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HomeMy WebLinkAboutFactory Avenue Project PATI~ICIA A. FINNEGAN TOV~N ATTORNEY patricia.finnegan~town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kieran.corcoran (~'town.southold.ny~us LORI HULSE MONTEFUSCO ASSISTANT TOWN ATTORNEY lori.montefusco~t~town.southold.ny.us JOSHUA Y. HORTON Supervisor Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD To: From: Date: Subject: MEMORANDUM Dan Ross, Esq., Town Councilman Patricia A. Finnegan, Esq., Town Attorney December 7, 2005 Factory A venue Project As requested, attached is a copy of the contract between White Oak Builders and CDCLI regarding the parcel of property off Factory Avenue. PAF/Ik Enclosure cc: Members of the Town Board (w/end.) Ms. Elizabeth Neville, Town Clerk (w/encl.) CONTRACT dated October ~ 2005, between WHITE OAK BUILDERS, LLC, having an address at P.O. Box 13, Southhampton, New York 11969, (~Seller") and CDCLI HOUSING DEVELOPMENT CORPORATION, having an address at 2100 Middle Country Road, Centereach, NY 11720 {"Purchaser"). SELLER AND PURCHASER HEREBY COVE'S-ANT AND AGREE AS FOLLOWS: Section 1. Sale of Premises and Acceptable Title 1.01. Seller shall sell to Purchaser, and Purchaser shall purchase from Seller, at the price and upon the terms and conditions set forth in this contract: {a) the parcel of land more particularly described in Schedule A attached hereto (~Land"); (b) all right, title and interest of Seller, if any, in and 5o the land lyin~ in the bed of any street or highway opened or proposed, adjoining the Land to the center line thereof, and to any unpaid award for any taking by condemnation or any damage to the Land by reason of a change of grade of any street or highway; c) all buildings and improvements of the Land; and (d)all of Seller's right, title and interest, if any, in and to all easements, strips and gores appurtenant to the Land and other easements, grants of rights, licenses, permits, approvals, privileges or other agreements for ~he benefit of, belonging to or appurtenant to the Land whether or not situated on the Land (collectively "Premises~) ~ At closing Seller shall deliver to Purchaser any documents necessary to affect the transfer or assignment of any award or damages described in this sub-section 1.02. Seller shall convey and Purchaser shall accept marketable fee simple title to the Premises i~ accordance with the terms of this contract, subject only to the following (collectively, ~'Permitted Exceptions"): (a) any state of facts an accurate survey may show as of the date hereof, provided same does not render title unmarketable, subject to the waiver of said condition as set forth in the Due Diligence Contingency (Section 3) and the Objections to Title (Section ti}; (b} covenants, restrictions, easements and agreements of record as of the date hereof, provided same do not prohibit acquisition of the Rezoning Approvals (as hereinafter defined); (c) such o~her matters as Purchase's title insurer a member of the American Land Title Association shall be willing, without special premium, to omit as exceptions to coverage. Section 2. Purchaser Price, Acceptable Funds and Escrow of Dow~ Payment 2.01. The purchase price (~Purchase Price") to be paid by Purchaser to Seller for the Premises described in Schedule A shall be $850,000.00, unless Purchaser elects to exercise its option to extend the Closing Date as set forth in Section 5, at which time the purchase price will be increased to $895,000.00, payable as follows: a. $85,000.00 upon execution of the Agreement by personal check; b. $765,000.00 at closing ($810,000.00 at closing if Purchaser exercises its right to extend the Closing Date in accordance with Section 5). 2.02. Ail monies payable under this contract, unless otherwise specified in this contract, shall be paid by (a) certified checks of Purchaser; or (b) official bank checks drawn by any such banking institution, payable to the order of Seller, except that uncertified checks of Purchaser payable to the order of Seller up to the amount of $500.00 shall be acceptable for sums payable to Seller at Closing. 2.03. Down Payment in Escrow a. Seller's attorney (~Escrowee") shall hold the down payment for Seller's account in escrow in a non- interest bearing iOLA bank account at Citibank, Garden City, New York. Upon the expiration of the period which shall be ninety {90) days from the date of delivery (the "Effective Date") of a fully-executed original of this Contract to Purchaser's attorney (the "Due Diligence Contingency Period"), the down payment shall be deemed non- refundable, unless, prior to or at said date, Purchaser sends written notice to Marschhausen & Fitzpatrick, P.C. ("Escrowee") in accordance with Section 13, notifying Escrowee that it has elected to exercise its absolute right to cancel this contract. In the event, Purchaser elects to cancel this contract during the Due ~iligence Contingency Period as set forth herein, Purchaser shall be entitled to a complete return of its down payment. b. In the event that Purchaser elects to extend the Closing Date for an additional period of sixty (60) days, as more fully set forth in Section 5, Purchaser shall not be