HCR-37-09-00006-P Low-Income Housing Credit Qualified Allocation Plan
9/16/09 N.Y. St. Reg. HCR-37-09-00006-P
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 37
September 16, 2009
RULE MAKING ACTIVITIES
DIVISION OF HOUSING AND COMMUNITY RENEWAL
PROPOSED RULE MAKING
HEARING(S) SCHEDULED
I.D No. HCR-37-09-00006-P
Low-Income Housing Credit Qualified Allocation Plan
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 2040 of Title 9 NYCRR.
Statutory authority:
Executive Order No. 135, dated February 27, 1990, as continued by Executive Order No. 9, dated June 18, 2008; U.S. Internal Revenue Code, section 42(m); Public Housing Law, section 19
To amend threshold criteria and application scoring utilized in the allocation of low-income housing credits.
Public hearing(s) will be held at:
1:30 p.m., Nov. 2, 2009 at NYSDHCR, 38-40 State St., Hampton Plaza Ballroom, Albany, NY; 1:30 p.m., Nov. 2, 2009 at NYSDHCR, 25 Beaver St., Rm. 510, New York, NY; 1:30 p.m., Nov. 2, 2009 at NYSDHCR, 620 Erie Blvd. W, Suite 312, Syracuse Conference Rm., Syracuse, NY; 1:30 p.m., Nov. 2, 2009 at NYSDHCR, 535 Washington St., Suite 105, Buffalo Conference Rm., Buffalo, NY.
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Text of proposed rule:
9 NYCRR Part 2040 is amended as follows:
Subdivisions (k) through (v) of section 2040.2 are renumbered as subdivisions (l) through (w), respectively.
A new subdivision (k) of section 2040.2 is adopted to read as follows:
(k) Historic building shall mean a structure that meets one of the following criteria:
(1) it is listed on the New York State or National Register of Historic Places, either individually or as a contributing building to a historic district; or
(2) it has been issued a Determination of Eligibility by the Keeper of the National Register of Historic Places; or
(3) it has been identified as a contributing building to a Local Historic District that has been certified by the Keeper of the National Register of Historic Places as substantially meeting the National Register Criteria for Evaluation; or
(4) it has been issued a State Historic Preservation Officer opinion or certification that the building is eligible to be listed on the National Register of Historic Places, either individually or as a contributing building to a historic district.
Subdivision (a) of section 2040.3 is amended to read as follows:
(a) Funding rounds. The division[, no later than January of each year,] will publish at least annually in the State Register a notice of credit availability which informs applicants of submission dates and deadlines for future funding rounds.
Subdivision (e)(15)(i) of section 2040.3 is amended to read as follows:
(i) it is a preservation project (as defined at section 2040.2[(q)] (r)of this Part); or
Subdivision (e)(18) of section 2040.3 is repealed and a new subdivision (e)(18) is adopted to read as follows:
(18) The project must meet the following green building measures:
(i) select native or non-invasive new trees and plants that are appropriate to the site's soil and microclimate;
(ii) where indicated by local conditions: for new construction, install a passive radon-reduction system to be activated should tests confirm the presence of radon gas in the building; or, for rehabilitation projects, install passive radon-reduction measures to be activated should tests confirm the presence of radon gas in the building upon completion; and
(iii) for properties built before 1978, use lead-safe work practices during renovation, remodeling, painting and demolition.
A new subdivision (e)(19) of section 2040.3 is adopted to read as follows:
(19) Projects must meet an energy efficiency standard as specified in a Request for Proposals published at least annually by DHCR, and shall include the following energy efficiency measures:
(i) new heating systems must utilize Energy Star heating equipment, or the equivalent which will produce the same or comparable energy efficiency or savings;
(ii) new lighting must be Energy Star labeled lighting fixtures in all residential units, and Energy Star or high efficiency commercial grade lighting fixtures in all common areas and exterior locations with the exception of light fixtures located in basements or storage areas;
(iii) new plumbing fixtures must be of a water-conserving type;
(iv) daylight sensors or timers on outdoor lighting must be installed to maximize energy efficiency;
(v) appliances that are labeled Energy Star, including refrigerators and other appliances must be utilized to the greatest extent possible.
