Model Development Rate Limitation Bylaw
01.0 Purpose and Intent: The purpose of this bylaw is to ensure that the issuance of building permits for new construction will be consistent with the town's capacity to accommodate new development and provide the services needed to support that development. It has been demonstrated through the Local Comprehensive Plan that the town's present infrastructure and services (e.g. roads, schools, police and fire protection, water supply, wastewater treatment facilities, affordable housing supply) cannot sustain projected growth rates without detrimental impacts on the environment and character of the town. Therefore, the rate of new development shall be limited as stipulated below.
Commentary: Towns differ regarding growth capacity. In many towns, traffic congestion (i.e. roadway capacity) is the most limiting factor. In others, water supply and water quality constraints may require limits on the rate of growth. Some towns may need time to build new schools, libraries or recreational facilities to serve a growing population. Whatever the key issues, controls on growth should be related to the specific findings and goals of the Local Comprehensive Plan regarding growth capacity.
It should be noted that, by itself, a growth rate limitation does not change the ultimate buildout population of a town; it only slows --controls-- the rate of growth. Towns will likely need to modify their zoning regulations to reduce the ultimate buildout potential as well. However, a development rate limitation can help to control some of the impacts of growth by allowing towns adequate time to provide needed infrastructure and services.
(Note: This model is presented as a zoning bylaw/ordinance, requiring compliance with the provisions of G.L. c. 40A. An alternative approach to furthering the goals of this text is to adopt these provisions as a general town bylaw under the authority granted to Cape Cod towns by G.L. c. 43B §13. For additional information regarding the most effective means of adopting this text, please consult with your counsel).
02.0 Definitions: As used in this Bylaw, the following words shall have the meanings specified herein:
02.1 Affordable Housing: Dwelling units available at a cost of no more than 30% of gross household income to households at or below 80% of the county median income as reported by the U.S. Department of Housing and Urban Development (HUD).
02.2 Applicant: Individuals, partnerships, corporations, trusts and other legal entities in which the applicant of record holds a legal or beneficial ownership of greater than one (1) percent.
02.3 Calendar Year: The period beginning January 1 and ending December 31.
02.4 Residential Dwelling Unit: Living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation, whether in a complete, individual unit or a unit sharing common facilities. A residential dwelling unit shall include but not be limited to bedrooms in nursing homes and congregate care facilities.
Commentary: Note that nursing homes and congregate care facilities are included in this definition. Towns wanting to encourage the provision of these types of facilities may wish to exempt these facilities from the development rate limitation.
03.0 Applicability: This Bylaw applies to the issuance of building permits for all new residential dwelling units.
Commentary: It is the intent of this Bylaw that all applications for building permits be subject to the limitations established by Section 04.0, below, including permits for those lots granted protection from dimensional and use changes by G.L. c. 40A §6.
04.0 Activation: During the first calendar year this Bylaw is in effect, the total number of building permits for residential units issued between January 1 and December 31 shall be no greater than ______.
Commentary: This section is the heart of the Bylaw as it establishes the ceiling for building permit issuance in a calendar year. It is important to note, however, that this ceiling can only be derived via an analysis of the Town's financial resources, constraints imposed by Proposition 2 1/2 and existing and projected infrastructure deficiencies and needs. Traditional approaches for obtaining this information include the development of a capital improvement plan and capital budget, completion of a build-out analysis and other financial and development projections contained within the Local Comprehensive Plan.
05.0 Residential Development Limitation: The Building Commissioner/Inspector/Building Department shall issue permits for construction of new residential dwelling units only if permit issuance will not result in authorizing construction of a total of more than ___ dwelling units in a single calendar year. This rate is intended to ensure that the Town, with prudent reliance on local and other financial sources, and in compliance with the revenue generating limitations of Proposition 2 1/2, can and will provide infrastructure and operate in a manner that provides an adequate and responsible level of municipal services.
Commentary: This section requires the Building Department to maintain an accurate count of building permits issued and cease issuance beyond the number identified as the permit cap in Section 04.0.
06.0 Issuance of Building Permits: The Building Inspector shall issue building permits in accordance with the following:
06.1 Applications for building permits shall be dated and time-stamped upon receipt by the Building Department. Permits shall be issued on a first in time basis subject to Section 06.2, below.
06.2 Within any calendar month, no more than ten percent (10%) of the number of building permits allowed during the calendar year for new dwelling units may be issued. Unused permit allotments are to be carried forward for issuance in the subsequent month until the ____ permits authorized by Section 04.0, above, have been issued. No unused building permits shall be carried forward from one calendar year to the next.
06.3 No more than five percent (5%) of the building permits authorized by Section 06.2 for new dwelling units shall be issued to any one applicant or set of applicants involving one or more of the same principals within a single calendar year. Multifamily residential developments, nursing homes and congregate care facilities shall be phased to comply with this requirement.
Commentary: This section establishes the procedure for issuance of building permits by limiting the total permit annual allowance to no more than ten percent per month. For example, if the total annual permit cap is 120, no more than 12 building permits could be issued per month, unless fewer than 12 were issued in the previous month. In that case, the unused allocation from the prior month could be added to the allocation for the current month. In addition, this section limits the total number of permits issued to one applicant per calendar year. Although no specific number is recommended, this number should be in proportion to the total cap established. For example, if the number of allowable building permits is high (e.g. over 250, issuance to a single entity can likewise be relatively high, e.g. 10-12). However, if the total cap is low (e.g., 100 or less), issuance to a single entity should be proportionately low as well (e.g., 5).
07.0 Exemptions: The following shall be exempt from the provisions of this Bylaw; units exempted under Section 07.2 shall nevertheless be counted toward the ____ permit total established in Section 04.0, above:
07.1 Dwelling units to be built under any Commonwealth or _______ program or statute categorizing said unit(s) as low or moderate income housing, or otherwise defined as an affordable housing unit provided that such housing units have deed restrictions to ensure that they remain affordable for no less than the time period specified by the program or statute.
07.2 Dwelling units subject to a development agreement entered into by the Town and/or the Cape Cod Commission with the applicant seeking a building permit(s).
Commentary: This section exempts from the building permit cap units defined as affordable and those units subject to a development agreement between the applicant and the Town and/or the applicant and the Cape Cod Commission. Note, however, that those units exempted due to the execution of a development agreement are to be counted toward the Town's established annual building permit cap.
0.08.1 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 bylaw shall not affect the validity of the remainder of the [town]'s zoning bylaw.
Commentary: This Section is a generic severability clause. Severability clauses are intended to allow a court to strike or delete portions of a regulation that it determines to violate state or federal law. In addition, the severability clause provides limited insurance that a court will not strike down the entire bylaw should it find one or two offending sections.