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Agenda and Minutes 2009-12-16 City of Northampton Community Preservation Committee 210 Main Street, City Hall Northampton, MA 01060 Community Preservation Committee DATE: Wednesday, December 16, 2009 TIME: 7:00pm PLACE: City Council Chambers (behind City Hall), 212 Main St. Contact: Fran Volkmann, Chair, Community Preservation Committee Franv@comcast.net Tom Parent, Vice Chair, Community Preservation Committee ParentBridge@hotmail.com Wayne Feiden, Community Preservation Planner wfeiden@northamptonma.gov (413) 587-1265 Agenda ?? Public Comment ?? Minutes of 12/02/09 ?? Chair's Report ?? Election of Chair and Vice Chair for 2010 ?? Report of the working group on Monitoring and Reporting ?? Identification of areas where the Plan needs revision ?? Other Business For additional information please refer to the Community Preservation Committee website: http://www.northamptonma.gov/cpc City of Northampton Community Preservation Committee 210 Main Street, City Hall Northampton, MA 01060 Community Preservation Committee Minutes DATE: Wednesday, December 16, 2009 TIME: 7:00pm PLACE: City Council Chambers (behind City Hall), 212 Main St. Members Present: Fran Volkmann, Tom Parent, Downey Meyer, Lilly Lombard, Don Bianchi, Jack Hornor, and George Kohout Staff Present: Carolyn Misch, Senior Planner Office of Planning & Development Fran Volkmann opened the public meeting at 7:00pm. There was no public comment. Acceptance of 12/2/2009 Minutes The CPC approved the minutes by consensus, with changes noted. Chair's Report Ms. Volkmann noted that the new CPC member would be present at the first meeting in January and would be confirmed by Council this week. Also noted were upcoming deadlines for eligibility sheets (due 1/8) after the 1/6 meeting. Volkmann raised this issue of holding the election without all members present and sought feedback about holding off until the new CPC member is on board. Committee discussed pros and cons of waiting versus holding the election now. Volkmann suggested waiting to see if other members would come so the election could be held later in the agenda. Report on Monitoring Process: Downey Meyer distributed handout of monitoring sheet that he and Tom Parent had been designing. Meyer described the details of the monitoring system and requested feedback from the Committee as well as Office of Planning and Development staff. COMMUNITY PRESERVATION PROJECT MONITORING SHEET 1. Project title: 2. Project contact information: 3. Brief project description: 4. Recommendation amount: 5. City Council action: (amount voted, first reading date, second reading date) 6. CPC contract fully executed on: 7. Date of first disbursement of funds: 8. Date disbursement of funds completed: Conditions to be Satisfied Before Work Begins 9. 10. Conditions to be Satisfied by the Project Completion Date 11. Contract Condition #1: 12. How was Condition #1 fully satisfied? (If Condition #1 was not fully satisfied, please describe why this occurred, and whether any CPC action is needed as a result.) 13. Contract Condition #2: 14. How was Condition #2 fully satisfied? (If condition was not fully satisfied, please describe why this occurred, and whether any CPC action is needed as a result.) 15. Contract Condition #3: 16. How was Condition #3 fully satisfied? (If condition was not fully satisfied, please describe why this occurred, and whether any CPC action is needed as a result.) 17. Was the work contemplated by the CPC recommendation for this project completed in full? (If all of the work contemplated was not completed, please describe the work that was not done, and indicate why this occurred.) Ongoing Conditions Extending Beyond the Project Completion Date 18. Contract condition #4: 19. Describe the project applicant's efforts to satisfy Condition #4? (If condition has not been satisfied to date, please describe why this occurred, and whether any CPC action is needed as a result.) 20. Contract condition #5: 21. Describe the project applicant's efforts to satisfy Condition #5? (If condition has not been satisfied to date, please describe why this occurred, and whether any CPC action is needed as a result.) 22. If a condition of the approval of this project was the recording of an affordable housing restriction, historic preservation restriction, conservation restriction, agricultural preservation restriction, or other deed restriction, please provide following information: 1) the identities and contact information for all holder(s) of the restriction and all parties empowered to enforce the restriction, 2) the date that this restriction was recorded in the Registry of Deeds, and 3) the book and page number where the restriction is recorded. 23. If a restriction was recorded, when and how were all parties with an interest in enforcing the restriction notified? (If notification was done by letter, then a copy of that letter should be attached to this monitoring report, along with any reply from those parties.) 