HomeMy WebLinkAbout076-11 Nantucket Housing Authority/Housing Assistance Corporation- }reoi5im reml'veG
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: May 20, 2014
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No: 076 -11
Owner /Applicant: NANTUCKET HOUSING AUTHORITY AS OWNER;
HOUSING ASSISTANCE CORPORATION AND NANTUCKET HOUSING AUTHORITY
AS APPLICANT
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with the office of the Nantucket Town Clerk.
An Appeal from this Decision may be taken pursuant to Section 22
of Chapter 40B, Massachusetts General Laws.
Any action appealing the Decision must be brought by filing a
complaint to the State Housing Appeals Committee (HAC) within TWENTY
(20) days after this day's date. Notice of the action with a copy of
the complaint and certified copy of the Decision must be given to the
Town Clerk so as to be received within such TWENTY (20) days.
Z- -� Cam,
Eleanor W. Antonietti,
Zoning Administrator
cc: Town Clerk
Planning Board
Building Commissioner /Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND
WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY -LAW
SECTION 139 -30 (SPECIAL PERMITS); SECTION 139 -32 (VARIANCES). ANY
QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE
AT 508- 228 -7215.
Locus: Surfside Road at South Shore Drive
RECEIVED
TOWN OF NANTUCKET ZONING BOARD OFA ,"^ NY 20 FM 3 20
FD.E NO. 076 -11 ,,iiTUCKET TOIlil CLERK
AMENDMENT #1 TO COMPREHENSIVE PERMIT
For
HOUSING ASSISTANCE CORPORATION
Surfside Road at South Shore Drive, Nantucket
Assessor's Map 67, Parcel 513, Building Lots 1 -40, Open Space Lots 4147, and the fee in the
30' Right -of -Way as shown on the Definitive Cluster Subdivision Plan, entitled "Definitive
Subdivision Plan, Sachem Path, Nantucket, Massachusetts, Permitting Plans ", dated July 31,
2012 [ "Subdivision Plan"], recorded with the Nantucket Registry of Deeds in Plan Book
, Page . Deed Reference Book Page
I. BACKGROUND OF AMENDMENT REQUEST
The Nantucket Zoning Board of Appeals ["ZBA "] issued a Comprehensive Permit pursuant
to Massachusetts General Laws [ "MGL"] Chapter 40B, Sections [ " § §'] 20 -23 ["Statute "], to
Housing Assistance Corporation [ "Applicant "], in a decision dated September 13, 2012,
and recorded with the Nantucket County Registry of Deeds in Book , Page
, to create a subdivision containing 40 building lots and seven (7) open -space lots as
shown on the Subdivision Plan ( "the Development).
In preparation for Final Approval from the Subsidizing Agency (Mass Housing) and
construction of the subdivision, the Applicant has requested certain insubstantial changes to
the Comprehensive Permit. ZBA meetings on the amendment request were held on January
9, 2014, February 13, 2014, March 13, 2014, and April 10, 2014, during which the ZBA,
Town Departments and Committees, the ZBA's consultant, neighbors, and other interested
parties discussed the various amendment requests with the Applicant.
The members of the ZBA hearing the amendment request were Mr. Edward Toole, Chairman,
Mr. Michael O'Mara, Mrs. Lisa Botticelli, and Mr. Mark Poor. The ZBA was again assisted
by Mr. Edward Marchant, a consultant hired to advise the ZBA on MGL Chapter 40B -
matters.
The ZBA has not adopted local rules and regulations governing applications filed
pursuant to MGL Chapter 40B, and accordingly, the model rules prepared by the
Commonwealth of Massachusetts, Department of Housing and Community Development
(DHCD), are the Hiles applicable to the Modification requests.
The Public Record of this Amendment Decision includes, but is not limited to, the
Application and all supplemental materials from and correspondence between the
Applicant and the ZBA, written material received during the public meeting, and such other
information on file with the ZBA at the Nantucket Zoning Board of Appeals office.
II. ZBA DISCUSSION AND VOTE
After lengthy discussion over several meetings, at its meeting on April 10, 2014, after
a Motion was made by Mrs. Lisa Botticelli and seconded by Mr. Michael O'Mara,
the ZBA voted unanimously to approve certain requested insubstantial changes as
discussed and as outlined in Amendment #1 to the Comprehensive Permit
("Amendment #1 ").
