[Denis MacDougall]: On July 16, 2022, Governor Baker signed into law an act relative to extending certain state of emergency accommodations, which among other things, extends the expiration of the provisions pertaining to the open meeting allowed to March 31, 2023. Specifically, this extension allows public bodies to continue holding meetings remotely without a quorum of the public body physically present at a meeting location. and to provide adequate alternative access to remote meetings. The act does not make any new changes to the open meeting law other than extending the expiration date of the temporary provisions regarding remote meetings from July 15, 2022 to March 31, 2023.
[Unidentified]: Thanks, Dennis. OK, Dennis, did we have a description for what this meeting was that you could read out just to get us started before we hand it over to Judy? I think I've kept it pretty basic. Let me just... It's very simple.
[Denis MacDougall]: Training on 40B for Board of Appeals members.
[Unidentified]: Perfect. Thank you so much. Judy, all yours. Hi.
[MCM00000619_SPEAKER_04]: So thank you. I'm Judy Barrett and I'm happy to be here. kind of involved with this a couple of years ago, and I know things have kind of been on hold and so forth for a while, so it's nice to be back. I do have a set of slides, which I suspect you probably expected anyway, just to sort of walk through a little bit of the history of the law and kind of how it works with the board, what happens before and after a project gets to the board, And what I thought I would do just to try to keep things moving, because I'm sure you're going to have questions, which is great, is that I tried to kind of create sort of three or four breaks in the slides to sort of stop and take questions. So if you have a question, if you could just hold it till I get to one of those breaks, that would be great. And I'll take as long as we need to to respond to questions. Just seems like it's probably a little easier to manage it this way. So just so you know who I am. I am a planner I've been in the field for about 35 years I have a small firm based in hang on there are nine folks who work with me at bear planning group. I've been working as a consultant to boards of appeals specifically on Chapter 40B matters for, oh gosh, probably close to 20 years. So I come at this mainly as a planner, although I think I know the law pretty well, but I'm gonna try to cover both some practical aspects of managing these cases and then also what the statutory and the regulatory requirements look like. So that's my plan and I think I'll go ahead and start screen sharing if that's okay. with you folks.
[Unidentified]: That sounds great. Thank you. Thank you. Can you all see that?
[MCM00000619_SPEAKER_04]: Yes. OK, super. So this is about working with the statute, and I call it that working with it for a reason, because it is it is certainly different from some other types of regulatory work that local officials do. It has some strengths, it has some weaknesses, and we'll kind of try to cover both. There are sort of four sections to this. One is just sort of an introduction to the statute, very basic material that probably all of you are familiar with. And then looking at how the process works from the application from a developer for what's called project eligibility. until the board reaches a decision. There are things that happen after the board has acted that sort of have to take place before a project even ends up under construction. And then just a little bit of information for all of you about some fair housing requirements from the Commonwealth that are fairly recent in the timeline of 40B. But sometimes people have questions about things that have appeared or been added into the state regulations over the last several years, and it's because of fair housing issues. in large part. So this is sort of the kickoff to kind of working with the statute. And I always like to start with this slide because a lot of people don't realize that what Chapter 40B actually is, is the state's regional planning law. So the same law that created Metropolitan Area Planning Council and all the other regional planning agencies we have in Massachusetts is also the parent legislation for what is probably just easily called the Affordable Housing Law or the Comprehensive Permit Law. But about five years after the Regional Planning Act was established, the legislature amended that law to add this provision that we all call Chapter 40 B, which is the affordable housing provision. And the focus of it and the reason it's in the regional planning law is that the intent of it is to address disparities in the regional distribution of affordable housing. I don't know how old you folks are. I'm old enough to remember some of this. And certainly around the time that the legislature adopted what we all call Chapter 40B, it was not just a coincidence. There were a lot of other things happening at the federal level with civil rights and fair housing that sort of this kind of relates to. So there's a basic assumption in the statutory scheme. Unlike what a lot of people think, the law doesn't say thou shalt have 10% of your housing stock affordable, or thou shalt have 1.5% of your land area occupied by lower moderate income housing. What it says is that these are four thresholds. So if you meet one of them, the presumption in favor of the city is you have met your regional fair share, whatever that may be. So I call these provisions in the statute the statutory safe harbors because they have a particular meaning in law that I think in some ways is even stronger than the regulatory safe harbors that we'll get to a little bit later in this discussion. I'm sure you're all familiar with this. There are three statutory minima so-called in the law. The most commonly referred to one is the 10% minimum. And there are going to be times in this presentation where I may default to that just because it's the most common one. You should feel free to stop me at the question and answer time and say, well, how does that relate to us? You know, when we're asserting that 1.5%. But I think the basic assumptions are the same. If you meet one of these statutory minima, then you're deemed to have met your regional fair share. don't meet one of them, then you're presumed to have unmet need. And that's not unmet local need, it's unmet regional need. And I'm going to continue to sort of emphasize that because that's why it's in the regional planning law. It's really about regional distribution of affordable housing. So I just put these up just as a frame of reference. It's not to compare communities. I do a lot of work in the immediate Boston area. And some of these towns have just gotten to 10%. Brookline has struggled for, oh my gosh, probably six or seven years to get just over 10%. Heaven knows where they'll be when the census 2020, the rest of the census 2020 data comes out. But some of these are at over 10%, some are under. Some of them I'm sure you'll recognize as communities that even if they're, quote, under the 10%, they've asserted that they meet the general land area minimum. So I'm not saying they do or don't. I'm just saying that there are a few communities on this list that you have to be a little careful when you say, well, Somerville is only at nine point seven percent because Somerville asserts that it reads the addresses the general land area minimum. The point, I think, really, in putting this up is just to sort of assure you that everybody's kind of struggling with this. and some communities have just barely gotten to the 10%, some communities are significantly over, and some are still working toward it. So it's not uncommon for communities to perhaps find themselves not having received any comprehensive permanent applications for a long, long time, and then all of a sudden be hit with several, which is partially what happened, I think, with Medford. So when a community kind of falls below that minimum, there are certain things that sort of become true. Whatever minimum we're talking about, GLAM or 10%, the developers who are applying for a comprehensive permit are kind of assumed to have an eligibility to request waivers of local regulations. So