2024-8-15 CPC Minutes (pdf) City of Beverly Community Preservation Committee
August 15, 2024
Meeting Minutes
1 CITY OF BEVERLY
2 PUBLIC MEETING MINUTES
3
4 BOARD OR COMMISSION: City of Beverly Community Preservation Committee
5 DATE: August 15, 2024
6 LOCATION: Beverly City Hall, 191 Cabot Street, 3' Floor, Conference
7 Room A
8 MEMBERS PRESENT: Chair Derek Beckwith, Vice Chair Robert Buchsbaum,
9 David Ershun, Jamie Jamieson, Suzanne LaMont,Nancy
10 Marino,Heather Richter
11
12 MEMBERS ABSENT: Christy Edwards
13 STAFF PRESENT: Jean Delios, Community Preservation Act Coordinator;
14 Stephanie Williams, City Solicitor; and Beth Oldmixon,
15 Assistant City Solicitor
16 RECORDER: Kristan Patenaude
17
18 1. Call to Order
19
20 Chair Beckwith called the meeting to order at 7:00 p.m.
21
22 2. Election of Officers
23
24 The Committee moved this agenda item to the end of the meeting.
25
26 3. Consultation and Q & A with the CPC
27
28 As there was no public present at the meeting, the Committee moved to the next agenda item.
29
30 4. CPA Funding Round 11
31 a. Discussion of Eligibility Criteria for awards to Girdler House and Habitat for
32 Humanity under Community Housing.
33
34 Beckwith explained that after funding for Round I 1 was presented to the City Council and
35 approved, the projects moved into the next stage of the process; beginning to put together the
36 Memorandums of Understanding (MOUs) for each. One project,the Habitat for Humanity item,
37 proposed an MOU which would involve some extra language beyond what the Committee
38 typically sees. Staff then examined whether the eligibility for the project was as anticipated, with
39 one of the triggers being the DHCD 2013 Memorandum to Housing Authorities. Feedback from
40 the City Solicitor was sought by staff in terms of the eligibility for each project under the
41 different categories.
42
43 The City Solicitor concluded that there is difficulty with three projects in terms of the funding:
44 The Girdler House Generator project; The Girdler House Kitchen Storage project; and the
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City of Beverly Community Preservation Committee
August 15, 2024
Meeting Minutes
45 Habitat for Humanity project. The committee reviewed a memo from the City Solicitor outlining
46 her findings (attached).
47
48 Several members of the Committee reviewed the database of funded projects and found that
49 other CFCs around the State have funded generators, for example,under the category of
50 preservation. He would like to be able to find a way to fund these three projects as they are good
51 for the City.
52
53 Beckwith suggested that the Committee have conversations with the applicants to share where
54 the Committee is, and the legal document provided by the City Solicitor. The Committee stated
55 that it wants to work with the community to resolve these issues and find ways to help the
56 applicants, if possible.
57
58 Buchsbaum asked if there is flexibility under the category of preservation for the Habitat for
59 Humanity project. Williams stated that Habitat for Humanity can do preservation work if it's on
60 a property that is classified as community housing and is deed restricted.
61
62 Ershun stated that the definition for community housing seems to be the controlling item in this
63 process. Williams agreed that this is a threshold obstacle. This is defined within the statute.
64
65 Beckwith stated that each one of these projects had something very compelling. The Committee
66 was also seeking reasonable ways to be able to match the requested funding to the correct
67 category. Girdler House had compelling circumstances because the City told them they could not
68 do certain things and had to upgrade their facilities at undo costs that they had not anticipated. As
69 a nonprofit,this seemed to fit fully within the support category, as the funding would have
70 helped to support the affordability. Hearing from the City Solicitor this evening gave more
71 information regarding how to interpret the word "support."
72
73 b. Subcommittee Report on Habitat for Humanity Application Review procedure
74
75 This was discussed as part of the previous agenda item.
76
77 c. Discussion of Girdler House MOU for windows
78
79 This was discussed as part of the previous agenda item.
80
81 5. CPA Funding Round 12
82 a. Finalize application process and changes/updates to application materials
83
84 Beckwith stated that he believes the application materials only need to be updated to comply
85 with the 2024/2025 dates. Changes to the application process do not seem necessary at this time,
86 aside from potential City Solicitor review of pre-applications.
