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HomeMy WebLinkAboutSmolak & Vaughan Approval of Form of Re...Agreement and Deed Rider.2004.12.2 - Correspondence - 0000 Meetinghouse Road 12/2/2004 North Andover Zoning Board of Appeal Regular Meeting Senior Center, 120R Main Street,North Andover,Massachusetts 01845 Time: 7:30 PM j Tuesday December 14, 2004 QLD/NEW BUSINESS: Approval of November 9,2004 minutes. Campion Hall,Cochichewick Drive-Regulatory Agreement and Deed Rider Meetinghouse Commons at Smolak Farm-Regulatory Agreement and Deed Rider Margus&Cameron Decry,201 South Bradford Street,requesting a modification to 1998-007, Request District #=Members who have heard evidence *=Voted to continue CONTINUED HEARINGS: (*Requested continuance until December 14,2004 meeting) Hiuhview,LLC Comprehensive Permit R 4 #.IPIEMIJL_JRB Waverly Oaks '*JP/EMJJL/JS/RB for premises at: Waverley Road *JP/EM/JL/RB *JP/EM/JL/RB *WJS/EM/JL/RB *JP/EMJJL/RB *JP/F,NVJLIRB *JP/EM/JL/RB *Requested continuance until December 14,2004 meeting) _ ^T #1;MJRB/AM/TI/RV/DW William Donegan Variance&Special Permit R-4 *JP/EM/JL/RB/AM/TI/RV/DW 114 Union Street *EMIRS/AM/TI/RV/DW (*Requested continuance until December 14,2004 meeting) _ #CMlW/A1V1/I'1IRV/DW Sutton Realty Trust Variance&Special Permit 1-2 *JP/EMJJL/RB/AM/TI/RV/DW For premises at: *BM/RB/AM/TI/RV/DW 492 Sutton Street (LawreIlce Municipal Airport} (*Requested continuan until December 14 2004 meet'i Richard S.Else S ecial Permit B-4 /EMIJL/RB/AM/TIJRV/DW For remises at: *JP/EM/JL/R /AM/Ti/RV/DW 85 Main Street T _^ *EMJRB/AM/TI/RV/DW December 14,2004 Page I of 2 North Andover Zoning Board of Appeals,400 Osgood Street,N.Andover MA 01845 phone 978-688-9541 fax 978-688-9542 North Andover Zoning Board of Appeals Regular Meeting Senior Center,12OR Main Street,North Andover,Massachusetts 01845 Time: 7:30 PM Request District #=Members who have heard evidence *=Voted to continue P LIC HE RING ; Bell Atlantic Mobil dlb/a Verizon Special Permit&Finding VR Wireless for ftremises at; 5 Boston Street Michael&Kristin Lane Special Permit _ R-2 60 Old Farm Road Robert G.&Betty Jane Dawe Variance R-3 49 Lort ood.Ayenue Note: Matters may be called out of order and not as they appear on the agenda. Deliberations and vote on any issue taken under advisement may take place later in the meeting after the conclusion of the hearing and other matters listed on the agenda. "All interested parties are invited to remain to the end of the meeting". December 14,2004 Page 2 of2 North Andover Zoning Board of Appeals,400 Osgood Street,N.Andover MA 01845 phone 97"88-9541 fax 978-08-9542 Meetinghouse Commons-- ZBA Agenda for 12/14 Page 1 of I Glennon, Michel From: John Smolak]jsmolak@smolakvaughan,com] Sent: Thursday, December 02, 2004 4:49 PM To: 'Michel Glennon' Subject: Meetinghouse Commons--ZBA Agenda for 12/14 Hi Mich: Could you please put Meetinghouse Commons on the agenda for the 12/14 ZBA meeting. The purpose of that meeting will be for the Board to approve the form of deed rider, as well as revisions to the regulatory agreement, requested by the Department of Housing and Community Development as part of the DHCD's approval of the Regulatory Agreement as a perpetual restriction under M.G.L. c. 184. Correspondence regarding this matter will . be delivered to you tomorrow. Please call me if you have any questions. Thank you. II/John John T. Smolak, Esq. Smolak& Vaughan LLP Jefferson Office Park 820 Turnpike Street, Suite 203 North Andover, Massachusetts 01845 Tel 978,327.5220 (Main) TeL 978.327.5215 (Direct) Fax 978.327.5219 E-Mail,jsmolak@SmolakVaughan,com This communication is Intended only for the use of the individual or entity named as the addressee. It may contain information which is privileged and/or confidential under applicable law.If you are not the intended recipient or such recipient's employee or agent, you are hereby notified that any dissemination, copy or disclosure of this communication is strictly prohibited. If you have received this communication in error,please Immediately notify us at(978) 327-5220 or via return Internet e-mail to jsmolak@smolakvaughan.com and expunge this communication without making any copies. Thank you for your cooperation. i 12/3/04 Glennon, Michel< . From: John Smolak jsmolak@smolakvaughan.comJ Sent: Thursday, December 