Zoning Board of Appeals
Minutes
August 5, 2015
Auditorium
Members present: Chair Ethan Berg, (EB); Clifford Snyder, (CS), Shawn Leary Considine, (SLC), Al Harper, (AH); Robert Fuster (RF)
Absent with notification: Ned Douglas, ND
Staff present: Land Use Director/Town Planner Gwen Miller (GM) and Land Use Clerk Peggy Ammendola, (PA)
Town Manager Chris Ketchen arrived at 8:20 PM.
Representing the petitioners were Attorney Phil Heller; Andy Burnes, President of HallKeen Management & Managing Partner of Cameron House, LLC; Warren Strong, Director of Assisted Living at HallKeen; Rodney Dedman, Regional Director of Operations, Assisted Living at HallKeen; Jon Dietrich, Associate and Senior Traffic Engineer of Fuss and O’Neill; and Rob Hoogs of Foresight Land Services.
Attorney Heller gave a brief summary of the application and reviewed subsequent information that had been provided to the ZBA as a result of questions and concerns addressed at the previous hearing. He stated that Mr. Dietrich had presented a traffic report that was dated May 22nd that was reviewed by BETA, the Town’s traffic consultant. BETA critiqued the report and responded in two letters dated June 22nd and June 30th in which they recommended that the traffic report be updated to include the following information:
Volume count
Speed data
Updated traffic analysis
Sight distant analysis
Pedestrian safety
In response, Fuss and O’Neill gathered the additional data and submitted a comprehensive traffic report dated July 27th. BETA responded to that on August 3rd with an additional request to address a couple of other items. In a subsequent memo from Mr. Dietrich, he addressed those items which have since been reviewed by GM.
Attorney Heller stated Mr. Dietrich was present to explain Fuss and O’Neill’s report.
Attorney Heller said that as a result of Mr. Burnes presentation questions had been raised regarding negotiations with Berkshire Health to relinquish to Berkshire Health Cameron House’s existing assisted living facility for $1.00. Mr. Burnes had submitted to the Board a letter dated August 3rd in which he detailed the attempted negotiations. Attorney Heller noted that Mr. Burnes was present to answer questions related to this as well as to discuss the CBRE New England Market Study which concluded that there is a need for this type of facility. Both Mr. Burnes and Mr. Strong were present to also address questions that had been raised regarding staffing, relocation of tenants and screening of new tenants.
In conclusion Mr. Heller added that he had submitted to the Board a proposal of four conditions that he felt would address all of the concerns of the Board and neighborhood.
Mr. Dietrich stated that a more detailed traffic study (Dated July 27, 2015) has been submitted at the request of the Town. He gave a review of the methodology that was used and the results of the study. The existing use of assisted living and proposed use of affordable housing were compared and the traffic impact of the proposed use is considered to be negligible. He said that BETA, the town’s traffic consultant, has reviewed and in a memo dated August 3rd asked that three additional issues be addressed. Those issues were speed, crosswalk, and trimming tree branches which obstructs the visibility of the STOP sign at High and Housatonic Street. Fuss & O’Neill responded in their memo of August 4th in which they agreed and recommended that the Town install additional 25 MPH signs. They added that if speeding was an issue then speeds should be randomly monitored with a speed trailer. Mr. Dietrich recommended that improvements should be made for pedestrian accommodation,
i.e., crosswalk markings, at three locations. In addressing BETA’s third recommendation for an additional STOP sign and STOP line to be installed at the High Street approach to the intersection of Housatonic Street, Fuss & O’Neill agreed, but also noted that the tree branches should be trimmed around the existing STOP sign on the site driveway, and a STOP line be painted at that driveway. BETA stated that they found that the July 27th traffic study addressed the items BETA had recommended in a previous memorandum. In conclusion, Mr. Dietrich said that there would be no significant impact to the traffic operations or level of service for vehicles on Housatonic Street or significant impact to safety at the site area based on the relatively low trip generation with the conversion to senior affordable apartments. The traffic generated by the conversion to senior housing units can be adequately accommodated on the adjacent street.