87
88 b. Prepare for CPC Public Hearing on September 12,2024,including review legal
89 and advertisement
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Meeting Minutes
90
91 Beckwith stated that the advertisement looks appropriate and is ready to be posted.
92
93 c. Discuss press and outreach schedule
94
95 Beckwith explained that there is not a schedule yet. An announcement to the press will likely be
96 submitted approximately ten days ahead of time.
97
98 6. FY 25 Budget Updates—FY 25 Budget and Tracking Sheet
99
100 The Committee discussed the FY25 budget updates. The budget sits at$2,521,618. The Fund
101 Balance, including the Administrative budget, is $1.7M. Community Housing is approximately
102 $144,000; Historic Preservation Reserves is approximately $238,000; and the Open Space
103 Reserve is approximately $394,000.
104
105 Richter: Motion to approve the proposed FY25 budget. Marino seconds. Motion carries (7-
106 0).
107
108 7. CPC Project Updates, if any
109 a. Gillis Park
110 b. Kimball Haskell and Cahill Tennis Courts
ill
112 Beckwith explained that this agenda item would be combined with agenda item#9.
113
114 8. CPC Project Closeouts, if any
115
116 None at this time.
117
118 9. CPC Project MOU Extension Requests, if any
119 a. Gillis Park
120
121 Beckwith explained that the Recreation Department has requested an extension from August 31
122 2024, to December 31, 2024, mostly to do with the timing of the actual installation of the water
123 bottle filling station.
124
125 The Committee discussed wanting to hear directly from the Department to make sure the project
126 will be completed in the extended time period.
127
128 LaMont: Motion to extend the MOU for Gillis Park to May 31, 2025. Richter seconds.
129 Motion carries (7-0).
130
131 h. Kimball Haskell and Cahill Tennis Courts
132
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Meeting Minutes
133 Beckwith stated that these items are mostly done, but the request is for additional time to work
134 through the paperwork and complete any outstanding items. The request is for an extension from
135 August 31, 2024,to either September 30, 2024, or October 31, 2024.
136
137 LaMont: Motion to extend the MOU for Kimball Haskell and Cahill Tennis Courts to
138 October 31, 2024. Richter seconds. Motion carries (7-0).
139
140 10. Approval of Minutes
141 a. June 20, 2024
142
143 LaMont: Motion to approve the meeting minutes of June 20, 2024, as amended. Jamieson
144 seconds. Motion carries (7-0).
145
146 11. Other items not known in advance of the posting of this agenda
147
148 None at this time.
149
150 2. Election of Officers
151
152 The Committee addressed this agenda item at this time.
153
154 Richter: Motion to reelect Derek Beckwith to Chair of the Community Preservation
155 Committee with a one-year term. LaMont seconds. Motion carries (6-0-1,
156 Beckwith abstaining).
157
158 Richter: Motion to re-elect Robert Buchsbaum to Vice Chair of the Community
159 Preservation Committee to a one-year term. Marino seconds. Motion carries (6-0-
160 1, Buchsbaum abstaining).
