Texas Administrative Code › Title 10 - COMMUNITY DEVELOPMENT › Part 1 - TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS › Chapter 11 - QUALIFIED ALLOCATION PLAN (QAP) › Subchapter B - SITE AND DEVELOPMENT REQUIREMENTS AND RESTRICTIONS › Section 11.101 - Site and Development Requirements and Restrictions

Current through Reg. 49, No. 28; July 12, 2024
(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;
(x)
				  Development Sites that are located in a Clear Zone, any Accident Potential
				  Zone, or within any Noise Contour of 65 decibels or greater, as reflected in a
				  Joint Land Use Study for any military Installation, except that if the
				  Development Site is located in a Noise Contour between 65 and 70 decibels, the
				  Development Site will not be considered to have an Undesirable Site Feature if
				  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
(xi) Any other Site deemed unacceptable,
				  which would include, without limitation, those with exposure to an
				  environmental factor that may adversely affect the health and safety of the
				  residents or render the Site inappropriate for housing use and which cannot be
				  adequately mitigated. If staff believe that a Site should be deemed
				  unacceptable under this provision due to information that was not included in
				  the Application, it will provide the Applicant with written notice and an
				  opportunity to respond.
(3) Neighborhood Risk Factors.
(A) A Neighborhood Risk Factor will render an
				  application ineligible unless acceptable mitigation as determined by staff or
				  the board is undertaken. If the Development Site has any of the characteristics
				  described in subparagraph (D) of this paragraph, the Applicant must disclose
				  the presence of such characteristics in the Application submitted to the
				  Department. For Competitive HTC Applications, should staff determine that the
				  Development Site has any of the characteristics described in subparagraph (D)
				  of this paragraph and such characteristics were not disclosed, the Application
				  shall be terminated by staff.
(B)
				  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 the documentation described under subparagraph
				  (E) of this paragraph 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 Neighborhood Risk Factors
				  become available while the Tax-Exempt Bond Development or Direct Loan only
				  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 staff may issue an
				  Administrative Deficiency.
(C) The
				  presence of any characteristics listed in subparagraph (D) of this paragraph
				  will prompt staff to perform an assessment of the Development Site and
				  neighborhood, which may include a site visit. Mitigation to be considered by
				  staff is identified in subparagraph (E) of this paragraph. Preservation of
				  affordable units alone does not present a compelling reason to support a
				  conclusion of eligibility.
(D) The
				  Neighborhood Risk Factors include those noted in clauses (i) - (iii) of this
				  subparagraph and additional information as applicable to the neighborhood risk
				  factor(s) disclosed as provided in subparagraph (E) of this paragraph must be
				  submitted in the Application. In order to be considered an eligible Site
				  despite the presence of Neighborhood Risk Factors, an Applicant must
				  demonstrate actions being taken that would lead staff to conclude that there is
				  a high probability and reasonable expectation the risk factor will be
				  sufficiently mitigated or significantly improved prior to placement in service
				  and that the risk factor demonstrates a positive trend and continued
				  improvement. Conclusions for such reasonable expectation may need to be
				  affirmed by an industry professional, as appropriate, and may be dependent upon
				  the severity of the Neighborhood Risk Factor disclosed.
(i) The Development Site is located within a
				  census tract that has a poverty rate above 40% for individuals (or 55% for
				  Developments in regions 11 and 13). Rehabilitation Developments are exempt from
				  this Neighborhood Risk Factor.
(ii)
				  The Development Site is New Construction or Reconstruction and is located in a
				  census tract (or for any adjacent census tract with a boundary less than 500
				  feet from the proposed Development Site that is not separated from the
				  Development Site by a natural barrier such as a river or lake, or an
				  intervening restricted area, such as a military installation) in an Urban Area
				  and the rate of Part I violent crime is greater than 18 per 1,000 persons
				  (annually) as reported on neighborhoodscout.com. Rehabilitation developments
				  are exempt from this Neighborhood Risk Factor.
(iii) The Development Site is located within
				  the attendance zone of an elementary school, a middle school or a high school
				  that had a TEA Accountability Rating of "Not Rated: Senate Bill 1365" for 2022.
