WEST BRATTLEBORO — Nearly eight weeks ago, Melrose Terrace residents evacuated their homes as Tropical Storm Irene's rains swelled Whetstone Brook and sent it over its banks.
The 26 residents displaced by Irene have been staying with family or friends or in hotels, said Christine Hart, executive director of the Brattleboro Housing Authority (BHA), which manages Melrose Terrace and five other properties.
Melrose caters to elderly and disabled individuals and the BHA is now paying the bill for most of the temporary housing.
And that's where they will have to stay, in the wake of the town's determination on Oct. 14 that the damage to five of the 17 buildings in the complex is too extensive to issue building permits for the repairs.
Noting that she has dealt with screaming and weeping families as a result of the determination, Hart said that one displaced resident said to her, “Oh, my God, I'm homeless, aren't I?”
On Nov. 7, the BHA will come before the Development Review Board (DRB) to appeal the Zoning Administrator's initial decision.
Immediately after Irene, said Hart, the town told her that the BHA did not need permits, and to start rebuilding, anticipating the town would later award building permits.
Three weeks after the storm, however, the town told the Authority it needed permits because of the town's participation in the federal government's National Flood Insurance Program (NFIP), said Hart.
The BHA did not anticipate the town determining that the buildings would exceed the 50-percent “substantial damage” threshold set by the Federal Emergency Management Agency (FEMA), which administers the NFIP.
If a building needs repairs estimated to cost more than 50 percent of its fair market value, by FEMA standards, it is substantially damaged, and its owner must comply with local zoning and flood prevention upgrade rules.
The town has determined 26 apartments sustained substantial damage. If the town's ruling holds, the Melrose Terrace residents who lived in those units might never return home.
According to a FEMA representative, a municipality determines a building's 50-percent threshold based on a FEMA survey of the damage and the town's assessment of the property's value.
When asked if a town needs to use the data from FEMA's survey to make the 50-percent-threshold determination, Marilyn Hilliard, a FEMA emergency mitigation branch director based in Burlington, initially said that the town could not have made such a determination without the information contained in the FEMA survey.
Hilliard later said that her previous statement actually pertained to the fact that Brattleboro did not make the determination using the FEMA data because it had not received the federal agency's data until after she spoke with The Commons on Monday, Oct. 24.
When making a 50 percent determination, said Hilliard, “FEMA methodology is recommended but not required.”
On Tuesday, Town Planning Director Rod Francis confirmed in an email that his office did not receive FEMA's survey data until that morning.
In the email, Francis also said, “Based on the training we have received from both FEMA personnel and publications as well as the Vermont National Flood Insurance Program (NFIP) support staff, it is not a requirement that the local community wait for the FEMA survey prior to making a determination of substantial damage.”
According to Francis, the planning services department followed FEMA's guidelines and used contractor estimates, or invoices for repair work and the assessed value of the structure from the 2010 town-wide appraisal, to make substantial damage determinations.
“Where [contractor estimates] exceeded 50 percent [of the assessment from the appraisal], the Zoning Administrator concluded substantial damage had potentially taken place,” wrote Francis.
Members of the town planning department, BHA, and FEMA representatives met on Tuesday and looked at FEMA and the town's assessment results of the five Melrose buildings.
According to Hart, FEMA's survey numbers “are preliminary” and the BHA will still need to appeal to the DRB.
“I continue to be eager to work with the BHA to continue to expand their options to increase their housing stock,” Assistant Town Manager Patrick Moreland said.
“The town does not benefit from the BHA being harmed” or closing down units, he added, noting that Melrose Terrace has a waiting list.
Sheltering after Irene
Hart said that the town doesn't seem to understand the upheaval, anxiety, and stress the situation has caused for the displaced residents whose housing situation suddenly stands “at the beck and call of the town.”
“Does the town care?” Hart asked. “To the town, it's just buildings in the floodway.”
The flood damage ranged from minor to “significant” at the housing complex but was primarily “unit specific,” said Hart.
