New Mexico Register / Volume XXXV, Issue
10 / May 21, 2024
Notice of Proposed Rulemaking and Public Hearings
The New Mexico Opportunity
Enterprise and Housing Development Review Board (Board) will hold a public
hearing on Thursday, June 20, 2024, from 10:00 – 11:00 a.m.,
and on Friday, June 21, 2024, from 10:00–11:00 a.m. The hearing will be
conducted virtually via Zoom; the public may attend the hearing using the
following methods:
Thursday, June 20,
2024, 10:00-11:00 a.m. Mountain Time
Zoom Meeting Link:
https://nmfa-net.zoom.us/j/88923074770?pwd=iWBvqLCmEQd6qJsF8DMXVsHsonrn2F.1
Meeting ID: 889 2307 4770
Passcode: 692798
To join the meeting by phone,
dial:
+13462487799,,88923074770#,,,,*692798#
US - or -
+16694449171,,88923074770#,,,,*692798# US
Find your local number: https://nmfa-net.zoom.us/u/kknsGPrEC
Friday, June 21, 2024
10:00-11:00 a.m. Mountain Time
Zoom Meeting Link:
https://nmfa-net.zoom.us/j/82139120505?pwd=tvPk5wADZ4fbTakjF9XVgiAyHjk7Q9.1
Meeting ID: 821 3912 0505
Passcode: 824077
To join the meeting by phone,
dial:
+16694449171,,82139120505#,,,,*824077#
US - or -
+17193594580,,82139120505#,,,,*824077#
US
Find your local number: https://nmfa-net.zoom.us/u/kcGUii4Pd0
The purpose of the rule
hearing is to obtain input and public comment on proposed rule amendments
relating to
opportunity enterprise and housing development assistance consistent with
changes made to the Opportunity Enterprise and Housing Development Act, Laws
2024, Ch. 8 (House Bill 195 Approved February 28, 2024).
Copies of the proposed rule may be accessed online at https://www.nmfinance.com/opportunity-enterprise-review-board or contact Board staff at OGC@nmfa.net, (505) 984-1454 , or toll free 1-800-ASK-NMFA (1-877-275-6632).
The Board will accept written
public comments on the proposed rule beginning May 21, 2024. Please submit
written comments on the proposed rule to the NMFA, attention Daniel C.
Opperman, Chief Legal Officer, via electronic mail at OGC@nmfa.net, or
by regular mail at 207 Shelby Street, Santa Fe, NM 87501. Written comments must
be received no later than 5 p.m. on June 21, 2024. Comments received prior to the rule hearing
will be posted to the Board website at https://www.nmfinance.com/opportunity-enterprise-review-board. Persons will also be
given the opportunity to present their comments at the rule hearing.
Individuals who require this
information in an alternative format or need any form of auxiliary aid to attend
or participate in this meeting are asked to contact the Board Staff as soon as
possible at OGC@nmfa.net, (505) 984-1454 , or toll free 1-800-ASK-NMFA
(1-877-275-6632). The Board requests
advance notice to provide required special accommodations at least one week
prior to the meeting or as soon as possible.
Statutory Authority: Legal authority for this rulemaking may be found in the Opportunity Enterprise and Housing Development Act, Section 6-34-7 NMSA 1978 and Laws 2024, Ch. 8. Pursuant to NMSA 1978, 6-34-3, 6-34-5, and Laws 2024, Ch 8, Section , the New Mexico Finance Authority is responsible for adopting rules relating to the use of the opportunity enterprise revolving fund and the housing development revolving fund necessary to carry out the provisions of the Opportunity Enterprise and Housing Development Act and shall provide necessary administrative services to the board.
Proposed Amendment:
This is an amendment to
2.93.1 NMAC, Sections 1, 2, 6, 7, 9, 14, re-numbering Section 13 to Section 20,
and adding new Sections 15 through 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, and
6-34-xx 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.
D. Section
6-34-7, NMSA 1978 provides that the opportunity enterprise and housing
development review board is required to adopt rules necessary to carry out
the provisions of the act and allowing the authority to establish procedures
for applying and qualifying for enterprise assistance and housing
development assistance, establishing economic development goals for the
state in consultation with the department, governing the application procedures
and requirements for enterprise assistance and housing development
assistance, determining how to select and prioritize applications for
enterprise assistance and housing development assistance to [by] be
funded by the authority, prioritizing projects that are in political
subdivisions that are implementing zoning reforms that support housing
development projects, and providing safeguards to protect public money and
other public resources.
E. Section
6-34-12, NMSA 1978 provides 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
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-xx, NMSA 1978, as the same may be
amended and supplemented.
B.
“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. “Authority”
means the New Mexico finance authority.
D. “Board”
means the opportunity enterprise and housing development review board
created by the act.
E. “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.
F. “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]
G. “Department” means the
economic development department.
[G] H. “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] I. “Enterprise assistance” means opportunity enterprise financing,
an opportunity enterprise lease or an opportunity
enterprise loan.
[I] J. “Enterprise development project” means 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] K. “[Fund means the opportunity enterprise revolving fund] Housing
development assistance” means a loan for workforce development housing projects
or affordable housing infrastructure.
L. “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.
M. “Housing
development partners” 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.
N. “Housing
development project” means an affordable housing infrastructure project or a
workforce development housing project.
O. “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] P. “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.
Q. “Opportunity
Enterprise Revolving Fund” means the opportunity enterprise revolving fund.
[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 involved 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 [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.] [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 PRIORITIZON POLICIES FOR HOUSING DEVELOPMENT PROJECTS: The board will develop 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 2.93.1.15. 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-[xx], NMSA 1978.
B. Housing
development assistance from the housing development revolving fund shall be
made only for eligible items, a determined by the authority, which includes:
(1) opportunity housing loans;
(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 developments
loans. The structure, terms and conditions of the loans 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]