760 CMR, § 56.02
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. See760 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. See760 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. See760 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. See760 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. See760 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. See760 CMR 56.05(7).
760 CMR, § 56.02