| (a) Amendments to Housing Tax Credit (HTC) Application
or Award Prior to Land Use Restriction Agreement (LURA) recording
or amendments that do not result in a change to the LURA (§2306.6712).
The Department expects the Development Owner to construct or rehabilitate,
operate, and own the Development consistent with the representations
in the Application. The Department must receive notification of any
amendments to the Application. Regardless of development stage, the
Board shall re-evaluate a Development that undergoes a material change,
as identified in paragraph (3) of this subsection at any time after
the initial Board approval of the Development (§2306.6731(b)).
The Board may deny an amendment request and subsequently may rescind
any Commitment or Determination Notice issued for an Application,
and may reallocate the credits to other Applicants on the waiting
list.
(1) Requesting an amendment. The Department shall require
the Applicant to file a formal, written request for an amendment to
the Application. Such request must include a detailed explanation
of the amendment request and other information as determined to be
necessary by the Department, and the applicable fee as identified
in Chapter 11, Subchapter E of this title (relating to Fee Schedule,
Appeals, and other Provisions) in order to be received and processed
by the Department. Department staff will evaluate the amendment request
to determine if the change would affect an allocation of Housing Tax
Credits by changing any item that received points, by significantly
affecting the most recent underwriting analysis, or by materially
altering the Development as further described in this subsection.
(2) Notification Items. The Department must be notified
of the changes described in subparagraphs (A) - (F) of this paragraph.
The changes identified are subject to staff agreement based on a review
of the amendment request and any additional information or documentation
requested. Notification items will be considered satisfied when an
acknowledgment of the specific change(s) is received from the Department
and include:
(A) Changes to Development Site acreage required by
the City or other local governmental authority, or changes resulting
from survey discrepancies, as long as such change does not also result
in a modification to the residential density of more than 5%;
(B) Minor modifications to the site plan that will
not significantly impact development costs, including, but not limited
to, relocation or rearrangement of buildings on the site (as long
as the number of residential and non-residential buildings remains
the same), and movement, addition, or deletion of ingress/egress to
the site;
(C) Increases or decreases in net rentable square footage
or common areas that do not result in a material amendment under paragraph
(4) of this subsection;
(D) Changes in amenities that do not require a change
to the recorded LURA and do not negatively impact scoring, including
changes to outdated amenities that could be replaced by an amenity
with equal benefit to the resident community;
(E) Changes in Developers or Guarantors (notifications
for changes in Guarantors that are also the General Contractor or
are only providing guaranties during the construction period are not
required) with no new Principals (who were not previously checked
by Previous Participation review that retain the natural person(s)
used to meet the experience requirement in Chapter 11 of this title
(relating to Qualified Allocation Plan)); and
(F) Any other amendment not identified in paragraphs
(3) and (4) of this subsection.
(3) Non-material amendments. The Executive Director
or designee may administratively approve all non-material amendments,
including, but not limited to:
(A) Any amendment that is determined by staff to exceed
the scope of notification acknowledgement, as identified in paragraph
(2) of this subsection but not to rise to a material alteration, as
identified in paragraph (4) of this subsection;
(B) Changes in Developers or Guarantors (excluding
changes in Guarantors that are also the General Contractor or are
only providing guaranties during the construction period) not addressed
in §10.405(a)(2)(E). Changes in Developers or Guarantors will
be subject to Previous Participation requirements as further described
in Chapter 11 of this title and the credit limitation described in
§11.4(a) of this title; and
(C) For Exchange Developments only, requests to change
elections made on line 8(b) of the IRS Form(s) 8609 to group buildings
together into one or more multiple building projects. The request
must include an attached statement identifying the buildings in the
project. The change to the election may only be made once during the
Compliance Period.
(4) Material amendments. Amendments considered material
pursuant to this paragraph must be approved by the Board. When an
amendment request requires Board approval, the Development Owner must
submit the request and all required documentation necessary for staff's
review of the request to the Department at least 45 calendar days
prior to the Board meeting in which the amendment is anticipated to
be considered. Before the 15th day preceding the date of Board action
on the amendment, notice of an amendment and the recommendation of
the Executive Director and Department staff regarding the amendment
will be posted to the Department's website and the Applicant will
be notified of the posting (§2306.6717(a)(4)). Material Amendment
requests may be denied if the Board determines that the modification
proposed in the amendment would materially alter the Development in
a negative manner or would have adversely affected the selection of
the Application in the Application Round. Material alteration of a
Development includes, but is not limited to:
(A) A significant modification of the site plan;
(B) A modification of the number of Units or bedroom
mix of Units;
(C) A substantive modification of the scope of tenant
services;
(D) A reduction of 3% or more in the square footage
of the Units or common areas;
(E) A significant modification of the architectural
design of the Development;
(F) A modification of the residential density of at
least 5%;
(G) A request to implement a revised election under
§42(g) of the Code prior to filing of IRS Form(s) 8609;
(H) Exclusion of any requirements as identified in
Chapter 11, Subchapter B of this title (relating to Site and Development
Requirements and Restrictions) and Chapter 11, Subchapter C of this
title (relating to Application Submission Requirements, Ineligibility
Criteria, Board Decisions and Waiver of Rules); or
(I) Any other modification considered material by the
staff and therefore required to be presented to the Board as such.
(5) Amendment requests will be denied if the Department
finds that the request would have changed the scoring of an Application
in the competitive process such that the Application would not have
received a funding award or if the need for the proposed modification
was reasonably foreseeable or preventable by the Applicant at the
time the Application was submitted, unless good cause is found for
the approval of the amendment.
(6) This section shall be administered in a manner
that is consistent with §42 of the Code. If a Development has
any uncorrected issues of noncompliance outside of the corrective
action period (other than the provision being amended) or otherwise
owes fees to the Department, such non-compliance or outstanding payment
must be resolved to the satisfaction of the Department before a request
for amendment will be acted upon.
(7) In the event that an Applicant or Developer seeks
to be released from the commitment to serve the income level of tenants
identified in the Application and Credit Underwriting Analysis Report
at the time of award and as approved by the Board, the procedure described
in subparagraphs (A) and (B) of this paragraph will apply to the extent
such request is not prohibited based on statutory and/or regulatory
provisions:
(A) For amendments that involve a reduction in the
total number of Low-Income Units, or a reduction in the number of
Low-Income Units at any rent or income level, as approved by the Board,
evidence noted in either clause (i) or (ii) of this subparagraph must
be presented to the Department to support the amendment:
(i) In the event of a request to implement (rent to
a household at an income or rent level that exceeds the approved AMI
limits established by the minimum election within the Development's
Application or LURA) a revised election under §42(g) of the Code
prior to an Owner's submission of IRS Form(s) 8609 to the IRS, Owners
must submit updated information and exhibits to the Application as
required by the Department and all lenders and the syndicator must
submit written acknowledgement that they are aware of the changes
being requested and confirm any changes in terms as a result of the
new election; or
Cont'd... |