(I) In districts with district-wide
				  enrollment or choice districts an Applicant shall use the rating of the closest
				  elementary, middle and high school, respectively, which may possibly be
				  attended by the tenants in determining whether or not disclosure is required.
				  Schools with an application process for admittance, limited enrollment or other
				  requirements that may prevent a child from attending will not be considered as
				  the closest school or the school which attendance zone contains the
				  site.
(II) School ratings will be
				  determined by the school number, so that in the case where a new school is
				  formed or named or consolidated with another school but is considered to have
				  the same number that rating will be used. A school that has never been rated by
				  the Texas Education Agency will use the district rating.
(III) If a school is configured to serve
				  grades that do not align with the Texas Education Agency's conventions for
				  defining elementary schools (typically grades K-5 or K-6), middle schools
				  (typically grades 6-8 or 7-8) and high schools (typically grades 9-12), the
				  school will be considered to have the lower of the ratings of the schools that
				  would be combined to meet those conventions. In determining the ratings for all
				  three levels of schools, ratings for all grades K-12 must be included, meaning
				  that two or more schools' ratings may be combined. Sixth grade centers will be
				  considered as part of the middle school rating.
(IV) Elderly Developments, Supportive Housing
				  SRO Developments or Supportive Housing Developments where all Units are
				  Efficiency Units, and Applications in the USDA Set-Aside for Rehabilitation of
				  existing properties are exempt and are not required to provide mitigation for
				  this subparagraph, but are still required to provide rating information in the
				  Application.
(E) Information regarding mitigation of
				  neighborhood risk factors should be relevant to the risk factors that are
				  present in the neighborhood. Mitigation must include documentation of efforts
				  underway at the time of Application, and should include the measures described
				  in clauses (i) - (iii) of this subparagraph or such other mitigation as the
				  Applicant determines appropriate to support a finding of eligibility. If staff
				  determines that the Development Site cannot be found eligible and the Applicant
				  appeals that decision to the Board, the Applicant may not present new
				  information at the Board meeting.
(i)
				  Mitigation for Developments in a census tract that has a poverty rate that
				  exceeds 40% may include a resolution from the Governing Body of the appropriate
				  municipality or county containing the Development, acknowledging the high
				  poverty rate and authorizing the Development to move forward. If the
				  Development is located in the ETJ, the resolution would need to come from the
				  county.
(ii) Evidence by the most
				  qualified person that the data and evidence establish that there is a
				  reasonable basis to proceed on the belief that the crime data shows, or will
				  show, a favorable trend such that within the next two years Part I violent
				  crime for that location is expected to be less than 18 per 1,000 persons or the
				  data and evidence reveal that the data reported on neighborhoodscout.com does
				  not accurately reflect the true nature of what is occurring and what is
				  actually occurring does not rise to the level to cause a concern to the Board
				  over the level of Part I violent crime for the location. The data and evidence
				  may be based on violent crime data from the city's police department or county
				  sheriff's department, as applicable based on the location of the Development,
				  for the police beat or patrol area within which the Development Site is
				  located, based on the population of the police beat or patrol area that yields
				  a crime rate below the threshold indicated in this section or that would yield
				  a crime rate below the threshold indicated in this section by the time the
				  Development is placed into service. The instances of violent crimes within the
				  police beat or patrol area that encompass the census tract, calculated based on
				  the population of the census tract, may also be used. The data must include
				  incidents reported during the entire calendar year previous to the year of
				  Application. Violent crimes reported through the date of Application submission
				  may be requested by staff as part of the assessment performed under
				  subparagraph (C) of this paragraph. A written statement from the most qualified
				  person (i.e. Chief of Police or Sheriff (as applicable) or the police
				  officer/detective for the police beat or patrol area containing the proposed
				  Development Site), including a description of efforts by such enforcement
				  agency addressing issues of crime and the results of their efforts may be
				  provided, and depending on the data provided by the Applicant, such written
				  statement may be required, as determined by staff. It is expected that such
				  written statement would also speak to whether there is a reasonable expectation
				  that based on the efforts underway there is crime data that reflects a
				  favorable downward trend in crime rates.
