| (a) Site Requirements and Restrictions. The purpose
of this section is to identify specific requirements and restrictions
related to a Development Site seeking multifamily funding or assistance
from the Department.
(1) Floodplain. New Construction or Reconstruction
Developments located within a 100 year floodplain as identified by
the Federal Emergency Management Agency (FEMA) Flood Insurance Rate
Maps must develop the site in full compliance with the National Flood
Protection Act and all applicable federal and state statutory and
regulatory requirements. The Applicant will have to use floodplain
maps and comply with regulation as they exist at the time of commencement
of construction. Even if not required by such provisions, the Site
must be developed so that all finished ground floor elevations are
at least one foot above the floodplain and parking and drive areas
are no lower than six inches below the floodplain. If there are more
stringent federal or local requirements they must also be met. Applicants
requesting NHTF funds from the Department must also meet the federal
environmental provisions under 24 CFR §93.301(f)(1)(vi). Applicants
requesting HOME, HOME-ARP, or NSP PI funds from the Department must
meet the federal environmental provisions under 24 CFR Part 58, as
in effect at the time of execution of the Contract between the Department
and the Owner. If no FEMA Flood Insurance Rate Maps are available
for the proposed Development Site, flood zone documentation must be
provided from the local government with jurisdiction identifying the
100 year floodplain. Rehabilitation (excluding Reconstruction) Developments
with existing and ongoing federal funding assistance from HUD or USDA
are exempt from this requirement, to the extent NHTF is not being
requested from the Department. All Developments located within a 100
year floodplain must state in the Tenant Rights and Resource Guide
that part or all of the Development Site is located in a floodplain,
and that it is encouraged that they consider getting appropriate insurance
or take necessary precautions. However, where existing and ongoing
federal assistance is not applicable such Rehabilitation (excluding
Reconstruction) Developments will be allowed in the 100 year floodplain
provided the local government has undertaken and can substantiate
sufficient mitigation efforts and such documentation is submitted
in the Application or the existing structures meet the requirements
that are applicable for New Construction or Reconstruction Developments,
as certified to by a Third Party engineer.
(2) Undesirable Site Features.
(A) An Undesirable Site Feature will render an Application
ineligible unless acceptable mitigation as determined by staff or
the Board is undertaken. For Competitive HTC Applications, if staff
identifies an undesirable site feature reflected in clause (i) - (x)
of subparagraph (E) and it was not disclosed, the Application shall
be terminated by staff. If Department staff identifies what it believes
would constitute an undesirable site feature not listed in this paragraph
or covered under clause (xi) of subparagraph (E), staff may issue
an Administrative Deficiency. In the event that staff cannot reasonably
conclude whether a feature is considered undesirable, it may defer
to the Board for decision.
(B) Rehabilitation (excluding Reconstruction) Developments
with ongoing and existing federal assistance from HUD, USDA, or Veterans
Affairs (VA) and Developments encumbered by a TDHCA LURA the earlier
of the first day of the Application Acceptance Period for HTC, Application
Acceptance Date for Direct Loan, or date the pre-application is submitted
(if applicable) may be granted an exemption by staff; however, depending
on the undesirable site feature(s) staff may recommend mitigation
still be provided as appropriate. Such an exemption must be requested
at the time of or prior to the filing of an Application. Historic
Developments that would otherwise qualify under §11.9(e)(6) of
this chapter (related to Criteria promoting the efficient use of limited
resources and applicant accountability) may be granted an exemption,
and such exemption must be requested at the time of or prior to the
filing of an Application.
(C) Requests for pre-determinations of Site eligibility
prior to pre-application or Application submission will not be binding
on full Applications submitted at a later date. For Tax-Exempt Bond
Developments where the Department is the Issuer, the Applicant may
submit a request for pre-determination at pre-application or for Tax-Exempt
Bond Developments utilizing a local issuer a request for a pre-determination
may be submitted prior to Application submission. An Applicant should
understand that any determination made by staff or the Board at that
point in time regarding Site eligibility based on the documentation
presented, is preliminary in nature. Should additional information
related to any of the Undesirable Site Features become available while
the Application is under review, or the information by which the original
determination was made changes in a way that could affect eligibility,
then such information will be re-evaluated by staff and may result
in an Administrative Deficiency or re-evaluation.
(D) If a state or federal cognizant agency would require
a new facility under its jurisdiction to have a minimum separation
from housing, the Department will defer to that agency and require
the same separation for a new housing facility near an existing regulated
or registered facility. In addition to these limitations, a Development
Owner must ensure that the proposed Development Site and all construction
thereon comply with all applicable state and federal requirements
regarding separation for safety purposes.
(E) The Undesirable Site Features include those described
in clauses (i) - (xi) of this subparagraph. The distances are to be
measured from the nearest boundary of the Development Site to the
nearest boundary of the property or easement containing the undesirable
feature, unless otherwise noted below. Where there is a local ordinance
that specifies the proximity of such undesirable feature to a multifamily
development that has smaller distances than the minimum distances
noted below, then such smaller distances may be used and documentation
such as a copy of the local ordinance identifying such distances relative
to the Development Site must be included in the Application. Pre-existing
zoning does not meet the requirement for a local ordinance.
(i) Development Sites located within 300 feet of junkyards.
For purposes of this paragraph, a junkyard shall be defined as stated
in Texas Transportation Code §396.001;
(ii) Development Sites located within 300 feet of an
active solid waste facility, sanitary landfill facility, waste transfer
station, or illegal dumping sites (as such dumping sites are identified
by the local municipality);
(iii) Development Sites located within 300 feet of
a sexually-oriented business. For purposes of this paragraph, a sexually-oriented
business shall be defined in Local Government Code §243.002,
or as zoned, licensed and regulated as such by the local municipality;
(iv) Development Sites located within 500 feet of active
railroad tracks, measured from the closest rail to the boundary of
the Development Site, unless:
(I) the Applicant provides evidence that the city/community
has adopted a Railroad Quiet Zone covering the area within 500 feet
of the Development Site;
(II) the Applicant has engaged a qualified Third Party
to perform a noise assessment and the Applicant commits to perform
sound mitigation in accordance with HUD standards as if they were
directly applicable to the Development; or
(III) the railroad in question is commuter or light
rail;
(v) Development Sites located within 500 feet of heavy
industry (i.e. facilities that require extensive use of land and machinery,
produce high levels of external noise such as manufacturing plants,
or that maintain fuel storage facilities, to the extent that these
qualifying items are consistent with the general characteristics of
heavy industry. Gas stations and other similar facilities that are
not consistent with the characteristics of heavy industry are not
considered an undesirable site feature;
(vi) Development Sites located within 10 miles of a
nuclear plant;
(vii) Development Sites in which the buildings are
located within the accident potential zones or the runway clear zones
of any airport;
(viii) Development Sites that contain one or more pipelines,
situated underground or aboveground, which carry highly volatile liquids
or Development Sites located adjacent to a pipeline easement (for
a pipeline carrying highly volatile liquids), the Application must
include a plan for developing near the pipeline(s) and mitigation,
if any, in accordance with a report conforming to the Pipelines and
Informed Planning Alliance (PIPA);
(ix) Development Sites located within 2 miles of refineries
capable of refining more than 100,000 barrels of oil daily;
Cont'd... |
