#20-03

                                                                                   

CITY OF NEWTON

 

IN THE BOARD OF ALDERMEN

 

April 22, 2003

 

ORDINANCE NO. X-48

 

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF NEWTON AS FOLLOWS:

 

That the zoning regulations, Chapter 30 of the Revised Ordinances of the City of Newton, Mass. 2001, as amended, be and are hereby further amended as follows:

 

1.      Delete the existing text of Section 30-24(f) and substitute therefor the following new text of Section 30-24(f) as follows:

 

Section 30-24(f). Inclusionary Zoning

 

Purposes: The purposes of this section 30-24(f) are to promote the public health, safety, and welfare by encouraging diversity of housing opportunities in the City; to provide for a full range of housing choices throughout the City for households of all incomes, ages, and sizes in order to meet the City's goal of preserving its character and diversity; to mitigate the impact of residential development on the availability and cost of housing, especially housing affordable to low and moderate income households; to increase the production of affordable housing units to meet existing and anticipated housing needs within the City; to provide a mechanism by which residential development can contribute directly to increasing the supply of affordable housing in exchange for a greater density of development than that which is permitted as a matter of right; and to establish requirements, standards, and guidelines for the use of such contributions generated from the application of inclusionary housing provisions.

 

(f)(1)  Definitions.

 

a)      "Eligible Household" shall mean: for rental housing, any household whose total income does not exceed 80 percent of the applicable median income for households in the Boston Metropolitan Statistical Area, adjusted for household size; and for for-sale housing, any household whose total income does not exceed 120 percent of the applicable median income for households in the Boston Metropolitan Statistical Area, adjusted for household size.

 

b)      "Inclusionary Unit(s)" shall mean any finished dwelling unit required to be for sale or rental under section 30-24(f) of the zoning ordinances.

 

 

(i)                  For Inclusionary Units that are rented to Eligible Households, the monthly rent payment, including utilities and parking, shall not exceed 30 percent of the monthly income of an Eligible Household, assuming 1.5 persons per bedroom, except in the event of an Eligible Household with a Section 8 voucher in which case the rent and income limits established by the Newton Housing Authority, with the approval of the U.S. Department of Housing and Urban Development, shall apply.

 

(ii)                For Inclusionary Units that are sold to Eligible Households, the monthly housing payment, including mortgage principal and interest, private mortgage insurance, property taxes, condominium and/or homeowner's association fees, insurance, and parking, shall not exceed 33 percent of the monthly income of an Eligible Household, assuming 1.5 persons per bedroom.

 

(iii)               Where less than three Inclusionary Units are provided in a development under section 30-24(f)(3), Inclusionary Units required to be offered for sale shall be provided to Eligible Households with median incomes of not more than 80 percent of the median income for the Boston Metropolitan Statistical Area, adjusted for household size.

 

(iv)              Where three or more Inclusionary Units are provided in a development under section 30-24(f)(3), two thirds of the Inclusionary Units required to be offered for sale shall be provided to Eligible Households with median incomes of not more than 80 percent of the median income for the Boston Metropolitan Statistical Area, adjusted for household size.  One third of the Inclusionary Units required to be offered for sale shall be provided to Eligible Households with median incomes of not more than 120 percent of the median income for the Boston Metropolitan Statistical Area, adjusted for household size.

 

(v)                Where two or more Inclusionary Units are provided in a development under section 30-24(f)(3), Inclusionary Units required to be offered for rental shall be provided to Eligible Households such that the aggregate median income of Eligible Households in the development does not exceed 65 percent  of the median income for the Boston Metropolitan Statistical Area, adjusted for household size.  Where one Inclusionary Unit is provided in a development under section 30-24(f)(3), the Inclusionary Unit required to be offered for rental shall be provided to Eligible Households with a median income of not more than 80 percent of the median income for the Boston Metropolitan Statistical Area, adjusted for household size.

 

c)       "Applicant" shall mean: that individual, organization, or company that applies to the board of aldermen for a special permit that is subject to the requirements of section 30-24(f) of the zoning ordinances.

