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TOWN OF HINGHAM

BOARD OF APPEALS

IN THE MATTER OF:

Applicant:Town of Hingham acting through its Board of Selectmen

Premises:229 North Street
Hingham, MA 02043

Deed Reference:Plymouth County Registry of Deeds Book 1992, Page 378

SUMMARY OF PROCEEDINGS:

This matter came before the Zoning Board of Appeals on the application of the Town of Hingham Board of Selectmen (the “Applicant”) to rescind the existing Comprehensive Permit issued under M.G.L. Chapter 40B to Hingham Square Townhomes LLC dated May 27, 2008, as amended through February 12, 2009, on the approximately 3.3 acre site at 229 North Street (the “Property” or the “Premises”), in the Official and Open Space District.

A public hearing on the matter was duly noticed and held on Thursday, March 10, 2011 before a panel consisting of regular members Joseph W. Freeman, Chairman, Joseph M. Fisher, and associate member Alan M. Kearney.Attorney Susan C. Murphy of Brennan, Dain, Le Ray, Wiest, Torpy & Garner, P.C., special real estate counsel for the Town of Hingham represented the Applicant.

BACKGROUND:

The Zoning Board of Appeals previously granted a Comprehensive Permit by Decision dated May 27, 2008 and recorded with the Plymouth County Registry of Deeds in Book 36092, Page 53, as amended by Modification to Approved Comprehensive Permit, dated June 19, 2008 and recorded with said Deeds in Book 36195, Page 76, and as further amended by an unrecorded decision dated February 12, 2009 (collectively, the “Comprehensive Permit”), for the development of the approximately 144,882 square foot parcel located on North Street shown as Assessor’s Map 60, Lot 143.

The Comprehensive Permit was granted upon the application of Hingham Square Townhomes LLC (the “Permit Holder”) who, at the time of the application for, and granting of, the Comprehensive Permit, was the contract buyer of the Premises pursuant to a purchase and sale agreement (the “P&S Agreement”) with the current owner and Applicant, the Town of Hingham.

DISCUSSION:

By letter dated February 15, 2011, Attorney Murphy informed the Board that the P&S Agreement “has been terminated” and that the Permit Holder “has no further interest in the Subject Property.”The letter further states that the Applicant “has elected not to proceed, nor to allow any third party to proceed, with the project approved under the Comprehensive Permit and wishes to clear its record title to the property.”

On March 10, 2011 the Board received correspondence from Bruce A. Issadore, Esquire, on behalf of the Permit Holder stating: “Hingham Square Townhomes has not consented to and does not consent to the rescission of the Comprehensive Permit.None of the materials or application submitted by the Board of Selectmen was ever presented to my clients for our review and comment prior to being submitted.”

On March 10, 2011 the Board received correspondence from Hingham Town Counsel James A. Toomey stating “The Town and Hingham Square Townhomes, LLC; Thomas J. Hastings Properties, Inc.; and Thomas J. Hastings (collectively, the “Hastings Entities”) have entered into a settlement agreement (“Agreement”) with respect to the property located at 229 North Street (“Site”), releasing all legal control of the Site, including a lis pendens which was dissolved by the Plymouth Superior Court on December 1, 2010.This letter is to confirm that it is our opinion that based on the terms of that Agreement, the Hastings Entities no longer have any valid legal interest in the Site or in the Hersey House, located theron.Therefore there is no legal impediment to the rescinding the 40B Permit of Hingham Square Townhomes, LLC.”

Attorney Toomey’s letter points to the regulations governing the issuance of comprehensive permits, 760 CMR 56.04(1)(c), which requires that the applicant “shall control the site.”Attorney Toomey’s letter states:“Where the Hastings Entities do not control the Site, and have affirmatively relinquished control of the Site back to the Town through the terms of the Agreement and the agreed-to dissolution of the lis pendens, such entities are not eligible to hold a comprehensive permit.”Attorney Toomey’s letter concludes that the letter from Attorney Issadore, as referenced above, “does not affect this opinion.”

At the hearing Attorney Murphy requested that the Board rescind the Comprehensive Permit.She confirmed the statements made in her letter of February 15, 2011, explaining that the Applicant is considering other uses of the Premises that would be inconsistent with the Comprehensive Permit.Attorney Murphy emphasized that the Permit Holder no longer controlled the site.She provided the Board with copies of the “Joint Motion to Dissolve Lis Pendens” dated 11/30/2010, the “Notice of Docket Entry” ordering dissolution of the Lis Pendens as of 11/30/2010, and a copy of the “Hersey House joint press release” as published in the Hingham Journal on 10/21/2010.Attorney Murphy also referenced a telephone call that took place just a few hours prior to this hearing between Sue Letizia-Eddy, Hingham Zoning Administrator, and Michael Busby, 40B Project Coordinator at the Massachusetts Housing Finance Agency (“MassHousing”).