24. Is there any other information that came to light during the completion of this project that should be brought to the attention of the Community Preservation Committee, in order to improve the effectiveness of its policies and procedures with respect to project monitoring? How should we monitor a Preservation Restriction to ensure its effectiveness? To protect both the property owner and the restriction-holder, it is important that there be a clear set of procedures and policies to guide the administration and monitoring of a Preservation Restriction. The key to avoiding problems and court costs is catching problems before changes are made to the property. To that end, the following steps are recommended: 1. Designate a Preservation Restriction administrator. The organization holding the restriction should designate an administrator (perhaps the Secretary or President of the organization, or an employee) who is the primary contact person if a property owner has questions about the restriction. Communication is essential if there is a transfer of ownership, so administrators may want to initiate contact with new property owners. Ideally, administrators should be knowledgeable about historic architectural and building technology in order to insure that they can identify unapproved work or areas of concern for repair. Cape Cod Commission staff may also be contacted to assist with these issues. 2. Arrange annual on-site meetings. The administrator should be responsible for arranging annual on-site meetings with the property owner to assess the current condition of the property, to discuss the terms of the restriction, and to answer any questions the owner may have. 3. Maintain annual status reports on the property. The administrator should follow up annual on-site meetings with a written “status report” on the property, citing the owner's compliance with the restrictions and the general condition of the property. 4. Alert town departments and agencies. Work with town permitting departments and assessors to put a “red flag” on properties with a Preservation Restriction, and ask the town to notify the restriction holder (Local Historical Commission or other entity) any time a development permit is sought for one of these properties. George Kohout asked how this would be incorporated with existing data management infrastructure within the city and suggested that it be designed to easily function within it. There was discussion regarding the administering of preservation restrictions beyond the contract completion period and whether such administration could be delegated to staff or other city entities or CPC itself. Jack Hornor noted that monitoring is the key and enforcement of such restrictions are more easily figured out at the time given specific circumstances of the program. Meyer suggested that administered by ensuring that conditions are satisfied by staff who could then bring it to CPC’s attention. CPC could determine the most appropriate authority to enforce. Don Bianchi and Jack Horner both suggested that the administrative funds could be applied toward monitoring efforts. Meyer noted that monitoring the accuracy of the budget estimates was an important part of overall monitoring in order to track and learn how applications/contracts might need adjusting in the future based on current experiences. Tom Parent asked if payments could be phased to ensure recording of restrictions were completed prior to the final payment. Meyer suggested such a practice might not work in all situations particularly in land acquisition and that typically restrictions are recorded simultaneously with the closings which is the time that you need 100% of the funds. Hornor confirmed tension between competing timelines for needing the funds and the restrictions being recorded. He suggested it might be best to evaluate on a case-by-case basis. Bianchi asked staff how the city typically handled closings and restrictions and whether in- house council was involved. Staff confirmed. George Kohout noted that the monitoring program format presented was a great tool and asked how it might apply retroactively? Tom Parent suggested that each member of the CPC test the program by applying to an existing contract. Fran Volkmann asked who would be charged with overseeing monitoring? George Kohout and Lilly Lombard agreed that CPC staff would do it because it is part of the contract work. Hornor noted that some projects would need more monitoring and annual monitoring than others but it would not be an entirely new/separate function for staff. Volkmann suggested that this be put forth on the next agenda and that CPC members should provided comments to Downey. George Kohout asked whether the existing spreadsheets maintained by staff were incorporated or would be. Downey noted that potentially they could be tied together but mostly they were financial sheets. Elections Volkmann opened the floor for