161
162 12. Adjourn
163
164 Marino: Motion to adjourn. Jamieson seconds. Motion carries (7-0).
165
166 Meeting adjourns at 9:34 p.m.
167
168 Next Meeting(s): Public Hearing September 12, 2024; Regular CPC Meeting September 19,
169 2024
170
171
172
173
174
175
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CITY of BEVERLY
OFFICE of the CITY SOLICITOR
191 Cabot Street
� vW, Beverly, Vassachzvsetts 01915
Phone (978) 921-6035
Fax (978) 921-5860
Mayor City Solicitor
_Michael P. Cahill Stephanie Nf Williams
Assistant City Solicitors
Jesse P. Dole
Beth A, Oldmixon
August 14, 2024
Jean Delios
CPA Coordinator
jdellos@beverlyma.gov
RE: Response to July 77, 2024,Request for Legal Opinion on Round 11
Grants to Girdler House and Habitat for Humanity by the
Community Preservation Committee ("CPC")
Dear Jean:
This letter is in response to the July 17, 2024, Requestfor Legal Opinion on Round 11
Grants to Girdler Hoarse and Nahitat for Humanity, attached hereto as Exhibit 1,that you
submitted to me, with a copy to the Planning Director and the CPC Chair. It is my understanding
that, after representatives of the Massachusetts Housing Partnership and the Community
Preservation Coalition raised questions about the eligibility of one of the projects,you consulted
with the CPC Chair and a decision was made to seek a legal opinion. The request seeks an
opinion regarding the eligibility for Community Preservation Act ("CPA") "community
housing" fimding for the following projects: (1) Habitat for Humanity(HI~H) Critical Home
Repair (CHR)program, as "preservation" and/or"support of community housing," (2) Girdler
House, Inc. ("Girdler")whole building generator, as "preservation" of community housing,
and(3) Girdler kitchen cabinets, as "support of community housing."Whether these projects
are eligible for CPA funding requires determining whether they meet the criteria for eligibility
as contemplated by M.G.L. c. 44B and intended by the legislature when enacting the statute.
A statute such as the CPA"must be interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, . . . and the main object to be
accomplished, to the end that the purpose of its framers may be effectuated. We derive the words'
1
usual and accepted meanings from sources presumably known to the statute's enactors, such as
their use in other legal contexts and dictionary definitions." Seideman v. City of Newton, 452
Mass. 472, 477-78 (2008) (internal citations and quotations omitted) (construing the application
of the terms "preservation", "creation", and"rehabilitation and restoration"under CPA). The
general rule is that a court"'do[es] not read into [a] statute a provision which the Legislature did
not see fit to put there, nor add words that the Legislature had an option to but chose not to
include."' Schwalm v. Schwalm, 102 Mass. App. Ct. 825, 829 (2023), ucuo_ting Commissioner of
Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass.
123, 126 (2006). "[W]here the Legislature has carefully employed a term in one place and
excluded it in another, it should not be implied where excluded." Town of Canton v. Comm'r of
Massachusetts Highway Dep''t, 455 Mass. 783, 788-89 (2010) (internal quotations and citations
omitted).
M.G.L. chapter 44B, section 5(b)(2)provides in the relevant part:
The community preservation committee shall make recommendations
to the legislative body for . . . the acquisition, creation, preservation and
support of community housing; and for the rehabilitation or restoration
of. . . community housing that is acquired or created as provided in
this section.; provided, however, that funds expended pursuant to this
chapter shall not be used for maintenance. (Emphasis added).
The plain language of the statute reflects the legislature's intention to promote the creation. and
acquisition of additional affordable housing units by limiting the use of CPA Rinds for the
"rehabilitation or restoration" of community housing to only housing acquired or created
using such funds. Id. In comparison, the statute allows for the rehabilitation and restoration of
"historic resources" and"land for recreational use"without regard to whether those assets
were acquired or created with CPA funds. Id. In 2013, the Department of Housing and
Community Development("DHCD"), now known as the Executive Office of Housing and
Livable Communities ("EOHLC"), issued guidance with respect to the community housing
provisions of the CPA stating, the "legislature's original intent was to spur the creation of
additional affordable housing units in the Commonwealth, and with that in mind, [the statute]
was passed with a specific prohibition on rehabilitation activities on existing housing units
unless those units were acquired or created with CPA funds." DHCD 2013 Guide, Exhibit 2 at
page 1.
"Preservation"is defined as "protection of personal or real property from injury, harm
or destruction." 1 M.G.L. ch. 4413, section 2. According to the DHCD 2013 Guide, examples of
"preservation" include work such as building envelope and site work to preserve the structural
integrity of housing; roof, siding and window replacements to assure the water tightness of the
housing; upgrading of dangerous electrical or plumbing services; replacement of dangerous
building systems which threaten the housing units; and installation of hard-wired smoke alarms,
sprinklers and other building fire suppression systems. Work that, in fact, is "rehabilitation,
restoration" or"maintenance" of community housing cannot, instead, be branded
"preservation" in order to make it eligible for CPA funding. Seideman, 452 Mass. at 477-78
'For reference, all defmitions set forth in M.G.L, chapter 44B,section 2 are set forth in Addendum A.
