Section 59.05 - Procedure for Approval, Review, Amendment, and Repeal(1)Preliminary Municipal Review Procedure. The chief executive of the Municipality or duly authorized designee shall hold a preliminary public hearing on whether the provisions of the proposed 40R Zoning should be adopted by the Municipality. Notice shall be given in accordance with M.G.L. c. 40A, § 11 and by posting on the Municipality's website, if any, on the date of the first newspaper publication through the date of the hearing. Following the hearing, comments shall be considered by the Municipality in preparation of the proposed 40R Zoning Application.(2)Preliminary Determination of Eligibility by DHCD. Upon receipt of a 40R Zoning Application by a Municipality, DHCD will make a preliminary determination, before the Municipality votes on its proposed 40R Zoning, whether the application satisfies the approval requirements set forth in 760 CMR 59.04(1). DHCD's review will be an informal, non-adjudicatory procedure. (a) DHCD will accept 40R Zoning Applications on the last day of each month. Upon its receipt of a 40R Application, DHCD will conduct a completeness review, except that DHCD will notify a Municipality in writing or by electronic communication within 30 days after receipt if any required element of its application is missing or incomplete. Such notification shall constitute a denial of the application unless the missing or incomplete elements are addressed within 30 days after the notification or other reasonable time period established at DHCD's discretion. Applications shall be deemed complete if such written notice is not given within the 30-day completeness review time period. The 30-day period may be extended only with the written consent of the Municipality.(b) Upon expiration of the completeness review period, DHCD will conduct a review as to whether the 40R Zoning Application satisfies the approval requirements set forth in 760 CMR 59.04(1). DHCD will issue its decision upon an application within 60 days of the start of this review period. The 60-day period may be extended only with the written consent of the Municipality. If DHCD does not act upon a complete and approvable application within the 60-day period, subject to any extension, the application shall be deemed approved.(c) DHCD will communicate its determination on a 40R Zoning Application to the Municipality by issuing one of the following: 1. a Letter of Eligibility, approving the application without conditions;2. a Letter of Conditional Eligibility, approving the application with conditions that must be satisfied prior to final approval under 760 CMR 59.05(4) and, as applicable, subject to a Letter of Conditional Approval; or(d) A Letter of Conditional Eligibility may, among other matters, require modification to the proposed 40R Zoning; require modification of the calculation of Incentive Units; require the reclassification of Developable Land; or condition the issuance of the Letter of Approval upon submission of sufficient documentation that: 1. the development of a proposed 40R Zoning District is feasible;2. such proposed District otherwise satisfies the threshold approval criteria set forth in 760 CMR 59.04(1);3. the impacts of Future Zoned Units within the District will not overburden Infrastructure (which for the purposes of 760 CMR 59.05(2)(d) shall also include improvements to public Dedicated Open Space and public recreational facilities) as it exists or may be practicably upgraded to provide adequate accommodation of the demands of the District's existing and future residents and uses. See 760 CMR 59.03(1)(j); or4. the Municipality takes the actions contemplated under 760 CMR 59.05(2)(e).(e)Additional Municipal Standards Applicable to Development Under Starter Home Zoning. If DHCD determines that the Municipality has not shown that Additional Municipal Standards applicable in a Starter Home District do not Render Development Infeasible, DHCD will not issue an unconditional Letter of Eligibility. Any Letter of Conditional Eligibility pursuant to 760 CMR 59.05(2)(d) will, in addition to any conditions under 760 CMR 59.05(2)(d)1. through 3., condition the issuance of a Letter of Approval on either: 1. modification of the Additional Municipal Standards, through the Starter Home Zoning or otherwise, so that no Additional Municipal Standards will apply to development under the Starter Home Zoning, or2. demonstration that the Additional Municipal Standards applicable in a Starter Home District do not Render Development Infeasible. DHCD will also inform the Municipality that it may seek DEP determination that the Municipality has demonstrated the existence of specific local conditions that warrant imposition of such Additional Municipal Standards to development under the Starter Home Zoning.