 

(f)(2)  Scope.  Where a special permit is required under these Ordinances for residential development or for a business or mixed-use development that includes residential development beyond that allowable as of right or where the development is proposed to include or may include new or additional dwelling units totaling more than two households whether by new construction, rehabilitation, conversion of a building or structure, or an open space preservation development, the development shall be subject to the inclusionary zoning provisions of this section.  This inclusionary zoning section does not apply to accessory units under section 30-8 (d) and 30-9(h) or to a conventional subdivision of land under G.L. c.41, §§ 81K et seq. other than an open space preservation development under section 30-15(k).

 

(f)(3)  Inclusionary Units.  Where a special permit is required for development as described in section 30-24(f)(2), 15 percent of the units proposed for the development shall be Inclusionary Units and shall be reserved for sale or rental to Eligible Households.  In the case of an existing residential property subject to determination by the Newton Historical Commission under section 22-44, the inclusionary requirement shall be 15 percent of net new units to be created on the property. For purposes of calculating the number of Inclusionary Units required in a proposed development, any fractional unit of 0.5 or greater shall be deemed to constitute a whole unit. At the discretion of the Applicant, a development may include more than 15 percent of its units as Inclusionary Units.

 

(f)(4)  Cash Payment.  Where the total number of dwelling units proposed in the development will not exceed six units, the Applicant may make a cash payment equal to 3 percent of the sales price at closing of each unit as verified by the planning and development department or if rental housing, the cash payment shall be equal to 3 percent of the estimated, assessed value of each unit as determined by the city assessor, in lieu of Inclusionary Units as provided in section 30-24 (f)(3).  Certificates of Occupancy for the property shall not be issued until the cash payment has been made as verified by the planning and development department.  This payment shall be made to an inclusionary housing development fund established by the board of aldermen.  Proceeds from the fund shall be distributed equally to the Newton Housing Authority and the planning and development department and shall be used exclusively for construction, purchase, or rehabilitation of housing for Eligible Households.  The comptroller shall annually review payments to the fund and use of the proceeds and shall certify to the board of aldermen that proceeds have been used for the purposes stated herein.

 

(f)(5)  Off-Site Development.  Where an Applicant has entered into a development agreement with a non-profit housing development organization, Inclusionary Units otherwise required to be constructed on site and within the development may be constructed off-site, provided that special permits are granted contemporaneously for both developments.  The Applicant and the non-profit housing development organization must submit a development plan for off-site development for review and comment by the planning and development department prior to its submission to the board of aldermen.  The plan must include at a minimum, demonstration of site control, the necessary financing in place to complete the off-site development, and construction specifications.  The board of aldermen, in their consideration of the special permit for the off-site development, shall require in writing that the completion of the Inclusionary Units will occur no later than the completion of the Market Rate Units.  If this does not occur, then the Applicant  shall not receive certificates of occupancy for the Market Rate Units until such condition has been satisfied, as certified by the planning and development department and inspectional services.

 

(f)(6)  Design and Construction.  In all cases, Inclusionary Units shall be fully built out and finished dwelling units.  Inclusionary Units provided on site must be dispersed throughout the development and must be sited in no less desirable locations than the Market Rate Units and have exteriors that are indistinguishable in design and of equivalent materials to the exteriors of Market Rate Units in the development, and satisfy the following conditions:

 

a)                  Inclusionary Units shall have habitable space of not less than 650 square feet for a one bedroom unit and an additional 300 square feet for each additional bedroom or 60 percent of the average square footage of the Market Rate Units with the same number of bedrooms, whichever is greater; provided that Inclusionary Units shall not exceed 2,000 square feet of habitable space;

 

b)                  the bedroom mix of inclusionary units shall be equal to the bedroom mix of the Market Rate Units in the development.  In the event that Market Rate Units are not finished with defined bedrooms, all Inclusionary Units shall have three bedrooms;

 

c)                  the materials used and the quality of construction for Inclusionary Units, including heating, ventilation, and air conditioning systems, shall be equal to that of the Market Rate Units in the development, as reviewed by the planning and development department; provided that amenities such as so-called designer or high end appliances and fixtures need not be provided for Inclusionary Units.

 

(f)(7)  Habitable Space Requirements. The total habitable space of Inclusionary Units in a proposed  development shall not be less than 10 percent of the sum of the total habitable space of all Market Rate Units and all Inclusionary Units in the proposed development.  As part of the application for a special permit under section 30-24(f), the Applicant shall submit a proposal including the calculation of habitable space for all Market Rate and Inclusionary Units to the planning and development department for its review and certification of compliance with this section as a condition to the grant of a special permit.