2
(work to update, repair, improve, reconfigure, and modernize existing town parks was
"rehabilitation"and not the "preservation" or"creation" of recreational land under the CPA;
ten taxpayer judgment against town upheld).' The work must, in fact, be for the"protection of
personal or real property from injury, harm or destruction."'
The term"support of community housing," is defined in section 2 of the chapter 44B to
"include, but not be limited to,programs that provide grants, loans, rental assistance, security
deposits, interest-rate write downs or other forms of assistance directly to individuals and
families who are eligible for community housing or to an entity that owns, operates or manages
such housing, for the purpose of making housing affordable."As discussed above,because the
legislature deliberately (1) did not make the "rehabilitation and restoration" of community
housing an eligible funding category unless the housing was created or acquired with CPA
funding, and(2) prohibited the use of CPA funds for maintenance, it would undermine the
language and purpose of the statute to interpret "other forms of assistance directly to individuals
and families who are eligible for community housing or to an entity that owns, operates or
manages such housing, for the purpose of making housing affordable"to allow for the funding of
maintenance work or the rehabilitation or restoration of housing not acquired or created with
CPA funds.
This limiting interpretation is underscored by the doctrine of ejusdem generis,which
provides that when "general words follow specific words in a statutory enumeration, the general
words are construed to embrace only objects similar in nature to those objects enumerated by the
preceding specific words." Commonwealth v. Garafalo, 104-Mass. App. Ct. 161, 170 (2024)
(citations omitted). Under the doctrine of ejusdem generis, the phrase "or other forms of
assistance directly to individuals and families who are eligible for community housing or to an
entity that owns, operates or manages such housing, for the purpose of making housing
affordable"must be construed to refer to the same type of support specifically enumerated before
that provision - grants, loans, rental assistance, security deposits, [and] interest-rate write downs
for the purpose of making housing affordable. Considering the legislative history and the plain
language of the statute, my view is that the "other forms of assistance" language included in the
definition of"support of community housing" is intended to allow the use of CPA funds to
directly reduce the amount that an individual or family may owe or need to pay to secure housing
that is affordable such as through assistance with a down payment and closing cost when buying
a home or to fund a rent subsidy program, in addition to the specifically enumerated uses. The
legislative history and statutory language do not support an interpretation that would allow the
"other forms of assistance" language to include the use of CPA funds in order to generally
Subsequent to the Seideman decision,the legislature amended the section 5 by adding the words"rehabilitation
and restoration"to the"land for recreational use"category.
3 According to the DHCD 2013 Guidance,work that is more properly described as"rehabilitation"and not
preservation includes:"Replacement of kitchen cabinets; the installation of more energy efficient windows(if not
necessary to assure the water tightness of the housing),building systems(if not necessary to assure the on-going
safety of the building)or appliances;improvements solely needed to comply with ADA and other federal,state or
local building or access codes;installation of generators primarily for the comfort and safety of residents in
power outages;repaving or repair of parking lots and walkways."(Emphasis added)."Maintenance"is defined as
"incidental repairs which neither materially add to the value of the property nor appreciably prolong the property's
life,but keep the property in a condition of fitness, efficiency or readiness."M.G.L. chapter 44B,section 2.
3
reduce operating costs of an owner or occupant of housing in order to make the housing
affordable.
Finally, the fact that an individual or family may be "low or moderate income" does not
make the housing that they occupy "community housing" as defined in section 2 of chapter 44B.
HFH CHR Program
The CPC voted 6-0 to approve this project, with the condition that the memorandum of
understanding include a provision requiring HFH to work with a subcommittee because "this is
an unseal project."
Generally speaking, my view is that the CHR program would be eligible for CPA funding
if used for the "preservation" of real property that is "community housing,"i.e,work that is
necessary to protect "community housing", as defined by the statute, from injury,harm, or
destruction, such as work to ensure the structural integrity of housing or a new roof, siding, or
windows to assure water tightness of a building. See 2013 DHCD guidance. However, under the
rules of statutory construction discussed above, it is my opinion that the definition of `support of
community housing" does not contemplate the use of CPA funds to generally subsidize repairs of
housing occupied by individuals or families that qualify as low or moderate income.
