[Added 5-25-2022 ATM by Art. 27]
The purpose of this Inclusionary Housing Bylaw is to produce high-quality dwelling units affordable to low- or moderate-income households, to encourage the provision of more housing choices in the Town of North Andover, and to promote geographic distribution of affordable housing units throughout the Town. At a minimum, affordable housing produced through this bylaw should comply with the requirements set forth in MGL c. 40B, §§ 20 through 24 and other affordable housing programs developed by state, county and local governments. It is intended that the Affordable Housing Units that result from the bylaw be considered Local Initiative Program ("LIP") units in compliance with the requirements for the same as specified by the Department of Housing and Community Development ("DHCD") and be eligible to be included on the Town's subsidized housing inventory ("SHI"). Accordingly, the provisions of this bylaw are intended to:
A. 
Increase the supply of rental and ownership housing in the Town that is permanently available to Income Eligible Households;
B. 
Create affordable housing that will qualify for inclusion in the SHI in order to reach and maintain a minimum of 10% affordable housing in the Town's housing stock and to establish standards and guidelines in order to implement the foregoing;
C. 
Promote public health, safety, and welfare by encouraging diversity and distribution of housing to meet the needs of families and individuals in the Town;
D. 
Provide for housing choices for households of all incomes, ages, and sizes;
E. 
Prevent the displacement of low- and moderate-income residents;
F. 
Provide opportunities for conventional residential and mixed use developments to contribute to increasing the supply of affordable housing.
To achieve the above-stated purposes and intentions, the Town requires newly created housing developments to include a proportion of housing units that shall be affordable to Income Eligible Households.
For purposes of this Inclusionary Housing Bylaw, the following definitions shall apply. To the extent that there is any conflict between the definitions set forth in this § 195-8.96 and other sections of the Town of North Andover's Zoning Bylaw, the definitions of this bylaw shall govern. All other capitalized terms not specifically defined in this § 195-8.96 shall have the meaning provided in the other sections of the Town of North Andover's Zoning Bylaw.
AFFORDABLE HOUSING RESTRICTION
A use or deed restriction acceptable in form and substance to DHCD and the Town that imposes restrictions on Affordable Housing Units to make such units affordable to Income Eligible Households which meets the requirements of DHCD's LIP or any successor program established by DHCD for purposes of SHI eligibility; and causes the Affordable Housing Units to be eligible for inclusion on the SHI. An Affordable Housing Restriction shall run with the land in perpetuity or for the maximum period of time allowed by law, and be enforceable under the provisions of Chapter 184, §§ 26, 31, and 32 of the Massachusetts General Laws.
AFFORDABLE HOUSING TRUST FUND
A fund account established by the Town Affordable Housing Trust pursuant to Chapter 44, § 53A, et seq. of the Massachusetts General Laws for the purpose of encouraging, creating, subsidizing or preserving affordable housing in the Town.
AFFORDABLE HOUSING UNIT
A housing unit in a development subject to this bylaw that is required to be sold or rented to, as applicable, and occupied by an Income Eligible Household.
AREA MEDIAN INCOME (AMI)
The area median household income as determined by HUD, adjusted for household size, for the metropolitan area that includes the Town.
DHCD
The Massachusetts Department of Housing and Community Development, or any successor agency.
HUD
The United States Department of Housing and Urban Development, or any successor agency.
INCLUSIONARY HOUSING BYLAW
Sections 195-8.95 to 198-8.108 of the Town of North Andover Zoning Bylaw.
INCOME ELIGIBLE HOUSEHOLD
A household of one or more persons whose annual income does not exceed 80% of AMI and meets the applicable requirements established by DHCD's LIP.
LOCAL ACTION UNITS (LAU)
A component of the LIP under which housing units that are created through municipal actions other than a comprehensive permit receive LIP approval and are eligible for inclusion on the SHI.
LOCAL INITIATIVE PROGRAM (LIP)
A program administered by DHCD pursuant to 760 CMR 56.00 to develop and implement local housing initiatives that produce low- and moderate-income housing, with or without a comprehensive permit issued pursuant to Chapter 40B, §§ 20 through 23 of the Massachusetts General Laws.
MARKET-RATE HOUSING UNIT
A housing unit in a development subject to this section that is not an Affordable Housing Unit.
SUBSIDIZED HOUSING INVENTORY (SHI)
The list compiled by DHCD containing the count of eligible low- or moderate-income housing by a city or town pursuant to 760 CMR 56.00, Chapter 40B of the Massachusetts General Laws, and applicable DHCD guidelines.
A. 
This Inclusionary Housing Bylaw applies to any proposed residential or mixed-use developments, including a conventional subdivision of land under MGL c. 41, §§ 81K through 81GG in any zoning district containing more than seven rental or ownership housing units on any parcel or contiguous parcel(s) comprising a proposed site.