entitled to a return of its down pay~nent, it being the intention of both parties that, absent cancellation within the Due Diligence Contingency Period, the down payment shall become non-refundable other than for Seller's inability or failure to convey the Premises in accordance with the terms hereof. c. The parties acknowledge that, although Escrowee is holding the down payment for Seller's account, for all other purposes Escrowee is acting solely as a stakeholder at their request and for their convenience and that Escrowee shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith cr in willful disregard of this co~tract or involving gross negligence on the part of Escrowee. Seller and Purchaser jointly and severally agree to defend, indemnify and hold Escrowee harmless from and against all costs, claims and expenses (including reasonable attorneys' fees) incurred in connection with Escrowee's duties hereunder, except with respect to actions or omissions taken or suffered by Escrowee in bad faith or in willful disregard of this contract or involving gross negligence on the part of Escrowee. d. Escrowee may act or refrain from acting in respect of any matter referred to herein in full reliance upon and with the advice of counsel which may be selected by him. e. Escrowee or any member of his firm shall be permitted to act as counsel for Seller in any dispute as to the disburserment of the down payment or any other dispute between the parties whether or not Escrowee is in possession of the down payment and continues to act as Escrowee. Section Due Diligence Contingencies 3.01. Within the Due Diligence Contingency Period, Purchaser may, at Purchaser's expense, conduct such investigations as it deems necessary in furtherance of its intention to rezone the Premises to the A/qD zone promulgated in Chapter 100 of the Code of the Town of Southold for affordable housing (the "Rezoning"). Such inquiries may include a complete title review, as well as such environmental research and testing, inspections, soil tests, borings, and studies as Purchaser may desire. Seller shall allow access for any and all testing, wetland identification and inventories, test holes and test wells and/or any other physical intrusion on the Premises Purchaser may require during i~s Due Diligence and as necessary for the complete and accurate processing of the application for the Rezonin~. Purchaser shall be responsible for and shall reimburse Seller for any loss or damage to property caused by ~archaser's entry, including, without limitation, ~echanic's liens or claims that may be filed or asserted against the Premises or other property of Seller by contractors, subcontractors or ~terialmen performing such work for Purchaser. 3.02. On or before the expiration of the Due Diligence Contingency Period, Purchaser shall have the absolute right to cancel this contract for any reason by giving notice in accordance with Section 13. Time is of the Essence as to such notice. If Purchaser elects to cancel the contract during the ~e Diligence Contingency Period, neither party shall have any further right, obligation or liability against or to the other unless otherwise set forth herein~ except that, if Purchaser notifies Seller of its intention to cancel on or before the expiration of the Due Diligence Conti~9ency Period, Seller shall promptly refund or cause the refund the down payment to Purchaser, it being ~he intention of bo~h parties that, absent cancellation within ~he Due Diligence Contingency Period, the down payment shall become non-refundable ,other than for Seller's inability or failure to convey the Premises in accordance with the terms hereof. Section 4. Rezonin~ 4.01. The intention of the Purchaser is to acquire, at Purchaser's sole cost and expense, the Rezonin~. 4.02. It is understood that this Contract of Sale is not contingent upon the approval of the Rezoning; however, Purchaser intends to take steps in furtherance of the Rezoning prior to the closin~ of title. 4.03. Purchaser shall provide Seller with a copy of all submissions to municipal agencies or other governn~ental entities in furtherance of the Rezoning efforts. 4.04. It is agreed and understood that Purchaser shall pay all expenses, including, but not limited to, survey costs, its own legal fees, environmental and planning consultant fees and application fees for obtaining the Rezoning approvals. At Purchaser's election, all permit applications shall be processed in the name of the Seller. Seller shall cooperate in full and sign any and all necessary permits~ agreements, applications, etc. 4.05, Seller shall have no obligation to execute any agreements with the suppliers of utility se~¢ices nor shall Seller be obligated to furnish security for any required performance bond, it being understood and agreed that Purchaser shall be responsible for the completion of all public improvements and for the furnishing of any security therefore required by any municipal entity having jurisdiction over the Premises. 4.06. The Rezoning approvals (the "Approvals") shall be deemed granted when all conditions of the Town of Southold with regard thereto except posting of bond, payment of fees and utility company agreements have been satisfied and the time to appeal the issuance of such approval, if applicable, shall have expired and no appeal therefrom shall have been taken. 