HomeMy Public PortalAboutZoning Board of Appeals -- 2002-05-15 Minutes J"
Partial Transcript
Zoning Board of Appeals Meeting
Wednesday, May 15, 2002
r } Subject: McShane Affordable Housing Project
The Board convened at 7:00 P.M. Mr. Freeman expressed appreciation
to Ms. Remy for her long, exemplary service to the ZBA as she leaves to
take her elected position on the Town Planning Board.
CAMr. Freeman outlined the agenda for the meeting: Regulatory
greement, Monitoring Services Agreement, Trust Agreement, Trust'
Rules and Regulations. -
KK: I'm assuming there are no changes to the master deed.
[General agree ntj'>
HF: Outlined some changl to agenda items over the last few months,
reviewed by Town Counsel (LK). An informal meeting worked out
some language on approx. twenty-four points in the documents.
We have not agreed on price or value for the affordable housing.
S me-prices uld b eater than originally proposed in August 2001,
reported the developer,)
KK: Current regulations permit the prices to be greater.
BM: Which ones are the newer ones?
AS: Let's make sure we're working on the same document. Trust Rules
and Re ul tions are inco"�le , i.e., para. 16 at the end.
Disdussion alfOut pc*a. 7 and tonnaa e and definition of "truck." and
limits on tonnage for overnight parking in the development. "Trucks of
greater than 10,000 lbs. GVW, boats, boat trailers, buses, house
trailers, and other such vehicles shall not be allowed to park overnight
on areas within the confines of Yankee Drive Town Home
Condominiums."
On p. 2, All Above Rules, "All of the above rules and regulations may be
amended by the trustees, pursuant to the provisions of the Declaration
of Trust of the Yankee Drive Town Home Condominiums.."
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s
Re: prices in the Regulatory Agreement (2"d and 3rd pages), Mr. Kirrane
stated appraised values as follows:
Unit #1 (3BR unit) -- $195,000, Appraised market value.
Proposed affordable price -- $135, 000 (31% discount).
Discussion ensued over two units with less than 900 sq. ft. and its
importance. Developer is entitled to an 8.1 % profit on units.
Unit #2 (2BR) -- $175,000 AMV; $120,000 PAP (32% discount).
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Unit #4 (2BR) -- $165,000 AMV; $120,000 PAP (28% discount).
Unit #6 (2BR) -- $170,000 AMV: $120,000 (30% discount).
LK: Described 7illian Douglass' position: While regulations permit
increases in the affordable prices, it is not the right thing to do and the
numbers are already put into place, i.e., $110,000 average price
originally agreed to. Fifty-seven per cent of the units in this
development are affordable. The developer will recover a substantial
portion of his losses through tax incentives and similar legal benefits.
The focus needs to be on the owners.
Discussion ensued on the background of property costs, overhead,
profit, insurance, and construction costs. Median income figures are
the basis for the affordable housing prices under discussion.
Mr. Kirrane commented on the substantial length of time that the
project has taken to come before the ZBA. This meeting should allow
the building permit to be issued.
Further complications that trouble the project are the need to place the
units in rental agreements and the the possible loss of future funding
sources for the developer.
The Board received a confirmation from the developer that affordable
unit prices would fluctuate downward as well as upward as the market
changes.
The New England Fund lacks guidelines for these projects and,
therefore, creates protracted governmental processes like this. It's
this Board's capacity to do as it sees fit.
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The Board approved the initial affordable prices and current discount
rates unanimously.
In the Regulatory Agreement on p. 12, Grantee Notice to the
Municipality, the subject is the Town's time limit to exercise its right of
first refusal. The changes are the consequence of the informal work
session. No agreement was reached between the Town and the
developer, the Town opting a longer period. The proposed period for
the Town would have been 210 days Q months). The developer's
position is that no buyer or seller would be willing to wait that length
of time for the Town to make its decision. The developer believed that
the Town could work decisively within a 30-90 day period.
LK: There is no issue with 30 or 90 days to decide. The Town needs
the time to cycle the money factor into the deal, but the incentive is
the substantial discount to a potential buyer. The Town needs at least
90-120 days to consider and act on its position.
The developer criticized the Town's position by asserting that the seller
wouldn't be locked into an extremely lengthy period
S BM: 15 days. So you got 15 days to get your lottery time. And you
take your maximum lottery time -- 120. So 15 and 120 is a 135.
