Amendment #240 to H4707

Section 5 Amendment

Representatives Fernandes of Falmouth and Peake of Provincetown move to amend the bill in section 5, in lines 753-786, by striking out the words in their entirety and inserting in place thereof the following:

Section 32. As used in this section and section 33, the following words shall have the following meanings unless the context clearly requires otherwise:-

“Executive office”, the executive office of housing and livable communities.

"Low or moderate income household'', a household with gross income at or less than 150 per cent of area median income as most recently determined by the United States Department of Housing and Urban Development, adjusted for household size.

“Seasonal community”, a city or town characterized by significant seasonal fluctuations in population and employment related to seasonal-based tourism.

“Year-round housing” housing for occupancy by persons or families who occupy either rental or other housing as their primary residence for not less than 11 months during any 1-year period.

“Year-round occupancy restriction” a right in perpetuity, whether or not stated in the form of a restriction, easement, covenant or condition in any deed, mortgage, will, agreement, or other instrument, executed by or on behalf of the owner of the land appropriate to (a) limiting the use of all or part of the land to occupancy by persons or families who occupy either rental or other housing as their primary residence for not less than 11 months during any 1-year period, or (b) limiting or restricting the use or enjoyment of all or any portion of the land for the purpose of encouraging or assuring creation or retention of rental and other housing for occupancy by persons or families who occupy either rental or other housing as their primary residence for not less than 11 months during any 1-year period.

Section 33.  A city or town designated by the executive office as a seasonal community may acquire year-round housing occupancy restrictions for rental or other housing. Any year-round housing occupancy restriction held by a city or town designated by the executive office as a seasonal community shall be construed as a restriction held by a governmental body with the benefit of section 26 of chapter 184 of the General Laws and shall not be limited in duration by any rule or operation of law, but shall run in perpetuity except as released under the provisions of this section.

No year-round housing occupancy restriction as defined herein shall be unenforceable on account of lack of privity of estate or contract or lack of benefit to particular land or on account of the benefit being assignable or being assigned to any other governmental body or to any charitable corporation or trust whose purposes include creating or retaining or assisting in the creation or retention of rental or other housing (a) for year-round occupancy by persons or families who occupy either rental or other housing as their primary residence, or (b) affordable rental or other housing for occupancy by persons or families of low or moderate income, or on account of the governmental body or the charitable corporation or trust having received the right to enforce the restriction by assignment, provided (a) in case of a restriction held by a city, town or regional affordable housing commission, it is approved by the secretary of housing and livable communities, and (b) in case of a restriction held by a charitable corporation or trust it is approved by: (i) the mayor, or in cities having a city manager the city manager, and the city council of the city, or selectmen or town meeting of the town, in which the land is situated, and (ii) the secretary of housing and livable communities.

Such year-round housing occupancy restrictions may be enforced by injunction or other proceeding, and shall entitle representatives of the holder to enter the land in a reasonable manner and at reasonable times to assure compliance. If the court in any judicial enforcement proceeding, or the decision maker in any arbitration or other alternative dispute resolution enforcement proceeding, finds there has been a violation of the restriction then, in addition to any other relief ordered, the petitioner bringing the action or proceeding may be awarded reasonable attorneys' fees and costs incurred in the action or proceeding.

A year-round housing occupancy restriction may be released, in whole or in part, by the holder for such consideration, if any, as the holder may determine, in the same manner as the holder may dispose of land or other interests in land, but only after: (a) a public hearing upon reasonable public notice, by the governmental body holding the restriction or, if held by a charitable corporation or trust, by the mayor, or in cities having a city manager the city manager, the city council of the city or the selectmen of the town, whose approval shall be required, and (b) in case of a restriction requiring approval by the secretary of housing and livable communities, only with like approval of the release.

No restriction that has been purchased with state funds or which has been granted in consideration of a loan or grant made with state funds shall be released unless it is repurchased by the landowner at its then current fair market value. Funds so received shall revert to the fund sources from which the original purchase, loan, or grant was made, or, lacking such source, shall be made available to acquire similar interests in other land. Approvals of restrictions and releases shall be evidenced by certificates of the secretary of housing and livable communities, mayor, city manager, city council, or selectmen of the town, as applicable duly recorded or registered.

In determining whether the restriction or its continuance is in the public interest, the governmental body acquiring, releasing or approving shall take into consideration the public interest in such year-round occupancy and any national, state, regional and local program in furtherance thereof, and also any public state, regional or local comprehensive land use or development plan affecting the land, and any known proposal by a governmental body for use of the land.