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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant and Hingham Affordable Housing Trust
Premises: 80 Beal Street
Deed Reference: Plymouth County Registry of Deeds Book 38142 Page 254,
SUMMARY OF PROCEEDINGS:
matter came before the Zoning Board of Appeals on the application of
Hingham Affordable Housing Trust (the “Applicant”) for a Comprehensive
Permit pursuant to Massachusetts General Laws Chapter 40B, Sections 20
through 23, Local Initiative Program (LIP), as amended, (“the Statute”)
for the construction of eight (8) units of housing (two (2) affordable)
(the “Project”) on the 3.09 acre site at 80 Beal Street (the “Site”), in
the Official and Open Space District.
Public hearings on the
matter were duly noticed and held before the Hingham Zoning Board of
Appeals (the “Board”). The Hingham proceedings commenced on July 14,
2011 and continued on September 21, 2011 and October 12, 2011. All
public hearings before the Board were held at Hingham Town Hall before a
panel consisting of regular members W. Tod McGrath, Chairman, Joseph M.
Fisher and associate member Alan M. Kearney.
entire Site consists of 3.09 acres of land at 80 Beal Street, in
Hingham, MA. The site consists of one lot of land, and is currently
improved by a two story residential structure which will be razed. Plans
entitled “Town of Hingham Affordable Housing Trust, 80 Beal Street,
Hingham, MA 02043 dated May 25, 2011 (revised through September 19,
2011) and prepared by a team consisting of Strekalovsky Architecture,
Coyle & Caron, LLC and Merrill Associates ” (hereinafter, the
“Plan”) depict the Site and the proposed development plans and are
attached hereto as Attachment B. The Site is situated in an Official and
Open Space District. The site is flat, with access to/from Beal Street.
Utilities are available from Beal Street. Access to the Site will be
moved from the Western corner of the Site further to the East, as shown
on the Plan. The site contains mature trees and the rear of the Site is
woodlands. There is a small amount (285 square feet) of wetlands to the
rear of the property on the East.
The Applicant will not develop
the Project, but will put the Project out for public bid and award the
Project to a developer after issuance of the Comprehensive Permit. The
award may be subject to a land disposition and/or development agreement
between the Applicant and the successful bidder. Hereinafter, all
references to the Applicant shall include any successful bidder,
successor and/or assigns.
THE APPLICANT’S PROPOSAL:
Applicant has proposed eight (8) detached homes, of which two (2) will
be affordable in perpetuity. Each home will have 1,200 square feet (±2%)
of living space, 800 square feet of useable basement space (excluded
from the aforesaid calculation of living space), a farmer’s porch and a
one car garage. Each home will contain three (3) bedrooms and two (2)
bathrooms. The site layout has been designed to create walkable,
pedestrian friendly common areas with vehicular traffic restricted to
the perimeter of the property. As proposed, each unit owner will
maintain all of its building and a small amount of landscape area around
the building, within so-called exclusive use areas, and the condominium
association will maintain the remainder of the common areas, including
the roadways and all remaining landscaped areas.
the development complies with many of the dimensional land use
regulations applicable to developments within an Official and Open Space
District. Nonetheless, the Applicant has requested waivers from certain
use, dimensional, and/or other restrictions otherwise applicable to the
Project, as authorized under the provisions of the Statute and the
regulations promulgated thereunder, at 760 C.M.R. 56.00, et seq. (“the
Regulations”), to the extent that compliance therewith is inconsistent
with local needs. The Applicant will designate two (2) units as
affordable so as to aid the Town in satisfying the statutory minima
established by the Statute and the Regulations, of either ten percent
(10%) of its total housing units qualifying as “affordable” or
affordable housing existing on sites comprising more than 1.5% of the
total land area zoned for residential, commercial, or industrial use in
the Town. At the time of the filing of this application, the
Massachusetts Department of Housing and Community Development (“DHCD”)
reported that the Town of Hingham’s affordable housing stock was less
than six percent (6%) of the available housing stock. However, at the
commencement of the public hearing process, the Board noted that the
Town of Hingham (the “Town”) challenges DHCD’s position with respect to
the level of affordable housing, and that the Board asserts that it is
not obligated to entertain the Application. The Board informed the
Applicant that the Board would hear and consider the Application on the
merits, but that the Board reserved the right to deny the Application on
the merits and/or upon the basis that the Town is no longer obligated
to entertain affordable housing permit applications under M.G.L. Chapter
40B because of recent increases in the Town’s affordable housing stock.