[Amended 5-16-2023 ATM by Art. 31]
B. 
(Reserved)[1]
[1]
Editor's Note: Former Subsection B, which stated that this bylaw shall not apply to the Mixed Use Overlay District, was repealed 5-16-2023 ATM by Art. 31.
C. 
Developments shall not be segmented or phased to avoid compliance with requirements of this Inclusionary Housing Bylaw. However, nothing in this § 195-8.97, prohibits the phased development of a project.
D. 
This Inclusionary Housing Bylaw shall not apply to the proposed rehabilitation of any building or structure, all or substantially all of which is destroyed or damaged by fire or other casualty or a natural disaster as long as such proposed rehabilitation does not increase the density, or size of any such building or structure which previously existed prior to the damage or destruction thereof.
E. 
This Inclusionary Housing Bylaw shall not apply to the proposed rehabilitation or replacement of any housing units in existence at the time of adoption of this Inclusionary Housing Bylaw and shall only apply to net new units that increase the density of such existing buildings or structures.
The development of any project set forth in § 195-8.97 (above) shall require the grant of a Special Permit from the Planning Board, as SPGA. A Special Permit shall be granted if the proposal meets the requirements of this bylaw so long as it is not inconsistent with other provisions of this bylaw.
A. 
As a condition of approval for a Special Permit, the applicant shall contribute to the local stock of Affordable Housing Units in accordance with the following requirements:
(1) 
With the exception of continuing care retirement centers, as defined and described in §§ 195-13.1 to 195-13.7 of the Zoning Bylaw, as a condition of approval for a Special Permit in a development subject to this Inclusionary Housing Requirements bylaw, the applicant shall contribute at least 15% of the total housing units in the development subject to this bylaw as affordable housing units in any one or combination of methods provided for below:
[Amended 5-16-2023 ATM by Art. 31]
(a) 
Constructed or rehabilitated on the locus subject to the Special Permit (see § 195-8.100); or
(b) 
Constructed or rehabilitated on a locus different than the one subject to the Special Permit (see § 195-8.101); or
(c) 
An equivalent fees-in-lieu-of payment may be made (see § 195-8.102).
(2) 
Continuing care retirement centers shall contribute at least 5% of the total number of housing units in the development as affordable housing units in compliance with Subsection A(1)(a) or A(1)(c) above or in combination of methods provided for in Subsection A(1)(a) or A(1)(c) above.
[Amended 5-16-2023 ATM by Art. 31]
(3) 
The applicant may offer, and the SPGA may accept, any combination of the § 195-8.99A(1)(a) through (c) requirements, provided that in no event shall the total number of units provided be less than the equivalent number or value of Affordable Housing Units required by this bylaw.
(4) 
For purposes of this bylaw, any calculation of required Affordable Housing Units that results in the fractional or decimal equivalent of three-quarters (0.75) or above shall be increased to the next highest whole number. Nothing in this bylaw shall preclude a developer from providing additional affordable units, or greater affordability, or both, than the minimum requirements. In no instance shall any permit or Special Permit approval create less than one Affordable Housing Unit or provide applicable fees-in-lieu payment.
(5) 
As a condition for the granting of a Special Permit, all Affordable Housing Units shall be subject to an Affordable Housing Restriction. The Special Permit shall not take effect until it is recorded at the North Essex Registry of Deeds; and a copy provided to the Planning Board and the Inspector of Buildings.
[Amended 5-16-2023 ATM by Art. 31]
(6) 
Affordable Housing Units shall be sold or rented, as applicable, to Income Eligible Households at sales prices or rents that are affordable to Income Eligible Households pursuant to an Affordable Housing Restriction. Developers may participate in public subsidy programs for developments subject to this bylaw. To the extent that one or more other rent or sale price restrictions apply to a development containing Affordable Housing Units, the more restrictive rent or sale price restrictions shall apply to the Affordable Housing Units.
(7) 
In the case that a development is built in phases, Affordable Housing Units shall be developed in the same proportion as the overall number of housing units contained in the development in a manner that is consistent with the schedule described in § 195-8.100E.
[Amended 5-16-2023 ATM by Art. 31]
B. 
To facilitate the objectives of this § 195-8.99, modifications to the dimensional requirements in any zoning district may be permitted for any project under these regulations, as the applicant may offer and the SPGA may accept, subject to conditions below:
(1) 
Floor Area Ratio (FAR) Bonus. The FAR normally permitted in the applicable zoning district for residential uses may be increased by up to 30% for the inclusion of the Affordable Housing Units in accordance with § 195-8.99A(1) above, and at least 50% of the additional FAR should be allocated to the Affordable Housing Units. In a mixed-use development, the increased FAR may be applied to the entire lot, however, any gross floor area increase resulting from the increased FAR shall be occupied only by residential uses, exclusive of any hotel or motel use.
