New Mexico Register / Volume XXXV, Issue 14
/ July 30, 2024
This is an amendment to 2.93.1 NMAC, Sections 1, 2, 6,
7, 9, re-numbering 13 to 20, 14, and adding new sections 15 - 19, effective
7/30/2024.
2.93.1.1 ISSUING AGENCY: New Mexico Opportunity Enterprise and
Housing Development Review Board.
[2.93.1.1 NMAC – N,
4/25/2023; A, 7/30/2024]
2.93.1.2 SCOPE: All persons or entities applying for
enterprise assistance under the opportunity enterprise revolving fund and
housing development assistance under the housing development revolving fund
administered by the New Mexico finance authority, Sections 6-34-8, [and]
6-34-12, 6-34-13.1 and 6-34-13.3 NMSA 1978.
[2.93.1.2 NMAC – N, 4/25/2023; A, 7/30/2024]
2.93.1.6 OBJECTIVE:
A. Section
6-34-3, NMSA 1978, provides that the authority may adopt separate rules to
administer the opportunity enterprise revolving fund and the housing
development revolving fund to originate enterprise assistance and
housing development assistance for [opportunity enterprise] projects
recommended by the board, govern the process through which applicants may apply
for enterprise assistance [from the opportunity enterprise revolving fund]
and housing development assistance, and collect fees and costs related
to providing [enterprise] financing [to each opportunity enterprise
financing partner].
B. Section
6-34-5, NMSA 1978 provides that the authority shall provide staff support for
necessary administrative services of the board.
C. Section
6-34-6, NMSA 1978 provides that the authority shall upon the recommendation of
the board, process, review and evaluate applications for enterprise assistance and
housing development assistance received from applicants.
E. Sections
6-34-12 and 6-34-13.3, NMSA 1978 provide that the authority shall
administer the opportunity enterprise revolving fund and the housing
development revolving fund and recover from the [opportunity enterprise
revolving fund] funds the costs of administering the [fund] funds
and originating enterprise and housing development assistance.
F. Subsection
K of Section 6-21-5, NMSA 1978 provides that the authority may fix charges and
collect fees and other charges in connection with the making of loans, leases
and any other services rendered by the authority.
[2.93.1.6 NMAC – N,
4/25/2023; A, 7/30/2024]
2.93.1.7 DEFINITIONS:
A. “Act” means the
Opportunity Enterprise and Housing Development Act, Sections 6-34-1
through [6-34-15] 6-34-15, NMSA 1978, as the same may be amended
and supplemented.
B. “Affordable housing infrastructure project” means
infrastructure projects needed to support housing for low- or moderate-income
residents.
[B.] C. “Application” means a written document made
publicly available by the authority and filed with the authority [for
enterprise assistance] for the purpose of evaluating[, in consultation
with the department,] the applicant’s qualifications and proposed [enterprise
development project or] projects for types of [enterprise]
assistance which may be provided by the authority under the act.
[C] D. “Authority” means the New Mexico finance
authority.
[D] E. “Board” means the opportunity enterprise and
housing development review board created by the act.
[E] F. “Bylaws” means the amended and restated bylaws
of the board adopted on [August 24, 2022] May 2, 2024, as amended
and supplemented from time to time.
G. “Commercial development committee” means a standing
committee, appointed by the chairman of the board from members of the board
pursuant to the bylaws to review proposed enterprise development projects to be
recommended for funding form the opportunity enterprise revolving fund.
[F]
H. “Department” means
the economic development department.
[G] I. “Economic development opportunities” means
the advancement of an environmentally sustainable economic development goal of
the state as determined by the authority, in coordination with the department,
and includes the creation of jobs, the provision of needed services and
commodities to diverse communities across the state and the increase of tax and
other revenue collections resulting from the enterprise development project.
[H]
J. “Enterprise assistance”
means opportunity enterprise financing, an opportunity enterprise lease or an
opportunity enterprise loan.
[I]
K. “Enterprise
development project” means a commercial real estate development project
primarily occupied by businesses unrelated to the opportunity enterprise
partner that involves the purchase, planning, designing, building,
surveying, improving, operating, furnishing, equipping or maintaining of land,
buildings or infrastructure to create or expand economic development
opportunities within the state.
[J]
L. “[Fund means the opportunity
enterprise revolving fund] Housing development assistance” means a loan
for workforce development housing projects or affordable housing infrastructure
projects.