The Board further stated that the Board’s consideration of the
Application, and potential granting of a Comprehensive Permit, would not
be contradictory to the Town’s position regarding the current
affordable housing stock, and would not be deemed a waiver of the Town’s
position regarding its status under M.G.L. Chapter 40B and the
THE ZONING BOARD’S AUTHORITY UNDER THE STATUTE:
Pursuant to the Statute, the Applicant must fulfill three (3) jurisdictional requirements:
1. The Applicant shall be a public agency, non-profit organization or a Limited Dividend Organization;
2. The Project shall be fundable by a Subsidizing Agency under a Low or Moderate Income Housing subsidy program; and
3. The Applicant shall control the Site.
Board received evidence through the application and the hearing process
and makes the following finding of facts relevant to jurisdiction:
The Applicant is a Trust created pursuant to M. G.L. Chapter 44,
Section 55C. The Board finds that the Trust is a public agency and
therefore satisfies this jurisdictional requirement.
Applicant received project eligibility approval on May 11, 2011 from the
Commonwealth of Massachusetts Department of Housing and Community
Development under the Local Initiative Program (“LIP”). The Board finds
that this DHCD determination of Project Eligibility satisfies the
3. The Applicant has shown control of
the Site by providing a copy of its deed to the property recorded with
the Plymouth County Registry of Deed in Book 38142 Page 254 and
therefore the Board finds that the Applicant has satisfied this
SUMMARY OF REVIEW:
hearing process, the Board heard testimony, both written and oral, from
the Applicant and its consultants, Town Boards and Departments, as well
as abutters/property owners in the vicinity of the Site. The Board had
the Project reviewed by their consultant, Chessia Consulting Services,
LLC, who raised some concerns primarily with drainage and stormwater
management. The Applicant and its consultants responded verbally and
in writing to the issues raised by the Board, its consultant and other
interested parties. All of these concerns have been satisfactorily
addressed by the Applicant, and specific conditions of the Project are
set forth on Attachment A to this decision.
discussion and review of the public needs and the financial projections
of the Applicant, the Board has determined that the income based
eligibility requirements shall be established as outlined in Attachment C
to this decision. The affordable units shall be conveyed with a Deed
Rider which shall maintain the units’ status as affordable units in
perpetuity. The Applicant in conjunction with DHCD shall establish the
sale price for each affordable unit and the maximum sale and resale
price for the affordable units shall be set forth in the Regulatory
Agreement and Deed Rider. To the extent permitted by law, there shall
be a “local preference” for Hingham residents in eligibility for the
affordable units as further defined in Attachment C.
FINDINGS AND DECISION:
on the evidence presented by the Applicant, local boards and officials
and interested parties at the public hearings, the Board found that
there is a local need for affordable housing units, and that the
Applicant’s proposal, as authorized under the provision of M.G.L.
Chapter 40B is consistent with those local needs. Therefore, the Zoning
Board of Appeals has voted unanimously to GRANT the Comprehensive
Permit under M.G.L. Chapter 40B Local Initiative Program (LIP) subject
to the following conditions and waivers (Attachment A), Plans
(Attachment B), and affordability requirements (Attachment C) which are
attached hereto and incorporated herein by reference.
decision shall not take effect until a copy of the decision bearing the
certification of the Town Clerk, that twenty (20) days have elapsed
since the decision has been filed in the office of the Town Clerk and no
appeal has been filed, or that if such appeal has been filed, that it
has been dismissed or denied, is recorded with the Plymouth County
Registry of Deeds and/or the Plymouth County Land Court Registry, and
indexed in the grantor index under the name of the record owner or is
recorded and noted on the owner’s certificate of title.