(2) 
Density Bonus. The SPGA may allow the addition of one Market-Rate Housing Unit more than allowed in the zoning district for each Affordable Housing Unit provided in addition to the number of the Affordable Housing Units that are required by the bylaw. The minimum lot area per dwelling unit normally required in the applicable zoning district may be reduced by that amount necessary to permit up to one additional Market-Rate Housing Unit for each one the Affordable Housing Unit provided in addition to those that are required by the bylaw.
(3) 
Voluntary Inclusionary Housing Bonus. New affordable housing development that is not subject to § 195-8.97 and exceeds the requirements specified in § 195-8.99A may receive the same benefits specified in § 195-8.99B(1) and (2) when the development is approved by the SPGA. The net increase in housing units shall not exceed 50% of the original property yield before any FAR or density bonuses were applied.
(4) 
Continuing care retirement centers are not subject to the provisions stated in § 195-8.99B. Bonuses under Article 13, Continuing Care Retirement Center, § 195-13.6 are applicable.
[Added 5-16-2023 ATM by Art. 31]
A. 
Siting of affordable units. All Affordable Housing Units constructed or rehabilitated under this bylaw shall be proportionately distributed throughout the development and shall, on average, be no less accessible to public amenities, such as open space, as the Market-Rate Housing Units.
B. 
Minimum design and construction standards for affordable units. Affordable Housing Units shall be integrated with the rest of the development and shall be compatible in exterior building materials and finishes, design, appearance, construction, overall construction, and energy efficiency, including mechanical equipment and plumbing, insulation, windows, and heating and cooling systems, as determined by the Inspector of Buildings.
C. 
Affordable Housing Units must comply with the Local Action Unit requirements of DHCD so that they are eligible to be included on the SHI.
D. 
The owners or renters, as applicable, of Affordable Housing Units shall have all rights and privileges afforded to owners or renters of Market-Rate Housing Units, including access to all non-fee amenities within the development.
E. 
Timing of construction or provision of Affordable Housing Units or lots. Where feasible, Affordable Housing Units shall be provided coincident to the development of Market-Rate Housing Units, but in no event shall the development of Affordable Housing Units be delayed beyond the schedule noted below:
Market-Rate Housing Unit
(percentage complete)1
Affordable Housing Unit
(percentage required)1
Less than 30%
—
30% plus 1 unit
10%
Up to 50%
30%
Up to 75%
50%
75% plus 1 unit
70%
Up to 99%
100%
NOTE:
1
The unit count is rounded up to the nearest whole number.
F. 
Affordable Housing Units shall be made available for purchase or rent to Income Eligible Households under an Affirmative Fair Housing Marketing Plan that complies with federal and state fair housing laws and is approved by the Town's monitoring agent and DHCD. No Certificate of Occupancy for a development subject to this bylaw shall be issued unless the Director of Community and Economic Development has determined that the applicant's affirmative marketing plan complies with this § 195-8.99. The affirmative marketing costs for the Affordable Housing Units shall be the responsibility of the applicant.
[Amended 5-16-2023 ATM by Art. 31]
[Amended 5-16-2023 ATM by Art. 31]
As an alternative to the requirements of § 195-8.100, an applicant subject to the bylaw may develop, construct or otherwise provide Affordable Housing Units equivalent to those required by § 195-8.99 off-site within the Town of North Andover. All requirements of this bylaw that apply to on-site provision of Affordable Housing Units shall apply to provision of off-site Affordable Housing Units, except for those units that are built and constructed pursuant to § 195.8.100A and B. In addition, the location of the off-site units to be provided shall be approved by the SPGA as an integral element of the Special Permit review and approval process.
A. 
With the exception of continuing care retirement centers, as defined and described in §§ 195-13.1 to 195-13.7 of the Zoning Bylaw, as an alternative to the requirements of § 195-8.100 or § 195-8.101, an applicant proposing a homeownership development containing more than seven housing units may petition the SPGA for permission to make cash payment upon a showing that it is economically unfeasible. The SPGA may require the applicant to meet with the North Andover Affordable Housing Trust to explore alternatives and may retain a third-party consultant to review the applicant's financial basis for the request of making a cash payment to the Town in lieu of developing Affordable Housing Units consistent with the requirements in this § 195-8.99.
[Amended 5-16-2023 ATM by Art. 31]
B. 
Continuing care retirement centers, as an alternative to the requirements of § 195-8.100, may petition the SPGA for permission to make cash payment as delineated in § 195-13.6 of the Zoning Bylaw.
