[Link to
GCH-0067](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0067LOPS.doc)

[Link to
GCH-0082](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0082LOPS.doc)

[Link to
GCH-0083](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0083LOPS.doc)

[Link to
GCH-0074](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0074LOPS.doc)

Legal Opinion: GCH-0033

Index: 2.300

Subject: OGC Review of Waivers\--Indian Housing Projects

December 20, 1991

MEMORANDUM FOR: Joseph G. Schiff, Assistant Secretary for

Public and Indian Housing, P

FROM: Robert S. Kenison, Associate General Counsel

Office of Assisted Housing and Community Development, GC

SUBJECT: OGC Review of Waivers to Convert Method of

Operation for Indian Housing Projects.

This memorandum responds to your request for an opinion

concerning whether OGC needs to review waivers issued by the

Office of Indian Housing for the conversion of an Indian housing

project from one program of operation to another (e.g., rental to

Mutual Help, Mutual Help to rental, or Turnkey III to Mutual

Help).

Our conclusion is that, so long as: (l) the regulatory

provisions sought to be waived are inapplicable on their face to

the newly converted project (i.e., because the provisions clearly

apply to new development of units, rather than to conversion of

units from one program to another); and (2) the conversion

request otherwise complies with the requirements established in

§ 905.455, 905.458 or 905.503, as applicable, such a waiver does

not require OGC review.

In such cases, we believe that the waiver request would not

meet any of the four tests established in General Counsel

Keating\'s memorandum dated February 23, 1990, in which he stated

that OGC review of program waivers is required whenever the

waivers: (l) are precedential in effect; (2) alter in any way the

competitive ground rules under which program funds are

distributed to loan or grant applicants; (3) relate to litigation

involving the Department; or (4) otherwise present novel

decisions or circumstances.

Examples of regulatory provisions which may be waived as

part of a conversion request, and which would not require OGC

review, would include:

\-- Waiver of § 905.404(a) (Program framework);

905.407(b)(l) and (3), and 905.407(c) (Application); 905.4l0 (HUD

review of application), and 905.4l3(a), (b) and (d) (Special

provisions for development of a Mutual Help project). These

provisions may be waived since they refer to the construction,

2

development and funding of new projects, rather than to existing

projects to be converted to a different method of operation.

\-- Waiver of §905.4l6(c), (d) (Selection of Mutual Help

homebuyers). This section requires the establishment of a

waiting list and procedures for making homebuyer selections.

However, to the extent that the applicant\'s request for

conversion demonstrates that there are existing occupants in the

units to be converted who qualify for and have requested transfer

to the new program, this provision may also be waived since it is

inapplicable on its face to an existing project.

\-- Waiver of §905.4l9(b), (c) (Mutual Help contribution).

This section requires execution of the Mutual Help and Occupancy

(MHO) agreements before the execution of the construction

contract; execution and approval of the land leases before

construction start; terms for contractual compliance for the

Mutual Help contribution before occupancy and provision of the

entire contribution prior to occupancy. Since the timeframes

established in this section are clearly applicable to a project

to be constructed, rather than to an existing project, the

timeframes may be waived to substitute a more appropriate time

period, e.g., execution of MHO agreements and payment of

contribution prior to conversion.

Our office would not consider to be exempt from OGC review

any waivers which seek to waive substantive program requirements

(e.g., the requirement for a Mutual Help Occupancy agreement, or

the Mutual Help contribution, etc.), or which otherwise meet any

of the four tests raised in General Counsel Keating\'s memorandum.

If you have any concerns, please contact me or Sharmeen

Dosky at 708-8938.

Approved:

Disapproved: