Chilmark housing project falters

By Nelson Sigelman - April 13, 2006

It appears likely Chilmark selectmen and members of the town's affordable housing committee will shelve a development proposal for the Middle Line Road affordable housing development, and issue a new request for proposals. The Middle Line Road project is Chilmark's first affordable housing project,

In a letter dated April 3, presented to the selectmen last week, Ron Rappaport, Chilmark town counsel, addressed some of the procedural and legal questions town officials posed to him about the project. But the eight pages of legal opinions provided by Mr. Rappaport [available here] did not dispel all the uncertainty surrounding Middle Line.

"We are only going to get one chance to do this," said Frank Fenner, chairman of the selectmen, "and we need to do it right. Rushing at this point does not seem like the right thing to do."

Steve Schwab, housing committee chairman, said the use of Community Preservation Act funds (CPA) to help build the project placed the town on unexplored legal ground. "We are in territory that hasn't been challenged or tested in the legislature," said Mr. Schwab, "so these attorneys play it very conservatively and give informal opinions. Where this will go, I don't know."

Mr. Schwab said it appeared the town might need to issue another RFP designed to put to rest the questions that the previous proposal had unearthed.

Questions about potential legal and procedural pitfalls, as well as possible conflicts of interest, arose after a development group that included the Island Housing Trust (IHT), South Mountain Company of West Tisbury, and the Dukes County Regional Housing Authority submitted the only proposal to develop 12 affordable housing units consisting of six privately owned houses and six rental units on 21 acres of town-owned land off Tabor House Road.

Selectmen and housing committee members are expected to meet next week to discuss their next steps. The current proposal, submitted on Jan. 20, expires on April 20.

Mr. Rappaport's letter followed a meeting on March 7, between the three selectmen and members of the Middle Line Road subcommittee. Town officials had asked Mr. Rappaport to help unravel the interlocking legal and financial questions arising from the IHT proposal.

Much of the uncertainty pertains to the CPA. The IHT proposal lists total development costs of $3,589,490, of which $982,207 will come from Community Preservation Act funds.

The current arrangement, in which the town hands the project over to a nonprofit, avoids the municipal requirement to pay prevailing wages, a constraint that would add to the costs. But the use of CPA funds may in fact not provide enough political separation to put the project outside the public realm and affect affordability requirements.

Regarding the competitive bidding and construction laws, Mr. Rappaport wrote that an attorney from the office of the Attorney General cautioned "that the town should be advised to direct CPA monies to portions of the project which did not involve the construction of buildings."

Mr. Rappaport also provided selectmen with an opinion from Joshua Davis, a Boston attorney the town has relied on previously for advice on the use of CPA funds. Mr. Davis said that, "it would not be unreasonable" to conclude that the use of CPA funds for construction constitutes a "public work."

Regarding residency requirements, he said, "To the extent that the town desires to appropriate CPA funds for a housing unit, the CPA's affordability requirements will need to be met.

CPA funds may only be used for low- (80 percent) and moderate- (100 percent) income housing as defined by area-wide median income.

According to the middle line proposal guidelines, a couple at 100 percent would have an income limit of $58,510 and pay a monthly rent of $1,463 for a one-bedroom apartment or a purchase price of $216,300 for a house.

The town anticipates also providing housing for people making up to 150 percent of median income. According to the Middle Line proposal, that couple would have an income limit of $87,770 and pay a monthly rental of $2,194 or a house sale price of $332,500.

Chilmark selectmen said they are committed to seeing the project through, but they have concerns about the numbers.

Mr. Fenner said it would be irresponsible to proceed with a project that does not meet its intended use. "I want as badly as anyone to get this project going," said Mr. Fenner. "The town voted for it, but the devil is in the details."

Warren Doty, selectman and a board member of the Island Housing Trust, said he is still reviewing the opinions. Mr. Doty said there needs to be more discussion about the affordability of the proposed rents.

Selectman Riggs Parker, a former corporate lawyer, has raised many of the questions related to the use of CPA funds. Mr. Parker said his major concern about the current proposal is the open-ended final cost. "We need to find some way to determine what those costs to the town really will be and limit the cost to that number, so the town can make a decision and go forward," he said.

Mr. Schwab said that despite what has been a long process, he does not think the selectmen are placing roadblocks in the way. "They are elected officials," said Mr. Schwab. "It is their responsibility to ask these questions, and they are not asking questions that are frivolous in any way.

Mr. Schwab said the impatience and frustration expressed by some members of the housing committee is understandable, but, "Riggs [Parker] asks very difficult questions to answer, and they should have an answer."