4.07. Seller shall be given three (3) days notice of public hearings, meetings with governmental agencies and private work sessions and the opportunity to participate in same. In the event that Purchaser defaults hereunder and fails to close title as set forth herein, Seller shall be entitled to retain any existing benefit from the Rezoning Approvals process without any cost, obligation or liability to Purchaser. Purchaser shall promptly turn over to Seller any and all documentation, environmental research and testing reports, surveys, maps, drawings, sketch plans, applications, and any and all other records, documentation or applications which in any way relate to this Contract, the Premises or the Rezoning Approvals process with all said items thereafter becoming the property of the Seller (subject to the ownership interests of any architect or engineer). Section 5. The Closing 5.01. Except as otherwise provided in this con=tact, and provided that Seller is ready, willing and able to close title, the closing of title pursuant to this contract ("Closing") shall take place the earlier of thirty days {30) days from the granting of the Rezoning Approvals or (b) one hundred and eighty {180) days from the Effective Date, unless Purchaser elects to extend the Closing Date for an additional sixty (60) days, Purchaser may elect to extend the Closing Date by giving Seller notice of same in accordance with Section 13 hereof by no later than one hundred seventy five (175) days after the E~fective Date. In the event Purchaser elects to extend the Closing Date in accordance with this Section, in no event shall closing take place later than two hundred and forty (240) days from the Effective Date. 5.02. Essence. Ail Closing dates shall be Time is of the 5.03. The Closing shall take place at t0:00 A.M. at the office of Seller's attorney or any entity provided financial assistance to Purchaser located in Nassau or Suffolk Counties. 5.04. In the event Closin9 does mot occur on or before one hundred and eighty (180) days from the Effective Date, or two hundred and forty (240} days from the Effective Date if Purchaser shall so elect to extend the Closing Date, and provided that Seller is ready, willing and able to close title, then Seller, as its sole remedy, shall have the absolute right to cancel the contract and retain the deposit as liquidated damages and, if Seller shall elect to cancel the contract, neither party shall have any further right, obligation or liability against or to the other unless otherwise set forth herein. Section 6. Representations and Covenants of Seller. 6.0t. Seller is the sole owner of the Premises and has the full right, power and authority to sell, convey and transfer the same in accordance with the terms of this contract. This Agreement is the valid and legally binding obligation of Seller enforceable is accordance with its terms. There are no written or oral option agreements, rights of first refusal, purchase agreements affecting the Premises or Seller's obligations hereunder or any parties having any right to possession of the Premises after the date hereof a~d there are no other parties in possession of the Premises other than Seller. To the best of Seller's knowledge, there are no unrecorded rights of access in, to or across the Premises. 6.02. Seller is not a "foreign person', as that term defined for purposes of the Foreign Investment in Real Property Tax Act, Internal Revenue Code ("IRC) Section 1445, as amended, and the regulations promulgated thereunder (collectively "FtRPTA"). The Premises are not affected by any exemptions or abatements of taxes. Seller has received no written notice of, and to the bes~ of Seller's knowledge and belief, there is no pendin9 or threatened special assessment or condernr~ation or eminent domain proceedings which would affect the Property, or any part thereof or access thereto. 6.04. There are no judgments unsatisfied against seller or the Premises or consent decrees or injunctions to which Seller or the Premises is subject, and there is no litigation, claim or proceeding pending or, to the best of Seller's knowledge and belief, threatened against or relating to Seller and Seller's o~ership, operation of or title to the Premises, nor does Seller know or have reasonable grounds to k~]ow of any basis for any such action or of any governmental investigation relative to Seller or the Property. Seller is not. in the hands of a receiver nor has it committed an act of bankruptcy nor has an order for relief been entered with respect to Seller~ 6.05 Seller covenants and warrants that all the representations and warranties set forth in this coptract shall be true and correct at closing. of 6.06 Seller agrees tha~ between the date hereof and the Closin9 Date: (a) Seller shall notify Purchaser promptly if prior to the Closing Date Seller becomes aware of any fact, transaction, event or occurrence which could make any of the warranties and representations of Seller under [his Contract not true. (b) Seller shall not (i) transfer