Code of Massachusetts Regulations › 760 CMR - HOUSING AND LIVABLE COMMUNITIES, EXECUTIVE OFFICE OF › Title 760 CMR 59.00 - Smart growth zoning districts and starter home zoning districts › Section 59.05 - Procedure for Approval, Review, Amendment, and Repeal

Current through Register 1525, July 5, 2024
(1)
Preliminary Municipal Review
			 Procedure
. The chief executive of the Municipality or duly authorized
			 designee shall hold a preliminary public hearing on whether the provisions of the
			 proposed 40R Zoning should be adopted by the Municipality. Notice shall be given in
			 accordance with M.G.L. c. 40A, § 11 and by posting on the Municipality's
			 website, if any, on the date of the first newspaper publication through the date of
			 the hearing. Following the hearing, comments shall be considered by the Municipality
			 in preparation of the proposed 40R Zoning Application.
(2)
Preliminary Determination of
			 Eligibility by DHCD
. Upon receipt of a 40R Zoning Application by a
			 Municipality, DHCD will make a preliminary determination, before the Municipality
			 votes on its proposed 40R Zoning, whether the application satisfies the approval
			 requirements set forth in
			 760 CMR
			 59.04(1). DHCD's review will be
			 an informal, non-adjudicatory procedure.
(a) DHCD
			 will accept 40R Zoning Applications on the last day of each month. Upon its receipt
			 of a 40R Application, DHCD will conduct a completeness review, except that DHCD will
			 notify a Municipality in writing or by electronic communication within 30 days after
			 receipt if any required element of its application is missing or incomplete. Such
			 notification shall constitute a denial of the application unless the missing or
			 incomplete elements are addressed within 30 days after the notification or other
			 reasonable time period established at DHCD's discretion. Applications shall be
			 deemed complete if such written notice is not given within the 30-day completeness
			 review time period. The 30-day period may be extended only with the written consent
			 of the Municipality.
(b) Upon expiration
			 of the completeness review period, DHCD will conduct a review as to whether the 40R
			 Zoning Application satisfies the approval requirements set forth in
			 760 CMR
			 59.04(1). DHCD will issue its
			 decision upon an application within 60 days of the start of this review period. The
			 60-day period may be extended only with the written consent of the Municipality. If
			 DHCD does not act upon a complete and approvable application within the 60-day
			 period, subject to any extension, the application shall be deemed
			 approved.
(c) DHCD will communicate its
			 determination on a 40R Zoning Application to the Municipality by issuing one of the
			 following:
1. a Letter of Eligibility, approving
			 the application without conditions;
2. a
			 Letter of Conditional Eligibility, approving the application with conditions that
			 must be satisfied prior to final approval under 760 CMR 59.05(4) and, as applicable,
			 subject to a Letter of Conditional Approval; or
3. a Letter of Denial.
(d) A Letter of Conditional Eligibility may, among
			 other matters, require modification to the proposed 40R Zoning; require modification
			 of the calculation of Incentive Units; require the reclassification of Developable
			 Land; or condition the issuance of the Letter of Approval upon submission of
			 sufficient documentation that:
1. the development
			 of a proposed 40R Zoning District is feasible;
2. such proposed District otherwise satisfies the
			 threshold approval criteria set forth in
			 760 CMR
			 59.04(1);
3. the impacts of Future Zoned Units within the
			 District will not overburden Infrastructure (which for the purposes of 760 CMR
			 59.05(2)(d) shall also include improvements to public Dedicated Open Space and
			 public recreational facilities) as it exists or may be practicably upgraded to
			 provide adequate accommodation of the demands of the District's existing and future
			 residents and uses.
See
760 CMR
			 59.03(1)(j); or
4. the Municipality takes the actions contemplated
			 under 760 CMR 59.05(2)(e).
(e)
Additional Municipal Standards
			 Applicable to Development Under Starter Home Zoning
. If DHCD determines
			 that the Municipality has not shown that Additional Municipal Standards applicable
			 in a Starter Home District do not Render Development Infeasible, DHCD will not issue
			 an unconditional Letter of Eligibility. Any Letter of Conditional Eligibility
			 pursuant to 760 CMR 59.05(2)(d) will, in addition to any conditions under 760 CMR
			 59.05(2)(d)1. through 3., condition the issuance of a Letter of Approval on either:
1. modification of the Additional Municipal
			 Standards, through the Starter Home Zoning or otherwise, so that no Additional
			 Municipal Standards will apply to development under the Starter Home Zoning,
			 or
2. demonstration that the Additional
			 Municipal Standards applicable in a Starter Home District do not Render Development
			 Infeasible. DHCD will also inform the Municipality that it may seek DEP
			 determination that the Municipality has demonstrated the existence of specific local
			 conditions that warrant imposition of such Additional Municipal Standards to
			 development under the Starter Home Zoning.
(f)
DEP Review of Additional Municipal
			 Standards Applicable to Development Under Starter Home Zoning
.
1. Upon receipt of a Letter of Conditional
			 Eligibility pursuant to 760 CMR 59.05(2)(e), a Municipality may request a review and
			 determination by DEP regarding whether the Municipality has demonstrated a
			 reasonable, objective basis, based on the documentation of specific local
			 conditions, for imposition of Additional Municipal Standards to development under
			 the Starter Home Zoning.
2. Promptly
			 following receipt of such request, DHCD will forward to DEP a copy of the
			 Municipality's 40R Zoning Application for a Starter Home Zoning District, including
			 any supporting materials pertaining to Additional Municipal Standards.
3. DEP's review will be an informal,
			 non-adjudicatory procedure. DEP may elect, in its discretion, to request that DHCD
			 request additional information from the Municipality, which the Municipality shall
			 submit to DHCD within 30 days thereafter for forwarding to DEP for its review and
			 determination. DEP will provide its determination concurrently to both DHCD and the
			 Municipality.
4. If DEP determines that
			 the Municipality has not demonstrated that local conditions warrant imposition of
			 Additional Municipal Standards to development under the Starter Home Zoning, the
			 requirements of the initial Letter of Conditional Eligibility remain in effect
			 unchanged.
5. If DEP determines that the
			 Municipality has demonstrated that local conditions warrant imposition of Additional
			 Municipal Standards to development under the Starter Home Zoning, DHCD will issue a
			 revised preliminary determination of eligibility in accordance with 760 CMR
			 59.05(2)(c) within 30 days, which may include as an alternative condition that the
			 Municipality submit any additional information needed to demonstrate compliance with
			 statutory requirements as set out in DHCD guidance.
(g) In the event of issuance of a Letter of
			 Denial, a Municipality may re-apply for approval after addressing any deficiencies
			 in a prior application, provided that such reapplication shall be treated as a new
			 application under
			 760 CMR
			 59.03.
(h) In the event of a constructive approval of a
			 40R Zoning Application due to DHCD's failure to act within the specified time
			 period, the Municipality may request in writing the issuance of a Letter of
			 Eligibility within 60 days of the date of constructive approval, and DHCD will issue
			 such Letter within 21 days of its receipt of the request. The Municipality must
			 thereafter comply with the requirements of 760 CMR 59.05(3) and (4).