(f)DEP Review of Additional Municipal Standards Applicable to Development Under Starter Home Zoning. 1. Upon receipt of a Letter of Conditional Eligibility pursuant to 760 CMR 59.05(2)(e), a Municipality may request a review and determination by DEP regarding whether the Municipality has demonstrated a reasonable, objective basis, based on the documentation of specific local conditions, for imposition of Additional Municipal Standards to development under the Starter Home Zoning.2. Promptly following receipt of such request, DHCD will forward to DEP a copy of the Municipality's 40R Zoning Application for a Starter Home Zoning District, including any supporting materials pertaining to Additional Municipal Standards.3. DEP's review will be an informal, non-adjudicatory procedure. DEP may elect, in its discretion, to request that DHCD request additional information from the Municipality, which the Municipality shall submit to DHCD within 30 days thereafter for forwarding to DEP for its review and determination. DEP will provide its determination concurrently to both DHCD and the Municipality.4. If DEP determines that the Municipality has not demonstrated that local conditions warrant imposition of Additional Municipal Standards to development under the Starter Home Zoning, the requirements of the initial Letter of Conditional Eligibility remain in effect unchanged.5. If DEP determines that the Municipality has demonstrated that local conditions warrant imposition of Additional Municipal Standards to development under the Starter Home Zoning, DHCD will issue a revised preliminary determination of eligibility in accordance with 760 CMR 59.05(2)(c) within 30 days, which may include as an alternative condition that the Municipality submit any additional information needed to demonstrate compliance with statutory requirements as set out in DHCD guidance. (g) In the event of issuance of a Letter of Denial, a Municipality may re-apply for approval after addressing any deficiencies in a prior application, provided that such reapplication shall be treated as a new application under 760 CMR 59.03. (h) In the event of a constructive approval of a 40R Zoning Application due to DHCD's failure to act within the specified time period, the Municipality may request in writing the issuance of a Letter of Eligibility within 60 days of the date of constructive approval, and DHCD will issue such Letter within 21 days of its receipt of the request. The Municipality must thereafter comply with the requirements of 760 CMR 59.05(3) and (4).(3)Municipal Adoption of 40R Zoning. Following receipt of DHCD's preliminary determination of eligibility, the Municipality must formally adopt its 40R Zoning pursuant to M.G.L. c. 40A, § 5 prior to final 40R Zoning approval by DHCD. If the Municipality is proceeding based on receipt of a Conditional Letter of Eligibility, it shall make any changes to its 40R Zoning and other elements of the 40R Zoning Application that have been required by DHCD prior to formally adopting the 40R Zoning pursuant to M.G.L. c. 40A, § 5. The Municipal vote to adopt the 40R Zoning must occur within three years of the date of the Letter of Eligibility or Letter of Conditional Eligibility, as applicable.(4)Final 40R Zoning Approval by DHCD. (a)Submission by Municipality. Upon adoption of the 40R Zoning, the Municipality shall submit to DHCD proof of such adoption. If DHCD had required any amendment to the 40R Zoning or any element of the 40R Zoning Application, or any other related matter, in a Letter of Conditional Eligibility, the Municipality's submission shall confirm and demonstrate that all such amendments have been made and incorporated. If any element of the application subject to a condition in the Letter of Conditional Eligibility, including the requirements of 760 CMR 59.03(1)(j), has not been amended as required by that letter, the Municipality shall identify those elements remaining unaddressed and may request a Letter of Conditional Approval from DHCD.(b)DHCD Review. DHCD will accept submissions on the last day of each month. DHCD's review of the submission will be an informal, non-adjudicatory procedure. DHCD will confirm its final approval by issuance of a Letter of Approval, or will issue a Letter of Conditional Approval or Letter of Denial within 30 days of receipt of the submission. The 30-day period may be extended only with the written consent of the Municipality.(c)Letter of Approval. If the submission satisfies all of the approval criteria set forth in 760 CMR 59.04(1), as well as all conditions in a Letter of Conditional Eligibility, DHCD will issue a Letter of Approval which will specify, among other matters, the number of Incentive Units and the amount of the Zoning Incentive Payment that shall be made to the Municipality.