For the Zoning Board of Appeals
Joseph M. Fisher
October 25, 2011
Hingham Affordable Housing Trust, 80 Beal Street Comprehensive Permit Conditions and Waivers
(Applicant shall include any successful bidder, successor and/or assigns.)
A. General Conditions:
This Decision permits the construction, use and occupancy of 8 housing
units on the Site. Each housing unit will have 1,200 square feet (±2%)
of living space, 800 square feet of useable basement space (excluded
from the aforesaid calculation of living space), a farmer’s porch and a
one car garage. Each housing unit will have three (3) bedrooms and two
(2) bathrooms. The conversion of living space to additional bedroom(s)
shall be prohibited, and a restriction to that effect will be
incorporated into the Master Deed for the condominium. The construction
and use of the Site shall be in substantial conformity with the Plan,
and there shall be no further subdivision of the Site, or the creation
of additional housing units or any other structures or infrastructure
except that which is showing the Plan, without further approval of the
2. Prior to the issuance of a building permit, the
Applicant shall submit to the Board a final set of Comprehensive Permit
site and construction plans and calculations, for technical review by
the Board or its representative to ensure that it is consistent with and
in conformity with this decision. The construction plans shall include
but not be limited to:
(a) A utility plan including individual service locations and showing all pipe inverts, pump calculations, and profiles.
(b) Detail of the sidewalk and drives.
(c) Detailed landscape plan with specific species.
(d) Spot grading along the driveways to the individual units.
With regard to the catch basins at the entrance to the site and storm
water management, provide outlet sizing calculations consistent with DEP
requirements for both the stone dimensions and length and width of the
(f) Provide a Storm Water Pollution Prevention Plan (SWPPP)
consistent with National Pollution Discharge Elimination System (NPDES)
for review with the Building Permit Application
(g) Forebays properly sized for the water quality volume shall be designed at the edge of pavement near Cottages #3 and #6.
Prior to roadway excavation, provide and obtain written approval of a
detailed plan/specification indicating a compaction and repaving/repair
plan for Beal Street opening for the installation of utilities, in
accordance with Hingham DPW Projects Engineers Office street opening
standards and all the additional conditions of the street opening permit
and/or grant of location as may be required. (*note: The Applicant
would have to install approximately 1,400 linear feet of utilities in
order to connect to the Site if they were not to create a new opening on
Beal Street and this requirement is deemed uneconomical for the
4. The Applicant shall execute or cause to be
executed (i) Master Deed and (ii) Condominium Trust and By Laws
(collectively the “Condominium Documents”) in a form consistent with the
requirements and conditions of this Comprehensive Permit. All
Condominium Documents shall be submitted to Counsel for the Town and
this Board prior to execution for review and approval as to form, and to
ensure consistency with the conditions contained herein. Prior to the
issuance of a certificate of occupancy, the Project shall be organized
as a condominium in accordance with the applicable law, the appropriate
Condominium Documents shall be approved, as set forth above and recorded
with the Plymouth County Registry of Deeds and evidence of such
recording shall be provided to the Board.
5. Each condition
in this decision shall, in accordance with its terms and applicable law,
be applicable to and binding on the Applicant and the Applicant's
successors and assigns for as long as the Project and the use of the
land does not strictly and fully conform with the requirements of the
Hingham Zoning By-Law; and reference to these conditions shall be
incorporated in the Master Deed and in each Unit Deed recorded for the
Project and for any unit in the Project.
schedules setting forth the Applicant’s and its successors (i.e.
condominium association) responsibility for the entrance drives, common
area lighting, trash removal and storm water management system shall be
specified in the Condominium Documents. No provision of the Condominium
Documents required by this Comprehensive Permit shall be materially
amended without consent of the Board.
