[HISTORY: Adopted by the Town of Barnstable
as indicated in article histories. Amendments noted where applicable.]
[Adopted 6-17-1999; amended 9-23-1999 (Ch. III, Art. LXIII, of the General
Ordinance)]
The purpose of this article is to define a coherent
set of policies and objectives for the development of affordable housing
in compliance with MGL, Ch. 40B, §§ 2023, the Cape
Cod Commission's Regional Policy Plan for Cape Cod, the Town of Barnstable's
Comprehensive Plan and various initiative programs developed by Federal
State, County and Town government. It is intended that affordable
housing units that result from this article be considered as affordable
housing units for the purposes of MGL Ch. 40B §§ 20
- 23. This article is also intended to assure that an appropriate
share of the remaining undeveloped land in the Town is used to meet
the Town's critical need for affordable housing and to promote the
inclusion of a fair share of the cost of construction of affordable
housing in all residential and nonresidential land development activity
in the Town of Barnstable.
As used in this chapter, the following terms
shall have the meanings indicated:
The Housing Committee of the Town of Barnstable acting in an advisory capacity to the Town Council pursuant to § 9-6.
A dwelling unit that by deed restriction is and will remain
(a) available for sale and sold at a selling price that will result
in an annual shelter cost of not more than 30% of the annual household
income of a qualified affordable housing unit purchaser or (b) available
for rental and rented at an annual rent that will result in an annual
shelter cost of not more than 30% of the annual household income of
a qualified affordable housing unit tenant, not including any unit
rented to a tenant receiving rental assistance under 42 U.S.C. § 1437f
or any similar rental assistance program.
The Comprehensive Plan of the Town of Barnstable, adopted
by the Town Council on October 30, 1997, and approved by the Cape
Cod Commission on February 12, 1998, as amended from time to time.
A provision, acceptable in form and substance to the Town
of Barnstable, in a deed to real property that runs with the land
in perpetuity so as to be binding on and enforceable against any person
claiming an interest in the property. Any restriction created under
this article shall survive any bankruptcy, insolvency or other action,
and shall not be subject to nullification for any reason.
An agreement between the Town acting through the Town Council
and an applicant entered into in accordance with Section 14 of the
Cape Cod Commission Act and this article which provides for the development
of affordable housing in the Town and establishes the permitted uses,
densities, location and other characteristics of the development.
An account established and operated for the purpose of creating
or preserving affordable housing by the Town of Barnstable or the
Barnstable Housing Authority, or a housing trust or community development
corporation created under the laws of Massachusetts. Said funds can
specifically be used to purchase and improve land, to purchase dwelling
units or to develop new or rehabilitate existing dwelling units for
purchase or rental by qualified affordable housing unit purchasers
or tenants or to preserve existing affordable housing in the affordable
housing inventory. Expenditures from the Local Housing Fund will be
determined annually by the Town Council through the adoption of a
housing action plan.
The Town of Barnstable Planning Board.
An individual or household with total annual
income that does not exceed the following percentages of the median
income for the Town of Barnstable, as determined annually by the United
States Department of Housing and Urban Development:
Income from part-time employment of full-time
students enrolled in and attending a public school or accredited educational
institution shall not be considered part of a household's total annual
income.
Considered to be any of the following as determined by the
Building Commissioner:
A single-family house damaged or destroyed by
causes not under the owner's control regardless of the length of ownership,
provided the replacement house is not more than 20% larger in volume.
A single-family home that has been owned for
the last three years by the current owner or immediate family, and
is being replaced for this owner's use.
A single-family home where the portion saved
and to be reused in the new design and construction represents at
least 20% of the value of the existing structure.
[Amended 2-17-2000]
A.
This article shall apply to any division of land into
two or more lots for residential use which requires action of the
Planning Board under MGL Ch. 41, §§ 81K through 81GG
or otherwise, whether or not subdivision approval is required.
B.
This article shall apply to the construction of single-family, multifamily and/or condominium residential units on any lot or lots under common ownership with a construction value of greater than $100,000 per unit. The construction of affordable housing units, as defined in § 9-2 above, are specifically exempt, as are exempt replacement houses as defined under § 9-2 above.