Subdivision (f)(1)(iii) of section 2040.3 is amended to read as follows:
(iii) the project is part of a comprehensive community revitalization plan which includes the use or reuse of existing buildings, which may include the historic rehabilitation of existing buildings, and addresses employment, educational, cultural [and] or recreational opportunities within the community (5 points);
Subdivision (f)(4) of section 2040.3 is repealed and a new subdivision (f)(4) is adopted to read as follows:
(4) Green building (up to10 points).
Green building consists of three major components: mandatory criteria (required to qualify for points); standard green building criteria (points awarded for compliance); and green measures beyond the standard criteria (additional points awarded for compliance after meeting the standard criteria).
(i) Mandatory criteria (must satisfy all):
(a) submission of a green development plan outlining an integrated design approach for the operation and development of the project;
(b) a surface water management plan; and
(c) a green building operation plan that includes a manual prescribing proper building maintenance, a handbook and an orientation program for tenants and residents which provides information and training on the proper operation of relevant green features.
(ii) Standard green building criteria (7 points total). Scored to the extent the project includes:
(a) smart growth principles including location and neighborhood fabric measures (up to 3 points);
(b) a Phase I Environmental Site Assessment (1 point);
(c) healthy living environment measures, which promote the use of non-toxic materials and improves indoor air quality (up to 3 points).
(iii) Green measures beyond the standard criteria (3 points). Scored to the extent the project meets the minimum standard criteria in (ii) above and includes at least one of the following green building measures:
(a) project is located on a brownfield, grayfield or adaptive reuse site;
(b) installation of an acceptable renewable energy system that will provide at least 10 percent of the project's estimated electricity; or
(c) utilization of various building products and techniques beneficial to the environment.
Subdivision (f)(5) of section 2040.3 is amended to read as follows:
(5) Long Term Affordability ([7]5 points). Scored on the extent the applicant proposes to enter into an extended use agreement, which may include a commitment to convey ownership to a local non-profit organization, to operate the project as a qualified low-income housing project for a period longer than 30 years.
Subdivision (f)(6) of section 2040.3 is amended to read as follows:
(6) Fully accessible and adapted, move-in ready units ([6]up to 5 points): Scored on whether:
(i) at least 5 percent (rounded up to the next whole number) of the project units are fully accessible and adapted, move-in ready, which includes a roll-in shower, for person(s) who have a mobility impairment and the unit(s) will be marketed to households with at least one member who has a mobility impairment; and at least 2 percent (rounded up to the next whole number) of the project units are fully accessible and adapted, move-in ready for person(s) who have a hearing or vision impairment and the unit(s) will be marketed to households with at least one member who has a hearing or vision impairment ([3] 2 points); or
(ii) the percentages of units meeting the requirements of subparagraph (i) of this paragraph are equal to or exceed 10 percent and 4 percent (rounded up to the next whole number) respectively (a minimum of two units each)([6]5 points).
Subdivision (f)(9) of section 2040.3 is amended to read as follows:
(9) Energy efficiency (5 points). Scored to the extent the applicant demonstrates that, if approved for a credit reservation by the division, [it] the project will be eligible for, will participate in, and will meet the energy efficiency standards of the New York State Energy Research and Development Authority Multifamily Building Performance Program or the New York Energy Star Labeled Homes Program or, [if the project is not eligible to participate in the aforementioned programs,]the applicant demonstrates that, if approved for a credit reservation by the division, the project will meet comparable energy efficiency standards acceptable to the division.
Subdivision (f)(13)(iii) of section 2040.3 is amended to read as follows:
(iii) whether a non-profit organization that does not qualify as a local non-profit organization under section 2040.2([m]n), or its for-profit wholly owned subsidiary, has a defined and substantive role in the development or management of the project through the extended use period (1 point).
Subdivision (f)(15) of section 2040.3 is renumbered as subdivision (f)(16) and amended to read as follows:
([15]16) Project amenities (maximum of 2 points). Scored to the extent the project provides any of the following (1 point each):
(i) access to discounted broadband internet service to each residential unit;
(ii) on-site Energy Star appliances or equivalent in common laundry facilities, or washer/dryer hookups in each residential unit;
(iii) Energy Star central air-conditioning or the equivalent that will produce comparable energy efficiency or savings;
(iv) an outdoor recreational area or garden space;
(v) Energy Star dishwashers or the equivalent that will produce the same or comparable energy efficiency or savings in each residential unit and the community kitchen, if any; [and/]or
(vi) a computer lab equipped with Energy Star or equivalent computers and equipment, with a minimum of one computer for every 20 residential units.