7. The percentage
interest of the units in the condominium common elements and their
respective votes shall be calculated and determined in a manner
consistent with Massachusetts General Laws Chapter 183A. To the extent
allowable by law, the percentage interest of the units in the
condominium common elements shall be based on the size of the units, and
for all intents and purposes, each home should have an approximate
1/8th interest in the common elements, and one vote.
Applicant shall comply with all local rules and regulations of the Town
of Hingham and its boards and commissions unless expressly waived herein
or as otherwise addressed in these conditions.
Applicant shall at all times satisfy the jurisdictional requirements set
forth above in accordance with the applicable requirements of the
Statute and the Regulations.
B. Building, Design and Construction:
The Applicant shall pay all fees of the Town of Hingham imposed
generally in respect of construction projects and for the purposes of
monitoring compliance of the Project's building construction and
occupancy in accordance with this Comprehensive Permit.
The Applicant shall comply with the State Building Code and any local
regulations or fees of the Building Commissioner. The Applicant shall
pay all required fees for all such building permits including any fees
charged for inspections and permits.
3. The unit types, sizes
and mix of units will be in accordance with the Plans. Construction of
all dwelling units, utilities, pedestrian and vehicle areas, drainage
structures and all related appurtenances shall be in accordance with the
Plans submitted to the Board and referenced in Attachment B. The
exterior appearance of the Affordable Units shall be substantially
indistinguishable from the market rate units. One (1) Affordable Unit
shall be conveyed for every three (3) market rate units conveyed. Each
home shall be limited to not more than 1,200 square feet (±2%) of
habitable floor area, excluding garages, basements, porches, decks,
patios, balconies, and air conditioner condensers and other areas not
normally counted toward habitable area.
4. The Applicant
shall copy the Board and the Building Commissioner on all correspondence
between the Applicant and any federal, state or Town official, board or
commission that concern the conditions set forth in this decision.
The Applicant shall obtain temporary easements or written permission
from any abutting property owner if, during the course of construction,
it becomes necessary to enter upon abutting land for construction or
6. All utilities serving the Project shall be
installed underground, including any extensions from existing line or
poles external to the Property. All existing overhead utilities and
poles located on the premises shall be removed and replaced with
7. The Applicant may display a
temporary construction, marketing, or for-sale sign not exceeding 50
square feet stating appropriate marketing information on the Site,
provided it otherwise complies with Section V-B of the Zoning By-Law.
The temporary sign shall be displayed for no longer than three years or
the date of the closing on the last home, whichever occurs first, which
term shall be renewable at the Board’s discretion.
the period of construction, no vehicles of construction workers and no
construction equipment shall be parked on Beal Street, or any other
public way of the Town of Hingham.
9. During the period of
construction, all deliveries of construction materials and equipment
shall be made only on Monday through Friday no earlier than 7:00am and
not later the 5:00 pm. Construction operations shall be limited to the
hours of 7:00 am to 6:00 pm Monday through Friday and 8:00am to 4:00 pm
on Saturday. Except for emergency conditions, no exterior construction
work shall be allowed on Sundays. The Building Department shall be
notified promptly of any such emergency conditions. Hours of operation
may be enforced by the Police Department. Throughout construction, the
Applicant shall comply with all local, state, and federal laws regarding
noise, vibration, dust and blocking of roadways.
the period of construction and marketing, notwithstanding any
pre-conditions for the issuance of a building permit or certificate of
occupancy otherwise set forth herein, the Applicant shall be entitled to
designate, construct and operate one of the homes as a decorated, model
home, and the Applicant shall be able to designate, construct and
operate said home’s garage as a temporary sales office. The model home
and sales office shall be subject to the standard requirements of the
Building Commissioner of the Town of Hingham with respect to building
and fire code compliance.
