HomeMy WebLinkAbout4073 9 Green Way Affordable Housing Restriction 11.27.2006Bk 21552 Ps314 `73349
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LOCAL INITIATIVE PROGRAM
AFFORDABLE HOUSING RESTRICTION
FOR
N 0 T ACCESSORY APART#E&f
A N A N
C 0 P Y WITNESSETIV 0 P Y
WHEREA.i pursuant to R.@.1K c. 40B, §§20-23 (the "Acts" afAldThe final report of the Special
Legislative Commission Relativb t(NLow and Moderate Income I*tmmg Provisions issued in April, 1989,
regulations have been 9rclandgate(tatV69 C7MR 45.00 eCseF. fter'I0grtaihorb") which establish the Local
Initiative Program ('UP"); C O P Y C 0 P Y
WHEREAS the Department of Housing and Community Development (DHCD), the "Successor
Agency' to the Executive Office of Communities and Development of the Commonwealth of
Massachusetts, duly organized and existing pursuant to Chapter 204 of the Acts of 1996, administers the
LIP Program on behalf of the Commonwealth;
WHEREAS, it is the purpose of the LIP Program to give cities and towns greater flexibility in their
efforts to provide affordable housing to households having low and moderate incomes;
WHEREAS, the Town of Yarmouth (the "Municipality') acting by and through its Chief Elected
Official (as that term is defined in the Regulations) has elected to participate in the LIP Program:
WHEREAS, DHCD has determined that the rights and restrictions granted herein to the Municipality
serve the public's interest in the creation and retention of affordable housing for persons and families of low
and moderate income and in the restricting of the resale price of property in order to assure its affordability
by future low and moderate income purchasers;
WHEREAS the Owner has been granted a Special Permit under Massachusetts General Law Chapter
40A and local regulations by the Zoning Board of Appeals to permit the creation of an accessory apartment
in an owner occupied dwelling which will be rented to a Low or Moderate Income Person/ Family
(hereinafter "Designated Affordable Unit"); and
NOW THEREFORE, in mutual consideration of the agreements and covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
L PRQIECTS PE ANDDESIGN
A. The terms of this Agreement and Covenant regulate the property located at 9 Gren Way, South
Yarmouth, B table C bu= Massachusetts as further described in Exhibit "A" hereto annexed.
B. The Project located at green Way, South Yarmouth, Barnstable Qunty., Massachusetts will
consist of one accessory apartment unit which will be rented to an eligible low or moderate income
individual or family (the "Designated Affordable Unit" or the "Unit").
C The Owner agrees to construct the Project in accordance with the terns of the Special Permit,
Appeal No. 4073 and any plans submitted therewith and all applicable state, federal and municipal
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laws and regulations (A copy of the special permit is annexed hereto as Exhibit "B").
D. The Owner agrees to occupy either the principal dwelling unit or the accessory apartment located on
the property as their yea 0 T d residence in accordance N t T e terms of the special permit.
II. THE OWNER'SCQ#EWANTSAIYDRESI'ONSI L TIE,
O F F I C I A L O F F I C I A L
The Owner hereby repmAng dbvgnants and warrants as fd$o%? Y
1. The Owner has agreedNha t1k Designated Affordable UiitQhXl be dedicated for the public purpose
of providing safe and decent hctsiKg to persons of low or moderkehlncome (herein defined as 80% or less
of the median income of f amstable-)itrwoath Metropcditaa SratiStiol Am (VISA)) and that the
Designated Affordable Unit th4 IF deemed to be impressed eitloa public trust.
2. The Designated Affordable Unit shall be rented to a household with a maximum income of 80% or
less of the Area Median Income (AMI) of Barnstable -Yarmouth Metropolitan Statistical Area (MA) and
that rent shall not exceed 30% of the monthly income of a household earning 70%, of the AMI based on
household size.
3. The Designated Affordable Unit will be retained as a permanent, year round rental dwelling unit with
at least a one-year lease. The lease shall recite that it is subject to the terms of the bylaw and special permit.
4. The Owner has the full legal right, power and authority to execute and deliver this Agreement.
5. The execution and performance of this Agreement by the Owner will not violate or, as applicable,
has not violated any provision of law, rule or regulation, or any order of any court or other agency or
governmental body, and will not violate or, as applicable, has not violated any provision of any indenture,
agreement, mortgage, mortgage note, or other instrument to which the Owner is a party or by which it or
the Owner is bound, will not result in the creation or imposition of any prohibited encumbrance of any
nature.
6. The Owner, at the time of execution and delivery of this Agreement, has good, clear marketable title
to the premises.
7. There is no action, suit or proceeding at law or in equity or by or before any governmental
instrumentality or other agency now pending, or, to the knowledge of the Owner, threatened against or
affecting it, or any of its properties or rights, which, if adversely determined, would materially impair its right
to carry on business substantially as now conducted (and as now contemplated by this Agreement) or would
materially adversely affect its financial condition.