there's an assumption that if they could build the project economically, they wouldn't be in front of you for a comprehensive permit. The task then for the Zoning Board of Appeals is to balance the regional need for housing, which is the emphasis of the statute, against a series of local concerns, which are also laid out in the statute. And the law presumes that that regional need is paramount if you are under the statutory minimum or any, you know, any one of them. The burden then falls to the city to show that local concerns outweigh those regional needs. And sometimes that permitting process, trying to work this out with the developer, can feel a little bit like a tug of war. And sometimes it doesn't. Sometimes it's just very smooth. So the safe harbor is in the law. If you meet one of the statutory minima, you're still going to get applications for comprehensive permits. We wouldn't be the only community to do that. There's a pretty famous case from the town of Amherst on this very issue. I happen to be working right now with the town of Foxborough, which is well over 10%, and they're still entertaining a comprehensive permit. So the fact that a city or town meets one of the statutory minima doesn't mean that quote 40B goes away. Developers may still apply. And your jurisdiction really doesn't change in terms of what the scope of the local concerns is under the statute. But what does kind of shift is that the board is in a stronger position to insist on or I'll say insist on the applicant to to meet more of the local regulations to address some or all of those local concerns. It becomes easier for the board to make those, to insist on that when you meet a statutory minimum. And of course, I think the most obvious piece is that the developer really cannot at that point go to the housing appeals committee. It's really their developer status is the same as anybody else's. If they're unhappy with their decision, they have to go to court. So that's the safe harbor law. The safe harbor regulations are a creature, if you will, of regulation. What we have today that create a framework for towns or cities to get some credit for working toward that, in this case, it's really the 10%. This all comes out of regulatory changes that happened in 2001. when the market in Massachusetts had pretty much recovered from the recession of 10 years earlier. And there was a lot of housing development happening. And as a result, a lot of communities approaching census 2000 fell below 10%, even if they had been at it for most of a decade. And so the state in an effort to, you know, sort of soften the blow on communities adopted a set of regulations that said, if you do certain things, you can have a reprieve from having to consider a lot of comprehensive permits all at once or at least one case here or something very large. And the one that's the most well-known is the so-called certified housing production plan. My understanding is that the city has a housing production plan that's been prepared and has not yet been submitted to the Department of Housing and Community Development for approval. Therefore, it really doesn't help the ZBA at all. But if the plan is submitted, And if it is approved, which I'm sure it probably will be, because I know the consultant well who prepared it, if it's approved, then anything that you do after that for the five-year lifeline that the certification or the approval is valid, any units created once that plan's approved put you in a position as a community to say, okay, we've hit a certain goal. We can just slow down a little bit. I'm embarrassed to tell you, right off the top of my head, I don't remember what Medford's goal is, but you probably know. It's a production goal. So it's saying, really, we want you to work toward, and in this case, it really is the 10% minimum, we want you to work toward this. And if you do, and you make enough progress, then you can take a break from approving comprehensive permits, or you can keep approving, it's totally up to you. And the maximum period for which a community is eligible for certification is two years. For communities that don't have a housing production plan, there's still an opportunity to get some credit, if you will, for producing a lot of new affordable housing. It's called the recent progress rule. So the number of units that you have to hit is higher. However, you don't necessarily have to have a housing plan to trigger that. There's also a standard, which probably isn't going to help Medford. It's really meant for smaller towns. It's called a large-scale project cap. The Commonwealth has established some standards for how big a given development can be in order for it to be, in order for the Board of Appeals to essentially have to consider it. And that kind of goes up to as high as 350 units, or in some cases, even higher. But there's an assumption here that when a project is applied to a Board of Appeals, and it's just simply too big for the board, for the town or city to absorb, that the board could turn it down. And then there's finally this concept of the related application, which is essentially a developer has applied for some approval from the city under your zoning or some other provision and is turned down. But the developer can't just come back now and say, I'm going to file a spike 40B. There has to be this sort of cooling off periods, we call it, of at least 12 months before the applicant can come to the Board of Appeals and seek a comprehensive permit. So those are kind of the regulatory safe harbors. Again, the assumption is if you meet any of these, then you're entitled to the benefits. But those benefits are established in regulation, not in the statute. I may draw more of a distinction between what the statute says and what the regulations say than many other people do, but I think it's an important distinction. So just want to make that clear. People ask me all the time, well, what is affordable housing under Chapter 40B? Because this also is an issue in a lot of the towns I've worked in. The easiest way to answer the question is, it's a housing that the Department of Housing and Community Development has decided will count towards the 10% goal for every community. And if that housing counts, it's because it is affordable to households whose incomes are at or below 80% of the area median income. And those income limits are determined by HUD. They are updated every year. Just for the sake of your own information, this is kind of what the income limits look like right now. So a household of two with income below $53,700 a year would be considered very low income and so forth. So the income limits, as you can see, are adjusted for household size. The standard under 40 be is at or below 80% of area median income and I don't know your community as well as I know some others I've worked in. But sometimes that is a pretty high number in terms of the actual need that exists in the community. of appeals doesn't really have the jurisdiction to decide what the income limits will be. It's kind of up to the subsidizing agency, but that's not to say you can't ask the developer to try to work with you on something that's more affordable. Before I get into project eligibility, does anybody have any questions that you want to ask right now, or do you want me to just keep going for a bit?
[Unidentified]: I'm fine for you to keep going unless there are any questions. I don't see any raised hands at this time.
[MCM00000619_SPEAKER_04]: Okay.
[Alicia Hunt]: Judy, do you want me to just give you that update on the housing production plan that was the meeting? Yeah, that'd be great. Sure. So we had a committee of the whole with the city council this evening. And we offered a few minor amendments to the existing plan. They were very happy with it. We just changed some of the wording to more accurately reflect what we meant, and it made them a little more comfortable with a few of the actions that we would study, not just do certain things. You never do anything. You always study it first. And they voted it out of committee, and they invited us to submit the revised clean copy for their city council meeting that's in two weeks, where they have every expectation they'll approve it.