A new subdivision (f)(15) of section 2040.3 is adopted to read as follows:
(15) Historic nature of project (up to 3 points). Scored on whether:
(i) the project includes the rehabilitation of a historic building (2 points);
(ii) the applicant demonstrates that the project will include a building that will be eligible for, and the applicant will seek, a federal tax credit for the rehabilitation of historic buildings (1 point).
Subdivision (a) of section 2040.6 is amended to read as follows:
(a) Information requests. Requests for information made under the Freedom of Information Law, must be in writing, and may be mailed to DHCR's Office of Legal Affairs, 38-40 State Street, Albany, NY 12207, or e-mailed to FOIL@[dhcr.state.ny.us]nysdhcr.gov.
Subdivision (b)(2)(ii)(b) of section 2040.8 is amended to read as follows:
(ii)(b) after initial income certifications have been completed for all units in a project, the certification required by this subparagraph shall not be required for projects in which 100 percent of the [if a waiver of the annual income recertification has been obtained for the project from the U.S. Internal Revenue Service (the "IRS") and a copy of the recertification waiver has been attached to the annual certification required by this section. The division shall not provide a statement in support of an owner's application for a recertification waiver to the IRS that each] residential [rental] units are LIHC qualified [in the building was a] low-income units, [under section 42 of the code at the end of the most recent credit period for the building, if the division has] unless: (1) DHCR has determined that the project is not in compliance with the provisions of this low-income housing credit qualified allocation plan, the code or the regulatory agreement required by section 2040.5 of this Part; (2) DHCR has notified the project owner of the event(s) of noncompliance; and (3) the project owner has not documented correction of, or otherwise resolved, the noncompliance to the satisfaction of the division;
Subdivision (c) of section 2040.14 is amended to read as follows:
(c) Funding rounds. A notice of credit availability will be issued annually by the DHCR [within six months of] following enactment of statute providing credit allocation authority. Such notice shall remain in effect until such time as the SLIHC credit allocation authority is expended or expired.
Subdivision (d)(4) of section 2040.14 is repealed and a new subdivision (d)(4) is adopted to read as follows:
(4) Green building (up to10 points).
Green building consists of three major components: mandatory criteria (required to qualify for points); standard green building criteria (points awarded for compliance); and green measures beyond the standard criteria (additional points awarded for compliance after meeting the standard criteria).
(i) Mandatory criteria (must satisfy all):
(a) submission of a green development plan outlining an integrated design approach for the operation and development of the project;
(b) a surface water management plan; and
(c) a green building operation plan that includes a manual prescribing proper building maintenance, a handbook and an orientation program for tenants and residents which provides information and training on the proper operation of relevant green features.
(ii) Standard green building criteria (7 points total). Scored to the extent the project includes:
(a) smart growth principles including location and neighborhood fabric measures (up to 3 points);
(b) a Phase I Environmental Site Assessment (1 point);
(c) healthy living environment measures, which promote the use of non-toxic materials and improves indoor air quality (up to 3 points).
(iii) Green measures beyond the standard criteria (3 points). Scored to the extent the project meets the minimum standard criteria in (ii) above and includes at least one of the following green building measures:
(a) project is located on a brownfield, grayfield or adaptive reuse site;
(b) installation of an acceptable renewable energy system that will provide at least 10 percent of the project's estimated electricity; or
(c) utilization of various building products and techniques beneficial to the environment.
Subdivision (d)(6) of section 2040.14 is amended to read as follows:
(6) Long term affordability ([7]5 points). Scored on the extent the applicant proposes to enter into an extended use agreement, which may include a commitment to convey ownership to a local non-profit organization, to operate the project as an eligible low-income housing building(s) for a period longer than 30 years.