Girdler Projects Generally
While the mission of Girdler may be to provide affordable housing to low or moderate
income senior women, there is no indication in the application that the real property itself is subject
to any kind of affordability restriction or other similar legal encumbrance on the property; and
there does not appear to be any such restriction filed with the registry of deeds.4 Thus, the
applications do not demonstrate that the Girdler property would qualify as "community housing"
as defined by the statute,thereby calling into question the eligibility of both of the proposed
projects under that category.
Girdler Kitchen Cabinets
The CPC approved this project by a 3-1-1 vote.' The Girdler kitchen cabinet application
states, among other things: "Our project goals include (1) increasing the square footage allocated to
dry food and kitchen equipment storage; (2) improving access to items used in daily food
preparation, (3) creating a coffee station for resident and visitor access, and(4)keeping the home
affordable to low-income seniors by having sufficient storage to take advantage of economy bulk
purchasing for dry food items. . . . The purpose of this project is consistent with the definition of
4 Note that the applications state that the housing serves"low income" seniors,while also stating that the projects
would support the housing needs of senior women"who earn less than 100%of the area-wide median income
threshold."The latter threshold is moderate income.M.G.L.ch.44B,section 2("Low income housing"is"housing
for those persons and families whose annual income is less than 8o per cent of the areawide median income";
"Moderate income housing"is"housing for those persons and families whose annual income is less than 100 per
cent of the areawide median income").
' The CPC's March 21,2024,minutes reflect a discussion where it was observed that the project is"a bit of a
stretch."
4
support because the kitchen storage space is used directly to create the meals for our seniors that
makes this housing option affordable for them."
In light of the plain language of the statute and the intention of the legislature as discussed
above,my view is that this project is not eligible for CPA funding as "support of community
housing." See also DHCD 2013 Guide (replacement of kitchen cabinets are more properly
categorized as "rehabilitation").
Girdler Generator
The CPC voted 6-0 to approve this project. The Girdler generator application lists
numerous goals and purposes of the project as follows:
The purpose of this project is consistent with the definition of
preservation because the generator protects the Girdler House
property by keeping it operational during power outages. This
means that the commercial refrigerators/freezers, heating,
cooling, lights, and other household essentials continue to work
until power is restored.
[Project goals are to] [p]rovide an uninterruptible power supply
to protect the Girdler House property. Protect the vulnerable
population of seniors who reside there from heat loss. Protect the
property from frozen pipes. Provide the home from a loss of
electricity so that low-income senior residents have access to
prepared meals and electrically powered devices. Provide an
additional resource for Girdler House neighbors in the event of
an emergency power outage.
Community Housing Criteria: Item c. This project supports the
housing needs or senior women who earn less than 1000/6 of the
area-wide median income threshold by providing them with an
uninterrupted power supply so that they can continue to access
food and services during an emergency. . . . Item c. This project
provides and protects and affordable rental opportunity for low-
income seniors.
The 2013 DHCD Guidance states: "installation of generators primarily for the comfort and safety
of residents in powers outages" constitutes "rehabilitation" and not preservation. The application
lists multiple goals and purposes most of which are directed at the comfort of residents,iq_&, a
generator would ensure the premises are heated and cooled, allow for the continued storage of food
in refrigerators and freezers,meal preparation, use of devices that require electricity, lighting, and
the general continuation of services to resident. "Protect[ing] the property from frozen pipes" is
noted but seems to be incidental to the other goals.Note that the Community Preservation
Coalition informed us that they have advised dozens of communities that the purchase of a
5
generator does not constitute"preservation" of community housing in its view.6
Based on the language of the statute and the legislature's intent, as well as guidance from
the Community Preservation Coalition and the 2013 DHCD Guidance,my opinion is that it is the
generator project described is not eligible for CPA funding for"preservation" of community
housing. I plan to attend the CPC's August 15 meeting to address questions you may have.
Sincerely,
s� V, 2U&Am'a
Stephanie M. Williams
City Solicitor
cc: Darlene Wynne
Community Preservation Committee
6 1 am aware that a handful of communities have approved CPA funding for generators.