[MCM00000619_SPEAKER_04]: Excellent. That's great. Because you certainly want to get that plan in and get it approved as soon as you can for the board to be able to enjoy the benefits of that. So why don't I just go ahead then and talk, go into this whole process that goes on before the applications reach you. This is the project eligibility process, sometimes called site approval. The developer has to apply to a housing subsidizing agency for what we fondly call a PEL or project eligibility letter before coming to the board of appeals for a comprehensive permit. The subsidizing agencies are required to let you know that they've received an application for project eligibility. They are required to do a site visit. Usually that is done by contacting the city staff to arrange a site visit so that if the state officials come out to see the property, they have someone local they can speak with and ask questions of. They do go through a review process with the applications. Sometimes this takes quite a while, I've seen project eligibility review processes go on for nine months, and then sometimes they move pretty quickly. But during that process of review by the subsidizing agency, they're supposed to get an appraisal to determine the fair market value of the property, not taking into account any additional density to be achieved through the comprehensive permit. And then there are a series of other standards of review, which I'll get to it momentarily. I think it's important to understand that the subsidizing agency is not a permitting authority. One of the things that drives a lot of communities crazy is that they submit comments to the subsidizing agency and then feel like they weren't heard because the developer still comes forth with the application pretty much the way the community had objected to it in the first place. And I think the position of state government is, If we were the ones deciding whether these projects should go forward, we would probably have World War Three in our hands from local officials saying the Commonwealth shouldn't be making those decisions. So they sort of take the view that we're not a permitting authority. We're really just sort of making a determination of eligibility for something to go forward. And so they issue a decision. in writing if they decide that the project should go forward and come to the Board of Appeals, and that it's really your job to regulate it in whatever way you see fit. So that PEL, Project Eligibility Letter, really sort of opens the door for the developer to come to the Board of Appeals, or in the occasional time when a PEL is turned down or simply not acted on, it closes the door for an application to come forward. So these sort of seven questions are really what the subsidizing agency has to address in some way. And I'm not going to tell you it's an in-depth review. I will tell you that this is the checklist. They have to decide, is the project that they're looking at sort of eligible under whatever subsidy program guidelines the developer is claiming to be working under? So the most common one, I think, is the New England Fund. And so that often becomes the sort of standard. they're not particularly tight requirements. Is the site generally appropriate for residential development? Sometimes communities bristle about this because the site might be in an industrial district. But I think it's important to remember that the statute considers, for purposes of general land area minimum calculation, any land that is zoned for residential, commercial, or industrial development. So that kind of becomes the standard for, is this at its most basic level appropriate for residential development. Is the project design generally appropriate? The Commonwealth has design guidelines which are intended for use by the subsidizing agencies, not by local boards. They're fairly broad. I don't know of too many cases where projects were kind of resculpted during the PEL process because of design considerations. I do know that it has been done once in a while. Does the project seem feasible? That is a very kind of general look at would this project make sense in the market where it's located? So there is a kind of a basic look at some market data as part of the PEL process. Does it look like it's financially feasible, et cetera? Is the applicant eligible? And all that means is, is this applicant a public agency, a nonprofit organization, or a private for-profit developer? who will enter into a limited dividend agreement to essentially cap the profits taken out of the development? And then does the applicant have site control? And so those last couple of pieces, the eligibility and the site control, those are actually like right out of the statute. So what the subsidizing agency is doing is saying, we're going to take responsibility for making those determinations. You don't have to do it, ZBA. That said, most ZBAs I know take a look at that anyway, because the statute really directs them to do so. The local responsibilities during project eligibility are to assist with making that site visit happen. To comment, the project eligibility process includes a minimum 30-day comment period for the municipality. So town departments typically provide comments to the mayor or the select board, whatever the form of government is in the particular community. Boards that might normally review one of these projects may also submit comments. My experience is it generally makes the most sense for all of those local comments to be incorporated into one letter to the subsidizing agency instead of, you know, barraging them with several letters. But it's just a more organized approach I think is more effective, but that's just my experience. In any case, the point is that when that application comes in, and you are notified when the city is notified about it, it's important to get it out to the people who would normally be reviewing it to permit it so they can provide comments to the chief elected official that will then go back to the subsidizing agency. And then, I'm sorry, I said select board, I should also note mayor, those comments get submitted to the subsidizing agency and they are considered, it's not uncommon for a project eligibility letter to include an attachment that kind of lists all of the concerns in a summary kind of way that came from the municipality and a request from the subsidizing agency to the developer to address them. I won't tell you that they're always addressed, but the subsidizing agency, I think at least is sort of making an attempt to document what was said so that the developer is on notice. These are things that are probably going to come at you during the review process. So, this is a place where again I could stop for a minute if you want, or I can keep going because I'm going to talk about the how this permit process works at your level.
[Mike Caldera]: Yeah, Judy, I have a question. Just one question so in terms of project eligibility. One area that I'm confused about is kind of how final that determination is at the time it comes before the ZBA. Just to give some examples, like I've heard of concepts surrounding zoning boards asking for pro forma review if they would like more affordable housing units or to put a local preference condition and things of that nature, all of which seem like things that the developer would then have to go back to the subsidizing agency for. But as described, it feels very final. Like they've already applied, they went through the process, and now it's done. So which one is it?
[MCM00000619_SPEAKER_04]: So, their position typically this has come up in many places I've worked, something changes with the application or the board asked something to bring something out that nobody knew the subsidizing agencies seem to take the position, and I am being a bit general here but seem to take the position that unless there's some fundamental reason to reopen the PEO review, they will look at whatever the developer negotiated with the municipality. If the project comes back to them for what's called final approval, which is a whole process that takes place after the comprehensive permit is granted. And I'm going to talk about that a little bit later. But generally, the subsidizing agencies don't want to get back involved with this. They sort of determined that it's really the Zoning Board of Appeals job at that point to review a project based on local concerns and get what they can. There are some jurisdictional issues with what you just said that I hate to be the bearer of bad news. The current state policy does allow a municipality to request up to 70% of the affordable units to be allocated on what's called a local preference basis. It's not guaranteed. It is a request that gets made. It's not really the ZBA's job as much as it is sort of the policy officials in the city to make that determination. But where it gets a little more difficult is If the developer is applying for a traditional 40 B and the units are going to be affordable at 80% of median income. And the board says wait a minute you know our local needs are different. We need lower income housing, which I hear often, especially in the Boston area because the income limits are so crazy high. That's really the subsidizing agency's jurisdiction. So it becomes kind of difficult for the board to be the one receiving this testimony from the community that we really need more deeply affordable housing, but it's the subsidizing agency's jurisdiction. So if you try to impose on the project a set of income limits, I can almost assure you that that decision would be overturned. but I certainly have seen plenty of boards negotiate with developers to make, for example, a project that was submitted as 80% to make the affordable units 50%. The percentage of affordable units might come down, but the income limit would be closer to what the city or the town is looking for. I have seen that done. I just don't wanna tell you that you have the jurisdiction to force it.
