Decision 3546 Modification May 16, 2003 •
YPAMOUTH
TOWN CLERK
TOWN OF YARMOUTH
MODIFICATION OF BOARD OF APPEALS
DECISION 233 MAY 16 AN II: 57
FILED WITH TOWN CLERK: May 16, 2003 '-s
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PETITION NO.: #3546Oji_
HEARING DATE: April 7, 2003 '� U—
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PETITIONER: The Villages at Camp Street,LLC
PROPERTY: Camp Street, West Yarmouth
Map#44, Lots 16, 17, 18, 19,20,21;
Map#53 Lots 1, 2, 3, 4 and 5
Zoning District: R-25
MEMBERS PRESENT AND VOTING: David Reid, Chairman, Sean Igoe, John Richards,
Dianne Moudouris,and Joseph Sarnosky.
I. PETITIONER
The Petitioner, The Villages at Camp Street,LLC,is a limited liability company,
with an address at do The Launie Group,Ltd., 13 Heather Drive,Milton,MA 02186,
Attention: John R. Launie,Jr. The Project is referred to as The Villages at Camp Street.
IL MODIFICATION REQUESTED
The Petitioner previously received a Comprehensive Permit pursuant to
Chapter 40B, Sections 20 through 23, as modified pursuant to the terms of a stipulation
between the Petitioner and the Board in the matter of Villages at Camp Street, LLC v.
Yarmouth Board of Appeals (Housing Appeals Committee No. 01-04) (the "Original
Decision").
The Petitioner initially proposed that funding for the Project would be through the
New England Fund. Subsequently, funding through the New England Fund ceased to be
available and the Petitioner applied for and received a commitment for financing for the
Project from MassHousing. Incident to providing such funding, MassHousing is
requiring certain changes in the Regulatory Agreement, Monitoring Agreement and Deed
Rider as provided for in the Original Decision. Except for the changes to these
documents, there are no other changes to the Original Decision due to the change in
financing for the Project.
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The Board determined at a meeting on March 13, 2003, that these modifications,
as well as certain other requested modifications made by the Petitioner in a submission
made to the Board on February 24, 2003 (the "Modification Submission") amounted to
substantial changes to the Original Decision within the meaning of 760 C.M.R. 31.03(1)
and therefore voted to hold a public hearing. After giving proper notice, the Board
conducted such hearing on April 7, 2003.
III. DECISION
At the hearing, the Board received additional information from and addressed
questions to the Petitioner, its counsel and a representative of Housing Assistance
Corporation of Cape Cod. At the conclusion of the hearing, the Board voted to modify
the conditions of the Original Decision as follows and to add certain additional
conditions,all of which were either requested, offered or agreed to by the petitioner. The
modifications to the affected conditions are as follows:
1) Re: Condition#1
The Petitioner may create sub-phases within the construction phases required by
the Original Decision so that the Petitioner is not obligated to have under
construction more than fourteen (14) units at any one time and as such units are
completed,the Petitioner may convey the same.
2) Re:Condition#4
The Project shall be built only as a MassHousing project.
3) Re: Condition#5
The Units designated as affordable shall be restricted as "affordable" for a
minimum period of ninety-nine(99)years.
4) Re:Condition#6
The last paragraph of Condition#6, on page 10 of the original decision, shall be
amended by striking from the tenth line the phase"including any sale pursuant to
any mortgage foreclosure proceedings", which shall be amended to read
"excepting any sale pursuant to any mortgage foreclosure proceeding",so that any
unit sold through foreclosure (other then such a unit purchased by the developer,
as provided herein, or by the Town or monitoring agent) may be sold free of the
affordability restriction.
The time period, which MassHousing shall provide to the Town and the
Monitoring Agent to locate an eligible buyer before proceeding to foreclosure
shall be seventy-five (75) daysAn all cases and on a case-by-case basis,
MassHousing shall consider providing an additional thirty (30) days. If through
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subsequent court decisions or voluntary changes in policy of MassHousing or
DHCD, MassHousing permits or the policies and procedures of MassHousing no
longer require that such affordability restriction be eliminated at foreclosure, then
the Deed Rider for the sale of the units subsequent thereto shall be modified so as
to survive foreclosure and the original condition imposed within the
Comprehensive Permit decision shall be restored.