6
ADDENDUM A
As used in this chapter, the following words shall, unless the context clearly 'indicates a
different meaning, have the following meanings:--
"Acquire", obtain by gift,purchase, devise, grant, rental, rental purchase, lease or
otherwise. "Acquire" shall riot include a taking by eminent domain, except as provided in this
chapter.
"Annual income", a family's or person's gross annual income less such reasonable
allowances for dependents, other than a spouse, and for medical expenses as the housing
authority or, in the event that there is no housing authority,the department of housing and
community development, determines.
"Capital improvement", reconstruction or alteration of real property that: (1) materially
adds to the value of the real property or appreciably prolongs the useful life of the real property;
(2)becomes part of the real property or is permanently affixed to the real property so that
removal would cause material damage to the property or article itself; and (3) is intended to
become a permanent installation or is intended to remain there for an indefinite period of time.
"Community housing", low and moderate income housing for individuals and families,
including low or moderate income senior housing.
"Community preservation", the acquisition, creation and preservation of open space, the
acquisition, creation and preservation of historic resources and the creation and preservation of
community housing.
"Community preservation committee", the committee established by the legislative body
of a city or town to make recommendations for community preservation, as provided in section
5,
"Community Preservation Fund", the municipal fund established under section 7.
"CP", community preservation.
"Historic resources", a building, structure, vessel real property, document or artifact that
is listed on the state register of historic places or has been determined by the Iocal historic
preservation commission to be significant in the history, archeology, architecture or culture of a
city or town.
"Legislative body", the agency of municipal government which is empowered to enact
ordinances or by-laws, adopt an annual budget and other spending authorizations, Loan orders,
bond authorizations and other financial matters and whether styled as a city council, board of
aldermen, town council, town meeting or by any other title.
"Low income housing", housing for those persons and families whose annual income is
less than 80 per cent of the areawide median income. The areawide median income shall be the
areawide median income as determined by the United States Department of Housing and Urban
Development.
"Low or moderate income senior housing", housing for those persons having reached the
age of 60 or over who would qualify for low or moderate income housing.
"Maintenance", incidental repairs which neither materially add to the value of the
property nor appreciably prolong the property's life, but keep the property in a condition of
fitness, efficiency or readiness.
"Moderate income housing", housing for those persons and families whose annual
income is less than t 00 per cent of the areawide median income. The areawide median income
shall be the areawide median income as determined by the United States Department of Housing
and Urban Development.
"Open space", shall include,but not be limited to, land to protect existing and future well
fields, aquifers and recharge areas, watershed land, agricultural land, grasslands, fields, forest
land, fresh and salt water marshes and other wetlands, ocean, river, stream, lake and pond
frontage; beaches, dunes and other coastal lands, lands to protect scenic vistas, land for wildlife
or nature preserve and land for recreational use.
"Preservation", protection of personal or real property from injury, harm or destruction.
"Real property", land,buildings, appurtenant strictures and fixtures attached to buildings
or land, including,where applicable, real property interests.
"Real property interest", a present or future legal or equitable interest in or to real
property, including easements and restrictions, and any beneficial interest therein, including the
interest of a beneficiary in a trust which holds a legal or equitable interest in real property,but
shall not include an interest which is limited to the following: an estate at will or at sufferance
and any estate for years having a term of less than 30 years; the reversionary right, condition or
right of entry for condition broken; the interest of a mortgagee or other secured party in a
mortgage or security agreement,
"Recreational use", active or passive recreational use including, but not.limited to, the use
of land for community gardens, trails, and noncommercial youth and adult sports, and the use of
land as a park, playground or athletic field. "Recreational use" shall not include horse or dog
racing or the use of land for a stadium, gymnasium or similar structure.
"Rehabilitation", capital improvements, or the making of extraordinary repairs, to historic
resources, open spaces, lands for recreational use and community housing for the purpose of
making such historic resources, open spaces, lands for recreational use and community housing
Rinctional for their intended uses including,but.not limited to, improvements to comply with the
Americans with Disabilities Act and other federal, state or local building or access codes;
provided, that with respect to historic resources, "rehabilitation" shall comply with the Standards
for Rehabilitation stated in the United States Secretary of the Interior's Standards for the
Treatment of Historic Properties codified in 36 C.P.R. Part 68; and provided further, that with
respect to land for recreational use, "rehabilitation" shall include the replacement of playground
equipment and other capital improvements to the land or the facilities thereon which make the
land or the related facilities more functional for the intended recreational use.
