Editor’s note: This is the last in a series on Portsmouth’s effort to create a new provision in its zoning ordinance called a "Continuing Care Retirement Community."
PORTSMOUTH — Creating a Continuing Care Retirement Community that caters to both the wallets and residential preference of locals may be more difficult than originally thought.
Throughout the process of creating a CCRC provision in the city’s new zoning ordinance, City Council members have raised concerns about the cost of independent living units at the proposed Borthwick Village development and their availability to local residents.
Proposed by developer Michael Kane, the project involves a 37-acre site between Borthwick Avenue and Islington Street. As currently proposed, the Borthwick Village CCRC would include 330 independent-living units, 50 assisted-living units/beds and 30 skilled-nursing beds.
Councilors’ concerns include how the cost of the units relate to incomes of city residents who may consider the community as a living option,money clips, and whether locals would have better opportunity to relocate to the CCRC.
Councilor Tony Coviello said the pair of concerns is based off a larger one that deals with the city creating opportunities for housing the "next generation of families." As a former Planning Board member, Coviello is perhaps the most fine-tuned member of the council when it comes to the CCRC debate. "The thought process is that the elderly are holding on to their houses and have nowhere else to go," he said. "Their assets are their houses."
Given that assertion, Coviello said the question of "how do we free up housing stock by providing new elderly housing?" has popped up. If the elderly could gain a benefit from putting their home or condominium up for sale and moving to a CCRC, concerns of providing housing for younger families could be considerably mitigated,earrings, he said.
Calling it "just an idea," Coviello acknowledges the idea of creating a benefit still needs to be fully vetted by the city.
Over the past several months,Bead bracelet, in an attempt to pursue the idea, the council has suggested two options that could provide benefits for city residents. In a memo to the council, Planning Director Rick Taintor lays out both options suggested by councilors.
Residents could have either a "one-time 20 percent discount of the selected unit’s entrance fee (at the entrance date)" or "a 30 percent discount of the monthly service for the entirety of occupancy of the facility, regardless of unit type."
Councilors also suggested a 10-percent discount.
In his memo, Taintor tells the council such conditions could potentially be added to the draft CCRC provisions and included in a development agreement, though, Taintor notes, the conditions would be difficult to monitor and enforce over time.
Kane said the development, if constructed, would be "affordable" and priced almost identically to RiverWoods at Exeter,tiffany, a similar CCRC-type development. Having hired an economist to conduct various comparisons of affordability, Kane said he envisions his CCRC to be "right in the sweet spot for the middle to upper class" senior citizens.
Despite the city’s recommendations and Kane’s willingness to discuss affordability, City Attorney Bob Sullivan recently informed the council there are legal and policy concerns with a provision that allows for a percentage reduction in unit purchase prices for city residents.
"Any city ordinance which creates classifications of persons (i.e. residents versus nonresidents) is open to the legal challenge that the ordinance violates the constitutional requirement of equal protection by treating the classifications of persons differently from each other," according to Sullivan’s memorandum. "While I am not concluding that such provisions would certainly violate that constitutional concept, the question would exist, and thus opens the door to future legal challenges."
Sullivan cites two examples as a basis for his concerns. In the late 1980s and early 1990s, Sullivan said a developer who planned the redevelopment of Mariner’s Village proposed to the city that he would pay $2,500 per unit on the sale of each unit in a planned condominium development to allow the city to offset increased municipal costs generated by the development. Only two years later, the developer was able to repudiate the agreement and walk away from the obligation by claiming it was constitutionally impermissible for the city to have entered into the agreement, Sullivan said.
"The possibility of a repeat of that unfortunate history is clear in the event that the city adopts an ordinance which raises any constitutional issues," Sullivan said.
A similar situation in which the city’s efforts to adopt and implement controls over unit prices in connection with a proposed housing development in Atlantic Heights several years ago posed similar problems. Sullivan said the example convinced him an "administrative mechanism" to accomplish a such a goal would need to be complex and would be subject to possible manipulation by future property owners.
"Further problems could exist in distinguishing true Portsmouth residents from the ‘straw’ purchasers or persons from elsewhere who found a way to use a Portsmouth address in making the purchase," according to Sullivan.
While the city attorney said he believes the proposed concept cannot be ruled "absolutely impermissible," he contends there are serious reservations that should be contemplated by the council during consideration.
In terms of residential preference, the city also attempted to craft avenues to ensure city residents get first dibs on the units. More than one councilor proposed the residential preference options.
One option includes ensuring one-third of all independent living units be exclusively available to city residents for a period of no less than one year from either completion, occupancy date or occupancy date to the general public.
Other options include making a proportion of unit types for city residents the same as the total units to the general public, and requiring a proportion of city residents in the community to be maintained as close to one-third as possible.
Taintor notes Kane has stated he would agree to a type of residential preference condition, but only with "appropriate protections if not enough local residents apply for units."
"We’re from Portsmouth," Kane said. "We’ve been doing business in Portsmouth for a long time. Our preference is to see Portsmouth residents in there."
Kane said he would "absolutely" work with the city in terms of residential preference. Despite his willingness to work with planners, the city again contends the conditions could be difficult to monitor and enforce, and would require additional staff and/or financial resources for monitoring and enforcement.
Tonight’s city council work session
Very little has changed since the council last met for a work session on the CCRC in June. Taintor said the only major changes made to the ordinance involve adding a provision that the Planning Board can engage independent consultants at the developer’s cost during the land-use process, and a provision that ensures ongoing tax revenues even if the development converts to a nontaxable charity or nonprofit.
Kane said he feels as if the project is a good one and tonight’s work session will hopefully draw some sort of conclusion. "Hopefully we’re getting toward the end of the process," he said. "I think (the council) will work through whatever remaining issues they have."
For Coviello, the end may not be as close as some would like to think. "I suspect by the end of the work session we will either have decided to not move forward or move on," he said. "I don’t expect 100 percent agreement."