III. INSUBSTANTIAL CHANGES
The Comprehensive Permit is hereby amended as follows:
Page 2, Section II (Background of MGL Chapter 40B), Second Paragraph, Lines
I and 2:
The phrase "or New England Fund Program of the Federal Home Loan Bank of
Boston" is added after the phrase "Housing Starts Program of the Massachusetts
Housing Finance Agency (MassHousing) ".
2. Page 7, Section III(D) (The Public Hearing):
Add new Paragraphs (D)(3) - (8) inclusive (Findings of Fact) as follows:
(D)(3) The Applicant, Sachem's Path Nantucket LLC and the Nantucket Housing
Authority have entered into a Development Agreement ["Development
Agreement "] dated October 23, 2013, governing the rights,
responsibilities, and obligations between and among the parties to the
Development. The provisions of the Development Agreement, including
without limitation financial obligations, shall be followed in connection
with the construction and operation of the Development.
(D)(4) The MassHousing Project Eligibility Letter [ "PEL "] dated October 11,
2011, stated that 25% of the units most be offered for sale to households
earning no more than 80% of the Area Median Income, adjusted for
household size, as published by HUD. Consistent with the Development
Agreement and general program for the development, the remaining
homes will be offered for sale to households between 81% - 150% of Area
Median Income, adjusted for household size. The Applicant shall use the
regulatory documents required by the Commonwealth of Massachusetts
for households earning no more than 80% of the Area Median Income and
shall also use similar regulatory documents for those households earning
between 81 % - 110% of the Area Median Income. Regulatory documents
for households earning between 111% - 150% of the Area Median Income
shall be especially created in consultation with and with the approval of
the Town of Nantucket including the Nantucket Housing Authority and
the Nantucket Community Preservation Commission.
(D)(5) The current G.L. c. 40B Guidelines issued by DHCD require that
affordable homeownership units be reasonably interspersed through the
project and blended into a project, so that they are an integral part of the
overall design and relate to market units on a substantially equal footing.
It is also our understanding that MassHousing regulates the construction
ratio of units to be sold to households earning no more than 80% of Area
Median Income to units not required to be sold to households earning no
more than 80% of Area Median Income.
(D)(6) The PEL stated that MassHousing intends to delegate responsibility for
monitoring compliance with the affordability and eligibility requirements
to a Monitoring Agent. The Applicant has also submitted form legal
documents such that MassHousing will itself be monitoring the limited
dividend requirement, and that the Applicant shall bear all reasonable
costs for the Monitoring Agents' contract/services.
(D)(7) The PEL stated that the Applicant must enter into a Regulatory Agreement
with MassHousing ensuring compliance with the requirements of the
applicable program, the comprehensive permit rules and guidelines. The
PEL also stated that an affordable housing restriction most be recorded
with the deed to each unit that is to be restricted to households earning no
more than 80% of the Area Median Income, which restriction ensures that
the units remain affordable to future buyers in perpetuity.
(D)(8) Pursuant to an agreement with Housing Authority, the Applicant has
further committed that, notwithstanding the foregoing, the Applicant shall
not disburse any sales, financing, grant or other revenue toward its
development fee (profit) except as set forth on Exhibit A attached hereto
and made a part hereof. Said agreement further specifies that the
Applicant may disburse such revenue for reasonable and certifiable
development overhead costs during both the preconstrnction period and
during construction on a house by house basis. As set forth in the
agreement with the Housing Authority, these commitments were made by
the Applicant in order to maintain an adequate cost contingency so as to
be able to complete the Project in accordance with the terms of the
Comprehensive Permit.