02, 2004 7:23 PM To: 'Michel Glennon' Subject: FW: Meetinghouse Commons,North Andover ZBA An 001.pdf XeroxAttach.txt Mich: As a follow-up to my last e-mail to you, attached is a letter with supporting documentation to be filed with the Board. The attached has been submitted to Town Counsel today. Please call me at 978-327-5215 to confirm the attached has been received by you and that you can print the same. Thanks. II/John ----Original Message----- From:jsmolak@smolakvaughan.com [mailto:jsmolak@smolakvaughan.com] Sent: Thursday, December 02, 2004 7:68 PM To: jsmolak@smolekvaughan.com;jsmolak@smolakvaughan.com Subject: Please open the attached document. It was scanned and sent to you using a Xerox WorkCentre. Attachment file type PDF 'device Name Device Location For more information on Xerox products and solutions, please visit http://www,xerox.com. DC-C 3 7004 BOARD OF APPEALS 1 SMOLAK & VAUGI3AN LLP Attorneys at Law i Jefferson Office Park 82o Turnpike Street, Suite 203 North Andover, Massachusetts 01845 Telephone 978-327-5220 Facsimile 978.327-5219 John T.Smotak,Esq. Direct 978-327-5215 Emai t:,ismolak(c�SmotakVaughaiixoin December 2,2004 BY HAND AND E-MAIL Ellen McIntyre, Chair Zoning Board of Appeals Town of North Andover 400 Osgood Street North Andover,Massachusetts 01845 RE: Approval of Form of Revised Regulatory Agreement and Deed Rider Comprehensive Permit, dated May 24,2002 Project: Meetinghouse Commons Property. South Bradford Street, forth Andover Applicant&Owner;--Meetinghouse Commons LLC Dear Ms. McIntyre and other Board Members: At the suggestion of Attorney Urbelis, the following summary is being provided to the Board as supplemental background for the basis For the changes we have made to the draft Deed Rider and Regulatory Agreement since the original draft documents were submitted to the Board on September 12, 2004 (the"First Draft"). As noted in the correspondence from Attorney Urbelis to the Board, Attorney Urbelis feels there is a potential conflict between Conditions 11 and 1.2 of the Meetinghouse Commons Comprehensive Permit Decision,which require the affordable units to remain affordable in perpetuity or the longest period allowed by law, and the standard fora;of Chapter 40B deed rider which allows for the termination of the affordability restriction for a particular affordable unit upon the occurrence of specified conditions described below. We are bringing this issue to your attention because of the significant implications which this issue has not only for the Meetinghouse Project,but also for the potential effect this issue may have on the other 40B decisions issued to Terra Properties, Valley Realty Development, Campion Hall LL,C as well as other 40B decisions which may include similar perpetuity conditions. We also note that should the Board not agree to modify the Comprehensive Permit Decision, then the Board would be essentially forcing the Applicant to file an appeal to the Housing Appeals Committee("HAC")where a recent HAC decision has already ruled, consistent with the position of MHC, that certain provisions related to foreclosure being proposed by the Board, as described below, are I.J t , C W 1. DF(, 3 Z004 BOARD OF APPEALS SMOLAK& VAUGHAN LLP Ellen McIntyre, Chair i December 2,2004 not lawfully permitted to be included within a deed rider. We also note that since the Applicant last appeared before the Board, the Department of Housing and Community Development("DHCD") has approved the form of Regulatory Agreement and Deed Rider as a perpetual affordable housing restriction under Mass. G.L, c. 184, subject to several minor changes which are outlined below and in the December 2, 2004 letter to Attorney Urbelis which is attached. Note that the DHCD's conditional approval preserves the ability to terminate the affordability restriction as to a particular affordable unit upon the occurrence of foreclosure which is also consistent with MHC's position as outlined below, and which is discussed in Attorney Urbelis' letter to the Board, dated November 15, 2004. While I understand most of the members on the Board have experience with the Chapter 40B process, we nevertheless wanted to provide all members of the Board with a general understanding of this issue in the context of the regulatory agreement and deed rider and as it specifically