CHAPTER 93 OPPORTUNITY
ENTERPRISE AND HOUSING DEVELOPMENT ACT
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, 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]
2.93.1.3 STATUTORY AUTHORITY: Sections 6-34-6 and 6-34-7, NMSA 1978.
[2.93.1.3 NMAC – N,
4/25/2023]
2.93.1.4 DURATION: Permanent.
[2.93.1.4 NMAC – N,
4/25/2023]
2.93.1.5 EFFECTIVE DATE: April 25,
2023, unless a later date is cited at the end of a section.
[2.93.1.5 NMAC – N,
4/25/2023]
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 projects recommended by the board, govern the
process through which applicants may apply for enterprise assistance and
housing development assistance, and collect fees and costs related to providing
financing.
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 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 and 6-34-13.3, NMSA 1978 provides that the authority shall administer
the opportunity enterprise revolving fund and the housing development revolving
fund and recover from the funds the costs of administering the 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, NMSA 1978, as the same may be amended and supplemented.
B.
“Affordable housing infrastructure project” means affordable housing
infrastructure projects needed to support housing for low- or moderate-income
residents;
C. “Application”
means a written document made publicly available by the authority and filed
with the authority for the purpose of evaluating, in consultation with the
department, the applicant’s qualifications and proposed projects for types of
assistance which may be provided by the authority under the act.
D. “Authority”
means the New Mexico finance authority.
E. “Board”
means the opportunity enterprise and housing development review board created
by the act.
F. “Bylaws”
means the amended and restated bylaws of the board adopted on 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.
H. “Department” means the economic
development department.
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.
J. “Enterprise
assistance” means opportunity enterprise financing, an opportunity enterprise
lease or an opportunity enterprise loan.
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.
L. “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.
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.
R. “Opportunity
Enterprise Revolving Fund” means the opportunity enterprise revolving fund.
S. “State”
means the state of New Mexico.
T. “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.
U. “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.
V. “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]
2.93.1.8 ELIGIBILITY AND PRIORITIZATION
POLICIES FOR ENTERPRISE DEVELOPMENT PROJECTS: The board will develop and consider a variety
of factors in reviewing and evaluating enterprise development project proposals
to determine which enterprise development projects to recommend to the
authority for enterprise assistance from the fund. Board policies shall give
priority to projects that:
A. demonstrate
local support and financial need,
B. create
or expand economic development opportunities within the state,
C. contribute
to diversification of the state’s economy,
D. advance
environmentally sustainable economic development goals of the state, and
E. other
means of financing a proposed enterprise development project are unavailable or
insufficient. The board shall establish policies to consider in prioritizing
enterprise development projects.
[2.93.1.8 NMAC – N,
4/25/2023]
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 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
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
commercial development committee will make a recommendation to the board on
each enterprise development project proposal.
F. Upon
the recommendation of the 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 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]
2.93.1.10 ENTERPRISE
DEVELOPMENT PROJECTS AND ELIGIBLE COSTS:
A. The
board may recommend to the authority that enterprise assistance from the fund
should be made available for enterprise development projects as provided by
Section 6-34-6, NMSA 1978.
B. Enterprise
assistance from the fund shall be made only for eligible items, as determined
by the authority, which includes:
(1) opportunity enterprise financing;
(2) opportunity enterprise loans;
(3) acquiring title or other interest in an enterprise
development project;
(4) paying the reasonably necessary administrative costs,
payments in lieu of taxes and other costs and fees incurred by the authority in
carrying out the provisions of the act.
[2.93.1.10 NMAC – N,
4/25/2023]
2.93.1.11 ENTERPRISE
DEVELOPMENT PROJECT FINANCING: The
authority may recommend structured enterprise assistance packages that include
opportunity enterprise financing, opportunity enterprise leases, opportunity
enterprise loans, or other type of assistance authorized by the authority and
the board, if applicable. The structure,
terms and conditions of the financial assistance will be determined by the
authority. Upon completion of an enterprise
development project, the authority shall allow the opportunity enterprise
partner responsible for the completion of that project an opportunity to obtain
an opportunity enterprise lease for that property, provided that any breach of
the terms of any enterprise assistance may preclude that opportunity enterprise
partner from leasing the property, and in that event, the property shall be
made available for lease to other opportunity enterprise partners.
[2.93.1.11 NMAC – N,
4/25/2023]
2.93.1.12 FINANCING
APPROVAL REQUIREMENTS: Based on the
priority and evaluation factors set forth in Sections 8, 9, and 10 above, as
well as the requirements of the act, the board may recommend to the authority
enterprise development projects for consideration of enterprise
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 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.
[2.93.1.12 NMAC – N,
4/25/2023]
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. 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 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 2.93.1.15. 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- 34-13.3, 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) 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 developments
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]