3. Page 8, Section III(F) (Conditions), Condition 2:
The second sentence is hereby deleted, and Condition 2 shall read as follows:
2. As proposed by the Applicant, Sachem's Path shall be limited to
no more than forty (40) detached, single- family dwellings to be
held in fee simple ownership. Of these forty (40) dwellings, the
Applicant has full responsibility for ensuring that a minimum of
ten (10) dwellings are completed, and sold to eligible households
earning at or below 80% of the Area Median Income in
accordance with Chapter 40B guidelines. The Town may
withhold the issuance of building permits bFXinning with the
building permit request for the twenty -sixth (26 ) dwelling if two
(2) of the four (4) dwellings anticipated to be constructed by
Habitat have not received Certificates of Occupancy and been
sold to households that satisfy Chapter 40B eligibility
requirements. MassHousing's PEL stated that 25% of the units
must be offered for sale to households earning no more than 80%
of the Area Median Income, adjusted for household size, as
published by HUD. Compliance with such programmatic
requirements shall be determined solely by MassHousing as
Subsidizing Agency in accordance with the Chapter 40B
Regulatory Requirements and the NEF Guidelines. Total
bedrooms for the site shall not exceed ninety -seven (97)
bedrooms, which are proposed in one, two, and three- bedroom
homes. The Applicant has stated that the sewer allocation for
Sachem's Path can accommodate all of the proposed ninety -seven
bedrooms in the subdivision.
4. Page 8, Section III(F) (Conditions), Condition 3:
The second sentence is hereby deleted, and Condition 3 shall read as follows:
3. Thirty-six homes (36) shall be constructed by HAC in accordance
with bona fide Purchase and Sale Agreements. Notwithstanding
the foregoing, two (2) homes may be constructed as Marketing
Models prior to a Purchase and Sale Agreement being signed.
Four homes (4) shall be constructed by Habitat Nantucket. No
lots shall be sold by either HAC or Habitat Nantucket until
Certificates of Occupancy have been received for each respective
lot.
5. Page 9, Section III(F) (Conditions), Condition 4(g):
The following new sentence shall be added at the end of Condition 4(g) as
follows:
4(g). The Applicant may provide evidence to the Zoning Enforcement
Officer of a bond in the amount of $50,000.00 as security for the
completion of all landscape improvements, after which event all
of the cash escrow shall be returned to the Applicant, and such
bond shall remain in place until all homes have been constructed
in the Subdivision. The terms of the bond and the bond issuer
must be acceptable to the Zoning Enforcement Officer.
6. Page 9, Section III(F) (Conditions), Condition 4(i):
Delete Paragraph 4(i) in its entirety and replace as follows:
4(i). Final Declaration of Protective Covenants; and'. The Regulatory
Agreement and Universal Deed Rider are not allowed to be
reviewed for consistency except by MassHousing.
Page 10, Section III(F) (Conditions), Condition 7:
The second sentence is hereby deleted, and Condition 7 shall read as follows:
7. The Applicant shall construct, at its own expense, the
improvements stated herein as shown on the referenced
engineering and/or architectural plans as revised with the
Applicant's Request for Modifications. Except as provided
herein, no building permits for dwellings within Phase 1 and
Phase 2, respectively, shall be issued until the infrastructure for
the respective phase, including but not limited to water, sewer
and electrical utility connections; curbing; sidewalks; common
mailboxes; and all but the top coat of street pavement (the finish
coat) has been completed. Infrastructure work, including any site
clearance, shall not commence for Phase 1 until after a
Commitment Letter for State Funding acceptable to the ZBA is
received and submitted to the ZBA for its review and approval.
Such letter must provide adequate subsidy for the completion of
the Phase I dwellings. Subsidy funding shall be available to the
project within a timeframe such that the construction of dwelling
units may begin within nine (9) months of receipt of the
Commitment Letter. Completion of infrastructure in each phase
shall include a two -inch binder coat for the road and the other
required infrastructure as listed above. The finish coat for the
roadways within each of the (2) two phases shall be completed
prior to the issuance of a Certificate of Occupancy for the last
dwelling in each phase. Notwithstanding the foregoing, the
Applicant shall be allowed to construct two (2) houses to serve
only as marketing models at the same time as the infrastructure
improvements are being undertaken within the first phase. No use
of these two marketing models other than for marketing purposes
shall be allowed until such time that Certificates of Occupancy
are duly issued for the subject model homes. Prior to any
marketing use of the two (2) model homes, the Zoning
Enforcement Officer must make a determination that there can be
safe access by the public to the model homes.