Mr. Burnes referred to his letter of August 3rd to Gwen Miller in which he responded to a request for a summary of HallKeen’s discussions with the Berkshire Health Systems about taking over Cameron House. First he pointed out that there was a typo in the third paragraph, first line. The date typed, referring to the first meeting with BHS, was shown as 11/22/15, but in fact it should have been 11/22/13. Mr. Burnes said that they were in discussion with BHS for 8 months on an off. Two of those meetings were also attended by Mr. Strong and Mr. Dedman. He said that he stood by his letter as to being very clear that they (Cameron House) would have walked away for the consideration of one dollar. Mr. Burnes said that he believed that he used that statement in one or two meetings and
that it was clear to his personnel at that meeting that HallKeen was very committed to find the best solution for Cameron House.
Mr. Burnes responded to other requests for additional information on the following:
Market study-Mr. Burnes said that CBRE is a leading real estate services company that is very competent and has a good reputation. They concluded that there is more than sufficient demand for the type of housing that is proposed.
Staff-They are confident the number of staff is appropriate for this size property. They plan to have a part-time manager for 25 hours a week and 20 hours a week for a maintenance person. There will be someone on call 24 hours a day if there is an emergency or other issue.
Screening of tenants-Mr. Burns said that they have extremely rigid screening criteria which include CORI reports, credit records, and past landlords. Additionally they try to interview a potential client in their current home. This type of housing usually has a turnover of 20% or maybe less. In Boston the typical market rate apartment turns at 50%.
Mr. Strong provided details on the relocation of the current residents. He explained that the Office of Elder Affairs (OEA) regulates assisted living and there are two main components, compliance and the ombudsmen office. A facility is required to give no less than 90 days’ notice of closure. HallKeen has a substantial plan for working with the relocation of the Cameron House residents, but they will submit their plan to OEA who may assist in helping HallKeen help the residents. There will be time for residents and their families to look at local markets, get information from all communities that are appropriate e.g., assisted living, independent, or home care. This information would be updated monthly. Mr. Strong anticipates that the process will go more smoothly than appears. They will assist
in checking for vacancies, setting up a time for a resident or family to tour a potential community to make sure that they are comfortable, rates will be provided etc. HallKeen will report weekly to OEA on their progress. Six months prior to the project beginning, residents will begin with the relocation. No construction will begin until the last resident departs.
Discussion ensued regarding the availability of units in similar facilities, where some are located nearby, and the process of finding new homes.
Pat Diefendorf of Dalton said that her mother is a resident of Cameron House and has been since last May. She is disappointed that she wasn’t notified by Cameron House of their plans to convert to affordable housing. She spoke of stress of having an aged parent and the additional stress of having another move. Ms. Diefendorf said that when she was looking for a place for her mother, all of the facilities she contacted said that they did not accept subscribers to Mass Health, but she has since learned from an attorney that each facility is required to have one or two units available.
Nick Pignatelli was concerned about having low income housing in his neighborhood to replace the assisted living facility. Attorney Heller pointed out that the present assisted living is also affordable; it is the same structure as the affordable housing for persons 55 and older. There will be four Section 8 units and the petitioner stated that they would be amenable to having that stipulated in a condition. Mr. Pignatelli wanted a guarantee that all of the units wouldn’t become Section 8. The maximum income for a family to qualify for a unit is $38,000.00, but their target is to find people in the $30,000.00 to $34,000.00 range. The rents would range from $750.00 to $1,100.00 for a one bedroom and $780.00 to $845.00 for a studio.
It was noted that if this permit is not approved or if the facility “folded” they would be required to find another facility for the residents within 90 days.
Mr. Dedman said that once this process was in place, there has been one new resident and it was fully disclosed and even suggested that they might want to pursue alternate choices unless they felt comfortable, but they chose to live there.
EB asked the Board if they wanted to conduct a site visit, and all declined. Noting that there had been two nights in which the public had an opportunity to ask questions and voice concerns and suggested that the public comment period close.