[Mike Caldera]: Sure, yeah, and to be clear, I didn't frame the question in that manner and like forcing the issue but so it sounds like if over the course of the hearing there was some discussion and negotiation and the developer was amenable to certain changes in those areas that the mechanism by which that would then get sort of decided is there's this final review in front of the subsidizing agency.
[MCM00000619_SPEAKER_04]: So if your permit said, we want 20% and 50% of AMI, and the developer agreed to it, so there's no appeal, the probability is the subsidizing agency, assuming everything else is consistent with their program requirements, would allow that to go forward. I've actually seen that a couple of times. Where it gets tricky is when you're trying to mix income tiers, some at 80%, some at 60%, some at 50%. That generally is much harder. But if you're saying we just think our need is different, if the developer is trying to work with you and they think they can make it work financially, they'll try. I just want to make it clear that the board doesn't have the jurisdiction to require it. I also want to point out, though, that sometimes things come up in the hearing process that really ought to be bumped back to the subsidizing agency. And a classic example is the developer has to maintain site approval. I mean, excuse me, site eligibility, site control. Well, if the board of appeals finds out that the purchase and sale agreement expired six months before, that becomes something that the board should be concerned about because the project is supposed to be in front of you with an applicant that's got site control. Now, I've seen that come up as well. And typically, the subsidizing agencies will say, we'll deal with it later. But in one case I was directly involved with, it did create an issue back to the subsidizing agency because there clearly had been a lapse in site control. And there was a real question whether the developer was going to be able to continue. So I guess the easiest answer is the subsidizing agency generally try to step back and let you work out what you can with the developer. And if it all works out between all of you guys, then it gets back to them. They would, I think, be inclined to just accept it unless it created some programmatic inconsistency for them.
[Unidentified]: Does that make sense? It does. Thank you.
[Alicia Hunt]: Lisa, do you have your hand up? I do. Because of what you were just discussing, the deeper affordability, because that is something that we have discussed with some of these developers. And so you might have clarified it when you said, well, if we want 20% 20% at 50% am I, instead of 25% at 80%, that's that could just go through and not be a big deal, but if we wanted a combination that gets tricky, really hard. We. asked about it and the developers that we discussed it with said, we're not allowed to do that. We won't get that approved. And that was a question whether, and that may be something that we should take offline and discuss, whether it's that it won't get approved or it's that the math is hard and that gets very complicated.
[MCM00000619_SPEAKER_04]: Well, the math could be a problem. And if it makes the project an economic, that's a different issue. I have seen developers accept, obviously with the blessing of the subsidizing agency, but I have certainly seen that percentage of affordable units change and the income limits change. It doesn't happen often, but I have seen it happen.
[Alicia Hunt]: Okay. Maybe something worthy of us discussing just because it's something that is of a lot of need in Medford is the deeper affordability, but to cut the number of units that are affordable in order to get deeper affordability might not be the right choice. That's why we were asking for a mix.
[MCM00000619_SPEAKER_04]: The mix is going to be much harder for them to sell, you know, to do. But the regulations clearly provide for 20% and 50% or 25% and 80%. Where this can get a little bit difficult is if the project eligibility letters come from an agency that doesn't have a 50% program, then the developer is not going to be able to do what you're asking. But that could be another reason why they might say, I don't know where their PELs are coming from. I don't know any of that. So just generally, I would say, if it's possible, and they think they can make it work financially, I've seen it done. I've seen it done. That's the best I can say. Thank you. It's good to know. This has come up in a lot of towns, Alicia. communities right around Boston. But even on the periphery of the Boston metro area, when you get out to those towns, for 80% of AMI for the Middlesex County, the Boston metro area, makes no sense at all in those communities. And so there is a lot of frustration around, how do we meet the needs of our own residents? I mean, another possibility, which is really beyond the Board of Appeals, jurisdiction or problem, but there have been a few cases I know of where communities have invested money in bringing down 80% units to 60%, say, for example. Essentially becoming a lending source to the project, but getting some more affordable units because they now have a financial role in the project. Seen that done too. Not often, but done. So why don't I go on into this, and if you guys are okay with that, that sort of permitting process. Is that all right? Sure. Thank you. Okay. Sure. So I know you are already familiar with this, but I just have to say it because I get asked this a lot. There are big differences between rental and ownership projects. For rental developments where 25% of the units are low income or 20%, very low income, all the units count on the subsidized housing inventory. including the market rate units. That's not the case with homeownership developments. Some communities have wanted desperately for the developer to change their projects to rental in order to get all the units to count. And again, this is a jurisdictional issue I just want you to be aware of. It's the developer's calls, not the board's. So just know that there is a benefit, I guess, if you will, or an incentive to doing rental developments in terms of the contribution to the subsidized housing inventory, or I really suppose even the way the general land area calculation is done. The scope of the comprehensive permit is that you sort of become the board for a lot of things that you normally don't do. And this is one of the reasons why, when I've worked with CBAs, I've tried to sort of get the conservation commission and the planning board and anybody else who's got some role to play in the site, if the site were not a comp permit, to try to get them involved in helping with the review. Because often CBAs find themselves looking at something that's completely alien to their normal work. But any local regulations administered by local boards, zoning is an obvious one, subdivision control, I don't even know if Medford sees subdivisions anymore, but if there's a local wetlands bylaw, a historic district or scenic roads, those elements that the community has the ability to adopt local regulations for, that becomes the board's job. You are sitting in the role of all those boards. And you gain the authority to grant waivers from those local regulations in order to allow the project to go forward. Naturally, the Conservation Commission for a project that has any wetland interest involved, the Conservation Commission is still going to act under the State Wetlands Act, Chapter 131, Section 40. That does not go away. It's strictly when you have a local wetlands ordinance, but that sort of falls to the CBA. So there are things that are not within your scope and I think I just, it's actually kind of helpful I think to the board to say we can't touch that. People often bring up things like what's this going to do to our schools, you know, what's the fiscal impact of this going to be, how do we know who's going to live in the developments, how much money is the developer going to make. Those kinds of things will come up often in comprehensive permit hearings. They're outside the board's jurisdiction. And it's actually fairly easy to just sort of blame the subsidizing agency if you need to, because you really can't regulate anything that falls into these areas. The statute is really quite clear about what the ZBA's jurisdiction is. And I think that probably the most well-known case of a community where an approval of a comp permit went to court because the community was over 10% and some people were unhappy with the board's decision in that case, which was Boothroyd, the court was pretty clear. The jurisdiction of the statute doesn't change. It's simply the tilting of where does the burden fall? The balancing local concerns with regional need. But the actual scope of jurisdiction does not change. So the applicant has to give you certain things. They have to show that whether they're a public