8. Page 11, Section III(F) (Conditions), Condition 14:
Delete Condition 14 in its entirety and replace as follows
14. Preserved open space, conservation restriction area, and
undisturbed buffer areas as shown on the Definitive Subdivision
Plan dated July 31, 2012, and signed by the Board of Appeals on
September 13, 2012, shall be delineated with a split rail fence in
those locations shown on the Plans and shall be considered
permanently protected open space consistent with M.G.L. Chapter
40A, §9, subject to the exceptions provided herein. As shown on
the Plans, such fencing is not proposed or required around those
sides of Lots 43 and 44 as shown on the Definitive Subdivision
Plan not facing other lots within the Subdivision. The split rail
fence shall be erected by the Applicant prior to application for any
building permits. The Applicant shall be responsible for
maintaining this fence in good order until all of the homes in the
development are constructed and sold. Thereafter, the
Homeowners Association shall bear such responsibility.
Notwithstanding the foregoing, the existing dirt driveway,
mailboxes, and dumpster located on Lot 44 as shown on the
Definitive Subdivision Plan shall continue to be allowed to be
used, maintained, repaired, and replaced by the Nantucket
Housing Authority, such dirt driveway being for ongoing access
to and from the two garage /shed buildings located on the
Authority's adjacent land and Benjamin Drive. Lot 43 as shown
on the Definitive Subdivision Plan shall be used only as allowed
by the Massachusetts Natural Heritage and Endangered Species
Program. Lot 42 as shown on the Definitive Subdivision Plan
shall be maintained as undisturbed open space subject to the
existing sewer force main easement thereon. Lots 41, 45, and 47
as shown on the Definitive Subdivision Plan shall be maintained
as undisturbed open space. Lot 46 as shown on the Definitive
Subdivision Plan shall be maintained as undisturbed open space
subject to a drainage easement thereon. The areas labelled as
undisturbed buffer areas within the Lots along Surfside Road and
along the rear of the Subdivision property as shown on the
Definitive Subdivision Plan shall be maintained as undisturbed
open space.
Page 14, Section III(F) (Conditions), Condition 21:
Delete Condition 21 in its entirety and replace as follows:
21. The programmatic requirements regarding distribution of the ten
(10) 80% Area Median Income units and the construction ratio for
80% Area Median Income units to other units shall be determined
solely by MassHousing in accordance with Chapter 40B
regulations and guidelines.
10. Page 14, Section III(F) (Conditions), Condition 22:
The second sentence is hereby deleted, and Condition 22 shall read as follows
22. The legal documents to be entered into between the Nantucket
Housing Authority and the Applicant in connection with the transfer
of the Property to the Applicant shall include language stating that
if the Applicant decides in the future not to complete the
subdivision, the remaining undeveloped lots shall at that time he re-
transferred back to the Nantucket Housing Authority for nominal
consideration and lien free other than existing liens of record at the
time of the sale of the property to the Applicant by the Nantucket
Housing Authority. No lot or other portion of the property shall be
pledged as security or otherwise transferred or alienated by the
Applicant, except that the Applicant may grant a construction loan
mortgage from which funds will only be advanced once there is a
valid purchase and sale agreement with a buyer for a lot to allow
construction on such lot to commence provided that the
construction mortgage lender only secures the construction
mortgage per advance against the specific lot in question and
agrees to release such lot from the Applicant's construction
mortgage at the time of sale of the lot to the buyer and the recording
of the buyer's mortgage for such lot. Such construction financing by
the Applicant shall not be used for subdivision infrastructure, but
shall only be used as indicated above to allow construction to
commence per lot once a valid purchase and sale agreement with a
buyer is in place. There is no prohibition against such construction
financing being advanced for multiple lots at the same time
provided that there is a valid purchase and sale agreement with a
buyer for each lot for which funds are to be advanced.
11. Page 15, Section III(F) (Conditions), Condition 28:
Delete Condition 28 in its entirety and replace as follows:
28. The programmatic requirements regarding monitoring of the sale of
units to households canning no more than 80% of Area Median
Income and the monitoring of the limited dividend requirement
shall be determined solely by MassHousing.