elections. Upon motion by Jack Hornor and second by Tom Parent, Hornor nominated Volkmann for Chair. No other nominations were forthcoming. Upon motion by Tom Parent and second by Don Bianchi, the Committee voted unanimously to close the nominations. It was noted that there was no need to vote since there was only one nomination. Volkmann opened nominations for Vice Chair. Upon motion by Jack Horner and second by Don Bianchi, Hornor nominated Downey Meyer for Vice Chair. Meyer noted his uncertainty as Conservation Commission representative through the spring and declined the nomination. Upon motion by Don Bianchi and second by George Kohout, Bianchi nominated Lilly Lombard for Vice Chair. Lombard noted her reservations about serving in the role and the prospect of being Chair in a year and thus declined the nomination. Tom Parent volunteered to stay on through June as Vice Chair. Upon motion by George Kohout and second by Downey Meyer, George Kohout nominated Tom Parent for Vice Chair. Plan Revisions Don Bianchi reported that no changes were necessary in the housing section. Volkmann asked whether it would be appropriate to incorporate a reference to the housing needs assessment that was funded by CPC. Hornor agreed it would be appropriate. Downey Meyer reported on the open space section and that the only change would be to extend the date by which the city’s open space plan would be completed (2010). There was no discussion of the historic preservation sections due to David Drake’s absence. Tom Parent noted that no changes were needed to the recreation section. Committee discussed application submission process and requirements that should be added to the plan. Fran Volkmann suggested that the allowable spending matrix included in the plan should be attached to the application process as recommended by the Community Preservation Coalition. Committee agreed that it might be beneficial to include it as part of the application in the next round as a trial. Other Business Public Access- Should be put on the next agenda. Bean Farm- discussion of draft resolution going before council. Volkmann noted that the CPC generally could agree that they would not hold up the process to purchase the farm if there is a process on how to determine its ultimate use. There was discussion on clarification of timing and submission of expedited review and whether or not an extra meeting would be necessary between now and the 1-6-10 meeting. George Kohout noted his only concern about expedited reviews in general was that they couldn’t be weighed against other projects. It was clarified that the CPC would not need to know use of all acreage, but just general numbers to determine the category of funding. The CPC needs the expedited review request in writing consistent with the adopted policy. Upon motion by George Kohout and second by Don Bianchi, the committee voted 6- 1(Lombard opposed) to approved of the proposed schedule: If council adopts process substantially similar to the draft resolution, then CPC could entertain the request for the expedited review at the 1-6-10 meeting with a full application at 1-20. Potentially the process group would have met by the time the full application is submitted. Look Park-Fran Volkmann presented the question that was emailed from a resident about legality of the CPC grant to Look Park. Committee discussed rationale for allowing the recreational field that will be located on previously inaccessible portions of the park. Committee discussed contradictory and gray nature of the regulations relating to funds used for recreational purposes and the clear rules that were not applicable in this situation. There was discussion about how to address the ambiguities in the regulations and court decision on this issue. Based upon the budget, it was clear that $55,000 of the $75,000 were clearly for preservation of the asset and the only issue that was unclear was the remaining $20,000 for the creation of new recreation space at the park. Upon motion by Lilly Lombard and second by George Kohout, the Committee voted unanimously to request that Council reduce the allocation to Look Park from $75,000 to $55,000 if after consultation with the Mayor, this $20,000 is determined to be outside the scope of the CPA rules. The CPC adjourned at approximately 10:00 PM. Statement by Don Bianchi Presented at 12/2/09 Meeting of the Northampton Community Preservation Committee Preface The Northampton Community Preservation Committee, at its regularly scheduled November 18 meeting, made a series of recommendations to the Mayor on projects and programs for CPA funding. Included among our recommendations is $37,500 for the Valley CDC Homeownership Sustainability Program, over the course of two fiscal years. Because of her concerns about whether the Program’s use is eligible under the Community Preservation Act, the Mayor asked the City Solicitor for an opinion on this. The City Solicitor has ruled against the CPC