Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 9.00 - WATERWAYS › Section 9.56 - Standards for Facilities of Limited Accommodation

Current through Register 1525, July 5, 2024
Facilities of Limited Accommodation may be authorized on filled
				Commonwealth Tidelands or filled Private Tidelands under certain circumstances
				where a project site cannot support Facilities of Public Accommodation for a
				period of time. Projects including Facilities of Limited Accommodation as a
				substitution for Facilities of Public Accommodation described in
				310 CMR
				9.53(2)(c)  and referenced
				in
				310 CMR
				9.51(3)(b) must meet any
				otherwise applicable requirements of
				310 CMR
				9.00. The substitution of Facilities of Limited
				Accommodation for Facilities of Public Accommodation fulfills the requirements
				for licensing under
				310 CMR
				9.31(2)(b)1., provided
				otherwise applicable requirements are met. The calculation of the required
				amount of Facilities of Public Accommodation or the amount of the payment to
				allow the substitution shall be based on Facilities of Limited Accommodation
				located on the ground floor of buildings on filled Commonwealth Tidelands or
				Private Tidelands within 100 feet of the project shoreline. The substitution of
				Facilities of Limited Accommodation for Facilities of Public Accommodation may
				not be inconsistent with an Approved Municipal Harbor Plan under
				310 CMR
				9.34(2).
(1) An application for a building less than
			 or equal to 75' in height, may substitute Facilities of Limited Accommodation
			 in up to 50% of the interior space required to be devoted to Facilities of
			 Public Accommodation. The remainder of the required ground floor interior
			 space, with the exception of Upper Floor Accessory Services, shall be devoted
			 to Facilities of Public Accommodation. The requirement that no less than 25% of
			 the otherwise required ground floor interior space be devoted to Facilities of
			 Public Accommodation may not be waived by the Department, regardless of foot
			 traffic, density, level of economic development, or the absence of potential
			 revenues generated by the Facility of Public Accommodation. The Applicant shall
			 provide notice of the project to the Local Economic Development Authority and
			 any response it has received from the authority. If the Local Economic
			 Development Authority responds in writing that the project area has a
			 sufficient level of development to support a Facility of Public Accommodation,
			 the Department shall not authorize the substitution of a Facility of Limited
			 Accommodation. If the authority concurs in writing that the project area lacks
			 sufficient development to support a Facility of Public Accommodation or does
			 not respond to the notice and the Department does not request additional
			 information within 60 days of receipt of a license application, the Local
			 Economic Development Authority will be deemed to concur with the request and
			 the substitution of a Facility of Limited Accommodation shall be authorized.
			 The first floor design shall be capable of accommodating a Facility of Public
			 Accommodation. 20% of the net operating income per year generated from the
			 Facilities of Limited Accommodation shall be paid annually by the project to
			 fund specific construction or activities, approved by the Department, to
			 activate the waterfront in geographic proximity to the project site. The
			 activation provided by the specific construction or activities shall extend to
			 evening and/or weekend hours wherever feasible to compensate for any lack of
			 activation that may result in the substitution of Facilities of Limited
			 Accommodation for Facilities of Public Accommodation. The funding of specific
			 construction or activities shall be in addition to applicable requirements at
			 310 CMR
			 9.52(1)  and
			 9.53(2).
			 The specific construction or activities to be funded shall be identified by the
			 Applicant and approved by the Department prior to licensing.
A condition of the license shall include, on or before the
				15th anniversary of the first certificate of
				occupancy, a requirement for the Department to review the uses of the
				Facilities of Limited Accommodation to determine whether the project site could
				support Facilities of Public Accommodation, typically based upon foot traffic
				and density, based on information provided by the Licensee. The Licensee shall
				file any relevant information at least six months prior to the
				15th anniversary. If the Department determines that
				Facilities of Public Accommodation can be supported and the project is unable
				to obtain a contrary opinion as referenced in 310 CMR 9.56(2)(d), the
				Department shall provide the Licensee with a schedule for submittals for
				transition to such uses. If the Department determines that Facilities of Public
				Accommodation cannot be supported or the Licensee obtains such an opinion as
				referenced in 310 CMR 9.56(2)(d), the Department shall specify a time period
				for a subsequent review. The Licensee shall certify annually to the Department
				the amount of space devoted to Facilities of Limited Accommodation, the use of
				the space, the net operating income from the Facilities of Limited
				Accommodation, and a demonstration of payment for the substitution of
				Facilities of Limited Accommodation for Facilities of Public Accommodation as
				specified in 310 CMR 9.56(2)(f). The Licensee shall provide an electronic copy
				of the certifications and notice of any information submitted six months prior
				to the 15th anniversary review, upon request to any
				person who filed comments during the public comment period on the written
				determination for the project.