"Support of community housing", shalt include,but not be limited to,programs that
provide grants, loans, rental assistance, security deposits, interest-rate write downs or other forms
of assistance directly to individuals and families who are eligible for community housing or to an
entity that owns, operates or manages such housing, for the purpose of malting housing
affordable.
Mass. Gen. Laws Ann. ch. 44B. ' 2 West's
Exhibit 1
CITY of BEVERLY
PLANNING AND DEVELOPMENT
DEPARTMENT
191 Cabot Street
Beverly, Massachusetts 01.915
Phone (978) 921-6000
Fay (97b') 921-6.187
Mayor- Conservation Age rzt
Miehael P. Cahill David Spidaliere
Director Economic Development Planner
Darlene ff ynne, MCP Erin Schaefer
Assistant Plannin;Director _associate Planner
Kenneth Clawson Jared Contrada
Memorandum
DATE: 7/17/2024
TO: Stephanie M. Williams, City Solicitor
FROM: Jean Delios, CPA Coordinator
RE: Request for Legal Opinion on Round 11 Grants to Girdler House and Habitat for Humanity
I am writing to request a legal opinion from the Solicitor's Office on the eligibility of three of the CPC's
Round 11 grants awarded but not yet under agreement. These grants were made for the Girdler House
Generator, the Girdler House Kitchen Improvements, and the Habitat for Humanity(HFH) Critical Home
Repair(CHR)program. This request is to verify that the projects meet the CPA regulations in light of
recently receiving advisory guidance issued by the State (formerly DHCD) in May 2013 on the use of
CPA Funds for Community Housing.
The Beverly CPC recommended approving the Round 11 projects in a letter to the City Council dated
May 30, 2024, outlining the scope of the six projects- four in the community housing category, one in the
recreation category, and one in the historic resources category, approved in Order#176-2024 (see
attached). Staff have been working with representatives from the Community Preservation Coalition(the
"Coalition") and the Massachusetts Housing Partnership (MHP)on model deed restrictions far use with
Habitat for Humanity's project and an MOU.During this conversation, representatives of these two
entities questioned the eligibility of the project under the CPA statute and recommended we seek a legal
opinion.
MHP emailed advisory guidance from the State(attached),written to public Housing Authorities in 2013,
clarifying the limitations on the use of CPA funds. Applying this advisory guidance to the CPC's Round
11 approved projects raises questions on the eligibility criteria used for preservation of affordable housing
under the community housing category for the Girdler House Generator, Girdler House Kitchen
Improvements and the Habitat for Humanity(HFH) Critical Horne Repair(CHR)program. The HFH
MOU will include eligibility criteria and an application review process administered by staff and the
CPC. This could possibly be used to align the HFH project with the advisory guidance.
If after this review, the projects are deemed ineligible, the CPC Chair has asked if your office can also
help identify alternative options to fund these projects such as under the historic resources category.
Request for Legal Opinion:CPC Round 11 Grants
July 17,2024
Page 2 of 2
Since the project applicants were expecting to receive their MOUs in early July, this is a time sensitive
issue. We will be reaching out to both the Girdler House and HFH applicants in the next few days to
explain the delay. If you are able to respond before then that would be very much appreciated.
Please let me.know if you have any questions or if you need any further information. Thank you for your
attention to this matter.
Attacb_ments
c: Darlene Wynne,Director,Planning and Development Department
Derek Beckwith, CPC Chair
Dylan Benson,Paralegal
Exhibit 2
Commonwealth of Massachusetts
DEPARTMENT OF HOUSING &
COMMUNITY DEVELOPMENT
E� Deval L.Patrick,Governor ♦ rirnothy P.Murray,LL Governor ♦ Aaron Gornstein,Undersecretary
PUBLIC HOUSING NOTICE 2013-14
To: All Local Housing Authorities
From: Lizbeth Heyer, Associate Director
Division of Public Housing and Rental Assistance
Re: Utilization of CPA Funds for Preservation of Existing Public Housing Units
Date: May 30, 2013
Many Housing Authorities have inquired about the potential for using Community Preservation
Act ("CPA") funding for work on existing public housing units, and some confusion on this topic
exists among municipalities. DHCD has reviewed the CPA statute as it applies to such work and
is providing this notice to help clarify the type of activities that it believes would be appropriate
for CPA funding and those activities that would not be appropriate. Please note that this
guidance is advisory in nature and is not binding on your community.