One question raised during the hearings by Board member Joseph Fisher was whether the Board had the legal authority to make any decision about whether the Permit Holder continued to control the site.The record showed that MassHousing was the “Subsidizing Agency” for this project as defined in 760 CMR 56.02, and that MassHousing had issued a written determination of Project Eligibility, which included a finding that the Permit Holder did “control the site”, pursuant to 760 CMR 56.04(1)(c).Mr. Fisher pointed out that such determination by MassHousing is binding on the Board and may not be overturned by the Board; only MassHousing, as the Subsidizing Agency, is authorized to decide whether the Permit Holder continues to control the site:

“Conclusive Nature of Determination. Issuance of a determination of Project Eligibility shall be considered by the [ZBA] to be conclusive evidence that the Project and the Applicant have satisfied the project eligibility requirements of 760 CMR 56.04(1).Alleged failure of the Applicant to continue to fulfill any of these project eligibility requirements may be subsequently raised by the Board at any time, with the burden of proof on the Board . . . solely upon the grounds that there has been a substantial change affecting the project eligibility requirements set forth at 760 CMR 56.04(1). Such challenge shall be decided by the Subsidizing Agency in accordance with the procedure set forth in 760 CMR 56.04(5), and the Board hearing . . . may be stayed until such challenge is decided.”760 CMR 56.04(6).

The regulations also include an express prohibition against the ZBA from “address[ing] matters in the hearing that are beyond its jurisdiction . . . and that lie solely within the authority of the Subsidizing Agency.”760 CMR 56.05(4).Control of the site is a matter solely to be decided by MassHousing.Thus, no matter how strong the evidence might be that the Permit Holder no longer controls the site, the proper forum to raise such issues is MassHousing.

However, the Hingham Zoning Administrator, Sue Letizia-Eddy, reported to the Board that earlier in the day (March 10, 2011) she spoke by phone with Michael Busby at MassHousing about whether a written Final Approval of this project had been issued pursuant to 760 CMR 56.04(7).Ms. Letizia-Eddy stated that Mr. Busby informed her that, although a letter had been sent to MassHousing requesting its final written approval, MassHousing did not issue its final written approval of the Project because “the applicant didn’t have control of the site.”Ms. Letizia-Eddy acknowledged that the Board had not received a written statement to such effect, but she emphasized that Mr. Busby was very clear in his discussion with her.

Attorney Murphy stated that the testimony of the Hingham Zoning Administrator should be sufficient to establish that MassHousing had made a determination that the Permit Holder no longer controlled the site.Attorney Murphy pointed out that there is nothing in the regulations that require such determination by the Subsidizing Agency to be in writing, and that in her experience agencies such as MassHousing typically make findings and determinations verbally.Without objection, the Board accepted the testimony of the Hingham Zoning Administrator concerning her phone conversation with Mr. Busby.The Board requested that Ms. Letizia-Eddy follow-up her call with a confirming letter to Mr. Busby.

Attorney Murphy emphasized that there would be no prejudice to the Permit Holder if the Permit was rescinded.Mr. Fisher asked about the status of the pending judicial appeal of the Permit, and Attorney Murphy replied that both parties had agreed to terminate the appeal.

No member of the public voiced any opposition to the proposed rescission of the Permit.Although notice of the Hearing had been sent to the Permit Holder, no representative of the Permit Holder appeared at the Hearing.

FINDINGS AND DECISION

After consideration of the Applicant’s request, the Board of Appeals finds that (a) the Applicant is the record owner of the Premises and has voluntarily requested rescission of the Comprehensive Permit; (b) MassHousing has determined that the Permit Holder no longer controls the site; (c) the determination by MassHousing is consistent with the testimony and documents presented at the hearing; and (d) without site control, neither the Permit Holder nor the Project was eligible for a Comprehensive Permit.

Based upon the findings of the Board as set forth above, the Board of Appeals voted unanimously to RESCIND the Comprehensive Permit.

This 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 Board of Appeals

_____________________

Joseph M. Fisher
March 21, 2011