AS: When's the lottery come in? This is if the Town chooses their right
of first refusal. This is the same as A, I mean, of #1.
BM: Do you mean, has it gone to Town Meeting and then lost? I don't
understand the circumstances where this comes from. Maybe I don't . .
. this [unintelligible].
CK: Well, if you get straight [Unintelligible], sloppy on twos(?)
[untelligible], if you wanna put it on Town Meeting . . .
BM: Lemme try this again. In the event that the Town within the
original thirty day period . . .
AS: Now fifteen days.
BM: Yeah, it's a fifteen day period . . . says to the seller that the Town
is going to find somebody to buy it, in other words, they're going to do
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a lottery, okay? Within that original fifteen days, they say to the seller,
we're going to find somebody to buy this unit.
HF: Right.
BM: Now, and then the rule of finding somebody, gets you back to
Para. B. Para. B gives them 120 days to do the lottery, okay? So now
within that original fifteen, they've taken some of that fifteen, some
might take a day or fourteen days, but they've taken some to say,
we're going to find somebody. And if they take all the lottery time . . .
so you take the four months, and you add whatever of the fifteen days
to it, gets you over a 120. Now keep going down C, and it says that the
Town intends to exercise the Town's right of first refusal to purchase
the property.
AS: It says, "or." There's an "or" in there at the end. ". . . to locate an
eligible purchaser or exercise the right of first refusal . . ."
KK: I don't think "municipality " belongs in that paragraph at all.
BM: Where's the "or."
KK: Right at the end.
AS: They got the two mixed together.
KK: Yeah, but the "municipality" is not locating a purchaser, it's the
monitoring agent that would be locating a purchaser.
HF: Right.
7 LK: The reason 7illian added the municipality into this whole thing is, if
for any reason the monitoring agent is no longer funded, is not there,
for whatever reason there is not a replacement agency, she felt that it
1 was in the Town's best interest to make sure that the Town was there
! , as a backup in these documents, so that in 40 or 50 years, whatever,
�J she felt that the Town would be protected and could say, okay, these
are still going to be affordable housing units.
BM: Yeah, but wouldn't the Town at that point have taken the role of
the monitory agency? Be working under the documentation of the
monitoring agency, in essence, being the monitoring agency?
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LK: It's been pointed out, and it is what it is. The Town has an
exceedingly active role in this agreement.
BM: But to be working under them (????) . . . of agents of the
monitoring agency, in doing the role of the monitoring agency.
LK: They would. This municipality has been injected into this entire
agreement as pretty much a safeguard. That was the reason why she
wanted it that way.
BM: My only point of this thing is . . . that's one point, 4t" line of page
14. Has to be a 135.
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LK: That's fine.
BM: But at least it doesn't void the agreement.
KK: Why do we need para. C.
JR: Because that gives the Town, it allows the Town to say, 'We're
going to deal with this.'
AS: Then they do that in A?
KK: I mean, you look at the last sentence, she's got " . . . municipality
shall conduct a lottery . . ." Now the municipality is not designated as
j the body conducting a lottery. The monitoring agent is designated as
the body conducting the lottery.
BM: Did 7illian have somebody doing this, or did she do it herself?
LK: She did it herself. And the reason that she put in municipality, is
that in the event that monitoring agent was no longer able to act as
the monitoring agent, the municipality would step into that role and
conduct the lottery.
AS: Maybe she should just state that. . . (mixed voices) . . . It's just
really confusing, mixing two things together . . . (mixed voices).
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CK: Who is the "monitoring agency"?
KK: The Housing Assistance Corporation located in Hyannis.
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HF: Shall we have then, "If more than one eligible purchaser is located
by the municipality, the municipality or the monitoring agent . . ."
KK: Well, see for 1 tance, if the municipality isn't going to look for an
eligible purcha r. T e monitoring agent is the one who's going toi
look for the eligib a purchaser.
LK: That is what the documents initially said. That is the way that
most of these things are written, is that the monitoring agent assumes
all these responsibilities.