(d)Letter of Conditional Approval. If a Letter of Conditional Approval is issued, it will specify all conditions necessary to ensure consistency with M.G.L. c. 40R and 760 CMR 59.00 which must be met and demonstrated to DHCD before the Municipality is eligible to receive a Letter of Approval. A Letter of Conditional Approval may provide that, with respect to an identified geographic area within the District, DHCD has determined that a Municipality has met all conditions necessary to ensure minimum compliance with M.G.L. c. 40R and 760 CMR 59.00, and therefore may be entitled to receive a partial Zoning Incentive Payment based on the number of Incentive Units within the identified geographic area that can be developed prior to satisfaction of any outstanding conditions and, if so, the amount of such partial Zoning Incentive Payment. Upon satisfaction of any outstanding conditions specified in the Letter of Conditional Approval pertaining to Infrastructure, Smart Growth or other matters necessary to ensure consistency with M.G.L. c. 40R and 760 CMR 59.00, a Municipality shall submit to DHCD proof of such satisfaction for review pursuant to 760 CMR 59.05(4)(a). The Letter of Conditional Approval will specify the amount of Zoning Incentive Payment that is conditioned upon satisfaction of outstanding conditions.(e)Changes to 40R Zoning. The Municipality shall identify in its submission under 760 CMR 59.05(4) all differences between the proposed 40R Zoning that had been submitted to DHCD for review as part of DHCD's preliminary determination of eligibility under 760 CMR 59.05(2), and the 40R Zoning as adopted by the Municipality (see 760 CMR 59.05(3) ), as well as any other changes to the original application. If there has been any change to the 40R Zoning or any other element of the original 40R Zoning Application, other than changes that DHCD had required in a Letter of Conditional Eligibility, then DHCD may treat the submission as an amendment to the application, and it will notify the Municipality of its decision to do so in writing. In such event DHCD will conduct its review under 760 CMR 59.05(4) within 60 days of receipt of the submission. The 60-day period may be extended only with the written consent of the Municipality.(f)Constructive Approval. In the event of a constructive approval of a final submission due to DHCD's failure to act within the specified time period, the Municipality may request in writing the issuance of a Letter of Approval within 60 days of the date of constructive approval, and DHCD will issue such Letter within 21 days of its receipt of the request.(5)Amendments and Repeals With Respect to an Approved District. Any proposed amendment or repeal of the 40R Zoning, any Design Standards, or the boundary of the District or any sub-districts; or any amendment or adoption of the Plan Approval Authority's administrative rules, if adopted after issuance of a Letter of Approval, shall not take effect under M.G.L. c. 40R and 760 CMR 59.00 without written approval by DHCD in accordance with 760 CMR 59.05(5). In addition, any proposed adoption or enlargement of an Historic District within the boundary of the District, if adopted after issuance of a Letter of Approval, shall be subject to DHCD review to determine whether the adoption or enlargement of the Historic District would cause the Approved District to fail to comply with the approval criteria set forth in 760 CMR 59.04. Each request for an amendment, enlargement, repeal or adoption must be submitted to DHCD on the last day of a month, upon the form of application or in the format determined by DHCD. DHCD's review will be an informal, non-adjudicatory procedure, to be conducted in accordance with 760 CMR 59.05(2). DHCD will, as applicable, issue an amended Letter of Eligibility for a proposed amendment only if, and to the extent that, DHCD finds in its discretion that the Approved District as amended will remain in compliance with the approval criteria set forth in 760 CMR 59.04(1). An amendment to the 40R Zoning, any Design Standards, or the boundary of the District or any sub-districts, or any amendment or adoption of the Plan Approval Authority's administrative rules that would have the effect of decreasing the number of Incentive Units within an Approved District shall not take effect under M.G.L. c. 40R and 760 CMR 59.00 until DHCD has issued written confirmation that all repayment of monies required under 760 CMR 59.06(3) has occurred. DHCD may, in its discretion, determine that it is appropriate to issue a Letter of Conditional Eligibility based on the changes to the Approved District as amended. If