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40B Lottery and 40B Apartments

Pro forma Review
If the ZBA requests project changes and the developer refuses because the changes would make the project uneconomic, the ZBA may hire a peer review consultant at the developer’s expense to review the developer’s pro forma. It makes no sense to evaluate the pro forma before the ZBA has identified its concerns and the developer has had a chance to respond. Developers want the comprehensive permit for which they have applied, so usually they will try to accommodate reasonable changes. If the developer can accept all of the conditions the ZBA plans to impose, there is no reason to evaluate a pro forma at all.
In the past, ZBAs tried to use pro forma peer reviews to determine if a project would remain financially feasible with a reduction in the number of units. This is an example of a practice that was never really correct to begin with, and it is not permitted under the Chapter 40B Regulations that DHCD adopted in 2008. Today, the Chapter 40B Regulations specifically prohibit reviewing “a pro forma in order to see whether a Project would still be economic if the number of dwelling units were reduced, unless such reduction is justified by a valid health, safety, environmental, design, open space, planning, or other local concern that directly results from the size of a project on a particular site.” (760 CMR 56.05(6)(a)(4)) Reducing the density of a comprehensive permit development should be based on valid planning considerations, design deficiencies, or environmental impacts.