relates to the Meetinghouse Commons Project. Accordingly, this letter provides a description of; (a) regulatory agreements and deed riders in general; (b) the provisions of a general form of standard deed rider which state agencies require to be used for Chapter 40B projects; (c) the issues regarding the first draft of the regulatory agreement and deed rider for the Meetinghouse Commons Project which were submitted to Town Counsel and the Board under cover letter, dated September 24, 2004; (d) a description of issues regarding the second draft of the regulatory agreement and deed rider for the Meetinghouse Commons Project provided to Town Counsel on October 27, 2004 submitted in response to Town Counsel's October 8,2004 letter to the Board; (e) a proposed solution to this issue; and, (f)a revised regulatory agreement and deed rider which include the changes to the same requested by the DHCD as a condition to DHCD approval of what the DHCD considers a perpetual restriction under the provisions of M.G.L. c. 184. A. The Chapter 40B Re gulator A reement and Deed Rider Generall As an initial matter for affordable homeownership developments approved under Chapter 40B, the applicant, as a condition to approval of a comprehensive permit, is required to execute a regulatory agreement and deed rider to both ensure, among other things, that the project and developer will comply with the profit limitations required under Chapter 40B and to ensure that the affordable units will remain affordable for a certain term of years. A minimum affordability term of thirty (30) years is generally required by guidance issued by the Massachusetts Department of Housing and Community Development, subject to certain limited exceptions. It is not unusual for municipalities to request affordable units to remain affordable in perpetuity, but perpetual restrictions are always subject to certain limited exceptions which will be described below. The regulatory agreement also obligates the developer to ensure that an affordable unit deed rider will be executed by the initial purchasers of each affordable unit and by all future purchasers of the unit. SMOLAK &VAUGIEIAN LLP Ellen McIntyre, Chair l December 2,2004 B. The Standard Deed hider E Each housing program will have its own standard form of deed rider. In the case of ownership projects under Chapter 40.6, there is a standard deed rider for projects approved under MassHousing's Housing Starts Program, the New England Fund Program now administered through MassHousing,and the Local Initiative("LIP") Program administered through the Department of Housing and Community Development. All three programs above have substantially similar deed rider provisions. Further, there are two circumstances(with strong public policy reasons)under which the agencies administering these programs deem it important to terminate the affordable housing restriction regardless of whether the affordable units are restricted as affordable for a certain term of terms (i.e., 30 years), or whether the unit is to be restricted in perpetuity. These circumstances are as follows, First, as pointed out by Attorney Urbelis in his October 1.,2004 letter,if the seller of the affordable unit desires to sell his or her unlit,and the Monitoring Agent cannot find a so-called"eligible purchaser" for the unit within a certain period of time, and the Municipality does not exercise its right of first refusal to purchase the affordable unit, and the seller cannot otherwise locate an Eligible Purchases-within a certain time period, then the owner of the affordable unit can sell the unit free of any affordability restrictions. However,upon the sale of that unit, the Municipality receives the difference between what the unit would sell for as an affordable unit and as a market-rate unit (the"Windfall Profit")at closing. This Windfall Profit, in turn,is paid to the Municipality for purposes of creating affordable housing. For purposes of this letter,I will call this provision the "No Eligible Purchaser Provision." This process is described in Paragraph 1(b) of the First Draft. Second, if the affordable unit is being foreclosed on by the lender, or if the lender accepts a deed in lieu of foreclosure,and the Municipality does not exercise its right of first refusal to purchase the affordable unit, then the unit