8. The Owner agrees to rent the Designated Affordable Unit on an open and fair basis. When a vacancy
occurs, the Designated Affordable Unit shall be listed by the Owner as available with the Yarmouth
Housing Authority.
9. The Owner hereby agrees that any and all requirements of the laws of the Commonwealth of
Massachusetts to be satisfied in order for the provisions of this Agreement to constitute restrictions and
covenants running with the land shall be deemed to be satisfied in full and that any requirements of
privileges of estate are also deemed to be satisfied in full.
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III. MUNICIPALITYCOVENANTS AND RESPONSIBILITIES
The MUMCdPALITY, t9ro the monitoring agent desiAa9drtythe Town Manager, agrees to
perform the duties of venfying &a at the time of initial rental oINI eve twelve months thereafter that
the Designated Afford2b IFnit;s GeiAg fen6d to a hou6h�ldFvv4h ern"tkn income of 80% or less of
the Area Median Income (AAII�bf%Anstable-Yarmouth MetCepRitUNtatistical Area (MSA) and that rent
shall not exceed 30% of the monthly income of a household earning 70% of AMI based on household size.
N 0 T N 0 T
IY. RE RDI G OFA EME A N
O F F I C I A L O F F I C I A L
Upon execution, the6)Viep shall immediately cause thb tgrvervent and any amendments hereto to
be recorded with the Registry of Deeds for Barnstable County or, if the Project consists in whole or in part
of registered land, file this Agreement and any amendments hereto with the Registry District of the
Barnstable Land Court (collectively hereinafter the "Registry of Deeds"), and the Owner shall pay all fees
and charges incurred in connection therewith. Upon recording or filling, as applicable, the Owner shall
immediately transmit to the Municipality evidence of such recording or filing including the date and
instrument, book and page or registration number of the Agreement.
Y. GOIERNI FA EME
This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. Any
amendments to this Agreement must be in writing and executed by all of the parties hereto. The invalidity
of any clause, part or provision of this Agreement shall not affect the validity of the remaining portions
hereof.
VI. 1�07"ICE.•
All notices to be given pursuant to this Agreement shall be in writing and shall be deemed given
when delivered by hand or when mailed by certified or registered mail, postage prepaid, return receipt
requested, to the parties hereto at the addresses set forth below, or to such other place as a party may from
time to time designate by written notice.
ITZ HOLDHARMLESS.
The Owner hereby agrees to indemnify and hold harmless the Municipality and/or its delegate from
any and all actions or inactions by the Owner, its agents, servants or employees which result in claims made
against Municipality and/or its delegate, including but not limited to awards, judgments, out-of-pocket
expenses and attorney's fees necessitated by such actions.
WIZ ENTIRE UNDERSTANDING.•
A. This Agreement shall constitute the entire understanding between the parties and any amendments
or changes hereto must be in writing, executed by the parties, and appended to this document.
B. This Agreement and all of the covenants, agreements and restrictions contained herein shall be
deemed to be for the public purpose of providing safe affordable housing and shall be deemed to be, and by
3
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these presents are, granted by the Owner to run in perpetuity (unless the rights under the special permit to
maintain the affordable accessory apartment are terminated by the sale or transfer of the property by the
Owner), which affordable housuiggr� restriction is in favor of and be held by the Municipality as any other
permanent restriction held by b've'nmental body as that terra t$eciin MGL Ch. 184, Section 26 and
Section 31 which shall run with and described in Exhibit "AAeVeto annexed. This Agreement is made
for the benefit of the XLAcif a* indlthg A micipality Aaff bg dJerF&dko4)ekhe holder of the restriction
created by this Agreement. IAAARm ipality has determined t€iatWacquiring of such a restriction is in the
public interest. The Municipality shall not be subject to the defense of lack of privities of estate. The
covenants and restrictions cor>kit%cMn this Agreement shall be fee to affect the title to the property
described in Exhibit "A". A N A N
O F F I C I A L O F F I C I A L
IX. TERM FA T. C 0 P Y
The term of this Agreement shall be perpetual, provided, however, that this agreement and the right
to rent the Designated Affordable Unit as a rental unit shall terminate upon the sale or transfer of title to the
property. Upon the sale or transfer of the property, the property which is the subject matter of this
affordable housing restriction shall revert to the use permitted under zoning and this affordable housing
restriction shall be rendered void. Any new owner must apply for and obtain a new special permit from the
Yarmouth Board Appeals and execute a new affordable housing restriction.
X DEFAULT
If any default, violation or breach by the Owner of this Agreement is not cured to the satisfaction of
the Monitoring Agent within thirty (30) days after notice to the Owner thereof, then the Monitoring Agent
may send notification to the Municipality that the Owner is in violation of the termis and conditions hereof.