A combination of FEMA occupancy dollars and funds from the BHA pays the hotel bills. The FEMA occupancy dollars have run out for many of the residents, so BHA has picked up the entire hotel tab, said Hart, who estimates that the weekly charge for a hotel room is around $700 per person.
Irene's damage, followed by the town's decision, has “affected deeply and badly” these residents' lives, said Hart.
“They [the residents] can't understand why the town is doing this to them,” Hart said.
In Hart's opinion, the town based its Melrose Terrace decision on procedure without considering the “emotional, mental, and physical health of the people.”
“It's devastating how the town is blithely going along and playing with the lives of 26 people,” Hart said.
Substantially damaged
According to Brian Bannon, town zoning administrator, he has reviewed 80 permit applications townwide. Most, he said, came in under the 50-percent threshold and he has awarded the permits administratively.
All but the five Melrose buildings have received building permits, he said.
The DRB will hear the appeal for two substantially damaged properties in Brattleboro at its Nov. 7 hearing in addition to those at Melrose, he said. A third will go before the board in the future.
According to Bannon, if a building is substantially damaged then it requires substantial repairs. This level of damage bumps the building into a new set of upgrades and building codes, such as elevating residential structures one foot above the expected flood level.
The reason for the DRB hearing, said Bannon, is that the quasi-judicial board can consider information that he cannot.
The process follows many of the guidelines set up by FEMA in its flood-insurance program, said Bannon. FEMA provides the town with “technical support” upon request, but the Melrose Terrace buildings are a “local zoning matter,” he said.
According to Bannon, as a condition of Brattleboro's participation in the NFIP, the town adopted some of FEMA's flood-related language in its zoning bylaws.
The 50-percent determination requires analysis of both a damaged building's value and the cost to repair the damage.
But who determines these figures?
According to Hilliard, local officials do - in this case, Bannon.
To keep all evaluations consistent, FEMA uses a combination of onsite evaluations and fair-market assessments when it surveys damage, said Hilliard. Because Vermont uses a common level of assessment, FEMA will accept a town's assessment of a property's value.
One FEMA tool local official can employ, said Hilliard, is called the “substantial damage evaluation.”
FEMA conducted onsite evaluations of Melrose Terrace at the town's request and sent its survey to the town, said Hilliard, but that data was received only this Tuesday.
FEMA does not determine if a substantially damaged building should be closed or demolished, said Hilliard.
Based on Bannon's calculations, the least damaged building of the five totaled 69 percent of its fair market value. The estimated cost to repair the most damaged building hit 180 percent of its value.
But, FEMA does not have any say in the town's process beyond providing technical assistance to the DRB.
“It's definitely the town's process,” Bannon said, adding that the town welcomes FEMA's input but will make its own decisions regarding awarding permits.
FEMA requires that all buildings under a town's NFIP policy meet the program's standards; otherwise, the town, its residents, and its businesses can lose their flood-insurance coverage.
Bannon felt the town and the housing authority had “some level of consensus” regarding the amount of damage at Melrose.
For this reason, the BHA held off submitting a permit application until it contracted Dart Everett, a local real estate appraiser, to do a second market assessment, said Bannon.
“This is a process, not just for the BHA, but that we're applying throughout town, and it's a difficulty other property owners are having to confront and deal with,” Bannon said.
According to Moreland, town statute directs the zoning administrator to make certain zoning decisions like whether a property has sustained substantial damage.
Moreland didn't think the zoning administrator had to consult with an attorney regarding zoning decisions because Bannon isn't making a legal decision. Instead, the zoning administrator makes a determination regarding FEMA's 50-percent threshold, and that process allows property owners to appeal the decision before the DRB.
The town supports the zoning administrator's decision, said Moreland, because its not appropriate for the town administration to attempt to sway a town department's decisions.
Assessing the threshold
Russ Rice, a part-time appraiser with the Lister's Office, said the initial property value numbers the town used when considering Melrose Terrace's permits came from the May town-wide appraisal.
According to Rice, fair-market value for “exempt properties” like Melrose is based on the “depreciated cost” of the buildings.
