Number 14. July 31, 1967

Number 14. July 31, 1967. Honorable Theodore W. Schulenberg, Commissioner of Commerce and Development Dear Commissioner Schulenberg: — You have asked for my opinion on certain questions relating to the renovation of a state aided low-rent housing project. You state: "The Lynn Housing Authority has made application for approval by the Division of Housing within our Department of Commerce and Development of a project involving a substantial remodeling, reconstruction, repair and renovation of an existing state aided Housing Project. The existing project known as 'American Park' was completed some eighteen years ago under the applicable provisions of Chapter 1 2 1 of our General Laws. It is a complete- ly state aided low rental project and not federally aided. The Au- thority now deems it necessary and has plans for an extensive re- modeling, reconstruction and renovation job which includes en- larging some of the units to make them available for larger fami- lies of low income. The cost of this work will be quite substantial. You then ask the following four questions, which 1 have renumbered for convenience in answering: " 1 . Are Sections 26 J and 26 NN of Chapter 1 2 1 as amended by Chapter 705 of the Acts of 1 966 or any other sections of said Chapter 121 applicable to a project of renovation, remodel- ing, reconstruction and repair of an existing state aided low rental Housing Project such as herein described? (Emphasis in original.) "2. Does the Division of Housing within the Department of Commerce and Development have the authority to approve an application from the Lynn Housing Authority for a proj- ect herein described, thereby committing the Commonwealth to obligations described in Chapter 1 2 1 as amended? "3. If your answer [to Question 1 ] is 'yes', does the new project of renovation etc. come within the scope of Section 6 of Chapter 705 of the Acts of 1966, thereby qualifying it for the annual contribution by the Commonwealth of 5% rather than 2 '/2 % of cost? "4. May it be determined in your opinion that Section 3 of Chap- ter 705 of the Acts of 1 966 is not applicable to our instant case?" 58 P.D. 12 General Laws c. 1 2 1 , § 26J (as most recently amended by c. 705 of the Acts of 1 966) defines a "low-rent housing project," in relevant part, as fol- lows: ". . . (2) any work or undertaking to provide decent, safe and san- itary dwellings, apartments, or other living accommodations for families of low income. . . The term 'project' may also be applied to the planning of the buildings and improvements, the acquisi- tion of property, the demolition of existing structures, the con- struction, reconstruction, alteration and repair of the improve- ments and other work performed in connection therewith. Con- struction activity in connection with a project may be confined to the reconstruction, remodeling or repair of existing buildings." (Emphasis supplied.) General Laws c. 1 2 1 , § 26NN begins as follows: "The commonwealth, acting by and through the [Division of Housing in the Department of Commerce and Development*], may enter into a contract or contracts with a housing authority for state financial assistance in the form of a guarantee by the commonwealth of notes and/or bonds of the housing authority is- sued to finance the cost of a housing project or projects, and an- nual contributions by the commonwealth." Since it is clear from the above-quoted portion of § 26NN that the Divi- sion of Housing may, on behalf of the Commonwealth, give financial assist- ance to a local housing authority for a "housing project," the answer to your first question depends, as you correctly point out, upon whether or not a "low-rent housing project" as defined in § 26J includes the renovation of an existing project. Your second question raises the same issue. The definition of a "low-rent housing project," quoted above, is very broad. In relation to the making of renovations, the definition is sufficiently comprehensive to include not only work performed on buildings acquired by purchase but also work performed on buildings originally constructed by a housing authority itself, as the Lynn project appears to have been. I find nothing in the definition that excludes renovation of the latter class of build- ings. Any suggestion that such renovations should be excluded is opposed not only by the broad provision, already quoted, but by the purpose of the statute "to provide decent, safe and sanitary dwellings, apartments, or other living accommondations for families of low income." G. L. c. 121, § 26J. Plainly, this objective could not be fulfilled if renovations of buildings ori- ginally constructed by a housing authority itself were prohibited and the structures were not merely allowed to decline into obsolescence but were re- quired to lapse into that condition. The answer to your second question requires but one more reference to the statute. Section 26NN(b) of c. 121 states, in relevant part: "Each such annual contribution by the Commonwealth to the housing authorities shall he paid by the Commonwealth upon ap- proval and certification hy the [Division of Housing] to the state comptroller." (Emphasis supplied.) 1 assume that the Department's authority, so far as material to this opinion, is to be exercised by the Division of Housing. P.D. 12 59 This specific language, combined with the opening statement in § 26NN, quoted above, leads me to conclude that the Division of Housing has the au- thority to approve the stated application of the Lynn Housing Authority and may thereby commit the Commonwealth to the indicated obligations. Your third question concerns the effect of § 6 of c. 705 of the Acts of 1966. That section states in part: ". . . [T]his paragraph and the following paragraph shall apply to those projects which are completed after (July I, 1966]. Each contract for state financial assistance or for supplementary state financial assistance shall provide that the commonwealth will pay to the housing authority annual contributions; provided, however, that the total amount of such additional annual contributions con- tracted for by the commonwealth for any one year shall not ex- ceed one million eight hundred and seventy-five thousand dollars. The annual contributions for any one project shall he payable in an amount not exceeding five per cent of the cost of the project, as determined by the [Division of Housing]. ..." (Emphasis sup- plied.) Its effect was to increase the amount of the annual contributions by the Commonwealth for any one project completed after July 1, 1966 from 2'/2% to 5% of the total cost. Since the renovation proposed by the Lynn Housing Authority would, in my opinion, qualify as a ''project," it follows that the five per cent rate will apply. Your fourth question asks if § 3 of c. 705 of the Acts of 1966 is applica- ble to this case. That section amends § 26AA of c. 1 2 1 relative to the condi- tions of the Division's approval of a project and the requirements of a pub- lic hearing thereon. The amendment specifically exempts, however, ". . . projects involving the reconstruction, remodeling or repair of existing build- ings. ..." I therefore conclude that § 26AA as thus amended is not applica- ble to the instant case. Very truly yours, Elliot L. Richardson, Attorney General