The Municipality may exercise any remedy available to it. The Owner will pay all costs and expenses,
including legal fees, incurred by the Monitoring Agent in enforcing this Agreement and the Owner hereby
agrees that the Municipality and the Monitoring Agent will have alien on the Project to secure payment of
such costs and expenses. The Monitoring Agent may perfect such alien on the Project by recording a
certificate setting forth the amount of the costs and expense due and owing in the Registry of Deeds or the
Registry of the District Land Court for Barnstable County. A purchaser of the Project or any portion
thereof will be liable for the payment of any unpaid costs and expenses that were the subject of a perfected
lien prior to the purchaser's acquisition of the Project or portion thereof.
M. MORTGAGEE CONSENT
The Owner represents and warrants that it has obtained the consent of all existing mortgagees of the
Project to the execution and recording of this Agreement and to the terms and conditions hereof and that
all such mortgagees have executed consent to this Agreement.
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IN WITNESS WHEREOF, I hereunto set my hand and seals this 3 t day of 0C1z5G; i; r 2006.
N O T BY: O yT,7,
A N ��
O F F I C I A L i$ a
r)i A L
C O P Y co Y
Printed: Nancy F. Mesrner
N 0 T N 0 T
A N A N
O F F I C I A L TONVNEIDIT YARUNW LTH
C O P Y C O P Y
BY:
Signature
Printed:
Robert C Lawton, Jr. Town Administrator
COMMONWEALTH OF MASSACHUSETTS
Barnstable County, ss.
On this,3ffday of Oc4&4— , 200 (( before me, the undersigned notary public,
personally appeared Nancy F. Mesmer , (Owner) proved to me through satisfactory evidence of
identification, which was ] rt] [my personal knowledgo],
to be the person whose name is signed on the preceding instrument and acknowledged to me that
signed it voluntarily for its stated purpose.
Notary P V
My commission expires: J w a i 2.0 ►�
Barnstable County, ss.
On this 24 day of Oc-ro s E!g= , 2006, before me, the undersigned notary public, personally
appeared Robert C Lawton, Jr., Town Administrator for the Town of Yarmouth proved to me through
satisfactory evidence of identification, which was ] [a eW-4L&.-pmport]
my personal �6:me
ledge to be the person whose name is signed on the preceding instrument and
acknow ge t at he/she signed it voluntarily for its stated purpose.
,1
Notary Pu M Elaine Waygan
My commission expires: November 9 2012 .:f
Il.f f/i
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EXHIBIT A
N OaCLARATION OF COVL i-R"S
A N ACCESSORY APARTM Y�Tp
O F F I C I A L O F F I C I A L
C O P Y C O P Y
N O T N 0 T
A N A N
O F F I C I A L O F F I C I A L
C O P Y C O P Y
b
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N OIACLARAnON OF COV#AT-FTS
A N ACCESSORY APARTMLW
O F F I C I A L O F F I C I A L
Whereas, Nancy F.ldgnkr Yis the owner of the prof ert9 ai, 91Green Wav South Yarmouth,
Barnstable County, Massachusetts, more particularly described in a deed dated and recorded with the
Barnstable County RegistryofWdadfin Book 18743 Page: 304 WhOh Teal estate is shown on Yarmouth
Assessor's Map# KParcel:# 51k; N A N
O F F I C I A L O F F I C I A L
Whereas, Nancy F. I1ksmer his been granted a Specigi li~yerWWityo create an Affordable Accessory
Apartment in Appeal # 4073 Dated October 3.2006;
Whereas, said special permit and Section 407 of Town of Yarmouth Zoning Bylaw require that the
accessory apartment be limited to the term of ownership and occupancy of the premises by the Petitioner;
Whereas, said special permit and Section 407 of Town of Yarmouth Zoning Bylaw require that
accessory apartment shall be rented to a household with a maximum income of 80% or less of the Area
Median Income (AMI) of Barnstable -Yarmouth Metropolitan Statistical Area (MSA) and that rent shall not
exceed 30% of 70% of the most current Area Median Income (AK of Barnstable -Yarmouth Metropolitan
Statistical Area (MSA) based on household size.
Now therefore Nancy F. Mesmer agrees that on sale of the premises or transfer of beneficial
interest, or when he/she no longer occupies the premises, as his/her principal residence, whichever comes
first, that the rights granted to him/her in Appeal # 4073 Dated__October 3.2006 shall lapse and the Special
Permit shall be void. No accessory apartment shall be held in separate ownership from the principal
structure/dwelling unit.
Signed under the pains and penalties of perjury, this Sr of QL6U�,- 200� .
(Signature)
COMMONWEALTH OF MASSACHUSEM
Barnstable, County, ss.
On this dayof 10e1r , 200_�q, before me, the undersigned notarypublic, personally
appeared Nancy F. Mesrner , (Owner) proved to me through satisfactory evidence of identification, which
was [ e] [ [my personal knowledge], to be the person whose
name is signed on the preceding instrument and acknowledged to me that he/she signed it voluntarily for its
stated purpose.
WITNESS my hand and official seal.
My commission expires: V� Z R.