Section 5(b)(2) of the Community Preservation Act,MGL chapter 445, provides that community
preservation funds may be utilized "for the acquisition, creation, preservation and support of
community housing .... provided, however,that funds expended pursuant to this chapter shall
not be used for maintenance." State public housing meets the definition of"community
housing", namely, "low and moderate income housing for individuals and families, including
low or moderate income senior housing."
It is important to note that both the recreational use and historic preservation provisions of the
CPA provide for"rehabilitation" of those resources with CPA funds, the former through a CPA
amendment signed into law in 2012. However"rehabilitation"of"community housing" is not a
permitted use of CPA funds. The legislature's original intent for CPA was to spur the creation of
additional affordable housing units in the Commonwealth, and with that in mind, CPA was
passed with a specific prohibition on rehabilitation activities on existing community housing
units (unless those units were acquired or created with CPA finds).
While activities classified as"rehabilitation"are not allowed, "preservation"work on existing
community housing resources is allowed. In general, work that protects the housing structure
(not residents) from future injury, harm or destruction is permitted under CPA.
100 Cambridge Street,Suite 300 www.mass.gov/dhcd I
Boston,Massachusetts 02114 617.573.1100
I
Preservation Activities (appropriate for CPA funding)
Preservation is defined in Section 2 of the CPA as "protection of personal or real property from
injury, harm or destruction." The following is a partial list of activities related to existing
community housing units that DHCD believes could be classified as "preservation"and funded
by CPA monies:
Building envelope and site work to preserve the structural integrity of the housing
Roof, siding and window replacements to assure the water tightness of the housing
Upgrading of dangerous electrical or plumbing services
Replacement of dangerous building systems which threaten the housing units
Installation of hard-wired smoke alarms, sprinklers and other building fire
suppression systems
Rehabilitation Activities not allowed with CPA fundin
Rehabilitation is defined in Section 2 of the CPA as"capital improvements, or the making of
extraordinary repairs, to...community housing for the purpose of malting such...conununity
housing functional for their intended uses, including, but not limited to, improvements to comply
with the Americans with Disabilities Act and other federal, state or local building or access
codes." The following is a partial list of activities that DHCD believes do not rise to the Ievel of
"preservation," but are more properly described as "rehabilitation" and therefore not appropriate
for CPA funding:
- Replacement of kitchen cabinets
- The installation of more energy efficient windows (if not necessary to assure the
water tightness of the housing), building systems(if not necessary to assure the on-
going safety of the building) or appliances.
- Improvements solely needed to comply with ADA and other federal, state or local
building or access codes
- Installation of generators primarily for the comfort and safety of residents in power
outages
- Repaving or repair of parking lots and walkways
Maintenance Activities (not allowed with CPA fuudina)
Maintenance is defined in Section 2 of the CPA as"incidental repairs which neither materially
add to the value of the property nor appreciably prolong the property's life, but keep the property
in a condition of fitness, efficiency, or readiness." The following is a partial list of conunon
maintenance activities which would not be appropriate for CPA funding:
Outside landscapes or tree work _--—
Cleaning services or other ongoing services to the housing units
The painting and refinishing of walls and floors
Mixina CPA funding with other sources of funding
In some cases a housing authority may wish to pursue modernization projects that include both
preservation work allowed by the CPA (for example, the replacement of deteriorated and leaking
siding), and other work that does not meet the preservation standard (for example, exterior wall
insulation). Such projects are acceptable as long as the LHA tracks the cost of the allowable
scope through a reasonable means of cost estimating, and only uses CPA funding for the
allowable portion of the project cost. Applicable soft costs should be fairly apportioned. The
balance not covered by CPA funds may be funded by Formula Funding, operating reserves (if
approved), or other allowable sources.
i