N.Y. Comp. Codes R. & Regs. tit. 9 § 2040.2

Current through Register Vol. 46, No. 53, December 31, 2024

Section 2040.2 - Definitions

As used in this Part, any term defined in the code shall have the same meaning herein unless a different meaning is provided herein.

(a)Adjusted project cost shall mean the proportional amount of approved project costs attributable to the LIHTC regulated portion of the project.

(b)Code shall mean the Internal Revenue Code of 1986, as amended, and the Treasury Regulations, Revenue Rulings and Procedures and other publications of the IRS with binding authority applicable thereunder.

(c)Commissioner shall mean the commissioner of the Division of Housing and Community Renewal of the State of New York.

(d)Cost certification shall mean an audited report by an independent third party certified public accountant, with content and opinion in form and substance satisfactory to the division, disclosing any amounts paid for syndication fees or other fees or payments paid in connection with tax credits or other sources of financing, verifying all project costs, the tax credit eligible costs incurred and any other cost data required by the division for a project as support for the amount of the project's allocation of LIHTCs or as support for the project's eligibility for a IRS Form 8609 allocation.

(e)Cost completion guarantee shall mean a commitment by the developer to provide additional equity or a noninterest bearing loan in an amount sufficient to pay for any increases in project cost which arise subsequent to the applicant's request for a carryover allocation.

(f)Cost of real estate operations shall mean the maintenance and operating cost of the project, required reserves, and debt service. The cost of social services provided to tenants shall not be included as a cost of real estate operations.

(g)Division, DHCR or agency shall mean the Division of Housing and Community Renewal.

(h)Feasibility shall mean that the proposed project can be financed, completed and operated in compliance with LIHTC regulatory requirements based upon, but not limited to, the reasonableness of development cost, the plan of financing, constructability of the proposed project, rents to be charged, the income and expenses of the project and the market for the units.

(i)High acquisition cost project shall mean a preservation project in which acquisition cost is 25 percent or more of total development cost. Notwithstanding any other provision of this Part, the amount of the developer's fee for a high acquisition cost project shall be based upon the division's assessment of risk assumed by the project owner, considering factors including, but not limited to, rent subsidies or other project operating support, location, financing sources, occupancy level, project type, and identity of interest.

(j)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.

(k)Housing opportunity projects shall mean family projects in an area of opportunity linked to schools that meet or exceed minimum performance standards and that meet or exceed other measures of opportunity, including, but not limited to, the rate of poverty, as may be set forth in a request for proposals.

(l)HTFC shall mean the Housing Trust Fund Corporation, a public benefit corporation created and existing as a subsidiary of the New York State Housing Finance Agency pursuant to section 45-a of the New York Private Housing Finance Law.

(m)Identity of interest shall mean any financial, familial or business ownership relationship between any of the parties to the transactions involving the acquisition, syndication, financing, development, construction and/or operation of the project. This includes, but is not limited to, existence of a reimbursement arrangement or exchange of funds; common financial interests; common officers, directors or stockholders; or family relationships between officers, directors, or stockholders.

(n)Local non-profit organization shall mean a tax-exempt organization under section 501(c)(3) or (c)(4) of the code which provides housing-related services in the primary market area or county in which a proposed LIHTC-assisted project is to be located.

(o)Net syndication proceeds shall mean the net present value of all capital contributions by investors in the project determined as of the placed-in-service date less any bridge loan interest and syndication expenses. The net present value shall be determined by applying a discount factor, derived from the current 10-year U.S. Treasury Bill rates, against the project proceeds installment schedule.

(p)Operating deficit guarantee shall mean a provision in the project owner's organizational documents providing a commitment to pay any operating deficits incurred during the first 36 months after the project is placed in service. The amount of such guarantee shall not be less than one-fifth of the developer's fee approved by the division.

(q)Persons with special needs shall mean: persons living with HIV/AIDS; persons with a substance use disorder; persons with serious mental illness; homeless persons and families; persons with physical disabilities; persons who are survivors of domestic violence; persons with intellectual/developmental disabilities; frail elderly persons; or any other population so designated by the division.

(r)Preservation project shall mean a project in which a currently government regulated residential rental property is rehabilitated to extend its useful life to serve as affordable housing and the project averts the loss of affordable housing currently serving the housing needs of a population whose housing need would justify the replacement of the housing if it ceased to be available to that population. The scope of the rehabilitation must be sufficient for the project to function in good repair as affordable housing for a period equal to at least 30 years from the date of issuance of the final credit allocation.

(s)Primary market area shall mean the geographic area from which a project is expected to draw the majority of its residents.

(t)State designated building shall mean a building, receiving LIHTC that is determined to advance the State's affordable housing goals and policies which may include, but are not limited to, housing opportunity projects, and other projects, which may be designated in a request for proposals, and that are designated by the division as requiring an increase in credits up to an amount determined by the division to ensure financial feasibility as if the building were located in a difficult development area.

(u)Supportable debt shall mean debt which can be paid by the operating income available after payment of allowable expenses. The amount is determined by examining the residential operating budget (i.e., rents, operating expenses, debt service and cash flow) of the project.

(v)Supportive housing shall mean projects which give preference in tenant selection to persons with special needs for at least 30 percent of the LIHTC-assisted units as set forth in a request for proposals. To be considered supportive housing:

(1) the applicant must document the need for housing for the targeted population within the primary market area;

(2) the applicant must ensure the delivery of appropriate services, for which a documented need exists, to the targeted population as evidenced in a comprehensive service plan and an agreement in writing with an experienced service provider;

(3) the applicant must include a transportation plan to ensure access to necessary services;

(4) the applicant must have funding in place or identify a viable plan for the funding of appropriate services;

(5) the applicant must include provision for an ongoing rental subsidy or other form of subsidy which will be available to ensure that rents paid by the targeted population remain affordable;

(6) the applicant must have a firm commitment for capital financing, which may include long term debt financing, from a governmental agency serving the proposed target population;

(7) the applicant must identify, and have a written agreement with, a public agency or experienced service provider that will include a description of the referral procedure they will use to refer eligible persons and families for the targeted units; and

(8) the project must provide an integrated setting that enables individuals with disabilities to live independently without restrictive rules that limit their activities or impede their ability to interact with individuals without disabilities.

(w)Visitability shall mean that a residential unit includes the provision of at least one means of entry on an accessible route (no-step entrance), a 36 inch or greater clear circulation path through the first floor of the unit, including all interior doorways, and at least a half-bath on the first floor of the unit with a 30 inch by 48 inch clear floor area to accommodate a person in a wheelchair and allow that person to close the door. Notwithstanding the foregoing, a dwelling unit that contains all necessary components and clearances required by the applicable building code for an accessible dwelling unit on an accessible route shall be considered to meet the visitability circulation requirement.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2040.2

Amended New York State Register May 26, 2021/Volume XLIII, Issue 21, eff. 5/26/2021