(iii) Evidence of mitigation for each of the
				  schools in the attendance zone that has a TEA Accountability Rating of "Not
				  Rated: Senate Bill 1365" for 2022 must meet the requirements of subclauses (I)
				  and (II) of this clause which will be a requirement of the LURA for the
				  duration of the Affordability Period and cannot be used to count for purposes
				  of meeting the threshold requirements under subparagraph (7)(B)(ii) of this
				  paragraph.
(I) Documentation from a person
				  authorized to speak on behalf of the school district with oversight of the
				  school in question that indicates the specific plans in place and current
				  progress towards meeting the goals and performance objectives identified in the
				  Campus Improvement Plan and in restoring the school(s) to an acceptable rating
				  status. The documentation should include actual data from progress already made
				  under such plan(s) to date demonstrating favorable trends and should speak to
				  the authorized persons assessment that the plan(s) and the data supports a
				  reasonable conclusion that the school(s) will have an acceptable rating by the
				  time the proposed Development places into service. The letter may, to the
				  extent applicable, identify the efforts that have been undertaken to increase
				  student performance, decrease mobility rate, benchmarks for re-evaluation,
				  increased parental involvement, plans for school expansion, plans to implement
				  early childhood education, and long- term trends that would point toward their
				  achieving an A, B, or C Rating by the time the Development is placed in
				  service. The letter from such education professional could also speak to why
				  they believe the staff tasked with carrying out the plan will be successful at
				  making progress towards acceptable student performance considering that prior
				  Campus Improvement Plans were unable to do so. Such assessment could include
				  whether the team involved has employed similar strategies at prior schools and
				  were successful.
(II) The Applicant
				  has committed that it will operate an after school learning center that offers
				  at a minimum 15 hours of weekly, organized, on-site educational services
				  provided to elementary, middle and high school children by a dedicated service
				  coordinator or Third-Party entity which includes at a minimum: homework
				  assistance, tutoring, test preparation, assessment of skill deficiencies and
				  provision of assistance in remediation of those deficiencies (e.g., if reading
				  below grade level is identified for a student, tutoring in reading skills is
				  provided), research and writing skills, providing a consistent weekly schedule,
				  provides for the ability to tailor assistance to the age and education levels
				  of those in attendance, and other evidence-based approaches and activities that
				  are designed to augment classroom performance. Up to 20% of the activities
				  offered may also include other enrichment activities such as music, art, or
				  technology.
(F)
				  In order for the Development Site to be found eligible, including when
				  mitigation described in subparagraph (E) of this paragraph is not provided in
				  the Application, despite the existence of one or more Neighborhood Risk
				  Factors, the Applicant must explain how the use of Department funds at the
				  Development Site is consistent with the goals in clauses (i) - (iii) of this
				  subparagraph. If the Board grants an Appeal of staff's determination of Site
				  eligibility, the Board shall document the reasons for a determination of
				  eligibility.
(i) Preservation of existing
				  occupied affordable housing units to ensure they are safe and suitable or the
				  new construction of high quality affordable housing units that are subject to
				  federal rent or income restrictions.
(ii) Determination that the risk factor(s)
				  that has been disclosed are not of such a nature or severity that should render
				  the Development Site ineligible based on the assessment and mitigation provided
				  under subparagraphs (C) and (D) of this paragraph.
(iii) No mitigation was provided, or in
				  staff's determination the mitigation was considered unsatisfactory and the
				  Applicant has requested a waiver of the presence of Neighborhood Risk Factors
				  on the basis that the Development is necessary to enable the state, a
				  participating jurisdiction, or an entitlement community to comply with its
				  obligation to affirmatively further fair housing, a HUD approved Conciliation
				  Agreement, or a final and non-appealable court order and such documentation is
				  submitted with the disclosure.
(4) Site and Neighborhood Standards (Direct
				  Loan and HOME-ARP only). A New Construction Development, as defined by the
				  applicable federal fund source, requesting federal funds must meet the Site and
				  Neighborhood Standards in 24
				  CFR §
												983.57(e)(2) or
				  (3). A Development requesting NHTF funds that
				  meets the federal definition of reconstruction in
				  24 CFR §
												93.2 must also meet these
				  standards.