Recommendation, citing opinion letters issued by the Massachusetts Department of Revenue, and noting the legal risk and the precedent relative to other requests for funds that fall outside the current legal umbrella of the CPA. Based on this information, and the likelihood that City Council would not approve this award given the concerns expressed by the City Solicitor, I would like to enter the following statement, in its entirety, into the minutes of today’s CPC meeting. I also request that the Northampton CPC endorse sending a letter to the Community Preservation Coalition requesting it take action as described in the following statement. Statement Absent a change in State law or a new guidance issued by the Massachusetts Department of Revenue, it is likely that Northampton CPA funds will not be awarded to Valley CDC’s Northampton Homeownership Sustainability Program. This is bad news for community preservation in Northampton. I had hoped that the City Solicitor would come to a different conclusion, and I think she could have reasonably come to a conclusion that the Program is an eligible use of CPA funds. However, I cannot say that the City’s Solicitor’s Opinion, or the Mayor’s insistence on getting the City Solicitor’s Opinion before recommending this award to the City Council, are unreasonable. Opinion letters previously issued by the DOR for other communities have clearly created a degree of ambiguity about the eligibility of the Program for CPA funds. Nonetheless, the ambiguity created by the DOR Opinion letters has done damage to community preservation in Northampton, and to the extent that similar programs in other communities are not awarded CPA funds due to similar eligibility concerns, these Opinion letters have done damage to community preservation statewide. There is currently legislation under consideration by the Massachusetts Legislature, that would remove the ambiguity and make clear that programs like the Valley CDC Program are an eligible use of CPA funds. However, in my opinion, this damage done to community preservation by the DOR letters is unnecessary, and is within the power of DOR to undo, irrespective of any legislative change in the CPA law. As stated in the CPA application, the Program proposed by Valley CDC would provide post- purchase counseling to at least 45 Northampton homeowners at or below 100% of area median income. The application goes on to state the following “The counseling will primarily focus upon foreclosure prevention and advocacy for homeowners seeking loan modifications for high cost mortgages. We will also provide counseling and home retention advocacy for Northampton homeowners with conventional mortgages who are at risk of foreclosure due to job loss, income reduction, illness or other financial hardships.” Valley CDC requested $42,446 for this program over an 18-month period, to support Valley CDC’s costs of running the program over this period. The CPC recommended $37,500 in funding for the program. In its letter dated September 24, 2007, in a response to a City or Town whose name has been redacted, the key portion of the letter from the DOR cited by the City Solicitor in her Opinion, states the following: “We understand that some have interpreted support to mean that fund monies can be used to provide financial support or assistance directly to individuals. When read in the context of the entire statute related to allowing spending for community housing ("for the acquisition, creation, preservation and support of community housing.."), however, we have concluded that the support or assistance is in furtherance of the housing, i.e, assistance that results in additional community housing assets.” However, the request from the Town for guidance to the DOR, dated August 6, 2007, seeks guidance on two specific purposes of CPA funds: providing rental housing assistance vouchers and providing loans from a revolving loan fund account for first and last month’s rent and security deposit. Both of these proposed uses involve cash assistance directly to individual households, and both were ruled ineligible by the Assistant Town Attorney. The DOR’s letter in response to the inquiry states that the Town Attorney’s position is consistent with the DOR’s interpretation of the statute, because the purpose of the Statute is to expand a community’s physical assets in four areas, including affordable housing. The letter then goes on to acknowledge that the statute provides that CPA funds may be used for “support of community housing,” and concludes with the language noted above in addressing this. This creates unnecessary ambiguity because, in response to a question as to whether two programs that provide cash assistance to individuals is eligible for CPA funding, the DOR letter responds by citing that “some” have interpreted this to mean that CPA funds can be used “to provide financial support or assistance directly to individuals”, and concludes that the “support or