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Community Preservation Committee 08-15-2024 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 Marina,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 y, 20 Chair Beckwith called the meeting to order at 7:00 p.m. C= 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 Co 29 mmittee moved to the next agenda item. 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 11 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 Page 1 of 4 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 CPCs 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 Page 2 of 4 City of Beverly Community Preservation Committee August 15, 2024 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 111 112 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 b.Kimball Haskell and Cabill Tennis Courts 132 Page 3of4 City of Beverly Community Preservation Committee August 15,2024 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 Page 4 of 4 CITY of BEVERLV OFFICE of the CFI SOLICITOR 191 Cabot Street y : Beverly, Massachusetts 01915 �-� Phone (978) 921-6035 Fax (978) 921-5860 Mayor City Solicitor Michael P. Cahill Stephanie M. Williams Assistant City,Solicitors Jesse P<Dole Beth A. Oldmixon August 14, 2024 Jean Delios CPA Coordinator jdehos@beverlyriia.gov RE: Response to July 17, 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 House and Hahitatfnr 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"Rinding for the following projects: (1) Habitat for Humanity(HFH) 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. C. 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), uct otin Commissioner of Correction v. Su erior Court De '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_IDep'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 maiutenance. (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,funds 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."l M.G.L. ch. 44B, 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;goof,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 definitions 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).2 The work must,in fact,be for the"protection of personal or real property from injury,harm or destruction."s 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 propose of malting 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-lass. 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, [arid] 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 2 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 repaiks 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 unsualprofect." 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.' 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 votes 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 Note that the applications state that the housing serves"low income"seniors,while also stating that the projects women"who earn less than 100%of the area-wide median income would support the housing needs of senior 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 80 per cent of the areawide median income', "Moderate income housing"is"housing for those persons and families whose annual income is less than 1-00 per cent of the areawide median income'). s 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 .paeans 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 orsenior women who earn less than 100%or 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 e. 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, ems., 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 incide-ntat 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.d 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 IS meeting to address questions you may have. Sincerely, Stephanie M. Williams City Solicitor cc: Darlene Wynne Community Preservation Committee 61 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 not 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 local 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 Dousing", 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 Navin;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 100 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 structures and fixtures attached to buildings or land, including,where applicable,real property interests. "Real property interest", a present or fixture 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 athletiz 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 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; 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", shall 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. Mass. Gen. Laws Ann. ch. 2 CEestj Exhibit 1 CITY of BEV ERLY PLANNING AND DEVELOPMENT DEPARTMENT 191 Cabot Street w Beverly, Massachusetts 01.915 Phone (978) 921-6000 Fax (978) 921-6187 Mayor Conservation Agent 11ichael P. Cahill .David Spidaliere Director Economic Development Planner Darlene Wynne, AICP Erin Schaeffer Assistant Planning 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 l 1 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 i#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 for 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 Home 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 we know if you have any questions or if you need any further information.Thank you for your attention to this matter. Attachments c: Darlene Wynne,Director,Planning and Development Department Derek Beckwith, CPC Chair Dylan Benson,paralegal Exhibit 2 Commonwealth of Massachusetts DEPARTMENT OF Ho` s NG & CommuN Ty DEVELOPMENT Tleval L.Patrick,Govemar ♦ Timothy R Murray,LL Govemw ♦ Aaron GorracK Lloderamyetary 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 44B,provides that community preservation funds may be utilized"far 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 funds). 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. 3 100 Cambridge Street,Suite 300 www.mass.gov/dhei 1 Boston,Massachusetts 02114 617.5711100 Preservation Activities(appropriate for CPA funding) Preservation is defined in Section 2 ofthe 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 stnictural 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 funding) 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 making such...community housing fanctional'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 level of "preservation,"but are more properly described as "rehabilitation" and therefore'not appropriate for CPA funding: Replacement ofkitchen 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 funding) 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 offlitness, efficiency, or readiness." The following is a partial list of common maintenance activities which would not be appropriate for CPA funding: Outside landscaping or tree work Cleaning services or other ongoing services to the housing units The painting and refinishing of walls and floors Mixing CPA funding with other sources of fundin 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.