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Legal Authorities

Legal Authorities. Statutory Regulatory HUD Notices HUD Notice of Funding Availability HUD 202 / 811 Handbooks. Legal Issues (cont’d ). Where to find all this information ? HUDCLIPS: www.hud.gov click “RESOURCES” click “HUD Handbooks, Forms, Publications”

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Legal Authorities

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  1. Legal Authorities Statutory Regulatory HUD Notices HUD Notice of Funding Availability HUD 202 / 811 Handbooks

  2. Legal Issues (cont’d) Where to find all this information ? HUDCLIPS: www.hud.gov click “RESOURCES” click “HUD Handbooks, Forms, Publications” click “Access HUDCILPS” United States Code: http://www.law.cornell.edu/uscode/

  3. Legal Issues (cont’d) Who can be a sponsor of a 202 and 811 project ? 5 PRONG TEST

  4. Legal issues (cont’d) 1)202: must have 501(c)(3) or 501(c)(4) 811: must be 501(c)(3) 2) No part of the net earnings of which inures to the benefit of any member, founder, contributor or individual 3) Must not be controlled by, or under the direction of, persons or firms seeking to derive profit or gain therefrom 4) Must have a governing board 5) approved by HUD as to administrative and financial responsibility

  5. Legal Issues (cont’d) 202 Sponsor: cannot be a public body or instrumentality of a public body can be a consumer cooperative

  6. Legal Issues (cont’d) EXHIBIT 2: LEGAL STATUS (a)Articles of Incorporation, Constitution or other organizational documents (b) By-laws (c) IRS tax exemption

  7. Legal Issues (cont’d) EXHIBIT 2: Legal Status Co-sponsors Begin and End dates IRS Tax Exemption Ruling

  8. Legal Issues (cont’d) Exhibit 2: What is Legal Review looking for? Whether sponsor has the legal authority to sponsor the project, to assist the owner and to apply for the capital advance. Whether there are inconsistencies between sponsor’s legal documents and HUD’s statutory, regulatory and NOFA requirements.

  9. Legal Issues (cont’d) EXHIBIT 2: Legal Status There must be language in the legal documents stating no part of the sponsor’s net earnings inures to the benefit of any private party Nothing in the by-laws, sponsor’s organizational or legal documents can conflict with this requirement

  10. Legal Issues (cont’d) EXHIBIT 2: Legal Status “Self-dealing” provisions in by-laws problematic No cure for “self-dealing”

  11. Legal Issues (cont’d) Exhibit 4(d): Site Control There have been no changes to the site control requirements. 202 vs. 811 202: No site control results in rejection 811: No site control placed in Category B

  12. Legal Issues (cont’d) Deed or long-term leasehold Contract of sale Option to purchase or for a long-term leasehold

  13. Legal Issues (cont’d) Site covered by a HUD mortgage Sites acquired from a public body

  14. FY2009 Section 202 Allocation Formula One-person Very Low-Income Renter Households with one person Very Low-Income Age 62+ With Housing Conditions Incomes at or below the 1 person Section 8 Income Limit (Very Low-Income Limit)

  15. FY2009 Section 202 Allocation Formula (cont’d) With Housing Conditions: - Living in a unit lacking plumbing or kitchen facilities - Overcrowded - Excess Rent Burden: more than 30% of income for rent Data Source: 2000 Census Special Tabulations of Households

  16. FY2009 Section 202 Allocation Formula (cont’d) Each HUD Office jurisdiction is allocated funds for a metropolitan share and a non-metropolitan share. For FY09, each jurisdiction receives sufficient capital advance funds for a minimum of 20 units in the metro portion and 5 units in the non-metro portion.

  17. FY2009 Section 202Evidence of Need Sponsor’s evidence of need should include: Estimate of demand Market conditions in existing supply (Public Housing, RHS, LIHTC, Sec. 8, & 202) Assisted housing under construction

  18. FY2009 Section 202Evidence of Possible Lack of Demand Projected long-term decline in age-cohorts for target population Slow absorption in newer units Persistently high vacancies Widespread use of age-waivers Evidence of new projects filling at the expense of existing ones

  19. FY2009 Section 202EMAD Points Awarded for Market Need Only projects in market areas with sufficient demand will be rated Projects will receive 10, 5, or 0 points based upon the unmet need and unmet needs ratio: project units as a percent of the unmet need

  20. FY2009 Section 202EMAD Points Awarded for Market Need Unmet need is the number of one-person renters age 75 with very-low incomes and with housing conditions, minus any rental assistance provided since 2000 If the unmet need is positive, rating based on unmet needs ratio: 15 percent or less – 10 points Greater than 15 percent – 5 points If the unmet need is 0 or negative – 0 points

  21. FY2009 Section 811 EMAD will not conduct market reviews of Section 811 applications and will not assign rating points EMAD will provide assistance to the field Housing staff in cases where there is a concern about market conditions

  22. FY2009 Section 202 Special Tabulations of Households for 1990 and 2000 http://www.huduser.org/datasets/ spectabs.html

  23. Questions? Please contact your local field economist with any questions regarding the data, metropolitan definitions, or evidence of need.