can be sold free of the affordable housing restriction. However,upon the conveyance of the unit, the Municipality generally receives the difference between what the unit would sell for as an affordable unit and as a market-rate unit(the"Windfall Profit")at closing, This Windfall Profit, in turn, is held by the Municipality for purposes of creating affordable housing. For purposes of this letter, I will call this provision the"Foreclosure Provision." The Foreclosure Provision is described in Paragraph 4(b)of the First Draft. Both the No Eligible Purchaser Provision and the Foreclosure Provision are standard provisions which have existed in agency regulatory agreements for more than fifteen years under the Chapter 40B Program, The public policy reasons for these } i SMULAK& VAUGHAN LLP Ellen McIntyre, Chair i December 2, 2004 provisions have been recently articulated in the Housing Appeals Committee decision entitled Delphic Associates, LLC v. Hudson Board of Appeals HAC No. 02-11 (December 23,2002). In that decision, the Housing Appeals Committee(the"HAG"} ordered the Town of Hudson to remove a condition from the comprehensive permit that requires that the affordable housing restriction identified in the deed rider and regulatory agreement to survive foreclosure. MassHousing,which filed a brief in the Delphic case, supported the case for terminating the affordable housing restriction upon the occurrence of a foreclosure. In essence, the IIAC held that the Foreclosure Provision should in fact operate to terminate the affordable housing restriction for several strong public policy reasons. First, the HAC found that the secondary lending market(i.e.,Fannie Mae and Freddie Mac) and standard commercial lending practice require that such deed restrictions be terminated upon foreclosure. Second, the HAC determined that mortgage insurers, who typically insure first mortgages for affordable units,will not insure mortgages unless the restriction terminates upon foreclosure. Third, the HAC found that the municipality is protected by safeguards in the deed rider in other ways since not only does the Town have a right of first refusal to purchase the affordable unit or can find an affordable buyer, but also, if it declines to exercise this right, it has the right to receive the Windfall Profit described above. And although the Town is certainly not responsible for the occurrence of a foreclosure event, the Town always has the option to purchase the affordable unit in order to maintain the affordability of the unit although the Town has no legal obligation to do so. This limited circumstance has always been a part of the deed rider provisions where approval is controlled by the Department of Housing and Community Development or MassHousing,and is intended to balance the interests of the municipality with the interests of the state agency to ensure there is the ability to finance affordable units at the time,these units are initially offered for sale. And in all instances, the Town has the ability to preserve the affordability status of an affordable unit if it chooses to do so in this very limited circumstance of foreclosure. A copy of the Delphic case and MassHousing brief are attached. C. The First Draft Regglatory A regiment and Deed Rider For Meetin house Commons By letter, dated September 24,2004, I had submitted, on behalf of Meetinghouse Commons LLC, a form of Regulatory Agreement and Deed bider to Attorney Urbelis and the Board for approval(the "First Draft"). As noted in my September 24 letter, the forms of Regulatory Agreement and Deed Rider submitted for the Meetinghouse Commons Project are substantially identical to the forms of regulatory agreement and deed rider approved by the Board for the Kittredge Crossing Project. The deed rider approved by the Board for the Kittredge Crossing Project, and the form of deed rider submitted as part of the First Draft, both include the No Eligible Purchaser Provision and the Foreclosure Provision referenced above, We purposely drafted the First Draft in this manner since we assumed the board would have no problem approving the same forms it I SMOLAK& VAUGHAN LLP Ellen McIntyre, Chair December 2, 2004 had previously approved for the Kittredge Crossing Project, Again, these affordability provisions are customarily included in all