Affordable Housing and “Safe Harbor”
By Gregory T. Federspiel
With a 40B comprehensive permit application now before the Zoning Board of Appeals, the question has arisen whether the Town can claim a “safe harbor” from such an application and not allow the application to proceed. To answer this, one must dive into the details of state law regarding 40B projects and the rules governing the administration of a town’s Subsidized Housing Inventory or SHI.
Before getting too far into the details, it is worth reviewing what qualifies as affordable housing and what is the current inventory in Manchester. Under 40B, the State has set a target of at least 10% of a community’s housing be “affordable.” The State’s SHI is the official listing of dwelling units that qualify. To be counted as affordable, a unit must be permanently deed restricted to remain affordable and the occupants chosen through a fair housing marketing process. To be affordable, a family earning up to 80% of the area’s median annual income, adjusted for family size, should not be spending more than 30% of their income on housing costs. Put another way a family of three earning $88,000 with monthly utility costs of $200/month should pay no more than $2000 a month on rent or a mortgage. Someone at 50% of area median income should pay no more than $1240 a month.
Currently we have 115 units on the State’s SHI or 5% of our year-round housing stock. Most of these units are owned and operated by the Manchester Housing Authority (84 units). Another 26 units are located at 10-12 Summer Street and the last five units were added as part of the Town’s inclusionary zoning provisions (new developments that were required to provide them.)
The recent purchase of the Powder House Lane complex with its 29 units by the North Shore CDC with substantial citizen support is not part of our official SHI. State regulations require that a tenant or owner of a unit must have gone through a fair housing marketing process (essentially a lottery system) to qualify to be on the SHI. The Town has asked the State to consider units and the occupants who otherwise qualify except for not having gone through a lottery system, but with such a system in place for any future vacancy, also be allowed to be listed on our SHI. This would allow qualified tenants to remain in place while still incentivizing towns to convert existing housing to be permanently affordable.
The SHI is a key factor in determining whether a Town can claim a “safe harbor” and deny, without the option of an appeal, a poorly located 40B project. There are three options for achieving safe harbor.
One is having 10% or more of a community’s housing stock listed on the SHI. We are at 5%.
Another way is to have 1.5% of our buildable land mass dedicated to affordable housing. For Manchester this would mean some 68 acres of land – we are currently at about 10 acres.
The third way is to show annual progress on the community’s housing production goals. This is most directly measured by how many units are added to the SHI annually toward the goal of achieving the 10% threshold. Manchester needs another 113 units. Adequate annual progress is normally set at 10% of this needed new amount. Thus, we need to be adding 11 units a year. Sometimes it is possible to show adequate progress even though a community has not met the calculated figure. However, such an approach is harder to get approved. This may be another avenue the Town pursues.
Without safe harbor, the ZBA will proceed to hold hearings on the project proposed for Shingle Hill. The first hearing is scheduled for October 26. At the conclusion of the hearing process, the ZBA will either issue a permit with various conditions or it will vote to deny the project. The applicant will have the option of appealing the decision to the Housing Appeals Committee.