(Mixed voices)
KK: In that last sentence, I think it's gotta read this: "If more than
one eligible purchaser is located by the monitoring agent, the
monitoring agent shall conduct the lottery or otherwise determine
which eligible purchaser shall be entitled to the conveyance of the
property. In the event the monitoring agent ceases to exist or fails to
fulfill its obligation, the municipality may substitute itself for the
monitoring agent."
[Followed by a paraphrase of above statement at HF's request].
AS: Does the first sentence of para. C even make sense . . . where it
says, 'in the event the municipality, within the 15 days, notifies the
grantee that the municipality has [proceeded? is proceeding?] to locate
an eligible purchaser . . ." They're not doing that, right? This is
[notice?] that we're going to take the right of first refusal, which
doesn't make sense if they're going to go out and find a purchaser.
LK: I think she envisions that as an option, quite frankly.
HF: So what would you propose here?
AS: Well, I don't know what Jillian's got in mind. Seems to me . . .
KK: I think it would make sense to have the monitoring agent perform
that function, and then if the monitoring agent fails to perform that
function, the Town could step in. If that's one of the intent [sic], I'm
not sure, because I don't see two processes working side by side or
simultaneously. Her intent is to be sure that somebody is doing it. Is
her intent for the Town step in only if the monitoring agent doesn't do
it?
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LK: I think she wanted the monitoring agent certainly as a safeguard,
but I also think, in addition to that, as a simultaneous process, I
thought, my understanding based on my conversations with her was
that the Town also had the option to find its own eligible purchaser.
HF: Working at cross purposes to the monitoring agent?
LK: Yes.
KK: Which makes no sense.
JR: I think that must be right, because she starts off B in the same
wording.
CK: It sounds as if the intent is to keep the responsibility, as much as
possible, with the Town, in the final analysis.
KK: Well, I think that's very true.
BM: I don't see this happening very often. I read the legal notices in
all the Cape papers and noticed when they had a lottery in those
houses in Orleans, but I don't see this happening through a lottery, at
least not something that's advertised widely.
LK: No, a lottery is very common.
BM: Well, they're not in places that I would read. I don't know where
they are. I don't know how they're done. At this point, there are
probably some 1000's of units around the Cape, I don't know how
many have [sic] owned by people and go to sale like this. But I have
not seen this, so I guess my question is, if this monitoring agent is a
monitoring agent for others and you think it as being out-county
[unintell.], it doesn't go into communities and do this specific to
communities. It might run a list that it has at all times that it can refer
people. I think maybe ]illian's saying, that we want to be able to do
this and aim it toward Bre er so that we want to be able to do it
ourselves. I don't know that t at's the case.
LK: No, I think that t at is right
CK: I think that's absolutely correct. She wants to keep it as much as
possible away from state control.
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KK: But it really isn't in state control. The monitoring agent is really a
private, non-profit organization that is designed to develop and deal
with issues of housing.
CK: The State can legislate those agencies.
KK: It's not an agency, it's a non-profit corporation. [Interjection
obscures statement]. But the monitoring agent, the non-profit
corporation, is bound by the terms of this monitoring agreement, so
the monitoring agent has agreed under this agreement that they
signed with John [McShane] and with the Town that they will give
preference to Town-of-Brewster residents as defined in this document.
CK: [Unintelligible comment]
BM: Do you have these rules and regs on the affordable units in
Yankee Village? Do you have these processes?
KK: I'm not sure whether the Town had the right of first refusal in
Yankee Village.
BM: Do you know anything about the ones on Star(?) Rd., do they
have it up there?
LK: Belmont.
BM: Belmont Park?
(Mixed voices)
KK: I don't recall the Yankee Village being this complex.
HF: It seems to me that . . .
KK: There is no monitoring agent, there was no monitoring services
agreement, I don't believe, in the Yankee Drive. There was just a
regulatory agreement, because under the LIP [sic] program, I think the
regulatory agreement was all that was required.
BM: Will they stay affordable?
KK: They should.
HF: Is it appropriate that we change "municipality" here to
"monitoring agent" in para. C?
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AS: You cover it in the last sentence you put in that thing, if they're
not [unintell.] . . .
HF: We have the monitoring agent indicated there and, as Art points
out, if the monitoring agent isn't able to fulfill its obligations, then it
reverts to the municipality.
