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Agenda and Minutes 2009-12-02 City of Northampton Community Preservation Committee 210 Main Street, City Hall Northampton, MA 01060 Community Preservation Committee DATE: Wednesday, December 2, 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  General Public Comment  Acceptance of 11/18/2009 Minutes  Chair's Report  Discussion on Monitoring & Reporting  Discussion Regarding Bean Farm Expedited Review Application  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 2, 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 David Drake Staff Present: Wayne Feiden, Director of Planning and Development Fran Volkmann opened the public meeting at 7:00pm. General Public Comment Susan Lantz, Lyman Road, representing Grow Food Northampton spoke on the Bean Farm and stated that the process didn’t work well and the Agriculture Commission was not involved in the process. Ms. Lantz indicated that the Agriculture Commission and the Conservation Commission have both supported preserving the property and asking for CPA funds to do so. Ms. Lantz indicated that she feels that there is no transparency of process and that the CPC, as custodian of public funds, should ensure that there is a clear process. Ms. Lantz suggested that perhaps City Council should be the body that ultimately makes the decision on the Bean Farm, maybe with a committee made up members of each commission (agriculture, recreation, conservation), a process person, and a person from the Design Northampton committee to make recommendations. Ward 7 Councilor Elect Gene Tacy, North Maple Street, said he has received 88 emails, all which want to preserve the property for agriculture not recreation. Mr. Tacy feels that more details are required to move forward. Mr. Tacy pointed out that the city’s budget is in deep deficient and DPW will not even be able to maintain the field. He is concerned that the money will not be available to build the fields, access road, and bathrooms nor to maintain the fields once developed. Mr. Tacy complained about not being able to attend the site visit with the Agricultural Commission, Conservation Commission, and Recreation Commission. Lundy Bancroft, Mountain Laurel Path said that the issues are extremely complex with many questions and the process needs to move slowly enough to address the questions. Mr. Bancroft indicated that citizens don’t understand how decisions get made and want the process to both as to whether to purchase the land and how to use it be transparent and the public heard. Marlene Morin, Florence Road, asked to make sure that the process works for the Bean Farm. Ms. Morin suggested more back and forth discussion in the process and not just a chance to comment. Ms. Morin asked that process be slowed down and Beans asked to give an extension. Tucy Gasdy, in Florence, wants to make sure that the Bean Farm is purchased with permanent protection for farmland and would like to make sure that these interests are part of a CPA application. The process should inform people so that the public understands all of the issues and is actively involved in the decision making. Adele Franks, of Florence, also spoke on the Bean Farm in support of preserving the farm. Ms. Franks was pleased that the joint Agriculture/Conservation/Recreation st Commission meeting on December 1 was constructive and moved towards the commissions moving forward. Ms. Franks suggested that the process should be slow and open enough to encompass all of the good ideas out in the community. Phil Korman, of Bay State Village, director of Community Involved in Sustaining Agriculture (CISA) said that he appreciated the opportunity to comment and meet with people but wanted to understand all of the decision makers in the process. He said it was great that over 600 people, in just two days, have signed a petition in favor of preserving agriculture on the Bean Farm and that he saw these as a sign of community support for agriculture on the Bean Farm and elsewhere in the city. Discussion Regarding Bean Farm Expedited Review Application Wayne Feiden presented the request for expedited review to allow an application for funding to purchase the Bean Farm. The city has an accepted offer to purchase the property, contingent on hazardous investigation, City Council approval, and Community Preservation funding. The family insisted, however, on time line of a City Council vote within 45 days, a closing aimed at March 2010, and a deadline for a closing of July 1, 2010. Downey Meyer asked how the CPC could ensure that the property is purchased in conformance with the CPA. Jack Hornor said that it is weird that the city expects CPC funding. He pointed out the CPC doesn’t make final decisions as to process, but that the CPC has every right to approve or disapprove an application with whatever conditions or changes it deems appropriate. Don Bianchi stated that the CPC has a great deal of influence in the process and can make whatever conditions it deems appropriate. Mr. Bianchi said that the email Ms. Volkmann sent suggesting a possible process was on target and suggested that could be a good process. Downey Meyer pointed out that the city was clear that any purchase is contingent on CPA funding and made no commitment as to purchase the property. CPC has a great deal of leverage on how the process moves forward but ultimately if CPC votes in favor the final decision will be made by City Council. Mr. Meyer said that he thought that the st joint Agriculture/Conservation/Recreation Commission meeting on December 1 was a great step forward in the process. st Tom Parent said that he thought that the December 1 joint Commission meeting was very productive at helping identify the issues and identifying how to move forward. He said that the question at hand is does the CPC want to allow the Commissions to apply. Lilly Lombard said that she has been very involved in ensuring that the agriculture and historic interests in the land are preserved in any ultimate Bean Farm purchase. Ms. Lombard expressed concern about the timeline for the acquisition and wants more time if possible. The Agriculture Commission has not had as much time to work on the project as the other commissions. Ms. Lombard requested finding a way to have more time to make the decisions, and identify a process to bring in experts and build a process that works. Fran Volkmann said that she has been vested finding a process that works and has already weighed in with thoughts on how the process could work. (See email from approximately three weeks earlier recommending a process that could work and presented to City Council a proposal