M. “Housing development committee” means
a standing committee, appointed by the chairman of the board from the members
of the board pursuant to the bylaws to review proposed housing development
projects to be recommended for funding from the housing development revolving
fund.
N. “Housing development partner”
means a domestic corporation, a general partnership, a limited liability
company, a limited partnership, a public benefit corporation, a nonprofit
entity or any other private business entity or combination thereof that the authority
determines is or will be engaged in a project that creates or expands housing
within the state and is eligible for housing development assistance pursuant to
the act.
O. “Housing development project” means
an affordable housing infrastructure project or a workforce development housing
project.
P. “Middle income workers” means
families with incomes that fall between the lesser of a local jurisdiction’s
upper limit for housing assistance by relevant housing type or by the New
Mexico mortgage finance authority’s upper limit for housing development assistance,
and three hundred percent of the US housing and urban development area median
income for the county.
[K]
Q. “Opportunity
enterprise partner” means a domestic corporation, a general partnership, a
limited liability company, a limited partnership, a public benefit corporation,
a nonprofit entity or other private business entity or combination thereof that
the authority determines is or will be engaged in an enterprise that creates or
expands economic development opportunities within the state and is eligible for
enterprise assistance pursuant to the act.
[L. “Project review committee” means a
standing committee, appointed by the chairman of the board from the members of
the board pursuant to the bylaws to review proposed enterprise development
projects to be recommended for funding from the fund.]
[M]
R. “State” means the
state of New Mexico.
S. “Workforce development housing”
means below-market housing addressing demand for workforce housing for middle
income workers in proximity to employment centers as determined by board
policy.
T. “Workforce development housing
project” means a residential real estate development project that involves the
purchase, planning, designing, building, surveying, improving, operating,
furnishing, equipping or maintaining of land, buildings or infrastructure that
provides housing, including housing that provides the option of home ownership.
U. “Zoning reforms” means policies,
procedures and regulations implemented by political subdivisions intended to
decrease the costs and timing of constructing affordable housing and workforce
housing, including expedited permitting, high density zoning, and other
criteria as determined by policies of the board.
[2.93.1.7 NMAC – N, 4/25/2023; A, 7/30/2024]
2.93.1.9 ENTERPRISE DEVELOPMENT PROJECT
PROPOSAL, REVIEW, PRIORITIZATION AND APPROVAL PROCESS:
A. The
board and the department will administer an outreach program to local
governments and potential opportunity enterprise partners for the purpose of
making recommendations to the authority regarding enterprise assistance, and to
notify applicants that enterprise development project proposals are being
accepted for review by the project review committee and the board for
prioritization and recommendation for funding to the authority.
B. The
authority will provide forms and guidelines for enterprise development project
proposals and applications for enterprise assistance. The authority may consider the
recommendations and priorities of the board.
C. Applications
for enterprise assistance shall describe the scope and plans of the enterprise
development project or proposed use of leased property, demonstrate that the
enterprise development project or lease will create or expand economic
development opportunities within the state, demonstrate that the enterprise
project or lease will contribute to the diversification of the state’s economy,
demonstrate that the enterprise development project or lease will comply with
all applicable state and federal law, provide sufficient evidence that other
means of financing a proposed enterprise development project are unavailable or
insufficient, and include any other documentation or certifications that the
authority deems necessary.
D. Department
staff will complete an initial evaluation of the application for enterprise
assistance and enterprise development project proposals promptly following
receipt in consideration of information provided by applicants according to the
factors listed in Subsection C of 2.93.1.9.NMAC. Such evaluation will include recommendations
regarding suitability for enterprise assistance. The department may obtain input and information
relevant to carrying out the purposes of the act from outside consultants in evaluating enterprise
development project proposals and applications for enterprise assistance. The department will
then forward to the [project review] commercial development committee
for review, the relevant application and the corresponding recommendation of
the department, along with all third-party input and information compiled by
the department.
E. The
[project review] commercial development committee will consider
the proposed enterprise development project and may confer with outside
parties, including any person familiar with the proposed enterprise development
project, as necessary to obtain more information on the feasibility, merit, and
cost of the proposed enterprise development project. The [project review] commercial
development committee will make a recommendation to the board on each
enterprise development project proposal.
F. Upon
the recommendation of the [project review] commercial development
committee, the board will prioritize the proposed enterprise development
projects for recommendation to the authority for consideration of enterprise
assistance.
G. After
completion of the review process by the [project review] commercial
development committee and the board and receipt of a favorable
recommendation on the enterprise development project proposal, the prioritized
enterprise development projects will be recommended by the board to the
authority for consideration of enterprise assistance.
H. NMFA
may request an additional application from recommended enterprise assistance
projects.
I. A
member of the board or employee of the authority with an interest, either
direct or indirect, in an application or contract relating to enterprise
assistance, shall disclose his or her interest to the authority and the board
in writing and shall not participate in actions by the board or the authority
with respect to that conflict.
[2.93.1.9 NMAC – N,
4/25/2023; A, 7/30/2024]
2.93.1.13 [RESERVED]
[2.93.1.13 NMAC – N,
4/25/2023; Rn. 2.93.1.20 NMAC, 7/30/2024]
2.93.1.14 ENTERPRISE
ASSISTANCE CONTRACT:
A. The
authority and opportunity enterprise partner awarded enterprise assistance will
enter into a contract to establish the terms and conditions of enterprise
assistance from the authority. The
contract to provide enterprise assistance shall:
(1) define the roles and responsibilities of the authority and
the opportunity enterprise partner;
(2) provide clawback or recapture provisions, if applicable,
that protect the public investment in the event of a default on the contract;
(3) provide a finance plan detailing the financial
contributions and obligations of the authority and opportunity enterprise
partner;
(4) require an opportunity enterprise partner to provide
guarantees, letters of credit or other acceptable forms of security, as
determined by the authority;
(5) specify how rents, if applicable, will be collected and
accounted for;
(6) specify how debts incurred on behalf of the opportunity
enterprise partner will be repaid; and
(7) provide that, in the event of a default, the authority may
(a) elect to take possession of the property, including the succession of all
right, title and interest in the enterprise development project; and (b)
terminate the lease or cease any further funding and exercise any other rights
and remedies that may be available.
B. The
interest rate on any enterprise assistance extended, if applicable, shall be
determined by the authority
C. The
contract will contain provisions which require enterprise assistance recipients
to comply with all applicable federal, state and local laws and regulations.
D. The
authority will monitor terms of the contract and enforce or cause to be
enforced all terms and conditions thereof, including prompt notice and
collection. In the event of default
under an enterprise assistance contract by an applicant, the authority may
enforce its rights by suit or mandamus and may utilize all other available
remedies under state and applicable federal law.
E. [All]
A list of contracts for enterprise assistance shall be provided to the
board by the authority no later than thirty days from the execution of that
contract. The board shall review
contracts from time to time and determine whether the use of enterprise
assistance is a prudent expenditure of public funds and report to the
legislature annually on that determination.
The board [shall] may also make recommendations to the
authority of potential rulemaking, application or lending changes to ensure
transparent and efficient processes for carrying out the provisions of the act.
[2.93.1.14 NMAC – N,
4/25/2023; A, 7/30/2024]
2.93.1.15 ELIGIBILITY
AND PRIORITIZATION POLICIES FOR HOUSING DEVELOPMENT PROJECTS: The board will determine which housing
development projects to recommend to the authority for housing development
assistance from the housing development revolving fund. Board policies shall
give priority to projects that:
A. demonstrate
local support and need,
B. create
or expand attainable housing units within the state,
C. are
located in political subdivisions that have implemented zoning reforms, and
D. other
means of financing a proposed housing development project are unavailable or
insufficient. The board shall establish policies to consider in prioritizing
housing development projects.
[2.93.1.15 NMAC – N,
7/30/2024]
2.93.1.16 HOUSING
DEVELOPMENT PROJECT PROPOSAL, REVIEW, PRIORITIZATION AND APPROVAL PROCESS:
A. The board will administer an
outreach program to local governments and potential housing development
partners for the purpose of making recommendations to the authority regarding
housing assistance, and to notify applicants that housing development project
proposals are being accepted for review by the housing development committee
and the board for prioritization and recommendation for funding to the
authority.
B. The
authority will provide forms and guidelines for housing development project
proposals and applications for housing development assistance. The authority
may consider the recommendations and priorities of the board.