Subdivision (d)(7) of section 2040.14 is amended to read as follows:
(7) Fully accessible and adapted, move-in ready units ([6]up to 5 points): Scored on whether:
(i) at least 5 percent (rounded up to the next whole number) of the project units are fully accessible and adapted, move-in ready, which includes a roll-in shower, for person(s) who have a mobility impairment and the unit(s) will be marketed to households with at least one member who has a mobility impairment; and at least 2 percent (rounded up to the next whole number) of the project units are fully accessible and adapted, move-in ready for person(s) who have a hearing or vision impairment and the unit(s) will be marketed to households with at least one member who has a hearing or vision impairment ([3] 2 points); or
(ii) the percentages of units meeting the requirements of (i) above are equal to or exceed 10 percent and 4 percent (rounded up to the next whole number) respectively (a minimum of two units each)([6]5 points).
Subdivision (d)(9) of section 2040.14 is amended to read as follows:
(9) Energy efficiency (5 points). Scored to the extent the applicant demonstrates that, if approved for a credit reservation by the division, [it] the project will be eligible for, will participate in, and will meet the energy efficiency standards of the New York State Energy Research and Development Authority Multifamily Building Performance Program or the New York Energy Star Labeled Homes Program or, [if the project is not eligible to participate in the aforementioned programs,]the applicant demonstrates that, if approved for a credit reservation by the division, the project will meet comparable energy efficiency standards acceptable to the division.
Subdivision (d)(14) of section 2040.14 is renumbered as subdivision (d)(15) and amended to read as follows:
(1[4]5) Project amenities (maximum of 2 points). Scored to the extent the project provides any of the following (1 point each):
(i) access to discounted broadband internet service to each residential unit;
(ii) on-site Energy Star appliances or equivalent in common laundry facilities, or washer/dryer hookups in each residential unit;
(iii) Energy Star central air-conditioning or the equivalent that will produce comparable energy efficiency or savings;
(iv) an outdoor recreational area or garden space;
(v) Energy Star dishwashers or the equivalent that will produce the same or comparable energy efficiency or savings in each residential unit and the community kitchen, if any; [and/]or
(vi) a computer lab equipped with Energy Star or equivalent computers and equipment, with a minimum of one computer for every 20 residential units.
A new subdivision (d)(14) of section 2040.14 is adopted as follows:
(14) Historic nature of project (up to 3 points). Scored on whether:
(i) the project includes the rehabilitation of a historic building (2 points);
(ii) the applicant demonstrates that the project will include a building that will be eligible for, and the applicant will seek, a federal tax credit for the rehabilitation of historic buildings (1 point).
Text of proposed rule and any required statements and analyses may be obtained from:
Arnon Adler, Division of Housing and Community Renewal, 38-40 State Street, Albany, New York 12207, (518) 486-5044, email: aadler@nysdhcr.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
Five days after the last scheduled public hearing.
This action was not under consideration at the time this agency's regulatory agenda was submitted.
Regulatory Impact Statement
1. Statutory Authority:
Executive Order Number 135, dated February 27, 1990 (as continued by Executive Order Number 9, dated June 18, 2008) authorizes the Division of Housing and Community Renewal's ("DHCR") Commissioner to administer New York State's annual allotment of federal low-income housing tax credits ("Credit"). U.S. Internal Revenue Code ("IRC") Section 42(m) requires that Credit be allocated pursuant to a "qualified allocation plan" ("QAP"), which DHCR promulgates as a rule. The 2009-2010 State Budget authorizes DHCR to collect fees for Credit program administration ("LIHC Program").
Public Housing Law Article 2-A (the "Act") created the New York State Low-Income Housing Tax Credit Program ("SLIHC Program"). The Act authorizes DHCR to allocate New York State tax credits to those who invest in eligible housing, promulgate rules necessary to administer the SLIHC Program, and also provides that IRC Section 42 shall apply to the SLIHC Program. 9 NYCRR Sections 2040.1 - 2040.13 provide the framework for LIHC Program administration, and 9 NYCRR Section 2040.14 provides the framework for SLIHC Program administration.
2. Legislative Objectives:
Both the LIHC and SLIHC Programs were enacted to encourage private investment in housing that is affordable to low-income persons. The LIHC Program authorizes states to allocate Credit to owners of low-income housing which meets IRC section 42 requirements.