12. Page 15, Section HI(F) (Conditions), Condition 29:
Delete Condition 29 in its entirety and replace as follows:
29. The programmatic requirements regarding the execution of a
Regulatory Agreement and the use of affordable housing
restrictions shall be determined solely by MassHousing.
13. Page 15, Section III(F) (Conditions), Condition 31:
The opening phrase is hereby deleted, and Condition 31 shall
read as follows:
31. Prior to the start of any house construction, the Applicant shall
obtain Final Approval from MassHousing and shall execute a
Regulatory Agreement with MassHousing which shall be recorded,
at the Nantucket Registry of Deeds, with a marginal reference to
the deed or deeds for the Locus to the Applicant. No building
permits shall issue for the project prior to Applicant's receipt of
the Final Approval from MassHousing. However, subject to
approval by the Subsidizing Agency, site infrastructure can
commence prior to the Final Approval by the Subsidizing Agency
and prior to the recording of the Regulatory Agreement for the
project subject to the receipt of a Commitment Letter for State
Funding acceptable to the Board of Appeals.
14. Page 16, Section III(F) (Conditions), Condition 32:
Delete Condition 32 in its entirety and replace as follows
32. The Applicant shall contemporaneously provide the ZBA and the
Nantucket Housing Authority with copies of any financial reports or
documentation submitted to the Monitoring Agent and
MassHousing including financial reports or documentation
submitted in association with the review of the limited dividend
requirement. Since the land was donated to the Housing Authority,
which in turn is donating it to the project, and since the Town is
donating substantial funding for the project, the Applicant has
voluntarily committed that its maximum Developer's Fee will not
exceed 15% of certified costs as approved by the Monitoring Agent
and that any such certified and audited excess beyond 15% shall be
paid to the Nantucket Housing Authority to use in advance of the
Authority's Mission. The Applicant shall further comply with the
financial provisions as set forth in the Findings Section of this
Decision and the Development Agreement.
15. Page 16, add new Condition 34 as follows:
34. Notwithstanding the foregoing, if there are certified and audited
cost savings for the development, such savings shall be used for
either project improvements (with a preference to landscaping
improvements) and/or contributions to the Homeowner's
Association Capital Reserves account.
All other terms and conditions of the Comprehensive Permit dated September 13, 2012 shall
remain in full effect except as modified herein.
It is therefore the decision of the Board of Appeals to GRANT the Application to Amend
the Comprehensive Permit with the amended conditions and requirements herein provided
by a vote of four (4) in favor and zero (0) opposed.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
SIGNATURE PAGE TO FOLLOW
Assessor's Map 67, Parcel 513
Surfside Road at South Shore Drive
Limited Use General 2 (LUG -2)
Dated:2014
k Poor
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss
On the _J ;5 "t day of M 2014, before me, the undersigned notary public,
personally appeared M 0002 , one of the above -named
members of the Zoning Board of Appeals of Nantucket, Massachusetts, personally known to me
to be the person whose name is signed on the preceding document, and acknowledged that he
signed the foregoing instrument voluntarily for the purposes therein expressed.
�yktlw b v
Notary Public:
My Commission Expiry,' LYNELL 0. VOLLANS
,7, Notary Public
71 tril /ICemmcnwealth of Massaahusem
NV1pf //P My Commission Expires
December 28, 2018
10
LXH16IT A
Sachem's Path
Proposed Overhead and Fee Distribution
PROPOSED
Overhead 50.0% Paid per Terms Allowed by Public and Private Lenders
Fee 50.0% Fee Earned
Fee Is Earned Upon Sale of Each Home. Source of Funds is Sales Proceeds
Earned Fee to be Deposited into Escrow Account on Island
Use of Fee [No More than 25% of Earned Fee during Development Period[
No more than 25% of Earned Fee may be used to pay for Costs associated with the execution of the
development of Sachem's Path
Determination of Appropriate Use
Applicant to submit a written request for release to the ZBA
Request to include the proposed amount and use of the funds
ZBA shall provide a response to the Applicant within 10 business days after the neat monthly meeting
of the Board.
Release of Final Fee (Total Fee less Amount Used in the execution of the Development[
Acceptance of 40B Cost Certification for Full Development
Total Fee /Overhead 100.0%