5) The Deed Rider, Regulatory Agreement and Monitoring Agreement shall be
in the forms customarily required by MassHousing but shall contain the
provisions set forth in Subparagraphs a through j of the Modification
Submission (a copy of which is attached hereto and incorporated by
reference). Those documents, as modified in accordance with this
Modification, shall be submitted to the Board of Appeals for approval,
consistent with this modification decision before any construction is
commenced.
6) Re: #18 (a)
The number of dwelling units in the Project shall be 136 of which 35 units shall
be affordable units.
7) Re: #22:
The Monitoring Agreement shall reflect the Petitioner's obligations to use best
efforts in the sale of affordable units to implement the seventy percent (70%)
preference for established Yarmouth residents and subsequent resales shall be
similarly reflected as a preference for Yarmouth residents, to the greatest extent
allowable by applicable law.
8) The following additional conditions proffered by the Petitioner are by
agreement with the Petitioner to be added to and shall be treated as part of the
original decision as modified hereby:
A. That upon initial sale of each of the first fifty (50) market rate
units, the developer would pay over to the town, irrevocably, the sum of
$2,000.00(an aggregate total of$100,000.00 to be paid) for the purpose of
establishing a fund to be administered by the Town to aid in the avoidance
of affordable unit losses through foreclosure of affordable units in the
Project, but any sum accumulated in such fund in excess of the
$100,000.00 level may be employed by the Town, in its discretion, but
only in furtherance of the promotion and preservation of affordable
housing within the Town;
B. That, in the event of the foreclosure of any affordable unit at a time
when the developer (including any successor or assign while the Project
remains incomplete) shall retain any beneficial or legal ownership of a
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unit hi the Project and the unit being foreclosed upon is not purchased by a
qualified buyer subject to the approved form of Deed Rider,the Petitioner
shall purchase such unit at foreclosure subject to all affordability
restrictions and shall resell said unit at the affordable price to an eligible
buyer located by the Town or the Monitoring Agent and upon such
reconveyance the unit shall be subject to the approved form of Deed
Rider;
C. It is the understanding and intention of the Board that all of the units
within this development which benefit from this Comprehensive Permit
shall count toward the Town's affordable housing inventory and statutory
obligation. It is the petitioner's desire and intention to allow all units to be
so counted, whether they be sold or designated as market or affordable
units. In the event that is it hereafter determined that any of the units
should not be so counted,than only those that are determined to be eligible
shall be included within the Town's said inventory. However, if it is
hereafter, or thereafter, determined that all or additional units may or
should have been counted, then they shall thereafter be so counted, to the
greatest extent allowable by law. The original decision and paragraph 4 of
the MassHousing Regulatory Agreement shall reflect this intention of the
Board and the agreement of the petitioner to the foregoing.
9) The Board has approved the condominium documents for the Project subject to
the following:
A. The last sentence in paragraph 11 of the Master Deed shall be
deleted.
B. Paragraph 15 of the Master Deed shall be deleted in its entirety.
The Motion to grant the Modification to the Original Decision as set forth above was
made by Sean Igoe and seconded-by Diane Moudouris, subject to the submission and
approval of the revised documents, reflecting these changes, and subject to the approval
by the Town of Yarmouth of the specifications and detailed mechanisms necessary to
establish and implement the "foreclosure avoidance fund" to be established as provided
in paragraph 8(A)above.
The 13511 Members voted unanimously in favor of the motion.
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David S. Reid, Chairman
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Mr. David Reid
February 24,2003
With regard to the MassHousing documents,MassHousing has agreed to make the
following changes to its standard documents:
a. Housing Assistance Corporation of Cape Cod can serve as the monitoring agent.
b. Setting the Maximum Resale Price on the basis of a formula tied to increases in
median income is acceptable.
c. The minimum period within which the grantee must use diligent efforts to locate an
eligible buyer can be extended to 6 months.
d. The monitoring agent can have an opportunity to purchase the unit if the municipality
does not exercise its right of first refusal.
e. Notices to the municipality may also be sent to the Town Planner's office.
f. The monitoring agent shall have an affirmative obligation to use diligent efforts to
locate eligible buyers.
g. The term diligent efforts in the Deed Rider shall include but not be limited to those
steps described in Paragraph 4 A and B. Paragraph B may be revised to require that
the grantee consult with and cooperate with the Monitoring Agent and Town
authorities.
h. Lottery and resale efforts shall refer to both the Municipality and the Monitoring
Agent.
i. The potential for purchase by the Monitoring Agent and the Municipality shall be
allowed.
j. The proposed changes regarding the payment of fees to the Monitoring Agent are
acceptable.
k. The affordable units can be restricted for 99 years,however,MassHousing requires
that the affordability restrictions be eliminated on foreclosure and that the period for
locating an eligible buyer before proceeding with a foreclosure be 60 days.