DHCD determines that the adoption of enlargement of the Historic District would cause the Approved District to fail to comply with the approval criteria set forth in 760 CMR 59.04, DHCD may, in its discretion, determine that it is appropriate to issue a Letter of Noncompliance or Certificate of Revocation in accordance with 760 CMR 59.07(3). (a)Treatment of Proposed Amendment. Except as otherwise provided in 760 CMR 59.05(5)(b) through (d), a proposed amendment shall be treated as a new 40R Zoning Application pursuant to 760 CMR 59.03, 59.04, and 59.05(1) through (4). The amendment will not take effect under M.G.L. c. 40R and 760 CMR 59.00 until: 1. DHCD has issued an amended Letter of Approval or Letter of Conditional Approval; and2. if DHCD issues a Letter of Conditional Approval, DHCD confirms that all conditions have been satisfied. A proposed amendment shall include an evaluation of its effect upon the Municipality's Comprehensive Housing Plan.(b)Non-substantial Modifications. DHCD may, upon written request of the Municipality, review and approve within 30 days after the date of receipt of such request a non-substantial modification to the 40R Zoning, Design Standards, Municipal Historic District regulations, or a District or sub-district boundary. The Municipality shall, in its request, certify to DHCD that the proposed modification will not have the effect of increasing or decreasing the area of an Approved District or the number of Incentive Units or Bonus Units, adopting or enlarging a Historic District or substantially modifying the requirements applicable in an Historic District within the 40R District, reducing consistency with the Comprehensive Housing Plan, or Unreasonably Impairing the development of Projects within the Approved District. Failure of DHCD to issue a decision on a request for approval of a non-substantial modification within such 30-day period shall be deemed a denial. By mutual agreement, the 30-day time period may be extended. (c)Boundary Change Amendments. A Municipality may at any time propose an amendment that solely would change the boundary of an Approved District and decrease its area, pursuant to the following review procedure. The Municipality shall provide 60 days prior written notice to DHCD that such boundary change amendment has been proposed for action by the Municipal legislative body, together with a calculation of the decrease in the number of Incentive Units within the District, an evaluation of the effect upon the Municipality's Comprehensive Housing Plan, and certification by the Municipality that there will be no other modification to the 40R Zoning or the Design Standards. The Municipality shall provide subsequent written notice to DHCD if it adopts such boundary change amendment. The amendment will not take effect under M.G.L. c. 40R and 760 CMR 59.00 until DHCD has issued an amended Letter of Conditional Approval, conditioned upon its confirmation that all repayment of monies required under 760 CMR 59.06(3)(a) has occurred.(d)Repeals. A Municipality may at any time repeal the 40R Zoning for an Approved District, pursuant to the following review procedure. The Municipality shall provide 60 days prior written notice to DHCD that such repeal has been proposed for action by the Municipal legislative body under applicable law, and it shall provide subsequent written notice to DHCD if such Municipal repeal action is taken. Such prior written notice shall include a recalculation of the number of Incentive Units still developable within the District if the 40R Zoning is repealed. This recalculation shall count as Incentive Units all Bonus Units already constructed or approved within the District, and all Bonus Units for which applications have been submitted to the Plan Approval Authority prior to the date upon which the request for repeal is submitted to DHCD. The repeal shall not take effect under M.G.L. c. 40R and 760 CMR 59.00 until DHCD has issued an amended Letter of Conditional Approval, conditioned upon its confirmation that all repayment of monies required under 760 CMR 59.06(3)(b) has occurred.(6)Area Waiver and Density Reduction Requests. For a Smart Growth Zoning District, a Municipality may request that DHCD approve an area waiver under 760 CMR 59.04(2) or a density reduction under 760 CMR 59.04(3), according to the following procedure. The Municipality shall submit such request in writing to DHCD with its 40R Zoning Application, along with such supporting material as DHCD may require. DHCD's review of the request will be an informal, non-adjudicatory procedure. If DHCD has not approved a request in writing within 30 days of its receipt, such request shall be deemed denied.Amended by Mass Register Issue 1355, eff. 12/29/2017.