BRATTLEBORO — With a standing-room-only crowd looking on, the Development Review Board (DRB) on Monday overturned the town's decision to deny a building permit for one of five public housing buildings whose renovations have been in limbo and whose 26 residents have couch-surfed as guests of friends and family, and in hotels for over two months, with no firm return date in sight.
But renovations on the other four buildings at Melrose Terrace are still up in the air, and their fate will be discussed at the board's Nov. 21 meeting.
In a nearly six-hour meeting that stretched well past midnight, the DRB considered the two parties' evidence regarding the appeal by the Brattleboro Housing Authority (BHA) of Zoning Administrator Brian Bannon's decision to deny permits for five buildings damaged by Tropical Storm Irene.
On one side of the issue sits the town, with its requirement to adhere to the rules and regulations of the National Flood Insurance Program and the Federal Emergency Management Agency (FEMA).
On the other side, the BHA - landlord to 26 residents still displaced from the flooding of Tropical Storm Irene - faces mounting losses of rent revenue and argued for resolution of the fate of the five buildings.
Although building 230 was deemed eligible for a building permit to be awarded administratively, the DRB has 45 days to issue its ruling in writing, and interested parties, including the town, would have 30 days from the date the DRB issues its decision to appeal.
Even with its permit in hand and construction completed, the housing authority then runs the risk of losing an appeal and then having to abandon the five buildings.
At issue during the hearing: did the five Melrose buildings exceed the 50-percent damage threshold set by FEMA?
According to FEMA, if a building suffers damage exceeding 50 percent of its fair-market value, repairs must then comply with local zoning and flood prevention protocols.
Regarding Bannon's decision on the remaining four buildings, however, the board instructed the BHA to return to the Nov. 21 meeting with a clearer breakdown of cost estimates.
The rebuilding costs that the housing authority provided the board were “not adequate” to meet the burden of proof to justify overturning the zoning administrator's decision entirely, said DRB Chair Tim Cuthbertson.
In the DRB's perspective, the BHA had not proved that four Melrose buildings fell below FEMA's 50 percent threshold for substantial damage.
Of the decision, BHA Commissioner Christine Connelly said, “I'm glad they let us come back [with more information] and glad that 230 is open. I'm very happy about that.”
On Oct. 14, Bannon notified the BHA he had determined five of the affordable housing complex's 17 buildings had suffered “substantial damage” during Tropical Storm Irene.
“Substantially damaged” buildings within a municipality's special flood hazard area (SFHA), as is the case with a portion of Melrose Terrace, must be brought up to contemporary flood-proofing codes.
According to Brattleboro's SFHA ordinance, residential buildings within a floodway cannot rebuild after receiving a substantially damaged determination.
The floodway portion of a SFHA will likely contain river current during a flood, leading to more damage than the “flood fringe,” the land farther from the river which usually experiences rising water.
Brattleboro participates in the National Flood Insurance Program (NFIP), which allows all property owners within the town to purchase flood insurance, but only if every property in town complies with the program.
FEMA can boot whole towns out of NFIP if the agency concludes that a town is ignoring a non-complying property.
The town is also one of a handful of municipalities in Vermont that receives additional discounts through a community rating system for meeting higher standards outlined by NFIP.
An overview
According to Bannon, after Irene blew through Windham County on Aug. 28, the process of evaluating all the damaged buildings in town started with a post-flood evaluation.
Bannon told the DRB after his immediate assessment that he sent letters to the BHA on Sept. 12, alerting the housing authority to the need for building permits.
At Melrose, the level of damage varied from building to building. Some buildings had as little as 3 percent damage, and some as high as 166 percent, well above FEMA's 50 percent threshold.
Bannon has granted 10 permits for Melrose buildings that clearly fell under FEMA's 50 percent.
The town's policy when determining substantial damage allows Bannon to award permits administratively if the damage falls below 50 percent. For properties falling within the 40-to-60-percent range, however, town policy also kicks the process to the DRB, requiring additional documentation for the board, and not Bannon, to make the determination.
Bannon said that the BHA broke its initial master list of needed repairs down by apartment units rather than structures.
Cost estimates?
The town had disputed the cost estimate figures submitted by the BHA, whose management has said it has presented only “real numbers.”
The housing authority also believed that the grand list assessment for Melrose deflated the building's fair market value which brought the cost estimates and 50-percent threshold closer, and commissioned local real estate appraiser Dart Everett to supply a new assessment.
“We don't think [the grand list] is the gold standard for these properties. These are unique properties,” said Patricia Beu, an attorney representing the BHA.
The attorney said the housing authority hoped the DRB would accept the market appraisal from Everett, and the repair estimates from local contractor John Brunelle, “who went into each building” and did not calculate costs solely on FEMA's computer program or a drive-by observation.
The BHA felt the town's assessment of the Melrose Terrace buildings of $30,000 per apartment was low, said BHA Finance Manager Mary Houghton.
Everett's appraisal, she said, better reflected the fair-market value.
Houghton said the housing authority didn't regret the immediate work it did to get people back into their homes at Melrose.
According to Houghton, town officials came through after Irene hit, and said nothing about permits.