 

(f)(8)  Inclusionary Housing Plan and Covenants.  As part of the application for a special permit under section 30-24(f), the Applicant shall submit an inclusionary housing plan that shall be reviewed by the Newton Housing Authority and the planning and development department and certified as compliant by the planning and development department.  The plan shall include the following provisions:

 

a)                  a description of the Inclusionary Units including at a minimum, floor plans indicating the location of the Inclusionary Units, number of bedrooms per unit for all units in the development, square footage of each unit in the development, amenities to be provided, projected sales prices or rent levels for all units in the development, and an outline of construction specifications certified by the Applicant;

 

b)                  a marketing and resident selection plan which includes an affirmative fair housing marketing program, including public notice and a disinterested resident selection process; provided that in the case of a marketing and selection plan for sale of Inclusionary Units to Eligible Households, the marketing and selection plan shall provide for "income blind" selection of Eligible Households and shall then provide for a preference order, to the extent permitted by law, first to City of Newton employees and then to residents of or workers in the City of Newton.

 

c)                  agreement by the Applicant that residents will be selected at both initial sale and rental and all subsequent sales and rentals from a listing of Eligible Households in accordance with the marketing and resident selection plan developed, advertised, and maintained by the Newton Housing Authority; provided that the Applicant shall pay the reasonable costs of the Newton Housing Authority to develop, advertise, and maintain the listing of Eligible Households;

 

d)                  agreement by the Applicant to develop, advertise, and provide a supplemental listing of Eligible Households to be used to the extent that Inclusionary Units are not fully subscribed from the Newton Housing Authority listing of Eligible Households;

 

e)                  an agreement that the Applicant shall execute and record in the Middlesex Registry of Deeds, as a senior interest in the title prior to the granting of any building permits, a covenant that endures for the life of the residential development as follows:

 

(i)                  for purchase units, a covenant running in favor of the City of Newton, in a form approved by the city solicitor, which shall limit initial sale and subsequent re-sales of Inclusionary Units to Eligible Households in accordance with provisions which incorporate sections 30-24(f)(1)b)(ii), (f)(8)b), (f)(8)c), (f)(8)d), and (f)(8)e); and

 

(ii)                for rental units, a covenant running in favor of the City of Newton, in a form approved by the city solicitor, which shall limit rental of Inclusionary Units to Eligible Households in accordance with provisions which incorporate sections 30-24(f)(1)b)(i), (f)(8)b), (f)(8)c), (f)(8)d) and (f)(8)e);

 

f)                    at the discretion of the Applicant and with the agreement of the Newton Housing Authority, an agreement, in a form approved by the city solicitor, to convey rental units to the Newton Housing Authority for sale or rental to Eligible Households; and

 

g)                  in the case of rental housing, an agreement to submit an annual compliance report to the Newton Housing Authority, in a form approved by the city solicitor, certifying compliance with the provisions of section 30-24(f) of the zoning ordinances; provided that in the event of a dispute over compliance, the costs of enforcement will not be borne by the Newton Housing Authority.

 

 (f)(9)  Public Funding Limitation.  The intent of section 30-24(f) is that an Applicant is not to use public funds to construct Inclusionary Units required under this section; this provision however, is not intended to discourage the use of public funds to generate a greater number of affordable units than are otherwise required by this subsection.  If the Applicant is a non-profit housing development organization and proposes housing that is entirely affordable to Eligible Households, they are exempt from the provisions of this sub-section.

 

(f)(10)  Elder Housing with Services.  In order to provide affordable elder housing with services on-site, the following requirements shall apply exclusively when an Applicant seeks a special permit for housing with services designed primarily for elders such as residential care, continuing care retirement communities, assisted living, independent living, and congregate care. The services to be provided shall be an integral part of the annual rent or occupancy related fee, shall be offered to all residents and may include in substantial measure long term health care and may include nursing, home health care, personal care, meals, transportation, convenience services, and social, cultural, and education programs.  This section shall not apply to a nursing facility subject to certificate of need programs regulated by the Commonwealth of Massachusetts Department of Public Health or to developments funded under a state or federal program which requires a greater number of elder units or nursing beds than required here.