C.
This article shall apply to any combination of land division and development activity stated in Subsections A and B above, except for the land development activities of a limited profit corporation, not-for-profit or Town agency engaged in providing affordable housing under MGL Ch. 40B, or any charitable, not-for-profit, tax exempt corporation or entity.
D.
This article shall apply to the construction of any
nonresidential development or addition, or the nonresidential area
of a mixed use development. It shall not apply to interior renovation,
or reconstruction or replacement activities.
Any land division/development activity granted in accordance with § 9-3 shall be subject to the following requirements:
A.
In a development described in § 9-3A consisting of less than 10 acres, the applicant shall pay an inclusionary housing fee of $500 per lot created. Such payments shall be made to the Local Housing Fund established under this article upon endorsement or approval by the Planning Board.
B.
In a development described in § 9-3A consisting of 10 or more acres at least 10% of the lots created shall be dedicated by deed restriction to affordable housing units, and the applicant and any successor in interest shall comply with Subsection E below. Any fraction of a whole lot resulting from this calculation shall require the payment of an inclusionary housing fee based on 10% of the average value of all lots created by the development less the value of any dedicated lots.
C.
In a development described in § 9-3B, consisting of less than 10 housing units the applicant shall pay an inclusionary housing fee based on $10 per $1,000 of the building permit value of the units created. Such payments shall be made to the Local Housing Fund established under this article at the time of issuance of the building permit.
D.
In a development described in § 9-3B, consisting of 10 of more units, at least 10% of the residential units constructed shall be dedicated by deed restriction to affordable housing units, and the applicant and any successor in interest shall comply with Subsection F below. Any fraction of a whole unit resulting from this calculation shall require the payment of an inclusionary housing fee based on 10% of the average value of all units created by the development less the value of any dedicated units.
E.
Inclusionary housing fee.
(1)
In a development described in § 9-3D, the applicant shall contribute at the time of issuance of a building permit an inclusionary housing fee as follows:
(2)
Such payments as set forth above shall be made at
the time of issuance of the building permit to the Local Housing Fund
established under this article. Such funds may be utilized for the
continued development of appropriate methods and approaches to analyze
the impacts of nonresidential development on the nature and quantity
of affordable housing within the Town of Barnstable and the possible
methods to mitigate and/or address same
F.
When house lots and/or units are provided under Subsections B or D above, the applicant shall, subject to such deed restrictions and other requirements as the Town shall require in order to assure compliance with MGL Ch. 40B, § 20 to 23, either by:
(1)
Conveyance of such lots to a government agency or
nonprofit organization approved by the Town for the construction of
affordable housing units for the sale and/or lease to qualified affordable
housing unit purchasers or tenants.
(2)
Conveyance of constructed affordable housing units
to a government agency or nonprofit organization approved by the Town
who shall offer said unit for sale and/or lease to qualified affordable
housing unit purchasers or tenants. The proceeds of any such sale
and/or lease shall be delivered to the applicant within 30 days of
payment.
G.
Appeals.
(2)
Within 10 days after paying the fee, the applicant
shall appeal in writing to the Town Manager, based upon one of the
following specific criteria:
(a)
A mistake or error in the calculation in the land
or building value;
(b)
Special circumstances relating to the physical or
environmental conditions of the site that result in an excessive fee
for this particular proposal;
(c)
The application of this article makes the development
of any lot or parcel of land uneconomic or without reasonable alternative.
(3)
The Town Manager shall forthwith designate a hearing
officer who shall hold a hearing and make a written determination
within 21 days of the filing of the appeal. If the hearing officer
determines that the fee is excessive, a rebate shall be made forthwith.
Work on the project may proceed notwithstanding the filing of the
appeal.
All inclusionary affordable housing units and/or
lots created under this article shall meet the following minimum requirements:
A.