Houghton explained that Brunelle's estimates might have confused the town because before the housing authority understood about FEMA's 50-percent threshold, it decided to make other improvements to the apartments beyond the scope of the flood damage “while we're at it.”
Those improvements, reflected in initial estimates, included replacing tubs with showers and installing better cabinets.
According to a spreadsheet from the Planning Department, Everett's assessment brought the damage of building 230 to 41.6 percent of its value.
One other building came in at 49.9 percent, and the remaining three at 49.8 percent.
“We go up to the [50 percent] line in the sand, but we stayed on the correct side of it,” she said.
Brunelle, whose firm Brunelle and Sons was contracted by the BHA to repair the buildings, answered many questions from the board, and at times expressed confusion about the cost estimates he submitted.
For the purposes of building an insurance estimate, Brunelle said, he was originally advised to estimate labor performed at the local union hourly rate of $96, which anticipated an inflated bottom line.
Later, said Brunelle, he also realized some work, like rewiring the electrical system, would be unnecessary.
Brunelle said that he subsequently submitted a second estimate based on “actual” work and costs that he had observed after many weeks working on Melrose.
The board also questioned why Brunelle's estimate also contained two separate labor rates of $26 an hour and $52 an hour.
One reason Brunelle gave for the discrepancy was that he knew some jobs would take less time than others. He also said that in some places he meant to change the job's estimated time and accidentally cut the rate.
Bob Stevens, of Stevens & Associates of Brattleboro, attempted to temper some of the DRB's concerns about the BHA's flexible figures by saying that construction costs vary widely from contractor to contractor.
Stevens, the board, Brunelle, and members of the town Planning Services Department also batted around assertions of what work - bringing grandfathered fixtures containing lead up to code - the BHA must include in its cost estimates.
Planning Director Roderick Francis said that he felt confused about the cost estimates submitted by the BHA as well.
“This [situation] has been grueling for our office, and everyone has been concerned for a long time,” said Francis.
But Francis said he still needed clarity on “which units have which cost assigned to them.”
“I'm sure the public thinks we're pedantic,” he added. “We're required to follow FEMA guidance.”
The town applied the same guidance to all properties to be fair, Francis said.
“The only way to be fair is to stick with guidance,” he said. “I'm happy to be corrected, but it's apparent to us in review of the estimates that [we have] reason to believe the demolition costs are understated.”
Wanting to go home
Cuthbertson advised the gathered public that Monday's meeting represented the only opportunity to comment on the questions before the board.
“We are taking the sole record on these applications,” he said. “This is your opportunity to speak, and please don't hold back.”
According to DRB Chair Cuthbertson, if the BHA appeals the DRB's decision, the state environmental court, which has jurisdiction, would hear no additional testimony. That court bases its decision on record and evidence presented at the DRB hearing to “see if evidence supports decision.”
More than 50 people crowded into the Selectboard Meeting Room, and many patiently waited for their opportunity to speak, which didn't occur until around 11 p.m.
Byron Stookey, representing Brattleboro Area Affordable Housing, spoke in support of the BHA.
Stookey, reading from a prepared statement, said that “several of us are here to ask you to preserve the housing at Melrose Terrace.”
In Stookey's opinion, of the two assessments of the Melrose buildings that he knew of, the DRB should consider Everett's “thorough, on-site appraisal backed by 34 years' experience” in doing such work.
Of the three known damage assessments - a FEMA survey, Brunelle's initial contracting estimate, and Brunelle's revised estimate made after he had a “clearer idea of cost” - Stookey felt the town should consider Brunelle's second estimate.
Without a building permit to complete repairs below the 50-percent threshold, the four buildings would not be permitted in the floodplain.
“So we're left, in the end, with this question: if you start with the assumption that the town would like to get the people back in their homes, and if the controlling formula here is FEMA's, but when it comes to the numbers FEMA defers to the town, and if we have an authoritative appraisal by Everett and an expert cost estimate by Brunelle - why would we base a decision about the buildings on any other numbers?” asked Stookey.
“Especially when, to abandon the buildings would cost the Housing Authority an essential federal rent subsidy, when it would cost the town tax income and maybe a half million dollars in mitigation costs, and when, most important, using other numbers would leave 26 vulnerable people homeless,” Stookey said. “Those outcomes just don't seem unavoidable.”
Other members of the public spoke on behalf of the residents. Some people expressed anger, while others spoke of their frustration and sadness.
Cuthbertson explained that the DRB hears land development applications. The board also hears appeals of the zoning administrator's decisions.
The board operates, “on the record,” said Cuthbertson, taking testimony from applicants and interested parties, followed by the board issuing a written decision.
Cuthbertson stressed the DRB does not afford the town special treatment when it participates in a hearing as an interested party. The DRB also does not weigh the town's testimony heavier than that from other parties, he said.
Nicole Zolnoski, whose mother lives at Melrose, posed a simple question to town officials: “So, what is your plan for the tenants?”
She reminded the DRB that some Melrose residents had lived at the complex for decades.
“Yes, I know there's law [to follow], but would you sit back if it was your family member?” she asked.