are more stringent than state requirements. The board issues a single comprehensive permit, which subsumes all local permits and approvals normally issued by local boards. However, local bylaws or regulations enforced by these boards that are more restrictive than state requirements may be waived by the ZBA if requested by the applicant.
The ZBA may take the following action: Grant the permit; Deny the permit; or Grant the permit with conditions. If a comprehensive permit is granted, the applicant, prior to construction, must present final detailed construction plans to the building inspector or similar officials to ensure that the plans are consistent with the comprehensive permit and state requirements.
The Conservation Commission and the Board of Health have separate jurisdictions, which are not subsumed within the comprehensive permit process. They should conduct separate hearings relating to state requirements in their areas (i.e., the Wetlands Protection Act and state “Title 5” septic regulations).What if the Comprehensive Permit is Denied or Conditions Render the development uneconomic?
- If an application for a permit is denied or granted with conditions which would make building uneconomic, the applicant may appeal the board’s decision to the Housing Appeals Committee. Any appeal of the local decision to the Housing Appeals Committee by the applicant must be taken within 20 days of the notice of the decision being filed with the town clerk.
STEP THREE – FINAL APPROVAL
- A Comprehensive Permit has been issued absent of any appeals. The applicant will need to submit to either Mass Housing or EOHLC an application for Final Approval.
- Exhibits to the application will include a Firm Financing Commitment from a lender; surety, all approvals, Draft Regulatory Agreement, including a Limited Dividend Requirement to establish a Limited Dividend Organization.
Upon full execution of the Regulatory Agreement by either agency, the developer can begin construction according to the conditions set forth in the comprehensive permit.