any interest in the Premises, (ii) create any easements, liens, mortgages or encumbrances affecting the Premises that will survive the Closing, (iii) enter into any development or other agreements affecting the Premises (except as requested by Purchaser), (iv) seek or permit any changes to the zoning classification of the Premises (except as requested by Purchaser}, (v) market the Premises for sale or lease, or (vi} enter into any contracts for improvements to the Premises. Sect/on 7. Acknowledgments of Purchaser. Purchaser acknowledges that: 7.01, As set forth herein, Purchaser has inspected the Premises, and the improvements thereon, is fully familiar with the physical condition thereof, and, shall accept the Premises, "as is" and in their present condition, subject to natural deterioration between now and the Closing ~ate, without any reduction in the Purchase Price for any change in such condition by reason thereof subsequent to the date of this contract, subject to its rights under the Due Diligence Contingency set forth in Section 3. 7.02. In entering into this contract, Purchaser has not been induced by and has not relied upon any representation, warranties or statements, whether express or implied, made by Seller or any agent, employee or other representative of Seller or by any broker or any other person representing or purporting to represent Seller, which are not expressly set forth in this contract, whether or not any such representations, warranties and statements were made in writing or orally. Section 8. Destruction, Damage or Condemnation 8.01. If prior to the Closing Date there shall be instituted against any portion of the Premises, any proceeding in condemnation, eminent domain or any written request for a conveyance in lieu thereof, or should Seller receive notice that such proceedings are threatened or have been commenced against the Property (hereinafter collectively referred to as "Condemnation Proceedings"), then Seller shall gi~e Purchaser im~ediate notice ~hereof. Purchaser shall have the right to terminate this Agreement by written notice to Seller within twenty (20) days after Purchaser receives notice of such Condemnation Proceedings. Upon delivery of the foregoing notice, the Deposit shall promptly be refunded to Purchaser, this Contract shall be null and void and neither party hereto shall have any further rights, obligations or liabilities hereunder except as otherwise specifically provided in This Contract to survive any termination or expiration hereof, if Purchaser shall not elect to terminate this Contract pursuant to this paragraph 8.01, Purchaser shall be obligated to close the purchase and sale contemplated hereby, less tha portion of the Premises so taken or subject to said Condemnation Proceedings, without adjustment oS the Purchase Price and Seller shall assign or pay to Purchaser at Closing all of Seller's right, title and interest in any condemnation award payable on account of such Conderanation Proceedings and pay to Purchaser all such awards or proceeds previously paid. The Closing Date shall be extended, if necessary, to permit twenKy (20} days for Purchaser to make Purchaser's election as set forth above.. Section 9. Seller's Closing Obligations At Closing, Seller shall deliver to Purchaser possession the Premises in vacant condition and the following: 9.01. A ~argain and Sale Deed with Covenants for the Premises described on Schedule A, properly executed in proper form for recording so as to convey the title required by this contract. 9.02. Such affidavits as Purchaser's title company (the "Title Company") or Commonwealth Land Title Insurances Co~pany shall require in order to omit from its title insurance policy all exceptions for judgments, bankruptcies or other returns against persons or entities whose names are the same as or similar to Seller's name. 9.03. Checks, as required by the Title Company, to the order of the appropriate officers in payment of the Real Estate Transfer Tax Return (TP-584) and a copy of the required TP-5S4 tax return executed by Seller. The obligation to pay any additional tax or deficiency and any interest or penalties thereon shall survive Closing. 9.04. Premises. Satisfaction of any mortgages affecting the 9.05. A certificate and affidavit with respect to Section 1445 of the Internal Revenue Code stating that Seller is not a foreign person as defined in said Section 1445 and applicable regulations thereunder. 9.06. D~ly adopted resolutions of the members of Seller authorizing the execution and delivery of the Deed and the other Closing documents to be executed on behalf of Seller. 9.07. Any other documents required by this contract to be delivered by Seller, Section 10. Purchaser's Closing Obligations. At the Closing, Purchaser shall: 10.01. Deliver to Seller checks in payment of the remainder of the Purchaser Price payable at the Closing. 10.02, Cause the deed to be recorded, duly complete all required real property transfer tax returns and cause all such returns and checks in payment of such 5axes (to be paid by the party required by law) to be delivered Ko the appropriate officers promptly after the Closing. 