  24. OverviewFair Housing/Civil Rights Matters Civil Rights Threshold Review Rating Factor 1.b.(1) Rating Factor 1.b.(2) Rating Factor 3.c. – Section 811 3.b. – Section 202 Rating Factor 3.l.(1) and (2) – Section 811 3.k.(1) and (2) – Section 202

  25. Overview (cont’d) Rating Factor 2.b. Rating Factors: 3.g. – Section 811 3.i. – Section 202

  26. Civil Rights Threshold Review Section III.C.2.c. of the General Section of the NOFA

  27. Rating Factor 1.b.(1) Scope, extent, and quality of your experience in providing housing or related services to minority persons or minority families Worth a maximum of five (5) points

  28. Significant Previous Experience The percentage of minorities being provided housing or services in the applicant’s current projects are equal to or greater than the percentage of minorities in the housing market area where the housing or services are provided

  29. Rating Factor 1.b.(2) The scope, extent, and quality of relationships overtime with minority communities Worth a maximum of two points

  30. Rating Factor 3.c.–811 & 3.b.– 202 The suitability of the site in providing greater housing choice to minorities and persons with disabilities and affirmatively furthering fair housing Worth a maximum of 8 points for Section 811 9 points for Section 202 24 CFR 891.125(b) and (c)

  31. How to meet Rating Factor 3.c. For non-minority neighborhood For minority neighborhood

  32. Rating Factor 3.l.(1) and (2) for Section 811 3.k.(1) and (2) for Section 202 The number of jobs created The type and amount of contracts generated How Section 3 residents and businesses will be targeted for these opportunities

  33. Rating Factor 2.b Connection between the project and the community’s planning document that analyzes fair housing issues

  34. Rating Factors 3.g. – Section 8113.i. – Section 202 The inclusion of the target population in the development and implementation of the project

  35. Contact Information Gwendolyn.V.Jackson@HUD.gov (202) 402-7008

  36. SITE SELECTION AND THE ENVIRONMENTAL REVIEW PROCESS

  37. General Timing of environmental review 811s with site control & 202s at application processing stage 811s approved as Category B or changed site for approved grant prior to issuance of FIRM Same environmental requirements as at time of SuperNOFA

  38. General (cont’d) 202/811 Sponsors and HUD are partners And HUD wants Sponsors to: Find a site with no concerns/easily resolvable concerns, especially Toxic Hazards Historic Preservation Floodplain or Wetland

  39. General (cont’d) HUD wants Sponsors to provide certain information to HUD: • Phase I ESA • Comprehensive Asbestos building survey when pre-1978 structures (other than just 1-4 units; technical correction for 811) • Historic Preservation • Other information as requested

  40. General (cont’d) HUD appraiser will perform environmental review based on Sponsor provided information Research Legwork

  41. Curable Deficiencies Phase I ESA Comprehensive Asbestos Bldg Survey or no- pre 1978 Structure, or only 1-4 units on site Statement Historic Preservation Letter to SHPO SHPO response or statement of no SHPO response

  42. Hazard Identification and Remediation Phase I Environmental Site Assessment (ESA) Must use ASTM 1527-05, as amended Required on all 202 projects and Section 811 projects with site control

  43. Hazard Identification & Remediation (cont’d) Phase I ESA (cont’d) Timing Prepared within 1-year of application due date (NEW) 202 - After: 11.13.08 811 - After: 11.16.08

  44. Phase I ESA Timing (cont’d). And also, if prepared more than 180 days from application due dates must be updated per ASTM ASTM E 1527-05, Section 4.6 202 - If older than 5.17.09 811 - If older than 5.20.09

  45. Hazard Identification & Remediation (cont’d) Phase I ESA (cont’d) Report format/Table of Contents per Appendix X4 of 1527-05 Findings, Opinions, Conclusions (NEW) • ASTM E 1527-05: Sections 12.5, 12.6, 12.8, respectively

  46. Hazard Identification & Remediation (cont’d) Phase I ESA (cont’d) Technical Reject If use earlier version of 1527 Failure to use Appendix X4 Failure to use Sections 12.5, 12.6, 12.8 Older than 1-year If update required by 180 day exceedance: Not updated, or not updated correctly

  47. Hazard Identification & Remediation (cont’d) • If Phase I indicates possible presence of contamination and/or hazards, i.e. RECs • Phase II required if Sponsor opts to continue with site • Phase II must indicate total extent of hazards • Must be received by 12.14.9 and 12.16.9 for 202 and 811, respectively

  48. Hazard Identification & Remediation (cont’d) If Phase II indicates hazards, the following must be received by HUD by 12.14.9 and 12.16.9 for 202 and 811, respectively Contract for Remediation, and Remediation Plan approved by local/State/Federal gov’t Remediation at Sponsor’s expense After remediation, must be clean to non-site specific standards: no capping, monitoring wells, etc.

  49. Hazard Identification & Remediation (cont’d) Groundwater exception to clean site All contamination in Groundwater at least 25 feet below surface No groundwater use in area or active water supply wells on site Remediation able to be completed prior to Initial Closing All passive and active remediation completed Monitoring wells closed out

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