agency, a nonprofit, or a limited dividend organization, of course, the PEL kind of addresses these things. Evidence of site control, that all gets sort of embodied in the project eligibility letter. Of course, you should still look at the documents yourselves. I would never say just rely on the subsidizing agency, but the developer still has to give you that information. They have to provide what's called a preliminary plan. So it's really, it is, it's a preliminary plan. It's sort of how are we going to, what's going to be on this property? How many buildings? How many units? Where's the parking going to be? How are we dealing with stormwater? If the project does involve a subdivision, they have to submit a preliminary subdivision plan. They have to kind of show how utilities are going to be brought into the site and delivered to the units. And then very important, what waivers are they asking you to grant under the city's ordinances so that they can build their project? I will say that that waiver list will change over the course of the permitting process because as you work with the developer to try to get the best project you can for Medford, there may be some waivers that go away and some new ones that come in. So I don't encourage people to be too rigid about the details of the waiver list up front, but you certainly don't want to close the hearing without a very specific waiver list from the applicant that you can then act on and not be asked to just sort of approve waivers that would be necessary to build what's on the plans. I mean, you're entitled to more detail than that. We can talk about that more later. This is right out of the handbook, of course. I always just, I have to bring this up because I found myself a couple of times brought into communities where no one had dealt with 40B and the poor administrative assistant in the ZBA's office who was used to the public hearing timelines for special permits or variances had no idea that that hearing had to open in 30 days. and ended up with a constructive approval problem. So there are some specific dates that really are key, some of which you're going to be familiar with because of the situation that's kind of gone on with the general and area minimum assertion. You have to open the hearing within 30 days. That is in the statute. It's not regulatory. It can't be waived. The statute says if you don't do this, you will have a constructive approval problem on your hands. There's a timeline for notifying the developers that you are asserting you need a safe harbor, which I know you've been through this already. Whenever the hearing does start up again, if it does, you have 180 days to bring the hearing to a close. That is in the regulations, it's not in the statute. But it's pretty clearly adhered to and everybody kind of understands it from municipal councils to developers. It's 180 day period. for the hearing. Now, if you're getting close to the end, And it looks like you're going to be able to work some things out with a developer. They'll typically grant you a modest extension. They want to get a yes from you. So it's not really in their best interest to just become too rigid. But on the other hand, no one wants to drive a permitting process out for two years. Once you close that hearing, the statute then comes into play and says, you've got 40 days now to deliberate, reach a decision, file it with the city clerk. You've got 40 days to do that. there is a 20-day appeal period of your decision as there would be for any other kind of zoning action that you might be doing. So the 30-day open the hearing, the 180-day hearing requirement, and the 40 days to get the decision, you know, agreed to and filed with the clerk, those are all just really critical deadlines. Public hearing process, you know, I don't know who on the board is chair because I don't know any of you, but I will just say One of the best things I think you can do to help the public, to help everybody, is for the chair to spend a little time at the beginning of the hearing just explaining what this law is and why an application is in front of you and what your job is, just so people understand that there are things you have control over and things that the statute kind of displaces from local officials. It's important for people to understand that you really can't impose things on a 40B permit that you don't impose on anything else in the city. And I can just assure you that applicants, attorneys who know what they're doing, are very conscious of kind of what the city's procedures and policies are around waivers and so forth that may be customarily granted for some other kind of project. You know, if that's the case they'll push for it for a 40 B as well so you have to sort of be thinking about how would I handle this if this were not a 40 B, what would I be doing. They can't be treated differently from from other applications that come into the city. The municipal departments are critical, I find. They have a technical review role. They can be extremely helpful to the Board of Appeals, just in terms of reviewing the plans and helping you identify what's missing, what's good, what's inconsistent with something that's going on in the city that you need to know, get their involvement early on. I know back when, before the general land area minimum assertion had kicked in, I did meet with the city staff and I said to them, and I would say it again, their role in this process as helpful to the ZBA is just so important because they do technical review all the time and they can be very helpful to the board to sort of separate out what's a reasonable waiver request. What can you waive without really creating a harm? And what is something that really just should not be waived and that there's a valid health and safety reason to not waive something. helping you understand the consequences of perhaps, you know, the application. Again, this is just kind of reiterating that as well, that there's a lot of other things that staff can do too. Sometimes the public is very animated about Chapter 40B applications, so the extent to which you could just keep all the documents on the web where people can find them, then you're not going to be inundated with requests from public records. Helping the board understand what's a reasonable waiver, And also, and I would emphasize this as well, no matter how talented and capable your city staff are, and I think in Bedford you've got really extraordinary staff, there's a lot of merit in getting peer review consultants involved in reviewing these projects. If a project's going to go to the Housing Appeals Committee because there's a dispute, I would certainly rather see the board represented by independent consultants than folks who work for the city who are likely to be painted by the opposing developer as people with a vested interest or perhaps representing things from a political rather than a technical point of view. Peer review is just really, really helpful to ZBAs on these cases. You just get independent assistance and generally the developers would prefer it because it does reduce some of the politics in these cases. I'm just being honest with you, they tend to get political. You can retain peer review consultants at the applicant's expense. Their job is to review what the applicant has submitted, not to prepare new studies that the board may want. Everything they produce becomes part of the record, which can be very helpful to the board. The typical peer review services that I see are traffic, site simil, and often for multifamily, I would say especially for multifamily, architectural design review as well. So those are kind of fields. And to the earlier question about a pro forma review, I do cover that a little bit later in this presentation, but the board does have a right to kind of ask for changes in the project. And the applicant has a right to come back and say, that's going to make my project uneconomic. And you have a right to say, prove it to me. It's probably a good idea not to wait till day 170 to bring that up. But I will also say, I think anything you can do to avoid it is probably the best thing you can do. And I'll cover that in a few slides. During the hearing process and certainly during deliberations, focusing on kind of what are real issues that are jurisdictional will help you a lot. Instead of getting sidetracked on things that you really can't regulate anyway, you can request additional information from the applicant if you need it. Typically, they will provide it unless it's sort of extraordinary graphics that kind of help to establish the height or massing and setbacks, relationship to neighboring properties. Those are all fairly standard requests from ZBAs to applicants so that the board and the public understands how a proposed project is going to sit on the site and relate to its context. You can do this. The way it sort of works in the regulations