standard forms of regulatory agreements and deed riders developed by both MassHousing and the Department of Housing and Community Development. We also note that the conditions regarding perpetuity identified in Paragraphs 11 and 12 of the Meetinghouse Commons Comprehensive Permit Decision, axe substantially identical to the perpetuity conditions contained within the Terra Properties LLC Comprehensive Permit Decision as well as the Valley Realty Development, LLC Comprehensive Permit Decision. However, to our knowledge, the Terra Properties project does not include a perpetual affordability restriction although it appears such a restriction is required as part of the Terra Properties Comprehensive Permit Decision. Thereafter, by letter, dated October 1,2004, Attorney Urbelis raised a question of how certain provisions in the draft deed rider (which would allow an affordable unit to be sold free of the affordable restriction under certain circumstances,or as provided in the No Eligible Purchaser Provision)would be consistent with the perpetuity requirements of Paragraph 11 and 12 of the Meetinghouse Commons Comprehensive Permit Decision. By letter, dated October 6, 2004, I responded to Attorney Urbelis by stating that Paragraph 1(b)of the Deed Rider identified in the First Draft is a standard provision within Deed Riders because one cannot expect an owner or lender to agree to hold onto an affordable unit for months or years if an eligible purchaser could not be found and that is why this provision is included as a standard provision in Deed Riders for all the various affordable housing programs(i.e., including the New England Fund Program which is being used for the Meetinghouse Commons Project). Thereafter, I have had a number of additional discussions with the Legal Office of the DHCD to determine whether DHCD has ever approved deed riders which include affordable housing restrictions which operate to survive with respect to the No Eligible Purchaser provision scenario described above. In turn, the DHCD identified two examples where this had occurred but those examples were approved under housing programs different from the New England Fund Program which Meetinghouse Commons is using. The DHCD did not identify any deed rider which preserved affordability with respect to the Foreclosure Provision described above, presumably since the Delphic case recently held that such a provision would render a project"uneconomic" and"not consistent with local needs"as those terms are defined under Chapter 40B. Accordingly, by letter, dated October 27, 2004, I submitted to Attorney Urbelis and the Board both a revised regulatory agreement and deed rider in an attempt to be responsive to Attorney Urbelis' October 1, 2004 letter. In that letter, I informed Attorney Urbelis that I had consulted with the Legal Office of the DHCD,and the Legal Office had identified only two examples of deed riders which the DHCD has approved as to form both for projects in Newburyport and Orleans where affordability is preserved in the scenario of the No Eligible purchaser Provision, and I incorporated certain affordability SMOLAK & VAUGHAN LLP Ellen McIntyre, Chair December 2, 2004 provisions from those riders into the revised deed rider and regulatory agreement for the Meetinghouse Commons Project(the"Second Draft"). D. The Second Draft Regulatory Agreement and Deed Rider For Meetinghouse Commons As a result of these changes made, the deed rider for the Second Draft differs from the deed rider included in the First Draft in the following ways. Specifically, Paragraph 1(b) is being amended to preserve affordability by addressing the concerns raised regarding the No Eligible person Provision described above in the First Draft. Accordingly, if the seller of the affordable unit desires to sell his or her unit, and the Monitoring Agent cannot find a so-called "eligible purchaser"for the unit within a certain period of time, and the Municipality does not exercise its right of refusal to purchase the affordable unit, and the seller cannot otherwise locate an Eligible Purchaser within a certain time period, then the owner of the affordable unit can sell the unit to a non-qualifying person at the Maximum Resale Price(i.e., the price set for an affordable unit) but subject to the affordable housing preservation