Code of Massachusetts Regulations › 760 CMR - HOUSING AND LIVABLE COMMUNITIES, EXECUTIVE OFFICE OF › Title 760 CMR 56.00 - Comprehensive Permit; Low Or Moderate Income Housing › Section 56.02 - Definitions

Current through Register 1525, July 5, 2024
Adjudicatory Proceeding
- means as defined
				in M.G.L. c. 30A, § 1.
Affirmative Fair Marketing Plan
- means a
				plan for the marketing of SHI Eligible Housing, including provisions for a lottery
				or other resident selection process, consistent with guidelines adopted by the
				Department, and providing effective outreach to protected groups underrepresented in
				the municipality. The plan shall not permit any discrimination on the basis of race,
				creed, color, sex, age, disability, familial status, sexual orientation, national
				origin or any other legally protected category in the leasing or sale of SHI
				Eligible Housing.
Applicant
- means a public agency, a
				non-profit organization, or a Limited Dividend Organization that proposes a Project
				for which it has submitted or intends to submit an application for a Comprehensive
				Permit to a Board.
Board
- means a local Board of Appeals
				established by M.G.L. c. 40A, § 12, and acting in its capacity to issue a
				Comprehensive Permit under the powers granted by M.G.L. c. 40B, §§ 20
				through 23.
Chief Executive Officer
- means the mayor
				in a city and the board of selectmen in a town, unless some other municipal office
				is designated to be the chief executive officer under the provisions of a local
				charter.
Committee
- means the Housing Appeals
				Committee, also referred to as "HAC."
Comprehensive Permit
- means a permit for
				the development of Low or Moderate Income Housing issued by a Board pursuant to
				M.G.L. c. 40B, §§ 20 through 23 and
				760 CMR 56.00.
Consistent with Local Need
s - means either
				that:
(a) one or more of the grounds set forth in
				760
				CMR 56.03(1)  have been met;
				or
(b) Local Requirements and Regulations imposed on a Project are
				reasonable in view of the regional need for Low and Moderate Income Housing,
				considered with the number of Low Income Persons in the affected municipality and
				with Local Concerns, and if such Local Requirements and Regulations are applied as
				equally as possible to both subsidized and unsubsidized housing.
COVID -19 State of Emergency
- means, for
				the purposes of
				760 CMR 56.00, the emergency order
				declared by the governor.
Days
- means, for the purposes of
				760 CMR 56.00, a period that shall
				begin with the first day following that on which the act that initiates such period
				of time occurs. The last day of the period so computed is to be included unless it
				is a day on which the office of the Department is closed, in which event the period
				shall run until the end of the next following business day. When such period of
				time, with the intervening Saturdays, Sundays and legal holidays counted, is five
				days or less, the said Saturdays, Sundays and legal holidays shall be excluded from
				the computation; otherwise, such days shall be included in the computation.
Department
- means the Massachusetts
				Department of Housing and Community Development and its successors, as established
				and currently existing pursuant to M.G.L. chs. 23B and 6A.
Developer
- means the Applicant or any
				successor that owns or controls a Project.
Housing Need
- means the regional need for
				Low and Moderate Income Housing considered with the number of Low Income Persons in
				a municipality affected.
Housing Production Plan (HPP)
- means an
				affordable housing plan adopted by a municipality and approved by the Department,
				defining certain annual increases in its number of SHI Eligible Housing.
See
760
				CMR 56.03(4).
HUD
- means the U.S. Department of Housing
				and Urban Development.
Income Eligible Household
- means a
				household of one or more persons whose maximum income does not exceed 80% of the
				area median income, adjusted for household size, or as otherwise established by the
				Department in guidelines. For homeownership programs, the Subsidizing Agency may
				establish asset limitations for Income Eligible Households by statute, regulations,
				or guideline. In the absence of such provisions, Income Eligible Households shall be
				subject to asset and/or other financial limitations as defined by the Department in
				guidelines.
Limited Dividend Organization
- means any
				entity which proposes to sponsor a Project under M.G.L. c. 40B, §§ 20
				through 23; and is not a public agency or a nonprofit; and is eligible to receive a
				Subsidy from a Subsidizing Agency after a Comprehensive Permit has been issued and
				which, unless otherwise governed by a federal act or regulation, agrees to comply
				with the requirements of the Subsidizing Agency relative to a reasonable return for
				building and operating the Project.
Local Board
- means any local board or
				official including, but not limited to, any board of survey; 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. 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.