is that you've done all the peer reviews that were possible and the developers had an opportunity to modify the proposal based on requests you've made. You kind of push back and say, well, we still want certain things that you haven't addressed. And the applicant says, I can't do that because you're going to make my project uneconomic. That's at the point where the board can say, let's take a look at a pro forma that would reflect what we're asking you to do. And we'll get someone to review it independently. That is certainly allowed under the 40B regulations. And I think sometimes it can be helpful. But I think anything you can do to keep the conversation focused on how to get the best project you can for your city, is probably the more productive thing to do. I'm certainly not averse to pro forma reviews. I'm just saying, honest to God, guys, I don't think I've ever seen it really yield anything helpful. I do think there's also the problem of the risk too, that you hire a qualified peer review consultant who comes back and says to you, the applicant's right. they can't do it. Now you've just lost your leverage. And I don't know that that really helps anybody. So I certainly understand and respect that you may reach a point where you need to do this, but I would say push as much as you can not to have to do this and just try to get the best that you can for your city. And if you need to do this, you do it, but if you can avoid it, it's probably best. The statute is very clear about the local concerns that you have the ability to sort of impose on the project. And those involve public health and public safety, environmental impact, design, site and building design both, open space in the context of the statute that really is around open space on the site, the adequacy of open space to serve the residents of the development. Um, planning concerns, but typically planning means, uh, you have a city master plan and you identify in that plan areas that are appropriate for affordable housing. And you've actually acted on that plan. So as a result of that master plan and the identification of areas that are appropriate, the city has actually caused housing to be built. That's, that's a planning realm that the housing appeals committee is clearly established is worth that they would pay attention to. but simply saying, well, we have an open space plan and we think we might like to buy that property or a master plan says this area is appropriate for commercial development and not for residential. The housing appeals committee will typically say, so where is the planning for housing and how have you addressed it? And if you haven't, then the planning argument pretty much gets set aside. I'm being pretty blunt with you, but that's just the way it works. There are, you know, the sort of general statutory recognition of quote other local concerns, but they're all really around the physical development of the site. When push comes to shove, the local concerns that are probably most paramount in the certainly everybody's mind, I think, in terms of the ability to deny one of these projects involves public health and public safety. The environmental considerations in a 40 B context. really are if the developer can comply with state environmental requirements. That's really all the statute requires them to do. It can be tricky sometimes for local officials. If there's a particular environmental concern where perhaps the state permit, whatever it may be, doesn't really adequately account for some local problem, then that becomes a separate matter. that's much more likely to happen in very small towns than in a city. But just to be clear, it's really around whether the project can satisfy the state environmental requirements that would apply to it. So public health and public safety, and to some extent, building and site design are probably the most important things for the board to try and get right. You have a couple of options. You can deny the application. You can approve it with conditions or approve it as is. I don't think I've ever seen an approval as is, except for a one unit 40B in a town on the Cape that was a Habitat for Humanity project. But there's a big difference between denial and approval with conditions. When a denial comes to the Housing Appeals Committee, the question really is, have you met your regional fair share? If you haven't, then you have a very strong burden imposed on you to show that the denial is based on factors that are more important than the regional housing need. That isn't quite the same as an approval with conditions where a developer's appealing to the Housing Appeals Committee because he or she is aggrieved by some condition you've put on the project. I'm not saying that that's a minor matter. I'm just saying denial is a much harder action to sustain, which is why you'll often hear attorneys advise DBAs, if you can figure out a way to approve it with conditions, it's probably the better thing to do. I try to sort of stay out of that. I think it's a policy call for the ZBA, but I just want you to be aware there is a difference. So if you don't have any safe harbor status, then the applicant who's unhappy can go to the Housing Appeals Committee. Other people who want to appeal would go to Superior Court or Land Court. If there is a safe harbor, then the developer can't appeal to the HAC, then all the appeals go to court. And that's sort of a big difference in the way the statute works. It was this assumption that somehow there would be this expedited administrative review. I think anybody who's dealt with the Housing Appeals Committee knows it's not an expedited review. So this is just like a summary of who's supposed to do what. Subsidizing agency has a role The select board or mayor are really the ones to sort of get the notice from the subsidizing agency and have the primary responsibility to provide the municipalities formal comments on the PEL application. The city departments should do their tactical review that they do so well and help the ZBA evaluate waivers that have been requested in order to build the project. And your job is to conduct a technical fair review, which I'm sure you do on any other matter that comes before you. Getting feedback and advice from peer review consultants, or if you decide not to do that, at least from city staff. running a public hearing process, which frankly can be sometimes quite difficult with these cases, and sometimes it's fine. And then going through that balancing test at the end, when you've gathered all the evidence that you would need to make a decision up or down, it's going through that process of vetting the local concerns against the regional need, and then preparing and voting on a decision within the timeframe established by the statute. So this little next section is about kind of what happens after all that. Do you want to take a moment to ask any questions right now?
[Unidentified]: I see a hand up, Mike.
[Mike Caldera]: Yeah. So Judy, on a prior slide, I think it might have been 25. Yeah. There was a bullet about, I think it was called working sessions that you didn't really speak to. So tell us a little bit about what those are.
[MCM00000619_SPEAKER_04]: I can't believe I skipped over that, I'm sorry. So this is one of these things where you have to get input from your city solicitor or a special counsel. Because my experience is town attorneys do not agree on this, but the concept is this. Sometimes there are just purely technical matters that would be best to let the peer review consultants and the developer and the developer's consultants and city staff go into a room and try to at least understand what the options are for perhaps addressing a particular concern. And in some communities, a ZBA member may sit in on that working session. We call them working sessions. In some communities, the ZBA has nothing to do with it. And it kind of comes to the staff or the peer review consultants to come back to the board and say, this is what we discussed. This is what we recommend based on what we heard. There are some people who don't like the working session model. The concern is that it becomes kind of a shadow public hearing. I think the counter to that is that no decisions can be made because the only authority with the decision, the only authority to make a decision on a comprehensive permit is the ZBA. But I would say I've been involved in a lot of these often at the board's request. So the board did not have to get involved in the working session. I think some boards feel that's safer, that then they're not actually ever in a position where it looks like they're carrying out a conversation behind closed doors about a matter that is the subject of a public hearing. But if your council says, it's okay for one board member to sit in and you want to do that, then I will leave it to your council. I apologize if I skipped over that, I didn't mean to.