restriction. Thereafter, if the non-qualifying owner desires to sell the unit, the non-qualifying owner would have to follow the normal procedures for selling an affordable unit as if he or she were an eligible purchaser with the hope that the unit could then be conveyed to an eligible purchaser in the future. By this revision, the affordable housing restriction is preserved. As to the Foreclosure Provision,the Housing Appeals Committee has already ruled that a requirement to preserve affordability in the event of a foreclosure or deed in lieu of foreclosure is not a reasonable condition to impose in a deed rider. Accordingly, if the Applicant,Meetinghouse Commons, LLC, was forced to appeal this perpetuity condition to the HAC, there is clear precedent ender the Del hLic decision supporting the termination of the restriction under the Foreclosure Provision. E. The Meetinghouse Commons Comprehensive Permit Decision As noted above,Sections 11 and 12 of the Meetinghouse Commons Comprehensive Permit Decision require that the affordable units be sold subject to the requirement that such units remain affordable ill perpetuity or for the longest period allowed by law, and require the Applicant to use best efforts to obtain DHCD approval of a perpetual restriction. The Applicant has submitted information to the DHCD, and has obtained approval of a perpetual restriction which includes the Foreclosure Provision described above. However,Town Counsel has taken the position that the Deed Rider approved by the DHCD may be inconsistent with the perpetuity requirements of the Meetinghouse Comprehensive Permit Decision because the Deed Rider allows for the termination of the affordable housing restriction on the unit in the event of a foreclosure or deed in lieu of foreclosure. In fact, no applicant could comply with the perpetuity conditions described in the Comprehensive Permit Decision for the reasons described in the Delphic decision described above if the Board determined that a deed rider which J SMOLAK& VAUGHAN LLP Ellen McIntyre, Chair December 2,2004 includes a limited exception such as the Foreclosure Provision was not a perpetual restriction. On the other hand, I suggest that it is longstanding state policy to approve so- called perpetual affordable housing restrictions under Chapter 1.84 which include the Foreclosure Provision and the No Eligible Purchaser Provision, However, it is MHC's feeling that it is not useful for either the Town or MHC to get into a debate over this issue. For these reasons, should the Board determine that M1IC's proposed Regulatory Agreement and Deed Rider not comply with Conditions 11 and 12 of the Comprehensive Permit Decision, this letter also serves as a formal request of the Board to vote to modify the Comprehensive Permit Decision to allow for the termination of the perpetual affordable housing restriction for an affordable unit in the event of a foreclosure or deed in lieu of foreclosure as described above. In either case, the Comprehensive Permit would be consistent with the revisions made in the Deed Rider and Regulatory Agreement approved by the DHCD. Attached for your consideration is a draft Modification of Decision. F. Changes to Re ulg atory Agreement and Deed Rider,Required by DHCD. As required by Condition 12 of the MHC Comprehensive Permit Decision, the MHC has submitted a request for approval of the affordable housing restriction, and has obtained conditional approval of the affordable housing restriction, subject to the following changes which are reflected in the Third Draft of the Regulatory Agreement and Deed Rider,copies of which are attached. These changes are generally considered minor, technical changes which MHC has agreed with, and by this letter, MHC requests the Board to approve the same as to form. A summary of these changes are as follows; 1. DHCD has requested that either CHAPA or the Town of North Andover be an additional holder of the affordable housing restriction as part of the Regulatory Agreement, Accordingly, MHC feels the Town of North Andover would want to become a holder of the restriction and the regulatory agreement has been modified accordingly. 