KK: That's a decision that you'll have to make at the Board, because as
the lottery relates, Jillian wants to have a dual process going on at the
same time. Although I'm not sure. It seems to suggest that, but I
can't imagine, for the life of me, that the Town would be duplicating
the efforts of the monitoring agent, as long as the monitoring agent
was still handling its obligations.
HF: And the monitoring agent is really indicated throughout para. B
above as the operative agency.
AS: Oh, yeah. Town's out there looking [unintell.], telling the
monitoring agent, they're somebody. . .
BM: With some of the changes we've done so far, we've crafted it that
the Town has to replace the monitoring agent. Now maybe the Town
doesn't wanta replace 'em. Maybe the Town just wants to run the
lottery. The monitoring agent has more of a role than just running the
lottery. It basically runs this thing. I don't know f you've read the
contract, there are things that it does. I don't think we want to force
the Town to replace the monitoring agent, to be able to run all that.
KK: Right, because the monitoring agent has paid a fee in this
document, although the fee is assessed by [unintell.] indicate what it
is. And certainly the Town isn't going to be paying the fee.
JR: We haven't said much. We've said if the agent can't do it, then the
municipality may substitute itself for the monitoring agent, so the
option is there for the Town to do it, or not to do it. If they choose not
to, they're not required to.
ti CK: I think Jillian wants the responsibility back to the Town, if the
monitoring agent fails.
[General agreement with preceding remark]
LK: So how does C read final . . . ?
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JL, HF: C reads . . . "In the event the monitoring agent, within said fifteen
day period, notifies the grantee that the monitoring agent is
proceeding to locate . . . " and so on.
LK: The monitoring agent doesn't have a fifteen day period.
HF: Okay, so you're saying "municipality . . . In the event the
municipality, within said fifteen day period, notifies the grantee that
the monitoring agent is proceeding . . . " And then, at the end of that
para. . . . well, we have a 135 days substituted for a 120. And then, we
have a 180 days still down below.
KK: That should be changed to 75. Because that's the case where the
municipality is purchasing the property.
HF: Okay, do we have the 75 earlier somewhere here. . . . 1615 . . .
Okay, so that gets changed to 75 and then, "if more than one eligible
purchaser is located by the monitoring agent, the monitoring agent
shall conduct a lottery or other like procedure to determine which
eligible purchaser shall be entitled to the conveyance of the property.
In the event the monitoring agent ceases to exist or fails to fulfill its
obligation under the monitoring agreement, the municipality may
substitute itself as the monitoring agent."
BM: "This is one big mess."
HF: "Yep."
BM: "This is a disaster. I wouldn't vote . . . if
HF: "I'm sorry?"
BM: "I wouldn't . . . We . . . This is . . . What we're looking at right here
is a total unworkable mess.
"So you get to the end of the paragraph [uncited], after you've run
your, after you've taken your thirty days and you play around with 120
days. You run this lottery, and then you find, if you have more than
two people, more than one person, you gotta do something else?"
LK: "No, the 'more than one person' is the lottery. If they advertise
this, and they have an initial . . ."
BM: "When do you advertise it? Before the 120 days?"
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LK: "Yeah. That's part of, that is the 120 days, to advertise, to get a
list, and then if you have more than one eligible purchaser, to qualify a
purchaser, to meet the guidelines. If you have anything else going on,
if you're still an eligible purchaser, then they can conduct the lottery, if
they have more than one."
BM: "I don't get it. Gimme time frames, okay? I'm not understanding
it at all, this process."
LK: "Have you participated . . . I'm not sure. I don't think that it
necessarily has to take 120 days. But I think that there is a certain
amount of time frame that these monitoring agent personnel need in
order to be able to qualify eligible purchasers, to advertise. I think
they're all affordable housing advocates, so they want to do these
things quickly. I don't think that they allow these things to languish,
but they do take time in order to have people compile their stuff. And I
think, though, that it's required in order to put your name on there to
have your application completed with your updated financials. So I
don't know how much time it is, but I was under the impression that
120 days is what they wanted under this. I don't know if that helps. I
think maybe you've had more experience."
BM: "Generally, when you read through something like this, you don't
get to the end of the paragraph and find out if more than one eligible
purchaser is located, then you've got to run a lottery. You've already
talked about the lottery . . ."
KK: "That would be the lottery."