[Unidentified]: Okay, thanks. No problem. Anybody else? Why don't I just keep going then?
[MCM00000619_SPEAKER_04]: So the comprehensive permit is over. Everybody breathes a sigh of relief. Eventually, it goes back to the subsidizing agency for a process that's called final approval. And that is when the subsidizing agency issues the regulatory agreement and indeed riders for an ownership project. and a monitoring agreement. This is sort of when the legal agreements around the project, being a comprehensive permit development, are worked out with the developer and signed. And some of these, of course, will come to the ZBA to sign as well, and it's up to you whether you want to sign them. But between the subsidizing agency and the developer, these agreements are reached that govern the compliance responsibilities of the project in terms of affordable housing benefit, monitoring and so forth. During the final approval kind of phase, the developer will prepare a fair housing marketing plan. And the subsidizing agency will review and approve that or ask for changes for it. But that's when the kind of how are we going to solicit applications from people eligible for affordable housing and how are we going to pick tenants that all gets worked out in what's called an affirmative fair housing marketing plan. that gets into how do we pick eligible people and how are we going to make sure that it's a process that's fair. There is the limited dividend restriction that the for-profit developers will have to agree to, to limit profits. And then ultimately there is what comes much later is the final cost certification. I'll talk about that a little bit more in a minute. But all this sort of final approval packaging happens before the developer is going to come back to the city and say, I'm all set with the state, I want to build my project. A well-crafted comprehensive permit will have tiers of things that the developer has to do in order to even get to a building permit, like, you know, these are things you have to do before you can put a shovel in the ground. These are things you have to do before you can get a building permit. These are things you have to do before you're going to get any certificate of occupancy. These are things you have to do before you get your final CO. That all gets kind of laid out in the decision from you folks. Well, the developer ultimately has to come back and say, I've worked everything out with the state. Here's the regulatory agreement. It's going to be recorded at the registry. Here are my final plans for my project. And at that point, someone in city government, the building inspector, other city staff, often the peer review consultants are brought back for this. There's a review process for the so-called final plans to confirm that they are substantially consistent with the approved plans listed in the comprehensive permit decision. Once in a while, a developer may come back to you and say, I need a modification of my permit. Because when I finally got on the site and did more detailed investigations, I discovered some conditions that I didn't know existed and I'm going to have to change my plans. There's a process for an applicant to come back to you. But let's assume for the sake of this discussion, they don't need any amendments. So they're going to the building department with their plans, evidence of having worked everything out with the subsidizing agency. They build their project. There are inspections during construction that the municipality, of course, would be responsible for, as it would for any other type of development. If because of the scale or size or complexity of the project, the building department needs assistance, it is typically a provision in a comp permit that the developer will have to provide some financial support to hire specialized consultants to assist the building inspector if he or she wants that assistance. When they are finished with the project, there is this cost certification report that's filed with the subsidizing agency. You get a copy of it. It's the subsidizing agency's call whether the developer made too much money or not. But you are entitled to a copy of that so that you can review it. And if you have concerns about it, you can comment to the subsidizing agency. The developer has to you know, activate this permit within three years. They have to get going within three years or the permit will lapse. They are allowed to transfer the comprehensive permit to another entity. That typically is overseen by the subsidizing agency, but clearly the DBA and the municipality are notified. If there need to be changes to the permit because of things that develop or discovered after the fact, if it's a minor change, You can approve those administratively. There's no public hearing. You just respond in 20 days. They need a minor modification. It's consistent with the plans. There's no reason to reopen the public hearing. You just approve it administratively. If they want a substantial change, then you get to say, we're not going to approve this administratively. We're going to open a public hearing on this. And the public hearing focuses on the amendment that was a change. It doesn't reopen the whole project. And, you know, there are timelines for this. If you decide that it's not a minor modification, then you need to get right on it to open to public hearing again and the whole sort of 30 day thing, all of that kicks in again. And then the project, you know, ultimately is built. And as I said, the sort of final piece of this is the cost certification report. And it really is sort of the subsidizing agencies call to approve those so called. But you should get a copy and you should insist on a copy and you should review it. And certainly, your city staff should have a look at it as well. If you have comments on it to get into the subsidizing agency. The last piece of this is just around some fair housing issues, which I don't know that these matter especially to Medford, but I just wanna make sure you're aware of them. To count on the subsidized housing inventory, affordable housing has to be made available to income eligible people in sort of a large market area, typically the area that is used to set the income limits. So that's sort of a helpful or maybe not helpful way to think about You know, you've got this sort of greater Boston area within which you have a pretty integrated labor market. And so people who work in the Boston area might very much want to live in Medford for, you know, all the right reasons. So it's important to make sure that the outreach about the units reaches, you know, people beyond the city. At the same time, of course, you do have the ability to request a local preference consideration. My experience is, for the most part, if it's a well-reasoned request, the state has generally approved them. There have been a few times when I think they've probably approved them, but not for 70%. But it really is the municipality's job to defend the request, not the developer's. So some local preference will be allowed. And local preference means that a person lives in Medford now, or works for the city, or works for some other employer in Medford, or doesn't live in Medford but has children in the Medford public schools. Those are basically the defining criteria for local preference. So back to this whole idea about kind of regional housing needs and regional disparities, the passage of this law in connection with the Federal Fair Housing Act was not a coincidence. There was so much going on in the 1960s that kind of brought all these things into the fore. Chapter 40B, whether we like it or not, sort of functions as a check on local requirements that make affordable housing difficult to build in some communities. And so over time, the Commonwealth has implemented some policies to try to further those purposes. And I would say, folks, a lot of this has been fairly recent in the last 10 to 15 years. So one of the things the Commonwealth has to do every few years is an analysis of impediments to fair housing choice. And in 2013, I think there was a real sort