10.03 Deliver checks, as required by the Title Company, to the order of the appropriate officers in payment of the Peconic Bay Region Co~mnunity Development Fund Transfer Tax and a copy of the required tax return executed by Purchaser, if applicable. The obligation to pay any additional tax or deficiency and any interest or penalties thereon shall survive Closing. Section 11. Objections to Title, Failure of Seller or Purchaser To Perform and Purchaser's Lien 11.01. At Closing, Seller shall convey and transfer to Purchaser fee simple title to the Premises subject only to {i) ad valorem taxes which are not yet due and payable and (ii) the Permitted Exceptions. Without narrowing the definition of "Permitted Exceptions~, the term "Permitted Exceptions" shall not include, and Seller's conveyance of title to the Property shall not be subject to, mechanics' or materialmen's liens, or other liens, judgments, pledges, mortgages, deeds of trust, security deeds, conditional sales contracts, security interests and assignments, UCCs, and other encumbrances capable of being satisfied by the payment of a specified sum or otherwise of a monetary nature (collectively, "~lonetary Defects"), or violations of law or violations of municipal ordinances, codes, orders or requirements (including zoning ordinances) occurring after the expiration of the Due Diligence Contingency Period~ regardless of whether noted or issued by any federal, state, county or municipal department or agency having jurisdiction. 11.02 Purchaser shall promptly order an ey~mination of title and shall cause a copy of the Title Report to be forwarded to Seller's attorney upon receipt. 11.03 Seller shall be obligated to spend up to $10,000.00 to remove any defects that are not Monetary Defects {"~onmonetary Defects~) which Seller may be required to remove hereunder. If after promptly proceeding ~o remove such Nonmonetary Defects and spending such sum, Seller is unable to eliminate such Nonmonetary Defects, or to otherwise transfer, assign and convey the Property in accordance with the terms of this Agreement at the Closing, Purchaser may (i) elect to accept the Property subject to such Nonmonetary Defects without any abatement of the Purchase Price, in which event such Nonmonetary Defects shall no longer be objections to title and shall be deemed to be for all purposes Permitted Exceptions hereunder, Purchaser shall close hereunder notwithstanding the existence of same (subjec~ to the other terms and conditions of this Contract), and Seller shall have no obligations whatsoever after the Closing with respect to Seller's failure to eliminate such exceptions, or (ii) terminate this Contract by notice given to Seller, in which event Purchaser shall be entitled to a return of the Deposit and Seller shall pay to Purchaser the cost of the Title Report (and any updates) issued and the cost of the Survey (collectively ~Title Costs"). Upon such return and payment, this Agreement shall terminate and neither party hereto shall have any further obligations hereunder~ except as set forth herein. 11.04 Seller agrees not to further si:er or encux~er in any way title to the Premises after the date of this Contract, unless such alterations or encumbrances shall not survive Closing, Purchaser shall have the right to re-examine and update the Title Report and to update the Survey, through and including the Closing Date (as hereinafter defined) and Seller shall be absolutely obligated to cure any matters revealed by such examination or update and first arising or appearing after the effective date of the Title Report or the date of the Survey, as applicable, with the Closing Date being extended not more than thirty (30) days in order to effect such cure. Section 12. Broker 12.01. The parties represent to each other that they have dealt with no other Broker in connection with this transaction, except Prudential CRES Commercial Real Estate ("Broker"). Seller shall pay Broker a commission in accordance with the provisions of a separate agreement, only if and when title closes, Seller and ~rchaser shall indemnify and defend each other against any costs, claims and expenses, including reasonable attorney's fees, arising out of the breach on their respective parts of any representation or agreement contained in this Section. The provisions of this Section shall survive closing or, i~ closing does not occur, the termination of this contract, Section 13. Notices 13.01, Any notice or other communication ("Notice~) under this contract shall be in writing and either: a) shall be sent by either of the parties hereto or by their respective attorneys who are hereby authorized to do so on their behalf, or by the escrowee, by facsimile with proof of facsimile transmission, or email and by c~vernight mail, addressed to the attorneys for all parties, as follows: IF TO SELLER: Kevin P. Fitzpatrick, Esq. MARSCHHAUS~N & FITZPATRICK, 500 Old Country Road, Suite 103 Garden City, New York 11530 Phone: (516) 877-7700 Facsimile: (516) 747-6439 Email: kfitzpatrick~marq, c_hfitz.co~ IF PURCHASER: Peter L. Curry, Esq. FARRELL FRITZ, P~C. EAB Plaza Uniondale~ New York 11556~1320 Phone: (516} 227~0772 Facsimile: (516} 336~2208 Emait: pcurry@farreltfritz.com Any notice may be given by the attorney for a party and shall have the same force as if given by the party. Either party may, by notice, change the address at which notices are to be given hereunder. Notices are deemed received on the date sent. Section 14. Limitations on Survival of Representations, Warranties, Convenants and Other Obligations. 