GM told the Board that the Affordable Housing Committee had communicated with Rio Sacchetti, Project Manager of HK, to see how this project would impact their goal to promote and develop affordable housing so that everyone could have the opportunity to live in Lenox regardless of one’s income. They support this plan though it would t move from assisted affordable living to independent affordable living, because the affordable restrictions are such that the units would remain affordable for 99 years. Communities in Massachusetts are required to have 10% of their housing stock count as affordable. Currently Lenox is at 7.2%. This plus the fact that the Town has an outdated housing production plan puts Lenox at risk of being open to a Chapter 40 B project also known as the Comprehensive Permit Law. GM said
that there are 102 senior affordable units in Lenox with a waiting list of 44 people. Priority is given to people who already reside or work in Lenox. The number of people 55 and over continues to increase. The units at Cameron House will be universally accessible. GM informed the Board that the recommendation by BETA that an additional STOP sign and STOP line be installed at the High Street approach to the intersection of Housatonic Street will be the Town’s responsibility. HallKeen will be placing in the lease agreements parking restrictions which will limit the number of cars on site.
AH made a motion to close the public hearing and SLC seconded the motion.
SLC made a motion to grant the special permit with waivers for exception under Section 7.8 “Residential Inclusionary Development” and a modification of a variance issued in 1999 which granted the petitioner relief from the required apartment square footage in Section 10 “Definitions” to permit the conversion of forty-four (44) existing assisted living units on the property into thirty-eight (38) affordable apartments for persons of fifty-five (55) years of age and over. AH seconded the motion. The Board voted to approve 5-0.
SLC made a motion to adopt the following conditions. The first four were the ones suggested by Attorney Heller with edits and the fifth was added by the Board. RF seconded the motion.
1. The Petitioner shall not commence construction of any of the 38 apartment units until all of the assisted-living tenants have been relocated to other facilities or homes located primarily in Berkshire County or secondarily outside of Berkshire County. The Petitioner will consult with and work with the Massachusetts Executive Office of Elderly Affairs to assist in the relocation of the assisted-living tenants. For purposes of this condition, the commencement of the relocation of the assisted-living tenants shall be considered “substantial use” pursuant to Section 9.4.6 of the Lenox Zoning Bylaw, under the Special Permit. Upon commencement of the relocation of the assisted-living tenants, the Petitioner shall file with the Zoning Board of Appeals a certification that it has commenced relocating the assisted-living tenants. Upon the
relocation of all assisted-living tenants the Petitioner shall file with the Zoning Board of Appeals a certification that it has relocated all assisted-living tenants pursuant to this condition.
2. The Petitioner agrees to maintain the exterior of the premises, including the front steps leading to Housatonic Street, the landscaping and the grounds surrounding the Cameron House building in substantially the same condition as of the date of this decision.
3. The housing units located on the property are for occupancy by persons 55 years of age and older, in conformance with the Fair Housing Act and Housing for Older Persons Act of 1995, as amended.
4. An Affordable Housing Restriction and Tax Credit Regulatory Agreement and Declaration of Restrictive Covenants (“Agreement and Declaration”), and an Affordable Housing Deed Rider (“Rider”) in a form substantially as provided for in the zoning petition shall be recorded in the Berkshire County Middle District Registry of Deeds prior to construction of the 38 apartment units. The Agreement and Declaration and Rider as approved by the Commonwealth of Massachusetts Department of Housing and Community Development shall be reviewed by Lenox town counsel prior to the recording to ensure that the terms of the final document are consistent with the document filed with the petition.
5. There will be four units available for Section 8 subsidies.
The Board voted in favor of the above conditions 5-0.
Mr. Burnes went on the record and stated: “We are very comfortable with working with the Town to implement the recommendations of the traffic reports from BETA and Fuss and O’Neill and cooperate and work with the Town to see that those recommendations are implemented on the ground. It will be a safer and better project for our residents and we are very comfortable and will absolutely work with the Town to see that happen.”
Respectfully submitted,
Peggy Ammendola
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