The City has recently completed calculations to determine whether or not Newton can assert Safe Harbor Protections under Chapter 40B, which would provide an opportunity to exert more control over approvals or denials of Comprehensive Permits. Safe Harbor might be claimed by calculations of either land area or number of housing units, and the City’s updated calculations indicate that Newton falls short of both measures.
Deputy City Solicitor Jonah Temple, and Deputy Director of Planning and Development, Jennifer Caira, sent this memo to the Zoning Board of Appeals, updating on their recent calculation of Chapter 40B Safe Harbor Protections. It states that Newton currently has not met the criteria to assert Safe Harbor.
Chapter 40B (M.G.L. c 40B) is a state law designed to establish a local review and approval process (“Comprehensive Permit”) empowering the Zoning Board of Appeals of each municipality to make decisions that will aid in the development of low- and moderate-income housing. In other words, the ZBA would make all decisions that would otherwise be under other approving bodies, like the City Council, and all local ordinances — zoning by-laws, local historic district regulations, storm-water management, etc. — would fall under the ZBA to make determinations of compliance or waivers (except for state regulations).
Chapter 40B also provides for an appeal process (for denials or approvals) that would fall under the state’s Housing Appeals Committee (HAC), which would have the authority to overturn local ZBA decisions only if that municipality has not met its minimum affordable housing obligations. These include:
- Land Area: The low- or moderate-income housing has been developed on sites that equal 1.5% or more of the total land area in the community that is zoned for residential, commercial, or industrial use;
- Housing Units: The number of low- or moderate-income housing units exceeds 10% of the total number of housing units reported in the most recent Federal census; or
- The application would consist of more than 0.003 of the total land area in the community that is zoned for residential, commercial, or industrial use — or 10 acres, whichever is larger — in one calendar year.
If the municipality has not met one of these criteria and denies a permit application, then the HAC can not only overturn the ZBA’s decision, but any conditions that could have been attached may no longer apply to the permit.
According to the update memo, the City currently has not met the criteria to assert Safe Harbor.
SHI Eligibility: The Department of Housing and Community Development (DHCD) provides guidelines and regulations for when and how housing units may become eligible and counted in the municipality’s Subsidized Housing Inventory (SHI). For 40B projects, eligibility for the SHI begins on the date that the permit has been issued and filed with the City Clerk but can be lost if the building permit is not issued within 1 year of receiving the approval. It can become eligible again only after the building permit is issued. For special permit projects, eligibility for SHI does not begin until after DHCD approves the affordable units as “Local Action Units” (“LAU”). DHCD has a process to confirm that these units are not only affordable but subject to long-term affordability deed restrictions, subject to fair housing marketing plans, and ongoing monitoring. The City apparently has a practice of applying for DHCD LAU approval after commencement of construction but prior to completion and marketing of units. This has resulted in special permit projects such as Northland and Riverside not being counted at this time.
1.5% of Land Area: Calculation of the general land area minimum requires dividing the land area of affordable housing sites inventoried or eligible to be on the City’s SHI by the total developable land area zoned for residential, commercial, or industrial use. The City has determined that it has 104.50 acres of SHI Eligible Housing units and its total developable land area is 7,713.99 acres. Dividing the former by the latter yields 1.35%, which falls short of the required 1.5%.
10% of Housing Units: Calculation of the 10% Safe Harbor requires dividing the eligible SHI housing units by the total number of housing units. The City has determined that it has 3,170 SHI Eligible Housing units (2,878 officially inventoried and published by DHCD and 292 eligible but not listed or published by DHCD) and 32,346 total housing units according to the 2010 Census. Dividing the SHI Eligible units by the total number of units yields 9.8%, which falls short of the required 10%.
However, the update memo does suggest that the City may meet the 10% Safe Harbor sometime next year — as Northland may come online and receive LAU approval. It cautions that the calculation will fluctuate as projects evolve — e.g., Dunstan East is currently counted but may lose eligibility if it does not receive a building permit by September.