[Added 5-16-2023 ATM by Art. 31[1]]
[1]
EDitor's Note: This article also redesignated former Subsections B and C as Subsections C and D.
C. 
With the exception of continuing care retirement centers, approval for cash fees-in-lieu shall only be granted by the SPGA in strict accordance with the following:
[Amended 5-16-2023 ATM by Art. 31]
(1) 
After making a finding that the applicant has clearly demonstrated that providing such Affordable Housing Unit(s) would make the development economically infeasible.
(2) 
Calculation of fees-in-lieu of units. The fee-in-lieu of the construction or provision of Affordable Housing Units will be equal to the difference between the full and fair market value of a comparable Market-Rate Housing Unit and the affordable price of the applicable Affordable Housing Unit, as calculated consistent with § 195-8.103. The SPGA will make the final determination of the fee-in-lieu, and may retain a third-party consultant to review the applicant's full and fair market value of the comparable Market-Rate Housing Unit.
(3) 
Schedule of fees-in-lieu-of-unit payments. Fees-in-lieu-of-unit payments shall be made according to the schedule set forth in § 195-8.100E, above. The cash payment shall be made to the Affordable Housing Trust Fund.
D. 
Creation of Affordable Units. Cash contributions made to the Affordable Housing Trust Fund in accordance with § 195-8.102 shall be used only for purposes of providing affordable housing for low- or moderate-income households through a variety of means consistent with the purpose of the AHTF.
A. 
Documents necessary to ensure the Affordable Housing Units are eligible for LIP approval and inclusion on the SHI as required by DHCD shall be submitted to the SPGA.
B. 
The maximum sales price of Affordable Housing Units created under this bylaw shall comply with DHCD's LIP.
C. 
Eligibility for the purchase or rental, as applicable, of an Affordable Housing Unit created pursuant to this bylaw shall be determined by DHCD.
A. 
Each Affordable Housing Unit created in accordance with this bylaw shall be subject to resale restrictions that meet the requirements of DHCD's LIP (§ 195-8.99). The purpose of these limitations is to preserve the long-term affordability of the Affordable Housing Units and to ensure such units' continued availability to Income Eligible Households. The resale restrictions shall be established through an Affordable Housing Restriction.
(1) 
The SPGA shall require, as a condition for Special Permit under this bylaw, that the applicant comply with the mandatory set-asides and accompanying restriction on affordability that are consistent with the requirements under this bylaw, including the execution of an Affordable Housing Restriction that is noted in § 195-8.104A, above.
(2) 
The SPGA shall require, as a condition for Special Permit approval under this bylaw, that the applicant comply with the conditions of the DHCD universal deed rider, including but not limited to requirements regarding owner occupancy.
B. 
For developments subject to this bylaw:
[Amended 5-16-2023 ATM by Art. 31]
(1) 
No Certificate of Occupancy shall be issued until an Affordable Housing Restriction in the form of a LIP regulatory and use agreement has been reviewed by Town Counsel and approved by DHCD has been fully executed and recorded at the North Essex Registry of Deeds.
A. 
Legal restrictions. All agreements with the Town, including restrictive instruments and other documents necessary to ensure compliance with this bylaw other than an Affordable Housing Restriction, shall be subject to prior written review and approval by Town Counsel, and shall be executed prior to the issuance of a Certificate of Occupancy in the development.
[Amended 5-16-2023 ATM by Art. 31]
B. 
Performance bond guarantee. Prior to the issuance of a building permit the applicant shall submit a performance bond secured by a deposit or negotiable securities. The performance bond secured by the applicant shall be in an amount no less than the calculated payment-in-lieu for the total number of proposed Affordable Housing Units.
[Amended 5-16-2023 ATM by Art. 31]
The applicant shall be responsible for preparing and submitting any documentation that may be required by the DHCD to receive LIP approval and to qualify the Affordable Housing Units for listing on the SHI. The applicant shall also be responsible for providing annual compliance monitoring and certification to the Town or its monitoring agent and to pay for the costs of the Town for providing such compliance monitoring.
A. 
The provisions of this Inclusionary Housing Bylaw shall be considered supplemental of existing zoning bylaws. To the extent that a conflict exists between this bylaw and others, the more restrictive bylaw or provisions therein, shall apply.
B. 
The provisions of this bylaw shall be considered supplemental of DHCD's LIP and LAU requirements. To the extent that a conflict exists between this bylaw or the Special Permit and DHCD's requirements, DHCD's requirements control.
[Amended 5-16-2023 ATM by Art. 31]
If any provision of this bylaw is held invalid by a court of competent jurisdiction, the remainder of the bylaw shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this Inclusionary Housing Bylaw shall not affect the validity of the remainder of the Town of North Andover's Zoning Bylaw.