The most significant difference between the LIHC and SLIHC Programs is that LIHC Program is for housing for households earning up to 60 percent of the area median income ("AMI"), while the SLIHC is for housing for households earning up to 90 percent of AMI.
3. Needs and Benefits:
The changes to the existing plan ("Existing Rule") made by the proposed rule ("Proposed Rule") would amend 9 NYCRR, Part 2040 to:
(1) Add a defined term "historic building" at section 2040.2(k) to clarify the type of structure which qualifies for points under the new "historic nature of project" scoring category at 2040.3(f)(15). The federal Housing and Economic Recovery Act of 2008 amended the IRC, mandating that states' QAPs have this selection criterion. This will provide incentives for projects which include rehabilitation of a historic building and leverage funding through a federal historic tax.
(2) Revise, at section 2040.3(a), "funding rounds" to clarify DHCR's policy for publishing annual notices of credit availability.
(3) Revise the citation at section 2040.3(e)(15)(i) to reflect the new ordering of definitions.
(4) Delete current threshold green building requirements at section 2040.3(e)(18) and replace with DHCR's current mandatory green building standards. Also, move other current green building provisions to the energy efficiency threshold requirements section - (2040.3(e)(19)) of the Proposed Rule - as described in Paragraph 5 below.
(5) Add a new threshold requirement at section 2040.3(e)(19) requiring projects to incorporate energy efficiency standards to be set forth in DHCR's annual Request for Proposals. This provision provides the flexibility to adjust standards to accommodate constantly evolving industry energy efficiency standards without future rule revisions. This section also incorporates previous "green building" threshold requirements more appropriate to an energy efficiency category, such as Energy Star systems, appliances and lighting fixtures, water-conserving fixtures, and sensors or timers on outdoor lighting. Due to rising energy costs and their impact on project viability and rents, the fact that, over the last two years, most applications incorporated many or all these measures, and that most of these requirements are industry standards, DHCR has determined that these standards should be threshold requirements. DHCR anticipates that either there will continue to be no additional costs incurred, as most projects already incorporate these measures, or that additional costs will be offset by operational cost savings and by the Credit allocated.
(6) Amend the "community revitalization plan" scoring criteria at section 2040.3(f)(1)(iii) replacing the term "and" with "or," to enable projects which are part of such plans to score points if the plan addresses community employment, educational, cultural or recreational opportunities, without addressing all these factors. The amended criteria better measures the need for the type of housing proposed, and recognizes that most locally adopted planning documents do not address all these factors.
(7) Revise the "Green building" scoring criteria at section 2040.3(f)(4) to clarify DHCR's current implementation of this provision. The revised provision clarifies which green building criteria must be satisfied prior to being evaluated for scoring points, which must be addressed to qualify for seven of the 10 points available, and which additional measures will qualify for the remaining three points. The revised criteria also set forth the point values associated with specific criteria. A few participants at the April 2009 roundtable discussion held with affordable housing industry representatives believed this criteria adversely impacted the rural projects. This revision shows that both rural and non-rural projects can qualify for points competitively.
(8) Amend the "long term affordability" scoring criteria at 2040.3(f)(5) to decrease the point value of the category from seven to five points. The points awarded under this provision, which provides points to projects committing to operating as qualified low-income housing projects for terms of longer than 30 years, are obtained by almost all applicants. As previously stated, two scoring points will be reallocated to new scoring criteria "historic nature of project" at section 2040.3(f)(16) in the Proposed Rule.
(9) Amend the "fully accessible and adapted, move-in ready units" scoring criteria at 2040.3(f)(6) to reduce points from six to five. DHCR determined that the reduction will not adversely affect the incentive for projects to include these units for persons with mobility or hearing/vision impairments, or the number of such units proposed. DHCR will reallocate the point to the "historic nature of the project" criterion at 2040.3(f)(16) in the Proposed Rule.
(10) Amend the "energy efficiency" scoring criteria at section 2040.3(f)(9), which provides an incentive to incorporate energy saving measures beyond the threshold requirements, by either involving the expertise and financial resources of NYSERDA or meeting comparable energy efficiency standards without NYSERDA participation. The revised language recognizes that demonstrating eligibility to participate in the NYSERDA Programs or demonstrating that the project will meet comparable energy efficiency standards may be costly and need not be fully explored until after the DHCR has approved for funding and issues a credit reservation.
