What is the process through the town when a developer presents a 40B proposal? The information below aims to break down the process to help residents understand the steps in order to follow the project either through open meetings, informational meetings or public hearings.
Residents interested in knowing when these meetings occur, can check the Calendar of Meetings and subscribe to receive email/text notification for when board/committee meeting agendas are posted online.
For Towns Under the 10% Threshold or Without Safe Harbor Status (Weston)
- A developer, with or without its team, will ask to present introductory information about their proposed project
- Meetings are held with Town officials and/or Town boards' open public meetings, such as the Affordable Housing Trust, the Planning Board, and the Select Board
- The developer files for a Project Eligibility Letter (PEL) with the state through a subsidizing agency that matches the 40B project
- e.g. MassHousing for rental/ownership projects seeking funding through their finance programs
- The subsidizing agency notifies the Town of the application and gives a 30-day period to submit comments about the project
- Informational public meetings through various Town boards/committees may occur during this time period
- The Select Board receives comments from Town Departments and Committees about the project and issues a response to the subsidizing agency that incorporates the comments
- The subsidizing agency issues the PEL to the developer if it fits Ch. 40B regulations.
- The time period to issue the PEL is unspecified.
- PELs are not issued if the project doesn't meet 40B regulations or there is an issue with the application
- Once the developer receives the PEL, it will typically file for a Comprehensive Permit through the Town’s Zoning Board of Appeals (ZBA)
- The ZBA will hold a series of public hearings beginning within 30 days of receipt of the Comprehensive Permit application
- The ZBA thoroughly reviews the project within 180 days
- The review includes traffic, school, environmental, and financial impact studies, peer reviews, etc.
- The ZBA must review the project based on 40B zoning guidelines and wetland protection, not the Town’s zoning by-laws, traffic or school impacts; however, if the developer wishes to work through a friendly process with the town, certain mitigating conditions may be agreed upon
- After the review or the 180 days, the ZBA closes the public hearing and deliberates
- A decision must be filed with the Town Clerk within 40 days after closing the public hearing
- The decision will either approve or deny the comprehensive permit and may contain conditions
- Assuming the comprehensive permit is approved and no appeal is filed within 20 days after the decision is filed, the developer prepares a Final Approval application and submits it to the subsidizing agency
- A critical component of Final Approval is the execution of the applicable Regulatory Agreement
- Assuming the subsidizing agency approves the developer’s Final Approval application, the developer prepares final engineering and architectural plans, satisfies all Comprehensive Permit conditions that must be completed prior to the issuance of a Building Permit, and applies for a Building Permit with the Town
For Towns That Have Met the 10% Threshold or Has Safe Harbor Status
In general terms, Safe Harbor status under Chapter 40B refers to the conditions under which the Zoning Board of Appeals' (ZBA) decision to deny a comprehensive permit qualifies as being consistent with local needs, i.e. 10% of the town's housing stock is affordable or the town has safe harbor through the certification of its Housing Production Plan. These conditions must have been met prior to the date a developer's Comprehensive Permit application was filed with the ZBA.
Once the town has met either condition, the ZBA asks developers to work within the town's own zoning by-laws.