11. All outdoor lighting shall be installed in accordance with the requirements of the Town of Hingham.
During construction, the Applicant shall be able to locate a
construction trailer on the Property, provided however, that the trailer
shall not be located within any wetlands areas.
roadways, utilities, drainage systems, and all other infrastructure
shown in the Plan shall remain private and the Town of Hingham shall not
have, now or ever, any legal responsibility for the operation or
maintenance of said infrastructure, nor shall it have, now or ever, any
legal responsibility for snow removal, trash collection, landscaping,
street lighting or building repair and maintenance unless otherwise
agreed to by the Town.
14. The Project shall demonstrate that
there is an adequate water supply for fire protection and water supply
and provide a construction plan for connection to the Aquarion Water
15. The Applicant shall be required to submit
a NPDES permit (including a SWPPP) and associated SWPPP including an
erosion control plan to the Building Department and other required
C. Grading and Stormwater Drainage System:
The Applicant shall perform soil evaluations witnessed by an
appropriate agent of the Town or their designee at all proposed
infiltration systems and treatment swales/filter strips prior to
submission of construction plans.
2. A storm water management
plan shall be submitted by the Applicant for review and approval by the
Board or its representative prior to the issuance of a building permit.
The plan shall include, but not be limited to, spot grades, limits of
various soil components, plantings, water quality swales (preceded by a
forebay to pretreat road runoff prior to discharge to the swales), and
plans and specifications in the bioretention areas.
3. An as
built plan of Best Management Practices (BMP’s) shall be submitted to
the Board prior to certificate of occupancy to ensure that the systems
will work properly.
4. Provide a final bound Operation and
Maintenance Plan (O&M) based on the as-built of the site. The
O&M shall include a plan with the location of all stormwater
components, snow storage areas, etc. with specific maintenance
requirements consistent with DEP guidance as noted in the Stormwater
5. The storm water drainage system shall be operated
and maintained by the Applicant, and subsequently by the condominium
association, in accordance with the storm water management plan approved
by the Board.
D. Transfer of Comprehensive Permit
The Applicant shall notify the Board of any transfer of this
Comprehensive Permit, in accordance with 760 C.M.R. 56.05 (12)(b).
The Board or its agent(s) may enter onto and view the Site during
regular business hours, without notice, to ensure compliance with the
terms of this decision, subject to applicable safety requirements.
In the event of serious or repeated violations of the substantive or
reporting requirements of this Comprehensive Permit or a failure by the
Applicant to take appropriate actions to cure a default hereunder, the
Town and/or DHCD shall have the right to take appropriate enforcement
action against the Applicant, including, without limitation, legal
action to compel compliance. DHCD, the Town and/or the Town’s designee
shall be entitled to seek recovery of their respective fees and
expenses, including attorney fees, incurred in enforcing this Decision
against the Applicant and to place a lien on the Project to secure
payment of the same.
The Board grants the following waivers to the General and Zoning By-Laws of the Town of Hingham:
Sections I-H, I-I and IV-B 6: Waiving the site plan approval
requirement to allow the Project to proceed without Site Plan Approval
from the Planning Board.
2. Section III-A, Scheduled Uses: Waiving restriction on residential uses.
Section IV-B 5: Waiving the setback requirement to allow the pavement
in front of cottage #3 to be less than the required 20’ from the
property line but not less than the setback shown on the approved plans.
4. Section V-B Signs, allowing a temporary construction sign, not to exceed fifty (50) square feet
The regulation of not allowing a street opening in a newly paved public
street is waived to allow the Applicant to install and extend utilities
to the Site entrance as shown on the Plan, but is subject to General
Condition #3 as outlined above.