(11) Revise the citation at section 2040.3(f)(13)(iii) to reflect the new ordering of definitions.
(12) Amend the "project amenities" scoring criteria at 2040.3(f)(16) (formerly 2040.3(f)(15)) clarifying that each of the six provisions is worth one point and that projects may obtain two points maximum. Essentially unchanged, the amended criteria clarify that: access to discounted internet service must be provided to each apartment; Energy Star, or equivalent, appliances can be in common laundry facilities or washer/dryer hook-ups in each apartment; Energy Star, or equivalent, dishwashers must be in each apartment and in any community kitchen; and, a resident's computer lab must be equipped with Energy Star, or equivalent, computer equipment, minimum of one computer for every 20 apartments.
(13) Amend 2040.6(a) to include DHCR's new email address for Freedom of Information Law purposes.
(14) Revise section 2040.8(b)(2)(ii)(b) to provide that certifications of tenant income subsequent to initial income certification, will not be required if all the project's units are LIHC qualified low-income units, to comport with the federal Housing and Economic Recovery Act of 2008, which amended the corresponding provision of the IRC.
(15) Delete and replace SLIHC section 2040.14(c) "funding rounds" to mirror the LIHC revision described in paragraph 2 above and 2040.14(d) "project scoring and rating criteria" as described in paragraphs 6 through 11 in order to coordinate, to the extent possible, the scoring mechanism for both the LIHC and SLIHC Programs.
4. Costs:
(1) Costs to State Government.
There will be no costs to state government because of the proposed amendments to the Existing Rule. DHCR will continue to administer the LIHC and SLIHC Programs with existing staff and resources.
(2) Costs to local government.
None.
(3) Cost to private regulated parties.
The changes made by the Proposed Rule should result in no increased costs to regulated parties. Any increase in costs which result from "energy efficiency" requirements will be offset by the Credit allocated to the project, and cost savings.
5. Local Government Mandates:
None.
6. Paperwork:
The rule requires the filing of an application and supporting documentation to establish eligibility for an allocation of the federal tax credits.
7. Duplication:
None.
8. Alternatives:
The alternative to the Proposed Rule is to retain the Existing Rule which does not adequately address DHCR's need to clarify its funding process and scoring criteria, and to revise its scoring criteria to meet new federal requirements. Specifically:
(1) The alternative to defining "historic building" at section 2040.2(k) and adding the "historic nature of project" scoring criteria at section 2040.3(f)(15) of the Proposed Rule is to fail to comply with a 2008 amendment to the IRC which requires this project selection criterion.
(2) The alternative to revising section 2040.3(a) is to retain the existing provision, which does not correctly indicate the timeframe for DHCR's issuance of a notice of credit availability.
(3) There is no practical alternative to correcting section 2040.3(e)(15)(i) to reflect the new order of the definition of "preservation project" at 2040.2(q).
(4) The alternative to replacing section 2040.3(e)18 is to retain the current text, which does not sufficiently reflect DHCR's current mandatory green building standards and includes provisions more appropriate to new section 2040.3(e)(19) "energy efficiency standards".
(5) The alternative to adding the "energy efficiency" threshold requirements at 2040.3(e)(19) is for the state to fail to incorporate these practices into the Existing Rule, and, as a result, fail to require measures which are needed to ensure affordability, long term viability and energy efficient operation of Credit projects, and conserve energy and water.
(6) The alternative to amending the "community revitalization plan" scoring criteria at section 2040.3(f)(1)(iii) is the current text, which made it virtually impossible for projects to qualify for scoring points. The proposed amendment recognizes that it is sufficient for a project to be part of a comprehensive community revitalization plan which addresses at least one of the community "quality of life" factors referenced in the criteria since most such local plans do not address all of them.
(7) The alternative to revising the "green building" scoring criteria at 2040.3(f)(4) is the current text, which does not clearly denote which mandatory green building criteria must be addressed for projects to qualify for the scoring points and the specific point values associated with the criteria. The language in the Existing Rule required prospective project applicants seeking these scoring points to obtain guidance outside the Rule and raised unwarranted concerns that the criteria adversely affected the competitiveness of rural projects.