(2) An application for a building greater
			 than 75' in height that can demonstrate that its project site is unable to
			 fully support Facilities of Public Accommodation, based on foot traffic and
			 density, may apply for a short-term condition in a license to authorize up to
			 50% of the interior space required to be devoted to Facilities of Limited
			 Accommodation in accordance with
			 310
			 CMR 10.51 and
			 10.53 for some portion of the
			 ground floor interior space otherwise required to be devoted to Facilities of
			 Public Accommodation, provided that no less than 25% of such required interior
			 space shall be devoted to Facilities of Public Accommodation. The requirement
			 that no less than 25% of the ground floor interior space otherwise required be
			 devoted to Facilities of Public Accommodation may not be waived by the
			 Department, regardless of foot traffic, density, level of economic development,
			 or the absence of potential revenues generated by the Facility of Public
			 Accommodation. The short-term condition in the license may not exceed ten
			 years. At the expiration of the term, the ground floor shall be devoted to
			 Facilities of Public Accommodation, unless the licensee applies for an
			 extension for no more than ten years and proves that the provisions of
			 310
			 CMR 9.56(2)(a) through (d)
			 are met. Applications for extensions prior to expiration of the term may be
			 allowed only where necessary to maintain occupancy. For an Applicant seeking a
			 short-term condition in the license to authorize Facilities of Limited
			 Accommodation in the interior space otherwise required to be devoted to
			 Facilities of Public Accommodation, 20% of net operating income per year
			 generated from the Facilities of Limited Accommodation shall be paid by the
			 licensee annually to fund specific construction or activities, approved by the
			 Department, to activate the waterfront. The activation provided by the specific
			 construction or activities shall extend to evening and/or weekend hours
			 wherever feasible to compensate for any lack of activation that may result in
			 the substitution of Facilities of Limited Accommodation for Facilities of
			 Public Accommodation. The specific construction or activities to be funded
			 shall be identified by the Applicant and approved by the Department prior to
			 licensing. The funding of specific construction or activities shall be in
			 addition to applicable requirements at
			 310
			 CMR 9.52(1) and
			 9.53(2). A
			 project seeking a short term condition in a license shall:
(a) not be inconsistent with any
			 substitutions, offsets or conditions of approval established in an Approved
			 Municipal Harbor Plan as provided in
			 310
			 CMR 9.34(2);
(b) demonstrate that marketing efforts for at
			 least one year have failed to identify any prospective Facility of Public
			 Accommodation, even with the offer of up to 50% below market rents to civic or
			 cultural not-for-profit organizations and a diligent good faith attempt to
			 locate tenants which shall include advertisements in at least two commercial
			 real estate marketing publications and listing with a commercial real estate
			 brokerage;
(c) comply with the
			 conditions in the license requiring Facilities of Public Accommodation unless
			 or until another use is authorized; this requirement may not be waived by the
			 Department, regardless of foot traffic, density, level of economic development,
			 or the absence of potential revenues generated by the Facility of Public
			 Accommodation;
(d) obtain the
			 written concurrence of the Local Economic Development Authority that the
			 project area lacks the level of development to support a Facility of Public
			 Accommodation at the time of licensing or amendment. If the Local Economic
			 Development Authority does not respond to the notice and the Department does
			 not request additional information within 60 days of receipt of a license
			 application, the Local Economic Development Authority will be deemed to concur
			 with the request;
(e) ensure that
			 the first floor design will be capable of accommodating a Facility of Public
			 Accommodation at the end of the term; and
(f) certify annually the space devoted to
			 Facilities of Limited Accommodation, the use of the space, the net operating
			 income from those facilities, and demonstration of payment.