14.0~. Except as otherwise provided in this contract and deed to be tendered, no representations, warranties, covenants or other obligations of Seller set forth in this Contract shall survive the Closing, and no action based thereon shall be commenced after the Closing. Section 15. Miscellaneous Provisions 15.01. This contract embodies and constitutes the entire understanding between the parties with respect to the transaction contemplated herein, and all prior agreements, understandings, representations and statements, oral or written, are merged into this contract. Neither this contract nor any provision hereof may be waived, modified, amended~ discharged or terminated except by an instrument signed by the party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only ~o the extent set forth in such instrun~ent. 15.02~ This contract shall be governed by, and construed in accordance with, the laws of New York State. 15.03. The captions in this contract are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this contract or any of the provisions hereof. 15.04. This contrac:t shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs or successors and permitted assigns. 15.05. This contract shall not be binding or effective until properly executed and delivered by Seller and Purchaser. 15.06. Purchaser. This contract may not be assigned by 15~07. This contract is intended for the exclusive benefit of the parties hereto and shall not create any rights to, or be enforceable by, any other person or entity. Section 16. Apportionm~ents and Other Adjustments 16.01. To the extent applicable, the taxes on the basis of the lien period for which assessed shall be apportioned as of midnight of the day before the day of closing. 16.02 If Closing shall occur before a new tax rate is fixed, the apportionment of taxes shall be upon the basis of the tax rate for the immediately preceding fiscal period applied to the latest assessed valuation. 16.03. Any errors or omissions in computing apportionments or other adjustments at Closing shall be corrected within a reasonable time ~ollowing Closing. This subparagraph shall survive Closing. Seller's Default, 17.01 Anything in this Agreement to the contrary notwithstanding, if Seller defaults hereunder by refusing to close or failing to fulfill any of its obligations hereunder or otherwise, in addition to all other remedies available to Purchaser by reason of said default, Purchaser shall have the right to obtain specific performance of Seller's obligations hereunder, and Purchaser shall be emtitled to all other remedies available pursuant to this Agreement, at law or in equity, and such rights shall survive any termination of this Agreement. IN WITNESS WHEREOF~ the parties hereto have executed this contract as of~rhe date first above written. Receipt by Escrowee undersigned Escr~wee hereby acknowledges receipt The of $85,000.00, by check,/subje~ to collection, to be held n & Fltzpatrlck,~ P.C. SCHEDULE Pa~¢ 1 ALL that certain plot, piece or parcel of land situate lying and being at Mattituck, in the Town ofSoutbold, County of Suffolk and State of New York, being bounded and described as follows: BEGINNING at a point on the southerly side of Sound Avenue (North Road) distant 293.00 feet westerly as measured along the southerly side of Sound Avenue from its intersection with the westerly side of Factory Avenue (Railroad Avenue); RUNNING THENCE along land now or formerly ofJ & N Moloney South 20 Degrees 07 minutes dO seconds East 256.03 feet; THENCE North 69 degrees 52 minutes 20 seconds East 43.69 feet; THENCE South 18 degrees 39 minutes 40 seconds East 28.73 feet still along land now or formerly ofJ & N Moloney; THENCE South 21 degrees 50 minutes 20 seconds East 221.91 feet along land now or formerly o£J.E, Berdinka and land now or formerly ofJ. Kuczynska and others; THENCE South 19 degrees 16 minutes 10 seconds East 166.65 feet along lands now or formerly olD. Pinkall, E. MeGetrick and F. Zaneski; THENCE South 72 degrees 05 minutes 50 seconds West 4-3.69 feet along the northerly line of land now or formerly elM. T. Bradley; THENCE along the southerly line of land now or formerly of M.T. Bradley North 72 degrees 34 minutes 02 seconds Eaat 255.99 feet to the westerly side of Factory Avenue; THENCE along the westerly side of Factory Avenue South I7 degrees 21 minutes 10 seconds East 91.27 Feet to the northerly line of land now or Formerly of Long Island Railroad; THENCE along the land now or formerly of Long Island Railroad the following 8 courses and distances: 1) 2) 3) 5) South 47 degrees O0 minutes O0 seconds West 22402 feet; North 19 degrees 16 mknutes 10 seconds West 7. 