Affordable housing units and/or lots within market
rate developments shall be integrated with the rest of the development
and shall be compatible in design, appearance, construction and quality
of materials with the other units and/or lots. Interior features of
affordable units shall comply in all respects with the minimum design
and construction standards set forth in the Local Initiative Guidelines,
by the Division of Housing and Community Development, July 1996, or
as amended.
B.
Affordable housing units and/or lots shall be provided
coincident with the development of the market rate units and/or lots,
but in no event shall the development of the affordable units and/or
lots be delayed beyond the schedule below:
|
Market Rate Unit/Lot %
|
Affordable Unit/Lot %
| |
|---|---|---|
|
Up to 30%
|
None required
| |
|
30% + 1 unit
|
At least 10%
| |
|
Up to 50%
|
At least 30%
| |
|
Up to 75%
|
At least 50%
| |
|
75% + 1 unit
|
At least 70%
| |
|
Up to 90%
|
100%
|
A.
In lieu of applying the specific provisions of this article, a person seeking to undertake a development described in § 9-3 may apply to the Town to enter into a development agreement pursuant to the Town's Development Agreement Ordinance. The Barnstable Housing Committee shall act as a reviewing body for any development agreement proposed under this section and shall advise the Town Council if such development agreement provides benefits to the Town that are at least as beneficial to the Town as the affordable housing benefits provided for in this article. In deliberating possible development agreement provisions, the Town shall take into consideration any combination of the following:
(1)
Conveyance to the Town or the Town's designee of land that the Town determines to be suitable for the construction of at least as many dwelling units as are required by § 9-4.
(2)
The construction of required dwelling units at locations
in the Town of Barnstable other than the location that is the subject
of the application.
(4)
Any dwelling units built or lots conveyed pursuant
to this section shall be of a design and quality and in locations
found by the Town to be consistent with the Comprehensive Plan, including
the requirement that affordable housing be distributed throughout
the Town.
(5)
The need for any other requirements or restrictions
in a development agreement that are necessary or appropriate to assure
that the purposes of this article are carried out. Such requirements
may include, but are not limited to, design standards, regulatory
agreements, monitoring and reporting requirements, unrestricted access
to the applicant's financial records, periodic audits and penalties
for noncompliance
B.
Development agreement applicants are encouraged to
provide at least 70% of any dwelling units or house lots to be provided
under a development agreement for persons or families living or working
in the Town or having a substantial historical and current connection
with the Town by reason of prior residence or attendance at Town schools
and current residence of close relatives in the Town.
A.
The maximum housing cost for affordable units created
under this article is as established by Massachusetts Division of
Housing and Community Development, Local Initiative Program.
B.
Potential purchasers of affordable units created under
this article are required to submit copies of the last three years
federal and state income tax returns, and to certify, in writing prior
to occupancy of the unit that his/her or their family's income does
not exceed the maximum.
Each affordable unit created under this article
shall have restrictions governing its resale or reoccupancy to preserve
the long-term affordability, to preserve its continued availability
as affordable housing in perpetuity, including the following:
A.
A marketing plan or other method of advertisement
for availability of the affordable unit(s) and selection of buyer
or tenant of the affordable unit(s) to be created under this article
shall be provided to the Town.
B.
Resale price. subsequent resale of an affordable unit
shall be made to a qualified affordable housing purchaser and shall
be based on the initial discount rate applied to the sales price of
the unit, which shall be recorded at the time of initial sale, which
shall be applied to any subsequent resale of the unit.
C.
Right of first refusal to purchase. The purchaser
of an affordable unit shall execute a deed rider in a form provided
by the Department of Housing and Community Development, granting the
Town of Barnstable the right of first refusal to purchase the property
in the event that a subsequent qualified purchaser can not be found.
In order to review and analyze the application
of a nonresidential inclusionary housing linkage fee, there is hereby
created an ad hoc Inclusionary Housing Committee (IHC), as follows:.
A.
The IHC shall be composed of one representative from
the Barnstable Housing Committee, Barnstable Housing Authority, Barnstable
Economic Development Commission, Hyannis Area Chamber of Commerce,
Barnstable Town Manager and two representatives from the Barnstable
Town Council.