According to the town's 2011 Grand List, the 62 units for Melrose Terrace are valued at $2,245,540.
According to Hart, the BHA pays, in lieu of taxes, an annual sum based on a formula by the U.S. Department of Housing and Urban Development (HUD). This amounted to $28,307 for 2011.
To calculate the assessment of an exempt property, Rice said he must follow a “state-mandated approach” when figuring out the net income of a specific property.
The depreciated cost refers to the loss of property value due to conditions such as the structure's age or physical deterioration, Rice said.
Rice said he assessed the Melrose Terrace buildings at $31,000 per unit, comparable to Westgate Apartments, at $31,000 per unit; Green Mountain Apartments, at $30,000 per unit; Adair Heights, at $19,000 per unit; the Abbott Block, at $29,000 per unit; and Fairview Village, at $22,000 a unit.
Land value is not included in the fair-market value, said Rice.
“We thought the [appraised] value was low,” Hart said, which is why the agency sought the second assessment from Everett.
Everett's appraisal showed that the damage to one of the five units fell under FEMA's 50-percent threshold while the others were above.
Hart said the BHA contacted its contractor and asked if he could lower his estimates. This is a common practice during construction projects, she added.
The contractor lowered the scope of work and the corresponding cost, and the BHA took the new numbers and appraisal to the town, said Hart.
The BHA is working with “real numbers” using local contractors, said Hart.
On Oct. 14, BHA Finance Manager Mary Houghton contacted the town to report the housing authority had a formal market appraisal and new contractor estimates. Instead, said Hart, that afternoon the BHA received a determination letter from the town dated the same day.
According to Hart, Brattleboro's was the only housing authority in the state that suffered Irene-related damage.
Hart said she has not had any previous conversation with the town about closing BHA buildings because of flood concerns.
From the time the town told Hart that the Melrose units needed permits, Hart said she held the “firm belief” that the BHA and town were “working with an up-front, open, honest platform with the town.”
“I don't know why that changed,” Hart said, adding she was “taken aback” by the town's “aggressive stance” regarding awarding permits.
Impacts
The BHA and the town have evacuated Melrose tenants numerous times over the years as precaution during high water, but Hart said that in the past 20 years, the complex has had only one incident with flooding, when the Whetstone flowed into three or four apartments.
Hart said she has to contact HUD because “at the end of the day, HUD owns Melrose Terrace.”
If the town shuts down any of Melrose Terrace, it will have to deal with HUD, she added.
According to Hart, HUD has different numbers for calculating construction and total redevelopment of housing authority properties.
Even if BHA rehabilitated every Melrose Terrace building, the repair cost wouldn't “get near HUD's numbers,” said Hart.
The town's recent flood damage ruling is not the first time Melrose Terrace has dealt with floodplain issues.
Changes to HUD's regulations governing buildings in floodplains and Brattleboro's zoning regulations have grown around the grandfathered housing complex over the past five decades.
Hart told The Commons in May that HUD will not fund improvements to the neighboring Hayes Court buildings because the structures sit in a flood plain. This decision prompted the housing authority to launch a new construction project to demolish the buildings in the flood plain and rebuild a 36-unit Enhanced Living Facility elsewhere on the property.
The Hayes project is on hold in light of issues at Melrose, said Hart.
According to Hart, Melrose Terrace, built in 1962, predates the town's or HUD's flood plain maps.
Melrose Terrace is also in a flood plain, said Hart. HUD will not allow the the BHA to make more than $300,000 worth of improvements within a five-year period.
In the 1970s, however, she said in May, HUD but did not pay much attention to flood plains.
Permanently closing the 26 units will have an “immediate” economic effect on the housing authority. Without the units, said Hart, the BHA will lose the HUD subsidies connected to the apartments.
“It's a big financial issue for us,” she said.
According to Hart, “many of the Melrose residents have lived and worked in Brattleboro their whole lives and this is what happens to them?” She said that the BHA is “going to work our tails off” to find every displaced Melrose resident a new place to live.
But knowing BHA's commitment also makes it easier for the town to shutter the five buildings, said Hart.