The Board recommends the following waivers to the General Bylaws of the Town of Hingham:
1. Sewer Connection - waiving sewer connection fees for the affordable units only.
2. Building Permit - waiving building permit fees for the affordable units only.
Waivers Not Listed
granting the foregoing waivers from local bylaws and regulations, it is
the intention of this Comprehensive Permit to permit construction of
the Project as shown on the Plan. If, in reviewing the Applicant's
building permit application(s), the Building Commissioner determines
that any additional waiver from local bylaws or regulations is necessary
to permit construction to proceed as shown on the Plan, the Building
Commissioner shall proceed as follows: (a) any matter of a de minimus
nature shall be deemed within the scope of the waivers granted by this
Comprehensive Permit; and (b) any matter not of a de minimus nature
including but not limited to potential adverse impact on public health,
safety, welfare or the environment shall be reported back to the Board
for expeditious disposition of the Applicant's request for a waiver
Hingham Affordable Housing Trust, 80 Beal Street Comprehensive Permit Approved Plans
Plans entitled “Town of Hingham Affordable Housing Trust 80 Beal Street, Hingham, MA 02043”
prepared by a team consisting or Strekalovsky Architecture, Coyle & Caron, LLC and Merrill Associates:
• C1.1 – Existing Conditions (revised through September 19, 2011)
• C2.1 – Layout (revised through September 19, 2011)
• C3.1 – Grading & Utility (revised through September 19, 2011)
• C4.1 – Plan & Profile (revised through September 19, 2011)
• C5.1 – Easement Plan (revised through September 19, 2011)
• C6.1 through C6.4 – Details (revised through September 19, 2011)
• Floor Plans (Units 1,4,5 & 8) (revised through September 20, 2011)
• Floor Plans (Units 2,3,6 & 7) (revised through September 20, 2011)
• L1.0 – Concept Planting (revised through August 29, 2011)
Hingham Affordable Housing Trust, 80 Beal Street Comprehensive Permit
The Project shall be comprised of no fewer than two (2) units
designated as affordable units, located in the areas designated on the
Plan (Cottages 3 and 8).
2. The affordable units shall remain
affordable in perpetuity through a Deed Rider in the form approved by
DHCD. Said Deed Rider shall be recorded with the Plymouth County
Registry of Deeds with the sale of each affordable unit and shall run
with the land.
3. The Applicant shall obtain Final Approval
from DHCD in connection with the requirements set forth in the Project
4. The Applicant shall execute or cause to
be executed a Regulatory Agreement and a Deed Rider (collectively, the
“Regulatory Agreement”). The Regulatory Agreement shall be consistent
with the requirements and conditions of the Statute and the Regulations,
and shall be submitted to Counsel for the Town and this Board prior to
execution for review and approval as to form. The Regulatory Agreement
shall be in a form approvable by DHCD. The Regulatory Agreement shall be
recorded with the Plymouth County Registry of Deeds. At a minimum the
Regulatory Agreement and/or Deed Rider shall contain the following
a. The affordable units shall be reserved for sale in
perpetuity to households earning no more than eighty percent (80%) of
the Area Median Income for the Boston-Cambridge-Quincy PMSA, adjusted
for household size, and the price for said units shall be set at a price
affordable for a household earning no more than seventy percent (70%)
of the Area Median Income, adjusted for household size, with an assumed,
five percent (5%) down payment.
b. A right of first refusal to purchase an affordable unit on resale shall be granted to the Board or its designee.
c. The actual affordable units shall be identified in the Regulatory Agreement.
The affordable units shall be owner-occupied only; provided, however,
that the Board may authorize the temporary rental of said units at a
price affordable to a household earning no more than eighty percent
(80%) of the Area Median Income where the owner demonstrates that there
is a bona fide reason for the same, such as an illness in the family,
military duty or the like.
5. The Applicant in conjunction
with DHCD shall establish the sale price for each affordable unit. The
affordable unit shall be reserved for households earning up to 80% of
the Area Median Income of the Boston-Cambridge-Quincy, PMSA (as defined
by HUD on an annual basis) adjusted for household size, all as more
particularly described in the Regulatory Agreement. To provide a “window
of affordability” the affordable units shall be made available at a
price affordable for a household earning no more than seventy percent
(70%) of the Area Median Income, adjusted for household size, with an
assumed, five percent (5%) down payment. The maximum sale and resale
prices for the affordable units shall be determined in accordance with
the Regulatory Agreement and Deed Rider.