Prior to closing the construction loan,Villages will submit final forms of the Deed Rider,
Regulatory Agreement and Monitoring Agreement to the Board for approval pursuant to
Condition 9A of the comprehensive permit. In addition,pursuant to comprehensive permit
Condition 9A, Villages is submitting with this letter form condominium documents to the Board
for its approval. Copies of the proposed Master Deed and Declaration of Trust are attached as
Exhibit D
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Mr. David Reid
February 24,2003 R
. ._ 9:
With regard to the MassHousin docu
ments,uments,MassHousing has agreed to make the
following changes to its standard docu
ments:
a. Housing Assistance Corporation of Cape Cod can serve as the monitorin
b. Settin g agent.
g the Maximum Resale price-on the basis of a formula tied to increases in
median income is acceptable.
c. The minimum period within which the grantee must use diligent efforts to locate an_.
eligible buyer can be extended to 6 months-
d- The monitoring agent can have an
opportunity to purchase the unit if the municipality
does not exercise its right of first refusal.
e. Notices to the municipality may also be sent to the Town Planner's office_
f The monitoring agent shall have an affirmative obligation to use diligent efforts orts to
locate eligible-
._ g. The term.diligent efforts in the Deed
steps described in ParagraphRider shalIincIude but not be limited to those
the grantee consult with cooperate
B. paragraph B may be revised to require that
authorities. P the Monitoring Agent and Town
h. Lottery and resale efforts shall refer to both the Munici-a
Agent. P hty and the-Monitoring
i. The potential for purchase by the Monitoring Agent and the Municipality
allowed. unici p y shall be
j. The proposed changes regarding the payment of fees to the
acceptable. Monitoring Agent are
k. The affordable units can be restricted for 99
that the affordability restrictions be eliminated on foreclosure and that the period,however, MassHousing fs
locating an eligible buyer before proceeding with a foreclosure be 60 days for
Prior to closing the construction loan,
Regulatory to closing
the nr Villages will submit final forms of theDeed Rider
Condition 9A of the comprehensiveMonitoring Agreement to the Board for approval pursuant to
Condition 9A, Villages is submittingpermit.with �addition,pursuant to-co2�1p1eliensive permit
for its approval. Copies of the proposed Mas�ters eDeed tter form condominium documents to the Board
Exhibit D and Declaration of Trust- are attached as
BARNSTABLE REGISTRY OF DEEDS
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MASSACHUSETTS HOUSING FINANCE AGENCY
TOPKLNS &BEVANS Housing Starts Program
255 BEAR HILL ROAD
WALTHAM MA 02451 REGULATORY AGREEMENT
This Regulatory Agreement(this"Agreement")is made this 22"d day of July 2003,by
and among the Massachusetts Housing Finance Agency("MassHousing"),the Town of
Yarmouth(the"Municipality"),and The Villages at Camp Street LLC, a Massachusetts limited
liability company,having an address at 1600 Falmouth Road,Suite 25, Centerville,
Massachusetts 02632, and its successors and assigns("Developer").