B.
The IHC shall report back to the Town Council on the
application of this article to nonresidential development no later
than September 9, 1999.
This article shall take effect on the following
dates:
A.
For residential construction projects: building permits
issued on or after August 2, 1999.
B.
For approval not required (ANR) plans: endorsement
on or after August 2, 1999.
C.
For subdivisions (definitive plan approval): definitive
plan approval on or after September 6, 1999.
D.
For open space residential development projects: development
plans approved on or after October 4, 1999.
E.
For nonresidential construction projects: building
permits issued on or after November 1, 1999.
A.
To the extent that a conflict of interest exists between
this article and other ordinances of the Town of Barnstable, the more
restrictive provisions shall apply.
B.
If any provision of this article is held invalid by
a court of competent jurisdiction, the remainder of the article shall
not be affected thereby. The invalidity of any section or sections
or parts of any section or sections of this article shall not affect
the validity of the remaining sections or parts of sections or the
other ordinances of the Town of Barnstable.
[Adopted 11-16-2000; amended 10-3-2002]
A.
The intent of this article is to provide an opportunity
to bring into compliance many of the currently unpermitted accessory
apartments and apartment units in the Town of Barnstable, as well
as to allow the construction of new dwelling units accessory to existing
single-family homes to create additional affordable housing.
B.
This article recognizes that although unpermitted
and unlawfully occupied, these dwelling units are filling a market
demand for housing at rental costs typically below that of units which
are and have been lawfully constructed and occupied.
C.
It is in the public interest and in concert with its
obligations under state law, for the Town of Barnstable to offer a
means by which so-called unpermitted and illegal dwelling units can
achieve lawful status, but only in the manner described below.
D.
It is the position of the Town of Barnstable that
the most appropriate mechanism for allowing for the conversion of
unlawful dwelling units to lawful units is found in MGL c. 40B, §§ 20
to 23, the so-called "Comprehensive Permit" program. This provision
of state law encourages the development of low- and moderate-income
rental and owner-occupied housing and provides a means for the Board
of Appeals to remove local barriers to the creation of affordable
housing units. These barriers include any local regulation such as
zoning and general ordinances that may be an impediment to affordable
housing development.
E.
The Local Comprehensive Plan states that the Town
should commit appropriate resources to support affordable housing
initiatives. Under this article, the Town commits the following resources
to support this affordable housing initiative:
(1)
Waiver of fees for the inspection and monitoring of
the properties identified under this article;
(2)
Designation of Town staff to assist the property owner
in navigating through the process established under this article;
(3)
To the extent allowable by law, the negative effect
entailed by the deed restriction involved will be reflected in the
property tax assessment; and
(4)
To assist property owners in locating available municipal,
state and federal funds for rehabilitating and upgrading the properties
identified under this article.
F.
The Local Comprehensive Plan supports, in conjunction
with a variety of other strategies, the conversion of existing structures
for use as affordable housing.
G.
Through the creation of a local Chapter 40B program,
which uses state and federal subsidies, the Town can create a mechanism
to utilize existing structures and to construct new accessory structures
for the creation of affordable housing units that is consistent with
the Town's identified housing needs.
As part of the Town's efforts to create the
type of affordable housing that best meets the needs of the Town and
its residents, the Town Manager and staff designated by the Town Manager
shall establish a screening process and criteria for the preexisting
and unpermitted units described herein, as well as for the construction
of new units accessory to single-family homes, as part of a local
Chapter 40B program which program will provide the state or federal
subsidy necessary to establish standing under Chapter 40B for units
being created and/or permitted.
Recognizing that the success of this article
depends, in part, on the admission by real property owners that their
property may be in violation of the Zoning Ordinances of the Town,[1] the Town hereby establishes the following amnesty program:
A.
