| (iv) provide a fully executed guaranty agreement whereby
the Applicant or its Affiliate assume financial responsibility of
any outstanding operating deficits, as they arise, and throughout
the entire Affordability Period; and
(v) have Tenant Selection Criteria that fully comply
with §10.802 of this title (regarding Written Policies and Procedures),
which require a process for evaluation of prospective residents against
a clear set of credit, criminal conviction, and prior eviction history
that may disqualify a potential resident. This process must also follow §1.204
of this title (regarding Reasonable Accommodations), and:
(I) The criminal screening criteria must not allow
residents to reside in the Development who are subject to a lifetime
sex offender registration requirement; and provide at least, for:
(-a-) Temporary denial for a minimum of seven years
from the date of conviction based on criminal history at application
or recertification of any felony conviction for murder related offense,
sexual assault, kidnapping, arson, or manufacture of a controlled
substance as defined in §102 of the Controlled Substances Act
(21 U.S.C. 802); and
(-b-) Temporary denial for a minimum of three years
from the date of conviction based on criminal history at application
or recertification of any felony conviction for aggravated assault,
robbery, drug possession, or drug distribution;
(II) The criminal screening criteria must include provisions
for approving applications and recertification despite the tenant's
criminal history on the basis of mitigation evidence. Applicants/tenants
must be provided written notice of their ability to provide materials
that support mitigation. Mitigation may be provided during initial
tenant application or upon appeal after denial. Mitigation may include
personal statements/certifications, documented drug/alcohol treatment,
participation in case management, letters of recommendation from mental
health professionals, employers, case managers, or others with personal
knowledge of the tenant. In addition, the criteria must include provision
for individual review of permanent or temporary denials if the conviction
is more than 7 years old, or if the applicant/resident is over 50
years of age, and the prospective resident has no additional felony
convictions in the last 7 years. The criteria must prohibit consideration
of any previously accepted criminal history or mitigation at recertification,
unless new information becomes available. Criminal screening criteria
and mitigation must conform to federal regulations and official guidance,
including HUD's 2016 Guidance on Application of Fair Housing Act Standards
to the Use of Criminal Records; and
(III) Disqualifications in a property's Tenant Selection
Criteria cannot be a total prohibition, unless such a prohibition
is required by federal statute or regulation (i.e. the Development
must have an appeal process for other required criteria). As part
of the appeal process the prospective resident must be allowed to
demonstrate that information in a third party database is incorrect;
(C) Where supportive services are tailored for members
of a household with specific needs, such as:
(i) homeless or persons at-risk of homelessness;
(ii) persons with physical, intellectual, or developmental
disabilities;
(iii) youth aging out of foster care;
(iv) persons eligible to receive primarily non-medical
home or community-based services;
(v) persons transitioning out of institutionalized
care;
(vi) persons unable to secure permanent housing elsewhere
due to specific, non-medical, or other high barriers to access and
maintain housing;
(vii) Persons with Special Housing Needs including
households where one or more individuals have alcohol or drug addictions,
Violence Against Women Act Protections (domestic violence, dating
violence, sexual assault, and stalking), HIV/AIDS, or is a veteran
with a disability; or
(viii) other target populations that are served by
a federal or state housing program in need of the type and frequency
of supportive services characterized herein, as represented in the
Application and determined by the Department on a case-by-case basis;
(D) Supportive services must meet the minimum requirements
provided in clauses (i) - (iv) of this subparagraph:
(i) regularly and frequently offered to all residents,
primarily on-site;
(ii) easily accessible and offered at times that residents
are able to use them;
(iii) must include readily available resident services
or service coordination that either aid in addressing debilitating
conditions, or assist residents in securing the skills, assets, and
connections needed for independent living; and
(iv) a resident may not be required to access supportive
services in order to qualify for or maintain tenancy in a rent restricted
Unit that the household otherwise qualifies for; and
(E) Supportive Housing Developments must meet the criteria
of either clause (i) or (ii) of this subparagraph:
(i) not financed, except for construction financing,
or a deferred-forgivable or deferred-payable construction-to-permanent
Direct Loan from the Department, with any debt containing foreclosure
provisions or debt that contains scheduled or periodic repayment provisions.
A loan from a local government or instrumentality of local government
is permissible if it is a deferred-forgivable or deferred-payable
construction-to-permanent loan, with no foreclosure provisions or
scheduled or periodic repayment provisions, and a maturity date after
the end of the Affordability Period. For tax credit applications only,
permanent foreclosable debt that contains scheduled or periodic repayment
provisions (including payments subject to available cash-flow) is
permissible if sourced by federal funds and otherwise structured to
meet valid debt requirements for tax credit eligible basis considerations.
In addition, permanent foreclosable, cash-flow debt provided by an
Affiliate is permissible if originally sourced from charitable contributions
or pass-through local government funds and the foreclosure provisions
are triggered only by default on non-monetary default provisions.
Any amendment to an Application or Underwriting Report resulting in
the addition of debt prohibited under this definition will result
in the revocation of IRS Form(s) 8609, and may not be made for Developments
that have Direct Loans after a LURA is executed, except as a part
of Work Out Development approved by the Asset Management Division;
or
(ii) financed with debt that meets feasibility requirements
under Subchapter D of this chapter without exemptions and must also
be supported by project-based rental or project-based operating subsidies
for 25% of the Units evidenced by an executed agreement with an unaffiliated
or governmental third party able to make that commitment, and meet
all of the criteria in subclauses (I) - (VI) of this clause:
(I) the Application includes documentation of how resident
feedback has been incorporated into design of the proposed Development;
(II) the Development is located less than 1/2 mile
from regularly-scheduled public transportation, including evenings
and weekends;
(III) at least 10% of the Units in the proposed Development
meet the 2010 ADA standards with the exceptions listed in "Nondiscrimination
on the Basis of Disability in Federally Assisted Programs and Activities"
79 Federal Register 29671 for persons with mobility impairments;
(IV) multiple systems will be in place for residents
to provide feedback to Development staff;
(V) the Development will have a comprehensive written
eviction prevention policy that includes an appeal process; and
(VI) the Development will have a comprehensive written
services plan that describes the available services, identifying whether
they are provided directly or through referral linkages, by whom,
and in what location and during what days and hours. A copy of the
services plan will be readily accessible to residents.
(F) Supportive housing Units included in an otherwise
non-Supportive Housing Development do not meet the requirements of
this definition.
(126) Target Population--The designation of types of
housing populations shall include Elderly Developments and those that
are Supportive Housing. All others will be considered to serve general
populations without regard to any subpopulations, although the Application
may request that any other populations required for targeting, preference,
or limitation by a federal or state fund source are identified.
(127) Tax-Exempt Bond Development--A Development requesting
or having been issued a Determination Notice for Housing Tax Credits
and which receives a portion of its financing from the proceeds of
Tax-Exempt Bonds which are subject to the state volume cap as described
in Code, §42(h)(4).
Cont'd... |