Local Concern
- means the need to protect
				the health or safety of the occupants of a proposed Project or of the residents of
				the municipality, to protect the natural environment, to promote better site and
				building design in relation to the surroundings and municipal and regional planning,
				or to preserve Open Spaces.
See
760 CMR
				56.07(3)(c) through (g).
Local Initiative Project
- means a Project
				for which the project eligibility application is submitted by the Chief Executive
				Officer of the municipality under
				760
				CMR 56.04(2), in accordance with
				the Department's Local Initiative Program ("LIP").
Local Requirements and Regulations
- mean
				all local legislative, regulatory, or other actions which are more restrictive than
				state requirements, if any, including local zoning and wetlands ordinances or
				by-laws, subdivision and board of health rules, and other local ordinances, by-laws,
				codes, and regulations, in each case which are in effect on the date of the
				Project's application to the Board.
Low Income Persons
- means all persons who,
				according to the latest available United States Census, reside in households whose
				net income does not exceed the maximum income limits for admission to public
				housing, as established by the Department. The Department's calculation shall be
				presumed conclusive on the Committee unless a party introduces authoritative data to
				the contrary. Data shall be authoritative only if it is based upon a statistically
				valid, random sample or survey of household income conducted in the relevant area
				since the latest available U.S. Census.
Low or Moderate Income Housing
- means any
				units of housing for which a Subsidizing Agency provides a Subsidy under any program
				to assist the construction or substantial rehabilitation of low or moderate income
				housing, as defined in the applicable federal or state statute or regulation,
				whether built or operated by any public agency or non-profit or Limited Dividend
				Organization. If the applicable statute or regulation of the Subsidizing Agency does
				not define low or moderate income housing, then it shall be defined as units of
				housing whose occupancy is restricted to an Income Eligible Household.
Open Spaces
- means land areas, including
				parks, parkland, and other areas which contain no major structures and are reserved
				for outdoor recreational, conservation, scenic, or other similar use by the general
				public through public acquisition, easements, long-term lease, trusteeship, or other
				title restrictions which run with the land.
Party
- means party as defined in M.G.L. c.
				30A, § 1.
Project
- means a development involving the
				construction or substantial rehabilitation of units of Low or Moderate Income
				Housing that is eligible to submit an application to a Board for a Comprehensive
				Permit or to file or maintain an appeal before the Committee.
See
760
				CMR 56.04 for eligibility requirements. A Project
				may contain ancillary commercial, institutional, or other non-residential uses, so
				long as the non-residential elements of the Project are planned and designed
				to:
(a) complement the primary residential uses; and
(b) help foster vibrant, workable, livable, and attractive
				neighborhoods consistent with applicable local land use plans.
Project Eligibility
- means a determination
				by a Subsidizing Agency that a Project satisfies the jurisdictional requirements of
				760
				CMR 56.04(1).
Public Housing
- means housing owned,
				operated, or managed by a local housing authority, or leased under the auspices of a
				local housing authority pursuant to M.G.L c.121B.
Reasonable Return
- means, as calculated
				according to guidelines issued by the department, and with respect to
(a) building an ownership project or continuing care retirement
				community, that profit to the Developer is not more than 20% and not less than 15%
				of the total development costs;
(b) building a rental project:
1. that payment of development fees from the initial construction of
				the Project is not more than a reasonable fee as determined by the Subsidizing
				Agency's program limitations and not less than 10% of the total development costs;
				and
2. that commencing upon the Project's initial occupancy,
				distributions of profit funded by operating revenues shall not exceed a reasonable
				rate relative to the Developer's equity in the Project as determined by the
				Subsidizing Agency's program requirements;
(c) building an ownership project, continuing care retirement
				community or rental project, for the purpose of determining whether the Project is
				Uneconomic, that profit to the Developer or payment of development fees from the
				initial construction of the Project, if an amount lower than the minimum set forth
				760 CMR 56.02:
Reasonable Return
(a) or (b), as applicable,
				has been determined to be feasible as set forth in the Project Eligibility Letter,
				then such lower amount shall be the minimum; or
(d) building an ownership project, continuing care retirement
				community or rental project, for the purpose of determining whether the Project is
				Uneconomic, when one or more conditions imposed by the Board decrease the total
				number of units in a Project, if those conditions do not address a valid health,
				safety, environmental, design, open space or other Local Concern, then the amount as
				calculated prior to the imposition of such conditions shall be the minimum, provided
				that such amount does not exceed the maximum return set forth in 760 CMR 56.02:
Reasonable Return
(a), or fall below the minimum set forth
				in 760 CMR 56.02:
Reasonable Return
(a), (b) or (c), as
				applicable.