10 feet; South 48 degrees 42 minutes O0 seconds West 134.96 feet; South 52 degrees 37 minutes 10 seconds West 91~94 feet; South 45 degrees 24 minutes 50 seconds West 108.55 feet; 6) South 43 degrees 16 minutes 50 seconds West 100.21 feet; 7) South 46 degrees 08 minutes 20 seconds West 100~01 feet; 8) South 46 degrees 49 minutes 50 seconds West 10.89 feet to land now or formerly of Moenius; THENCE along land now or formerly of Moenius North 20 degrees 06 minutes 00 seconds West 231.30 feet to the southerly line of land now or formerly of C. Sullivan; THENCE along last mentioned land North 71 degrees 09 minutes 30 seeonds East 177.27 feet to the easterly side of land now or formerly of C. Sullivan; THENCE along last mentioned land the following 5 courses and distances; 1) North 20 degrees 19 minutes 00 seconds West 12&65 feet; 2) North 19 degrees 04 minutes 40 seconds West 251.55 fee~; 3) North 20 degrees 21 minutes 00 seconds West 91.02 feet; 4) North 19 degrees 08 minutes 00 seconds West I95.00 feet; 5) North 20 degrees 07 minutes 40 seconds West 30,81 feet still along land now or formerly of C. Sullivan. THENCE along lands now or formerly ofC. Sulivan, L. Yocovelli, T. and S. Best and K. Fuentes North 69 degrees 52 minutes 20 seconds East 229.93 feet to the easterly line of land now or formerly of K. Fuentes; THENCE along last mentioned land North 20 degrees 07 minutes 40 seconds West 274.20 feet to the southerly side of Sound Avenue (North Road); THENCE along the southerly side of Sound Avenue (North Road) the following 2 courses and distances: 1) South 87 degrees 49 minutes 00 seconds East 42.60 feet; 2) North 85 degrees 35 minutes 00 seconds East 7.37 feet to land now or formerly ofJ & N Moloney and the point or place of beginning. Consisting of approximately 7.3955 Acres. PATRICIA A. FINNEGAN TOWN ATTORNEY patricia, finnegan@town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kJeran.corcoran@town.southold.ny.us LORI HULSE MONTEFUSCO ASSISTANT TOWN ATTORNEY lori.montefusco@town.southold.ny,us JOSHUA Y. HORTON Supervisor Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD To: From: Date: Subject: MEMORANDUM Members of the Town Board Patricia A. Finnegan, Esq., Town Attorney December 20, 2005 Factory Avenue Project Attached is correspondence from CDC regarding information requested by the Town Board in connection with the referenced matter. PAF/Ik Enclosure ~ cc: Ms. Elizabeth Neville, Town Clerk (w/encl.) 12/20/U5 11:47 FAX 631 471 1210 CDC of L.I. [~002 December 20, 2005 Patricia Finnegan, Esq. Town Attorney Town of Southold P.O. Box 1179 $outhold, New York 11971-0959 Re: Mattituck Affordable Housing Proposal ($CTM 122-2-23.1) Dear Ms. Finnegan: As you are aware, Community Development Corporation of Long Island, Inc. ("CDC") has proposed an affordable housing development in Mattituck on the above referenced property, which will be 24 single-family homes, 12 of which will include a one-bedroom accessory apartment. We seek to develop this housing under Southold's Affordable Housing District. During our discussions with the Town Board, a question was raised regarding age-restricting a portion of the units for senior citizens. Because we were concerned that such targeting might represent a fair housing violation, CDC sought a legal opinion from the Anti-Discrimination Center of Metro New York. The legal opinion, by Richard Bellman, Esq. is attached to this letter. It indicates that such restrictions would not be permitted in accordance with fair housing law. There are additional concerns with respect to restricting units to seniors: The restriction would harm the economic viability of the development. In order to succeed, this development is reliant on subsidies from the County of Suffolk. Their workforce housing program would severely restrict available subsidies if a portion of the housing is targeted for seniors. Their funds support workforce housing. If the development was restricted to 80% or more seniors, not only would County subsidies be in jeopardy, but if a senior who owned a unit jointly with a non-senior died, the 80% figure would not be maintained, and a fair ~etghbo~orks' ,~i~di.~ Resources to Empower Long :$l~.~ People and S~re.~he. Their Communities 12/20/05 ]1:48 FAX 031 471 1210 CDC o~ L.I. ~003 Letter to P. Finnegan, Esq. 20 r)ecember, 2005 Page 2 .......... housing violation would occur. Therefore, over 80% sales to seniors would be advisable, effectively cutting out younger buyers, renters and families. Southold's AHD code is not directed to seniors purchasing homes in a development of this type. Seniors who have an interest in downsizing from their current house to purchase an affordable house will not meet the code's prohibition against owning assets more than 25% of the sales price. Seniors who have rented all their lives are not likely to have the wherewithal or the desire to become homeowners in their later life. We expect, however, that loCal seniors in this category will find the apartments attractive to rent and can benefit from the AHD program. In reviewing Southold's waiting list for Affordable Homes, it is possible that there may not be 12 senior renters from the pdority one category. There are most certainly non-elderly single adults (or couples) living and working in the Town who would be available to rent these units. Allowing rental to individuals from a range of ages will help to