of, Recognition in the analysis of impediments process that 40 be itself unwittingly was contributing to some of these inequities that exist. So that, for example. it had become very difficult to build multifamily housing just about anywhere without 4EB. And so what is the Commonwealth's responsibility for that? Another aspect of this analysis of impediments was, guess what? Even where multifamily housing is being built, a lot of it is age-restricted. And so the people who most need help, or a group that does need help, which is younger families, in the workforce can't find housing. And the only way they're getting it is if it's permitted under the comprehensive permit law. And so does that make sense? What are we allowing communities to do through their zoning that might create a fair housing problem? And then kind of out of that came some policies from DHCD and also from the Attorney General's office. The DHCD policies directly affect you what the Attorney General does not, for reasons that I'll explain momentarily. DHCD adopted a policy coming out of this analysis of impediments process to address the imbalance of age-restricted housing, which really is a history to this that I don't want to bore you with. But in 1995, Congress amended the Fair Housing Act under the Housing for Older Persons Act that made it a lot easier for developers to build age-restricted housing for so-called active adults. So it opened up the door for a lot of development that was intended for households 55 and over, put in parentheses, without children. And so DHCD said, well, we've got to do something about this. So now what the state is doing and has been for the last couple of years is saying, okay, if you have a local bylaw or ordinance that supports the development of age restricted housing and your age restriction is so onerous that it bars people under 18 from living in the development, we will not approve your affordable units that you create under your zoning because your zoning is discriminatory against children. So, this may not have ever come up with you folks but has come up in a number of communities that I work in, where the age restricted housing really went beyond what what the literal language of the Housing for Older Persons Act and said not only does at least one person in the household have to be 55 and over, but everybody does, and nobody under 18 can live here. And that's just going too far. So DHCD has said, we're not going to approve these units. If that's what your zoning requires, don't ask us to put them on the subsidized housing inventory. The other thing that came out of it was this recognition again of the absence of family units that DHCD said we're not going to approve any more comprehensive permits where they don't have at least 10% of the units as three bedroom units. And I know this came up in an earlier question from Medford, like, well, what do we do if our need is mainly in smaller units? I've certainly seen in communities very close to you some developments where there were a lot of one-bedroom units and some twos and the obligatory 10% three, but the emphasis was on the smaller units. So it is possible certainly for developers to produce the smaller units, but as for including 10% three bedroom, they have no choice. That is a DHCD policy. They simply do not waive it. And the last piece of this, this is where it doesn't apply to you, but I want you to be aware of it. The analysis of impediments process said, well, what else can state government do beyond trying to sort of set policy for 40 Bs? And what happens in Massachusetts when towns adopt zoning, it doesn't go into effect until the attorney general's office blesses it. So there's a review process that happens. where zoning that's approved at a town meeting has to go to the attorney general's office, the municipal law unit for review for consistency with the statute and consistency with prevailing case law. Cities don't have to go through that attorney general review. That's why I'm saying this doesn't directly affect you. But I want you to be aware of it because people are watching for zoning that goes too far. So out of the Attorney General's office in the last few years, there have been these fair housing cautions from the Attorney General's office to town saying. You've gone too far under the Federal Fair Housing Act, you may have a problem. And most of these, I mean I know these. It's kind of funny. Most of the letters of comment from the Attorney General's office have been around to bedroom restrictions, you know so nothing over two bedrooms or age restrictions that bar people under 18. floor area limits in units that would have the effect of disqualifying families from living there. This has really sort of become very much a focus from the Commonwealth. So that focus is why that 10% rule exists. And again, it may seem a little bit inconsistent with Medford's sense of its housing needs, and I'm not debating what your needs are. I'm just saying, when the developer says, I have to do this, they're not lying to you. So those are my slides and I'm happy to answer any questions at this point. I can leave these up or I can take them down so we can all see each other, whatever you prefer. And I see a hand up and it's Jamie.
[Unidentified]: Thanks, Judy. So going on the three bedroom 10% requirement, I know this has come up with the MBTA communities requirement. With the 20% and 25% affordable and that 10% three bedrooms, is there guidance on whether those three bedrooms are required to be affordable or 20% of those three bedrooms being affordable or does the developer have their control on which units are going to be affordable?
[MCM00000619_SPEAKER_04]: The developer is not supposed to be able to skew the allocation of the affordable units. The policy is that they are evenly distributed across all unit types and sizes. And I actually did see a subsidizing agency push back once when a developer was trying to make something particular type of unit in a project all market. And the subsidizing agency said, you can't do that. So there's been a healthy pushback, which I think is good.
[Unidentified]: Yeah, absolutely. Other questions? Judy, I'm just gonna take a quick look and see if there, I'm not seeing any other hands.
[MCM00000619_SPEAKER_04]: Do you want me to stop the sharing by the way on this so we can all see each other or do you need me to keep the slides up?
[Unidentified]: No, you can take it down, that's great, thanks. Folks, if anybody does have a question now is the time, just raise your hand and we can unmute you. I am not seeing any. Judy, that was really wonderful. Thank you so much.
[MCM00000619_SPEAKER_04]: Oh, well, thank you. I think you'll probably be seeing me again. I don't know. I guess we'll find out.
[Unidentified]: That seems very likely. Okay.
[MCM00000619_SPEAKER_04]: Yeah.
[Unidentified]: So, um, I think you mentioned for you weren't sure I'm the chair and what you were saying about opening the meetings. I think that's really helpful advice. And then apart from that, we're all new within the last two or so years. And I think actually apart from that and myself, everyone's new this year. So this is really helpful to get everybody, all of us, myself included, up to speed on some of this stuff, because we've got some of these coming in the pipeline. I know, I know. All right, well, let me know what you need. All right, we will. Thank you so much. Really appreciate it. Okay. All right. Thank you so much. Have a good night. Yep. Take care. Bye bye. Bye bye.
[Denis MacDougall]: Just to let people know, my name is Dennis McDougall. I staff the zoning board. So I'm just going to throw my email address up on the screen. So if anybody's watching it on TV at home or anything, you can write that down. If you have any questions, you know, send me an email.
[Unidentified]: I'd be happy to get you the answer as soon as I can. Just making sure I actually spelled it right. Yep. All right. Sometimes I forget the second L, especially when I'm typing quickly. Well then, no problem. Dennis, thanks so much. Okay, I think that's it, folks. Thank you.