LK: "That is the lottery. That's the only way you find . . . Well, if they
have a list, if they have a current list, for example, in the Town, of
eligible purchasers, then they would conduct a lottery to see which one
of those eligible purchasers would be able to purchase the property.
They can't just say, you know, I gotta friend who's in the housing
department. I'm gonna take care of my friend. If there are two or
three people that qualify, they wanna be sure that a lottery is
conducted so that it's fair to everybody that may be on that list who
qualifies.
BM: They're gonna have to buy [unintell.] just to get this [something]
screwed up . . . to work.
HF: Can we go on to E . . . 180 days down there.
it
AS: I think that should be the 75 days.
CK: Can this be reviewed, corrected, or [?] future day . . . unworkable.
KK: Oh, I think it can. If it's determined that it is unworkable, then I
think we would have to come back to the Board under the
documentation. Because we can't just amend it willy-nilly. It would
have to be amended with the permission of the Board. And if we find
it's unworkable, then rest assured that . . .
HF: On p. 15(?) under I, there's a "30 days" there, which "60 days"
was crossed out. "If grantee shall be unable to give title or to make
conveyance as above stipulated, or if any change of condition of the
property not included in the above exception shall occur, then the
closing shall be extended for up to . . .
KK: . . . 30 days. That was agreed to because that's standard
language.
HF: I'm seeing on p. 17, ". . . 30 days prior to foreclosure . . ." Is that . .
KK: I think the way we agreed to deal with that is that 30 days prior to
foreclosure, the municipality shall be notified in writing. And then it
should be "by the mortgagee." That other language should have come
out of there.
HF: The "180 day" was crossed out, but the whole thing should be
crossed out, okay. "180 day right of first refusal" should be crossed
out.
KK: And then if you go further [sic] down . . . loth line down . . . I think
that should be "30 days" as well. Where it says, "120 days."
HF: I think we're looking at a different version here.
[Discussion over exact location of the phrase to be edited]
HF: I think that that's it, as far as those time periods are concerned.
AS: Chances that we got that right are slim to none.
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KK: There are a couple of things that I'd like to touch base on that
weren't one of those two issues that I think we've talked about. That I
thought should have been taken out based upon our meeting.
HF: Should we agree to what we have done here with these time
periods? If people agree to this? Do we agree that what we have done
here in terms of the changes in the language and the time periods is
satisfactory? And can we have a vote accordingly? All those in favor of
the changes in language and the time periods, signify by saying "aye."
Unanimous.
KK: I think I would point out that it's still possible to tweak this
documentation. The main objective here is to get this set of
documentation approved, so that a building permit can be pulled. If it
turns out for some reason it doesn't look like it's going to work, then
there always a possibility of sitting down with 7illian and trying to
tweak the documentation so that it works. But as I say we're trying to
get the construction . . .
HF: We may not know whether it works until it's actually tried.
KK: But this documentation, as I told 7illian, I took no pride in
authorship. This is a document that, apart from the changes that she
made, has been used in other projects. It's sort of standard.
KK: My p. 4, but para. 3 of the regulatory agreement entitled "Deed
Riders."
HF: "The deed rider requires . . ."
KK: Okay, we struck the Town from that.
HF: We struck the Town from that and put in monitoring agent.
KK: Para. 17, entitled "Amendments." If my memory serves me
correctly, the first sentence was deleted when we spoke.
HF: "Any amendment to this agreement may constitute an amendment
to the project's comprehensive permit requiring procedural action and
recording, accordingly . . ." You think we struck that?
KK: I thought we did because the second sentence reads, "This
agreement shall not be amended without written consent of the
monitoring agent and due process by the municipality acting by and
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through its Board of Selectmen. Copies of those documents to be
provided to the Zoning Board of Appeals."
HF: I remember that we worked that, yes.
KK: And I had thought we struck the first paragraph, but I could be
wrong.
HF: The first sentence, you mean?
KK: Yeah, first sentence.
HF: It seems to be redundant.
KK: It just reads that "Any amendment to this agreement -- the word
"shall" is stricken -- may constitute an amendment to the project's
comprehensive permit, and shall and[sic] requiring procedural and
recording, accordingly(?)"
HF: Seems like gobbledygook, in a way.
AS: It doesn't mean anything. I would take it out.