2, The DHCD has requested that the affordable unit sales price be included in the Regulatory Agreement and that price has been included, 3. The DHCD has requested minor changes to wording in the Deed Rider regarding Maximum Resale Price, and to wording regarding the Certified Sales Price in the Regulatory Agreement, to be consistent with similar Deed Riders and Regulatory Agreements,which the DHCD has approved. S V SMOLAK & VAUGUNN LLP Ellen McIntyre, Chair } December 2,2004 Please contact me at your earliest convenience should you have any questions regarding these matters so that we can hopefully wrap this up at the Board's December 14 meeting, Thank you. V ry truly yours John T. Smolak JTSI cc: Board of Selectmen i Heidi Griffin, Director of Community Development D. Robert Nicetta, Building Commissioner Mark Rees,Town Manager Thomas J. Urbelis, Esq., Urbelis &Fieldsteel, LLP Thomas D. Zahoruiko, Manager, Meetinghouse Commons,LLC URBELIS&.P1ELDSTEEL, LLP i 155 FEDr,,RAL SMET BOSTON, MASSACHUSETTS 02110-1727 THOMAS J.URBELI$ Telephone 617-338-2200 Andover e-mail tjuc@ufb.com Telecopier 617-338-0122 Telephone 978.475.4552 November 15, 2004 Board of Appeals North Andover Town Offices 400 Osgood Street North Andover, MA 01845 RE: ME13T1N moue CommoN ,Dear Members of the Board: At Bob Nicetta's request,Z am writing with my cornmex►ts about Attorney John.Smolak's October 27, 2004 letter to me and the attachtnents included therein. The Board was copied on the letter. The provisions of the revised Regulatory Agreement and.Deed Rider submitted by the applicant provide that if an eligible purchaser canixot be .found for an Affordable Unit, the Seller may sell at a Maximum Resale Price(as set by the Monitoring Agent) and the affordability of each Affordable Unit will be preserved each time that subsequent resale of the affordable unit occurs during the period of affordability specified in the Board's Comprehensive Permit The Property sold to an Tneligible Purchaser shall be subject to the continuing obligations and restrictions coma.aed in the deed rider, so that when the Property is resold by the Ineligible Purchaser, the sale procedure outlined in the Deed Rider must be followed by the selling Ineligible Purchaser,with the Town's right of first refusal still existing and the restriction of;the sale being to ail eligible purchaser. The deed to `.he Ineligible Purchaser shall clearly state that the Property is being corxvcyed subject to the deed rider. Under these proposed circumstances, I do not know if there is a period of til-t-te in which DTICD removes the unit Crom the calculation of whether the Town has reached the 10%threshold of affordable units. These revised documents also add a new requirement, in Section 2(b)of the Deed Rider that the Town's chief elected official execute and deliver compliance certificates in accordance with the terms of the Deed Rider. My assumption is that DHCD contemplates that for North Andover the person is the chair of the Board of Selectmen. t s`+vp$I1wmkLtardOve4a0mCfp�Bppcale']tr•meedngho".doe j URBELIS&FfF-LDST8FL, LLP November 15, 2004 Page 2 The Deed Rider also provides in Sections 4(b) and 5(a) that in the event of a foreclosure, if the property is sold for a price in excess of the greaten of(1.) the mortgage note, interest and costs and expenses and(2) the Maximum Resale Price, the excess (if any) is paid to the Town and the affordability restrictions of the unit are lost forever. Therefore, in effect, if an owner, for whatever reason, does not pay the mortgage and if there is a foreclosure, the affordability of that interest is lost. With regard to these revised documents,and when comparing their. provisions with the affordability requirements of the coinprehensive permit, it is your determination to make as to whether(1)the applicant must file for a modification of the decision or(2) the proposed documents must be revised by the applicant or(3) the documents represent an"insubstantial change"of your decision and therefore are acceptable. I have not received the DHCD approval letter referenced on the second page of Attorney Smolak's letter dated October 27, 2004 with regard to G. L. Chapter 184, in accordance with Paragraphs 11 and 12 of the Comprehensive Permit Decision. Therefore, I can offer no comment on that issue at this time. Please call if you have airy questions. Very truly yours, Thomas J. rbelis T)Ullah cc: Board of Selectmen Heidi Giif in D. Robert Nicetta Mark Roes John Smolak, Esq.