C. Applications
for housing development assistance shall describe the scope and plans of the
housing development project, demonstrate that the housing development project
will create or expand attainable housing within the state, and provide
sufficient evidence that other means of financing a proposed housing
development project are unavailable or insufficient, and include any other
documentation or certifications that the authority deems necessary.
D. Authority
staff will complete an initial evaluation of the application for housing
assistance and housing development project proposals promptly following receipt
in consideration of information provided by applicants according to the factors
listed in Subsection C of 2.93.1.16. Such evaluation will include
recommendations regarding suitability for housing development assistance. The
authority may obtain input and information relevant to carrying out the
purposes of the act from outside consultants in evaluating housing development
project proposals and applications for housing assistance. The department will
then forward to the housing development committee for review, the relevant
application, and the corresponding recommendation of the department, along with
all third-party input and information compiled by the department.
E. The
housing development committee will consider the proposed housing development
project and may confer with outside parties, including any person familiar with
the proposed housing development project, as necessary to obtain more
information on the feasibility, merit, and cost of the proposed housing
development project. The housing development committee will make a
recommendation to the board on each housing development project proposal.
F. Upon
the recommendation of the housing development committee, the board will
prioritize the proposed housing development projects for recommendation to the
authority for consideration of housing assistance.
G. After
completion of the review process by the housing development committee and the
board and receipt of a favorable recommendation on the housing development
project proposal, the prioritized housing development projects will be
recommended by the board to the authority for consideration of housing
assistance.
H. NMFA
may request an additional application from recommended housing development
assistance projects.
I. A
member of the board or employee of the authority with an interest, either
direct or indirect, in an application or contract relating to housing
development assistance, shall disclose his or her interest to the authority and
the board in writing and shall not participate in actions by the board or the
authority with respect to that conflict.
[2.93.1.16 NMAC – N,
7/30/2024]
2.93.1.17 HOUSING
DEVELOPMENT PROJECTS AND ELIGIBLE COSTS:
A. The
board may recommend to the authority that housing development assistance from
the housing development revolving fund should be made available for housing
development projects as provided by Section 6- 34-13.3, NMSA 1978.
B. Housing
development assistance from the housing development revolving fund shall be
made only for eligible items, as determined by the authority, which includes:
(1) housing development assistance;
(2) paying the reasonably necessary administrative costs and
other costs and fees incurred by the authority in carrying out the provisions
of the act.
[2.93.1.17 NMAC – N,
7/30/2024]
2.93.1.18 HOUSING DEVELOPMENT PROJECT
FINANCING: The authority may recommend structured
housing development assistance packages that include housing development loans.
The structure, terms and conditions will be determined by the authority.
[2.93.1.18 NMAC – N,
7/30/2024]
2.93.1.19 FINANCING APPROVAL REQUIREMENTS: Based on the priority and evaluation factors set
forth in Sections 15, 16, and 17 above, as well as the requirements of the act,
the board may recommend to the authority housing development projects for
consideration of housing development assistance. Board recommendations may be
considered by the authority but shall not be binding on the authority. A member
of the board or employee of the authority with an interest, either direct or
indirect, in an application or contract relating to housing assistance, shall
disclose his or her interest to the authority and the board in writing and
shall not participate in actions by the board or the authority with respect to
that conflict.
[2.93.1.19 NMAC – N,
7/30/2024]
2.93.1.20 RECONSIDERATION
OF BOARD DECISIONS: Any applicant
affected by a decision of the board may request reconsideration of the decision
of the board by notifying the board in writing within 15 days following the
meeting at which the decision was made. Notice of a decision made in an open
meeting of the board is deemed to be given on the date of the meeting, and the
time for notification of a request for reconsideration shall run from that
date, regardless of whether any written notice of the decision is given by the
board. A request for reconsideration shall state with particularity the grounds
for reconsideration, including any factual or legal matter on which the
applicant believes that there was an error by the board. Upon receiving a
timely and proper request for reconsideration, the chair of the board will set
the matter for reconsideration at the board’s next regularly scheduled meeting
or at a special meeting called for the purpose, at the chairman’s discretion.
Upon reconsideration by the board, the board will notify the applicant of the
board’s decision, in writing, within five working days of the decision. The
decision of the board on reconsideration is final. A request for
reconsideration not timely or properly made will not be considered by the
board.
[2.93.1.20 NMAC – N,
7/30/2024]
HISTORY OF 2.93.1 NMAC:
[RESERVED]