assistance” should be in furtherance of the housing itself. The phrase “financial support or assistance” can mean two possible things- it can mean “financial support or financial assistance directly to individuals” or it could mean “financial support or other non- financial assistance directly to individuals”. This language confusion is not addressed by the DOR- but the very existence of this confusion could lead a prudent Town Counsel, acting conservatively, to interpret that any assistance to individuals, whether financial or otherwise, is inconsistent. I believe that, at a minimum, the DOR should explicitly clarify whether it intends to cast doubt on the eligibility of all assistance to individuals or specifically financial assistance to individuals. Even if the DOR were to clarify that their earlier Opinion is intended to cast doubt on non- financial support to individuals as an eligible use, I believe that DOR should be asked to reconsider this decision, in light of information that has come to bear since those Opinions were issued. I think that a legitimate case could be made, in the wake of the dramatically increased level of foreclosures since 2007, that providing pre-purchase and post-purchase counseling to low and moderate income homebuyers is in the interest of preserving the community housing assets. Given the glut of subprime mortgage products that were offered to homebuyers who did not receive such counseling, and the resultant impact on both individual families and the broader community of foreclosure (including depressed property values and in some places significant neighborhood disinvestment and deterioration), a compelling argument can be made that counseling to lessen the likelihood of foreclosure, whether pre-purchase or post-purchase, is in the interest of preserving a community’s housing assets. As the organization that represents community preservation coalitions statewide, I would like to request that the Massachusetts Community Preservation Coalition proceed to do the following: 1. Continue to aggressively pursue passage of legislation to clarify that assistance to qualified individuals and families to acquire and preserve housing is an eligible use of CPA funds: 2. Ask the DOR to clarify whether it’s letter of September 24, 2007 was intended to apply to financial assistance or to all assistance to individuals; and 3. Request the DOR to offer a new opinion that defines non-financial assistance to qualified individuals and families to assist them to acquire or preserve homes to be in the interest of creating or preserving community housing and should thus be considered an eligible use of CPA funds. In the last paragraph on page three of her December 2, 2009 Opinion, the City Solicitor recommends against the City using CPA funds to fund this program “until, and unless, the current statute is amended to allow the use of funds to individuals in the community housing context.” I would hope that if the DOR issues guidance that, under current law, such assistance is eligible under the CPA Act, the City Solicitor would reach a different conclusion. Characteristics of Good Process 1. Good process is educational. It brings everyone to a shared level of information. It elicits information from knowledgeable people who hold different perspectives. 2. Good process explores possibilities. It is visionary. It encourages the exploration of many options for solving the problem at hand. The exploration of options is based upon sound information, not just opinion. 3. Good process is interactive. Information and ideas do not flow in only one direction. Anyone who is interested has the opportunity to contribute information and ideas, to ask questions and receive answers. The process involves active outreach to persons and groups who might have special interest in the outcomes. Opportunities for the exchange of information and ideas are scheduled well in advance of decision-making. 4. Good process is transparent. Information is disseminated widely as it becomes available. Vehicles for dissemination are widely publicized. 5. Good process provides a predictable and trustworthy structure for decision- making. a. Everyone knows from the outset who will make recommendations; who will make decisions; b. Groups responsible for the process include members who are known to be disinterested about outcomes and committed to good practice. It is critically important for every stakeholder to realize that his or her ideas may not prevail in the end. Including all of the above elements in the process helps to ensure that recommendations and decisions are made in an informed, open, and respectful way and are not controlled by a small number of people committed to a particular outcome. Good process thus makes it easier for stakeholders to accept what they may see as a negative decision, and builds trust instead of resentment going forward. Prepared by Fran Volkmann for the Northampton Community Preservation Committee Fall ‘09