(8) The alternative to reducing the point value of the "long term affordability" criteria at section 2040.3(f)(5) is to retain the current point value of this provision, resulting in the failure to reallocate the number of scoring points sufficient to provide projects with the incentive to access the new scoring points for "historic nature of project" at 2040.3(f)(15) in the Proposed Rule; a scoring criterion required by a recent amendment to the IRC.
(9) As noted directly above, the alternative to reducing the number of scoring points for "fully accessible and adapted, move-in ready units" scoring criteria at 2040.3(f)(6) is to fail to provide a sufficient scoring incentive for the new required scoring criteria at 2040.3(f)(15) in the Proposed Rule.
(10) The alternative to amending the "energy efficiency" scoring criteria at section 2040.3(f)(9) is to retain existing text which requires applicants, some with limited financial resources, to incur substantial costs prior to application, and which also fails to provide applicants seeking these points with the option of energy efficient projects that do not include NYSERDA's involvement.
(11) The alternative to amending (section 2040.3(f)(15)of the Existing Rule) the "project amenities" scoring criteria (section 2040.3(f)(16) of the Proposed Rule) is the current text which does not provide clear guidance regarding DHCR's requirements for accessing these points or the point values associated with the criteria.
(12) The alternative to amending section 2040.6(a) is the current text which contains an incorrect DHCR e-mail address for Freedom of Information requests.
(13) The alternative to revising section 2040.8(b)(2)(ii)(b) regarding tenant income certifications is to retain the current text, which would fail to address a recent amendment to the IRC.
(14) The alternative to deleting and replacing section 2040.14(c) "funding rounds" and 2040.14(d) "project scoring and rating criteria" is to retain the current SLIHC funding round and program scoring criteria which would then not track the proposed changes to the LIHC Program, nor the changes required by IRC amendments.
9. Federal Standards:
This Rule does not exceed the minimum standards of the federal government for the LIHC Program or the SLIHC Program.
10. Compliance Schedule:
Not applicable. The rule changes will affect only those who apply to DHCR for allocations of Credit after the amendments to the rule are effective.
Regulatory Flexibility Analysis
The Division of Housing and Community Renewal has found that the proposed amendments to the rule at 9 NYCRR Part 2040 (the "Proposed Rule") will have no negative impact on small businesses. DHCR sought and utilized the advice of persons who represent small businesses in order to ensure that the Proposed Rule would have no negative impact on small businesses. Prior to drafting the Proposed Rule, DHCR held a roundtable discussion in four regions of the State. The invitees included for-profit and not-for-profit housing developers, attorneys, Credit syndicators and representatives of government agencies with an interest in the Credit program. No participant expressed an opinion indicating that any of the roundtable's discussion topics would adversely affect small businesses. Based upon the roundtable, its prior experience in the allocation of Credit to projects which utilize small business services, and the nature of the amendments, DHCR does not anticipate that the Proposed Rule will have any adverse impact on small businesses or local government.
Rural Area Flexibility Analysis
The Division of Housing and Community Renewal (DHCR) has found that the proposed amendments to the Rule at 9 NYCRR Part 2040 will not impose any adverse economic impact on rural areas or reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas. The changes to the existing Rule which would be made by the proposed amendments impose no further requirements in rural areas, will not impose additional capital or compliance costs on person/entities which are located in rural areas, and will have no other adverse impacts on rural areas.
Prior to drafting the Proposed Rule, DHCR held a roundtable discussion in four regions of the State with members of the affordable housing industry who have been active in the Credit program. The invitees included for-profit and not-for-profit housing developers, attorneys, Credit syndicators and representatives of government agencies. No invitee expressed an opinion indicating that the roundtable discussion items would adversely affect rural areas. DHCR's experience with the Low-Income Housing Credit Program and the nature of the amendments are such that no such impact should be anticipated.
Job Impact Statement
The Division of Housing and Community Renewal has found that the proposed amendments to the Rule at 9 NYCRR Part 2040 will have no adverse impact on jobs and employment opportunities. DHCR's experience with the Low-Income Housing Credit Program and the nature of the amendments are such that no adverse impact should be anticipated. The proposed Rule's inclusion of requirements and incentives regarding energy conservation and the minimization of adverse environmental impacts may result in an increase in jobs in related industries.