The threshold criteria for units being considered
as units potentially eligible for the amnesty program are:
(1)
Real property containing a dwelling unit or dwelling
units for which there does not exist a validly issued variance, special
permit or building permit, does not qualify as a lawful, nonconforming
use or structure, for any or all the units, and that was in existence
on a lot of record within the Town as of January 1, 2000; or
(2)
Real property containing a dwelling unit or dwelling
units which were in existence as of January 1, 2000, and which have
been cited by the Building Department as being in violation of the
Zoning Ordinance; and
(4)
If any dwelling unit or units identified herein are
occupied during the period of time when amnesty is in effect, said
unit must be inspected by the entity designated by the Town Manager
and found to be in conformance with the State Building Code and State
Sanitary Code.
B.
The procedure for qualifying units that meet the threshold
criteria for the amnesty program is as follows:
(1)
The unit or units must either be a single unit accessory
to an owner occupied single-family dwelling or one or more units in
a multifamily dwelling where there exists a legal multifamily use
but one or more units are currently unpermitted;
(2)
The unit(s) must receive a site approval letter under
the Town's local Chapter 40B program;
(3)
The property owner must agree that if s/he receives
a comprehensive permit, the unit or units for which amnesty is sought
will be rented to a person or family whose income is 80% or less of
the area median income (AMI) of Barnstable-Yarmouth Metropolitan Statistical
Area (MSA) and shall further agree that rent (including utilities)
shall not exceed the rents established by the Department of Housing
and Urban Development (HUD) for a household whose income is 80% or
less of the median income of Barnstable-Yarmouth Metropolitan Statistical
Area. In the event that utilities are separately metered, the utility
allowance established by the Barnstable Housing Authority shall be
deducted from HUD's rent level.
(4)
The property owner must agree, that if s/he receives
a comprehensive permit, that s/he will execute a deed restriction
for the unit or units for which amnesty is sought, prepared by the
Town of Barnstable, which runs with the property so as to be binding
on and enforceable against any person claiming an interest in the
property and which restricts the use of one or more units as rental
units to a person or family whose income is 80% or less of the median
income of Barnstable-Yarmouth Metropolitan Statistical Area (MSA).
C.
The procedure for obtaining amnesty is as follows:
(2)
Any protection from zoning enforcement under this article shall terminate when: (a) A written determination is issued under the local Chapter 40B program that the criteria under Subsection B and the local Chapter 40B program cannot be satisfied; or (b) it is determined that the property owner is not proceeding diligently with his/her Chapter 40B application; or (c) the property owner's Chapter 40B application is denied. A person is deemed "not to be proceeding diligently" if s/he does not receive a comprehensive permit within 12 months from the date of issuance of the site approval letter under the local Chapter 40B program.
(3)
This amnesty program shall be reviewed by the Town
Council no later than October 1, 2003.
For a proposed new unit to be eligible for consideration
under the local chapter 40B program, it must be a single unit, accessory
to an owner-occupied single-family dwelling, to be located within
or attached to an existing residential structure or within an existing
building located on the same lot as said residential structure and
comply with the following:
A.
The unit(s) must receive a site approval letter under
the Town's local Chapter 40B program;
B.
The property owner must agree that if s/he receives
a comprehensive permit, the accessory dwelling unit will be rented
to a person or family whose income is 80% or less of the area median
income (AMI) of Barnstable-Yarmouth Metropolitan Statistical Area
(MSA) and shall further agrees that rent (including utilities) shall
not exceed the rents established by the Department of Housing and
Urban Development (HUD) for a household whose income is 80% or less
of the median income of Barnstable-Yarmouth Metropolitan Statistical
Area. In the event that utilities are separately metered, the utility
allowance established by the Barnstable Housing Authority shall be
deducted from HUD's rent level.
C.
The property owner must agree, that if s/he receives
a comprehensive permit, that s/he will execute a deed restriction
for the unit, prepared by the Town of Barnstable, which runs with
the property so as to be binding on and enforceable against any person
claiming an interest in the property and which restricts the use of
the one unit as a rental unit to a person or family whose income is
80% or less of the median income of Barnstable-Yarmouth Metropolitan
Statistical Area (MSA).
The Town Manager shall report to the Town Council
no less than quarterly as to the use of this article, paying particular
regard to the level of participation.