for them creating a study process.) Ms. Volkmann said that it is time that the community starts healing and building trust. She stated that the CPC has used a very open process and wants to make sure that the CPC is only funding a project that has a very open process. Ms. Volkmann said that the joint Agriculture/Conservation/Recreation Commission did not go as well as she hoped it would go and that there was not enough detail on what the process would be. Jack Hornor brought up the CPC policy for an expedited application which requires a compelling reason on what the public purpose is. Until the CPC knows the final use, he is unclear as to what this compelling reason is. David Drake said that he agreed that citizens are being kept out of the loop and doesn’t like the decision being forced on the CPC, but nonetheless the request is there. Mr. Drake pointed out that the CPC can vote down the project, but once approved, City Council will make the final decision. Decision making requires a trust in the process and the process must be strong enough to build a trust that City Council will make the appropriate decision. City Council has the right to make the final decision. Nonetheless, Mr. Drake said that he would vote to acquire the property because either recreation or agriculture is preferable to development, but the CPC should make it clear to City Council that the final land use must reflect an open process. Downey Meyer pointed out that the universe is 15 or so acres for recreation and 27 or so acres for agriculture, but both are excellent public uses and something is going to happen within those range of options. For those reasons, Mr. Downey will support the process. The three commissions have several months to work together to find a consensus, and the CPC has a couple of months to discuss the project, and the City Council could have a couple of months to discuss the project, allowing for a full process. In addition, the land if developed would create a municipal fiscal loss. Susan Lantz said that ultimately the approval is City Councils and they need to decide. She suggested that City Council should decide what the process is. That would provide a community comfort level to move forward. Fran Volkmann said that it is clear that the community doesn’t need to know the ultimate outcome but does need to know how the process will work to move forward. Jack Hornor said that he understands that the CPA law says that if the CPA makes a recommendation with conditions those conditions must be followed in the process, so the CPC should have some comfort as to how the process would move. Lilly Lombard moved and David Drake seconded that CPC table the action until City Council details a good process for determining the use, including time line, participants, and decision makers, and if the process is so detailed the CPC would then enthusiastically act on the request for expedited application. Gene Tacy said that the CPC has more time. Mr. Tacy said that the site has a very high water table and developers cannot build basements because of the groundwater, meaning that the land will not be sold anytime soon. Ms. Volkmann asked if the CPC should recommend a process to City Council. Mr. Hornor suggested that the CPC should recommend that City Council create a process that spells out the details. Mr. Parent asked if a delay in this vote by two weeks would harm the process. Mr. Feiden said no, so long as the final decision, once an application is accepted moves quickly. Mr. Hornor read the expedited application process and explained how quickly the process could move (potentially one CPC meeting) once a complete application is filed. Fran Volkmann outlined what she sees as a good process. A document, Characteristics of Good Process, is attached as part of these minutes. Mr. Meyer suggested another approach of the CPC accepting an application on an expedited based. Mr. Bianchi suggested that the CPC could accept but that such an application must include detailing a specific process that outlines the five principals that Ms. Volkmann suggested which would allow the applicant to specify exactly how the project would move forward. Ms. Lantz suggested that it should be City Council that spells out the details. Upon a vote by the Community Preservation Committee, Ms. Lombard’s motion was approved with five votes in favor and two votes opposed. Ms. Volkmann is going to write a memo to City Council informing them of the vote tabling the request for expedited review. The memo will make clear that the CPC is eager to move forward as soon as City Council creates a process for determining the use of the land. The memo will attach the “characteristics of good process” with the five points that Ms. Volkmann made previously. CPC members will email their thoughts to Ms. Volkman nby 10:00 AM and she will then email City Council with a memo outlining their comments. Acceptance of 11/18/2009 Minutes The CPC approved the minutes by consensus. Chair's Report Ms. Volkman reminded the members that the next meeting will include elections. Ms. Volkman said that she is willing to serve for another year but hoped that the vice chair was willing to become the chair the following year. Next meeting will include discussion on monitoring and reporting and next steps for the Community Preservation plan. VCDC Home Ownership Sustainability Program The CPC discussed City Solicitor Elaine M. Real’s opinion that the Valley Community Development Corporation Home Ownership Sustainability Program is not a legal use of CPA funds under the current statute. Don Bianchi made comments on this issue, which are attached to these minutes. Upon motion of Don Bianchi and second by Downey Meyer, the CPC voted unanimously to write a letter, through the chair, endorsing Don Bianchi’s points and incorporate them into a letter to the Community Preservation Coalition. The CPC discussed whether funds should be encumbered for the project or held until the law changes. Upon motion by Lilly Lombard and second by Jack Hornor the CPC voted unanimously to request City Council to request that City Council table indefinitely the VCDC Home Ownership Sustainability Program and to unencumber the funds. Other Business Mapping—The CPC reviewed the draft mapping for CPC funded projects and agreed that the mapping was consistent with what the CPC was asking for. Website—The CPC agreed to transfer their minutes and agendas from the CPC landing page to the city Laserfiche site. This is somewhat less elegant in terms of looks, but allows users to search the minutes using any word and find what they are looking for. 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