RECITALS
Cr WHEREAS,the Developer intends to construct a housing development known as Mill
Pond on an approximately 27-acre site located along Camp Street in the Municipality,more
particularly described in Exhibit A attached hereto and made a part hereof(the"Project"); and
: WHEREAS, the Project is being financed with a$5,500,000 revolving construction loan
(the"MassHousing Loan")under MassHousing's affordable housing program known as the
Housing Starts Program and the guidelines adopted by MassHousing's Homeownership Division
in connection therewith(the"Program Guidelines");and
WHEREAS,the Developer,pursuant to the Decision on Stipulation,Villages at Camp
Street LLC v. Yarmouth Board of Appeals,has received a comprehensive permit from the
Zoning Board of Appeals of the Municipality under Chapter 40B,Sections 20-23,of the
✓� Massachusetts General Laws(the"Act"),which decision is recorded at the Barnstable County
Registry of Deeds("Registry")on January 29,2002, as Instrument No. 8884 Book 14755,Page
192 through 263, as amended by the Town of Yarmouth Modification of Appeals Decision dated
April 7,2003 and recorded on or about the date hereof(the"Comprehensive Permit"); and
WHEREAS,pursuant to the Comprehensive Permit,the Program Guidelines and the
Construction Loan Agreement between MassHousing and the Developer of even date herewith
relating to the MassHousing Loan (the"Loan Agreement"),the Project is to consist of a total of
136 detached dwellings,of which over twenty-five percent(35 units)(the"Affordable Units")
will be sold at prices specified in this Agreement to Eligible Purchasers(as definedherein) and
will be subject to this Agreement;and
WHEREAS,the Developer has agreed to retain Housing Assistance Corporation
("HAC")to perform administration,monitoring and enforcement services regarding compliance
of the Project with the Program Guidelines and the Loan Agreement during the period of
affordability of the Affordable Units; and
WHEREAS,HAC has agreed to perform such administration,monitoring and
enforcement services during the period of affordability of the Affordable Units; and
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1_JP(1 8?JA`YS
255 BEAR HILL ROAD
WALTHAM MA 0245/
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS(front and back)CAREFULLY •
A-NAME&PHONE OF CONTACT AT FILER(optional)
Christopher F.Burns,Esquire 617-854-1273
B.SEND ACKNOWLEDGMENT TO: (Name and Address)
Christopher F.Burns,Esquire
MassHousing
-' One Beacon Street -
�'' Boston,MA 02108
v
1 [TO BE RECORDED WITH REGISTRY OF DEEDS] 1
THE ABOVE SPACE IS FOR HUNG OFFICE USE ONLY
.! 1.DEBTOR'S EXACT FULL LEGAL NAME -insert antyggg debtor name(1a or lb)-do not abbreviate or combine names
(..- iia.ORGANIZATIONS NAME
RY — !The Villages at Camp Street LLC
OR lb.INDIVIDUAL'S LAST NAME - FIRST-NAME- -MIDDLE NAME. SUFFIX
It (MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
1600 Falmouth Road,Suite 25 Centerville MA 02632 USA
ie.TAX ID it SSN OR EIN ADM_INFO RE (1e.TYPE OF ORGANIZATION If.JURISDICTION OF ORGANIZATION Sg.ORGANIZATIONAL ID U.Warty
04-3520099 ORGANIZATION
DEBTOR limited liability company Massachusetts
2:ADuiTioNAL DEBTOR'S EXACT FUI 1 I FtAI NAME -insert°Myst=debtor name(2a or 2b)-do not abbreviate or combine names
C '23.ORGANIZATION'S NAME
OR 2b.INDIVIDUAL'S LAST NAME `FIRST NAME MIDDLE NAME- SUFFIX
CA
cl �. 2c.MAILING ADDRESS CRY- STATE POSTAL CODE COUNTRY
llJ„+� 2d.TAX ID#: SEN OR EIN 'ADDY INFO RE}2r TYPEOFORGANIEATION 1 2E JURISDICTIONOFORGANIZATION
ORGANIZATION 2g.ORGANIZATIONAL ID U.ifany
f-s! DEBTOR 1 I.
I I fl NONE
t�v�'1 3.SECURED PARTY'S NAME(or NAME-or TOTAL ASSIGNEE ofASSIGNORSIP)-insert onMM-securedparty name(3aor 3b)
13a.ORGANIZATIONS NAME .
_Massachusetts Housing Finance Agency
OR 3b.INDIVIDUALS LAST NAME FIRST NAME MIDDLE NAME 'SUFFIX
3a MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
— One Beacon Street t Boston MA 02108
I[ISO
4.This FINANCING STATEMENT covets the following collateral
See Attached Exhibit A
5_ALTERNADvE DESIGNATION(dapplicablei ILESSEEJLESSOR 1)CONSIGNEE/CONSIGNOR IBAILEEJSAILOR ( SELLER/BUYER AG.LIEN NON-UCC FILING
6.+ I Ib F l4AN"N57G S I ,ov EN-Ia to be tt-d[.or record}(or monied;m the (T 7-Cheek to REOJEST SEAM-Ft-REPORT on s LI ESTATE RECORt AtlaclLMder dUm Iq so�Ii blel I IAoom.N J AEI t It ) All Debtors I Debtor 111 Debtor 2 '
8:OPTIONAL FILER REFERENCE DATA (A
FILING OFFICE COPY—NATIONAL UCC FINANCING STATEMENT(FORM UCC1)(REV.07129198)