 

a)      Maximum Contribution  The Applicant shall contribute 2.5 percent  of annual gross revenue from fees or charges for housing and all services, if it is a rental development or an equivalent economic value in the case of a non rental development.  The amount of the contribution shall be determined by the director of planning and development, based on analysis of verified financial statements and associated data provided by the Applicant as well as other data the director may deem relevant.

 

b)      Determination  The board of aldermen shall determine, in its discretion, whether the contribution shall be residential units or beds or a cash payment after review of the recommendation of the director of planning and development.  In considering the number of units or beds, the director may consider the level of services, government and private funding or support for housing and services, and the ability of low and moderate income individuals to contribute fees.  The Applicant shall provide financial information requested by the director.  If the petitioner or Applicant is making a cash contribution, the contribution shall be deposited in accordance with section 30-24(f)(4); provided that one half of the payment shall be made to the Newton Housing Authority, and one half of the payment shall be made to the inclusionary housing development fund established under section 30-24(f)(4).

 

c)      Contributed Units or Beds  Contributed units or beds shall be made available to individuals and households whose incomes do not exceed 80 percent  of the applicable median income for elders in the Boston Municipal Statistical Area, adjusted for household size.

 

d)      Selection  The Applicant or manager shall select residents from a listing of eligible persons and households developed, advertised, and maintained by the Newton Housing Authority; provided that the Applicant shall pay the reasonable costs of the Newton Housing Authority to develop, advertise, and maintain the listing of eligible persons and households.  Should the Applicant or manager be unable to fully subscribe the elder housing with services development from the Newton Housing Authority listing, the Applicant or manager shall recruit eligible persons and households through an outreach program approved by the director planning and development.  The Applicant or manager shall certify its compliance with this section 30-24(f)(9) annually in a form and with such information as is required by the director of planning and development.  To the extent permitted by law, Newton residents shall have first opportunity to participate in the elder housing with services program set out here.

 

e)      Residential Cash Balances  If, after calculation of the number of units or beds to be contributed under this section 30-24(f), there remains an annual cash balance to be contributed, that amount shall be contributed as set out in subparagraph b) above.  Any such contribution shall not reduce the contribution required in future years.

 

(f)(11)  Hotels.  Whenever an application for a special permit seeks to increase the density of residential development for a hotel, the board of aldermen shall require a cash payment as a condition of any such grant.  The amount of the payment shall be determined as  10 percent of the number of rooms in excess of that which existed on January 1, 1989 multiplied by the estimated per room valuation following construction, as determined by the assessing department.  Payment shall be made in accordance with section 30-24(f)(4); provided that one half of the payment shall be made to the Newton Housing Authority, and one half of the payment shall be made to the inclusionary housing development fund established under section 30-24(f)(4).

 

(f)(12)  No Segmentation.  An Applicant for residential development shall not segment or divide or subdivide or establish surrogate or subsidiary entities to avoid the requirements of this section 30-24(f).  Where the board of aldermen determines that this provision has been violated, a special permit will be denied.  However, nothing herein prohibits phased development of a property.

 

(f)(13)  No Effect on Prior or Existing Obligations.  This amendment to section 30-24(f) shall have no effect on any prior or currently effective special permit, obligation, contract, agreement, covenant or arrangement of any kind, executed or required to be executed, which provides for dwelling units to be made available for sale or rental to or by the City, the Newton Housing Authority, or other appropriate municipal agency, or any cash payment so required for affordable housing purposes, all resulting from a special permit under section 30-24(f) applied for or granted prior to the effective date of this amendment.

 

(f)(14)  No Effect on Accessory Apartments.  This section 30-24(f) shall not apply to accessory apartments regulated under sections 30-8(d) and 30-9(h).

 

(f)(15)  Severability, effect on other laws.  The provisions of section 30-24(f) are severable.  If any subsection, provision, or portion of this section is determined to be invalid by a court of competent jurisdiction, then the remaining provisions of this section shall continue to be valid.

 

 

Approved as to legal form and character:

 

 

DANIEL M. FUNK

City Solicitor

 

Under Suspension of Rules

Readings Waived and Adopted

22 yeas  0 nays  2 absent (Ald. Samuelson and Sangiolo) 

 

                                                                                                            EXECUTIVE DEPARTMENT

                                                                                                                   Approved:  April 24, 2003                      

 

 

 

(SGD) EDWARD G. ENGLISH                                                               (SGD) DAVID B. COHEN            

             City Clerk                                                                                                  Mayor