[General agreement]
KK: Turning now to the 'deed rider.' Which is Exhibit B(?) on my p. 12.
. . . The sixth 'whereas' . . . I think the 39% has to come out.
HF: That's right, because it varies. . . . So we just . . . equal to a per
centage or a stated percentage of the fair market value
KK: as reflected in the regulatory agreement.
(Mixed voices)
LK: If you do that, though,just so everyone is clear, you're going to be
locking in at those per centages . . . If you wanta do that -- 'as
reflected' -- you're locked in.
HF: Is there a down side to doing that.
LK: It's a policy decision. It's how you want to do it. There's not
necessarily a down side unless, of course, you envision . . .
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KK: Well, that's the way it was supposed to be done, initially. Her
numbers came up with the 39% value. The revised numbers come up
with modified values. The process is remaining the same. Each unit is
gonna get the same discount based upon what the initial discount was
in the unit. That's the way the program is supposed to work.
BM: Isn't it easier just to use one number, though? Aren't they always
in per centage?
KK: They're all different. You'd have to monkey with the prices.
BM: Why?
KK: Because . . .
AS: There are 28, 30, 31, and 32. Four numbers.
BM: Minimum of 30% on resale. Is that wrong?
KK: You could do it . . . it will knock some of the prices up.
AS: Only knock one down.
HF: If we were to say . . . maybe we should tie it to the regulatory
agreement. ". . . whereas discount rate equal to the stated per
centages of the appraised fair market value of the property, as stated
in the regulatory agreement (discount rate) is assigned to the
property, and such discount rate shall be used in determining the
maximum resale price of the property."
[General agreement]
KK: On the right of first refusal? Sixth and seventh line,. I think
"municipality" should come out. Municipality should not be evaluating
the appraisal if they're going to exercise the right of first refusal. So
the monitoring agent should be the one evaluating the appraisal to
determine whether or not it makes sense.
[General agreement]
AS: I wanted to bring up the issue of a Brewster resident before the
meeting started. You could benefit a lot of people there that really
aren't Brewster employees. It's in the Monitoring Service Agreement,
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p. 2, para. 7. I don't know how seasonal employees, for instance,
comes into this.
HF: Reads: 'an individual residing in the Town of Brewster; an
individual who is employed by the Town of Brewster, either on a part-
time or full-time basis, including seasonal employees; an individual
who is employed in the Town of Brewster, though not necessarily for
the Town of Brewster; an individual with at least one member of his
family, parent, sister, brother, children, residing in the Town of
Brewster; an individual who is a former resident of Brewster; an
individual who is a member of the buyer household, who meets any of
the above criteria, can qualify . '
AS: I would axe that last one.
[General agreement]
HF: How about 'an individual who is a former resident of Brewster'?
JR: I could see that because if you're living here, and you wanted to
stay, but you couldn't find a place to live, so you had to go out of Town.
[General agreement]
HF: How about 'an individual with at least one member of his
immediate family residing in the Town of Brewster'?
That's pretty broad, too . . .
BM: What these do is allow you to go into the lottery. How many are
chosen from the lottery? You understand there's a way to preference.
LK: This is a way to preference. So, unfortunately, you're diluting your
pool here. So when you would ordinarily have, say eight Brewster
residents that meet the standard definition that the housing authority
in Hyannis chooses. Okay, well now you have this definition, which is
what they will go by, because they have to go by it, because they're
contracted to go by it. Now, all of a sudden, you have all sorts of other
folks that are now in your pool, and they conduct a lottery, and
whoever's number is chosen,jumps up and they could be from
Vermont, who hasn't lived in Brewster.
HF: I would tend to think that these should be taken out.
[General agreement to taking out D]
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[Discussion on former Brewster residents]
HF: Okay, an individual who's a former resident of Brewster within two
years of the lottery date.
[General agreement to delete 'seasonal employees']
LK: What she envisioned is that seasonal employees would have a
hard time finding housing, i.e., somebody is eligible from that
employee pool in Brewster. She was just trying to open the pool.
HF: If the Board approves I will write a letter to the Building
Inspector, authorizing the issuance of building permits to McShane.
The Board agrees that the documentation as revised is acceptable and
meets the requirements of the Board for accessory documents, and the
Board agrees that the building permits can be issued to McShane,
accordingly. Approved without dissent.
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