SHI Eligible Housing
- means, solely for
				the purposes of
				760
				CMR 56.03:
(a) any unit of Low or Moderate Income Housing;
(b) such other housing units in a Project as may be so defined under
				the Department's guidelines; and
(c) any other housing unit as may be allowed under the Department's
				guidelines, provided that such housing unit is subject to a Use Restriction and
				Affirmative Fair Marketing Plan, and regardless of whether or not such unit received
				a Subsidy.
Statutory Minima
- means the standards set
				forth in M.G.L. c. 40B, §§ 20 through 23 and
				760
				CMR 56.03(3).
Subsidized Housing Inventory (SHI)
- means
				the list compiled by the Department containing the count of Low or Moderate Income
				Housing units by city or town.
See
760 CMR 56.02(2).
Subsidizing Agency
- means any agency of
				state or federal government that provides a Subsidy for the construction or
				substantial rehabilitation of Low or Moderate Income Housing. If the Subsidizing
				Agency is not an agency of state government, the Department may appoint a state
				agency to administer some or all of the responsibilities of the Subsidizing Agency
				with respect to
				760 CMR 56.00; in that case, all
				applicable references in
				760 CMR 56.00 to the Subsidizing
				Agency shall be deemed to refer to the appointed project administrator. It shall be
				the responsibility of the Subsidizing Agency to enforce compliance with provisions
				of
				760 CMR 56.00 and applicable
				Department guidelines relating to matters including Affirmative Fair Marketing
				Plans, Cost Examination and Limitations on Profits and Distributions, Project
				Eligibility, Subsidies, and Use Restrictions (for the term of the initial Use
				Restriction;
see
760 CMR
				56.05(13)) . A Subsidizing Agency
				may delegate its compliance and enforcement obligations to a third party, if the
				third party meets standards established by the Department in guidelines. The
				Department reserves the right to ensure that the compliance and enforcement
				activities of a Subsidizing Agency are satisfactory.
Subsidy
- means assistance provided by a
				Subsidizing Agency to assist the construction or substantial rehabilitation of Low
				or Moderate Income Housing, including direct financial assistance; indirect
				financial assistance through insurance, guarantees, tax relief, or other means; and
				non-financial assistance, including in-kind assistance, technical assistance, and
				other supportive services. A leased housing, tenant-based rental assistance, or
				housing allowance program shall not be considered a Subsidy for the purposes of
				760 CMR 56.00.
Uneconomic
- means any condition imposed by
				a Board in its approval of a Comprehensive Permit, brought about by a single factor
				or a combination of factors, to the extent that it:
(a) makes it impossible for a public agency or a nonprofit
				organization to proceed in building or operating a Project without financial loss;
				or
(b) makes it impossible for a Limited Dividend Organization to
				proceed and still realize a reasonable return in building or operating such Project
				within the limitations set by the Subsidizing Agency on the size or character of the
				Project, or on the amount or nature of the Subsidy or on the tenants, rentals, and
				income permissible, and without substantially changing the rent levels and unit
				sizes proposed by the Applicant.
See
760 CMR
				56.05(8)(d).
Use Restriction
- means a deed restriction
				or other legally binding instrument in a form consistent with Department guidelines
				and, in the case of a Project subject to a Comprehensive Permit, in a form also
				approved by the Subsidizing Agency, which runs with the land and is recorded with
				the relevant registry of deeds or land court registry district, and which
				effectively restricts the occupancy of a Low or Moderate Income Housing unit to
				Income Eligible Households during the term of affordability. A Use Restriction shall
				contain terms and conditions for the resale of a homeownership unit, including
				definition of the maximum permissible resale price, and for the subsequent rental of
				a rental unit, including definition of the maximum permissible rent. A Use
				Restriction shall require that tenants of rental units and owners of homeownership
				units shall occupy the units as their domiciles and principal residences. A Use
				Restriction may require that an Income Eligible Household must have a lower
				percentage of area median income than 80%. For enforcement of Use Restrictions,
see
760 CMR
				56.05(13).
Waiver
- means an exception from a use,
				dimensional, or other restriction of local requirements and regulations, granted to
				a Project through a Comprehensive Permit.
See
760 CMR
				56.05(7).