6. Prior to the
advertisement of the affordable units for sale, a Lottery Agent shall be
selected by the Applicant and approved by the Board. Said Lottery Agent
shall develop an Affordable Fair Housing Marketing Plan (AFHMP) for the
affordable units that shall be approved by DHCD. The AFHMP shall
conform to: (i) all affirmative action requirements or other
requirements imposed by federal or state regulation; (ii) DHCD’s
“Comprehensive Permit Guidelines” adopted in July, 2008, as amended; and
(iii) the local preference requirements set forth below. The AFHMP
require timely notice to the Board, the Hingham Housing Authority and
the Hingham Affordable Housing Trust of the availability for sale or
re-sale of the affordable units. All costs associated with the lottery
shall be borne by the Applicant.
7. To the extent permitted
by law, the affordable units shall be marketed in accordance with the
following local preference criteria: Local preference shall be given for
one of the two affordable units to one or more individuals who are: (i)
A current employee of the Town of Hingham - including but not limited
to teachers, janitors, firefighters, police officers, librarians or
Town Hall employees; (ii) A current resident of the Town of Hingham or
(iii) A parent of a child in the Hingham METCO program.
Profit Cap: The Applicant shall be limited to an overall profit of
twenty percent (20%) of the total development costs of the Project, as
accepted by DHCD (the "Profit Cap"). The Applicant shall cause a
certified public accountant ("CPA") to review the financial records of
the Project to determine whether the Developer has conformed to the
Profit Cap requirements of this Comprehensive Permit decision. The CPA
shall submit to DHCD, with a copy to the Board, a certification of the
actual profit from the development along with a certification of the
Profit Cap calculation. If the Applicant has exceeded the 20% Profit Cap
the Applicant shall donate the excess profit above the Profit Cap to
the Town of Hingham to be used at the discretion of the Board of
Selectmen for the express purpose of promoting, encouraging, creating,
improving or subsidizing the construction or rehabilitation of
affordable housing in the Town of Hingham. The Applicant shall deposit
$4,500 in an escrow account set up by the Town pursuant to G.L. c. 44,
§53G to cover the Town's expenses in the monitoring compliance with the
Profit Cap. Any funds not expended after the completion of the Town's
determination of compliance with the Profit Cap shall be returned to the
Applicant. In determining whether the Applicant has conformed to the
Profit Cap requirements of this Comprehensive Permit decision, the CPA
shall be required to certify that (a) the total profit, excluding
permitted development fees as outlined in the LOCAL 40B REVIEW and
DECISION GUIDELINES put out by Massachusetts Housing Partnership and
Edith M. Netter, Esq. dated November 2005, to the Applicant does not
exceed twenty percent (20%) of total development costs of the
Project;(b) the Applicant has not made unreasonable or excessive
payments (i.e. payments in excess of reasonable industry standards
applicable to an arm's length transaction) to the Applicant or to its
parents, subsidiaries, affiliates, successors, and assigns, or to their
respective partners, limited partners, shareholders, managers, or other
owners, or to the relatives of the same in connection with work
performed on the Project in order to artificially inflate the costs of
development of the Project; (c) there have been no commissions charged
on the affordable units which are required to be sold pursuant to a
lottery selection process as provided by this Comprehensive Permit; and
(d) the CPA has been provided access by the Applicant to any reasonable
financial information necessary to make these determinations and to
verify whether the income and expenses of the Project, including without
limitation land acquisition costs, construction costs, landscaping
costs, and other expenses, represent fair market value for such items,
with particular attention to those arrangements between parties with
overlapping ownership to owners of the Applicant. Unless prohibited by
law, all costs of enforcement of this Profit Cap condition, including
legal fees incurred by the Board and/or the Town of Hingham, shall be
borne by the Applicant.