assure that the development accomplishes the Town's objectives for affordable housing, whereas a senior-only population would bypass these local people in favor of lower priority categories. We hope that this information helps to answer questions that members of the board may have regarding restricting these units to seniors. Wilbur Klatsky President and CEO /tmca 12/20/05 11:48 FAX 631 471 1210 CDC of L.I. ~004 Anti-Discrimination Center of Metro New York, Inc. z99 Broadway, guire ~ Szo · New York, NY xooo7-xgz3 voice zxz-346-76oo . ~ax zxz-346-7667 · center@antibiaslaw.com · www.antibiaslav~;com L. Von Kuhen Senior Vice President Community Development Corp. of Long Island 2100 Middle Country Rd. (Suite 300) Centereach, NY 11720 December 16, 2005 Re: Mattituck Affordable Proposal Dear Mr. Kuhen: You have asked for my opinion concerning the legality of certain occupancy standards being c6nsidered for Community Development Corp. of Long Island's ("CDC") Mattituck affordable housing development proposed to be built in the Town of Southold. · You have provided the following information. The CDC plans to build 24 for sade homes, each with two bedrooms. Twelve of the homes will have one bedroom accessory apartments which will be rentals. The home owners will own and let the accessory units. The site requires rezonlng to the Southold Affordable Zone in order to allow for the proposed density. All buyers of the homes and all renters of the accessory apartments will come from a Town waiting list and there will be qualifying income limits: The Town will establish sales and rental prices annually with the prices set so that all sale and all rental units are affordable. Your questions relate to the propriety of limiting Occupancy in some of the units to seniors. You ask whether a portion of the sales units or all of the accessory rental units can be designated for seniors over 55 years of age. The quick answer is that it cannot be done. What is being proposed would constitute familial status discrimination in violation of the federal Fair Housing Act ("FHA'?), 42 U.S.C. § 3604, and familial status and age discrimination in violation of the New Y.ork State Human Rights Law. Familial stat~s discrimination means discrimination against children. The FHA does not cover age discrimination. Obviously, a standard which limits occupancy to seniors discriminates against children and, in the case of the State law, also discriminates against those who have not yet reached the required age for senior status. The FHA and the State law both carve out exceptions to the familial status and age discrimination prohibitions so as to allow for senior housing developments, but only with respect to developments which meet certain prescribed standards..The standards iet for senior housing in the FHA are tracked in the State law. In my opinion the CDC proposed project does not approach meeting these standards. 11:48 FAX 631 471 1210 CDC of L.I. ~3005 The FHA first states that the prohibition on familial statU's discrimination does not apply t~, housing for older persons. It then goes' on to state that ~housing for older pers6ns means housing: (A) provided under any State or Federal program that the Secretary [of HUD] determines is specifically designed andoperated to assist elderly persons (as defined in the State or Federal program); or (B) intended for, and solely occupied by, persons 62 years of age or older; or (C) intended and operated for occupancy by persons 55 years of age or older, and- (i) at least 80 percent of the occupied units are occupied by at least one person who is 55 yeats of age or older; (ii) the housing facility or community publishes a~ad adheres to policies and procedures that demonstrate the intent required under this subpargraph; and (iii) the housing facili~ or community complies with rules issued by the Secretary for verification of occupancy. 42 U.S.C. $ 3607(b)(2)(C). You can see that none of these options apply to CDC's Mattituck project as currently proposed. Option A applies to senior developments constructed With governmental programs and where the entire project is for the elderly. Option B is for a development for those 62 and older. Although Option C envisions a development with seniors 55 and older, the CDC development does not meet the requirement that 80 percent of the units be occupied by at least one person 55 or older. Putting aside the requirements of sub- parts (ii) and (iii), at least 28 or 29 of the 36 units in the development would have to be for the elderly. As a practical matter over 80 percent of the units would have to be k, ept for the elderly so as to protect against the possibility of departure from a senior s unit of an elderly occupant married to a person under 55 years of age, e.g. resulting from death, divorce, or otherwise. There is much more that can be said about the requirements applicable to Option C type h'ousing (e.g. requirements as to advertising the development, occupancy verification, etc.). Since the CDC proposal does not meet the 80 per cent standard, I will not go into those requirements in this letter. I trust this letter is of assistance to you. Please call with any questions you may have.