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Presentation, discussion, and possible action regarding a waiver of 10 TAC §11.9(d)(5) for Residences at Seley Park (25188)
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RECOMMENDED ACTION
recommendation
WHEREAS, the Department received a Competitive (9%) Housing Tax Credit Application for Residences at Seley Park (25188) on February 28, 2025, which is located in State House District 56, represented by Representative Pat Curry;
WHEREAS, a letter of opposition was submitted to the Department on February 28, 2025, by Representative Curry, in accordance with 10 TAC §11.9(d)(5), which results in an eight-point deduction under the scoring criteria for Community Support from a State Representative;
WHEREAS, 10 TAC §11.9(d)(5)(A) expressly prohibits changes or withdrawal of a letter from a State Representative once it has been submitted to the Department, and the Representative has not expressed to the Department a desire to withdraw the opposition letter; and
WHEREAS, the Applicant has submitted a waiver request asking that the opposition letter be withdrawn;
NOW, therefore, it is hereby
RESOLVED, that the waiver of 10 TAC §11.9(d)(5)(A) for Residences at Seley Park is denied.
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BACKGROUND
Residences at Seley Park is a 2025 Competitive (9%) Housing Tax Credit Application that requests $1,643,278 in housing tax credits for the New Construction and Adaptive Reuse of 49 units in Waco, McLennan County. The Development is located in State House District 56, currently represented by Rep. Curry.
In accordance with 10 TAC §11.9(d)(5), an application may receive up to eight points if a letter of support is submitted by the relevant State Representative by the Full Application Delivery Date; however, on February 28, 2025, Rep. Curry submitted a letter explicitly stating opposition to the Development. Per Department rules, this results in an eight-point deduction.
In accordance with 10 TAC §11.9(d)(5)(A), “once a letter is submitted to the Department it may not be changed or withdrawn,” and as a result, there is no opportunity under the rules for the Applicant to have this letter removed from consideration in the Application’s evaluation. Because of this, the Applicant submitted a waiver request that asks the Department to allow the Representative to withdraw or amend the original letter and substitute a revised version that does not oppose the Development. The Representative’s office has not contacted the Department to express a desire to withdraw or amend the opposition letter.
While Department Staff recognizes that the proposed Development has merits, state statute requires that negative points be awarded when an opposition letter is received from the State Representative. Tex. Gov’t Code Sec. 2306.6710(f) states that:
(f) In evaluating the level of community support for an application under Subsection (b)(1)(J), the department shall award:
(1) positive points for positive written statements received;
(2) negative points for negative written statements received; and
(3) zero points for neutral statements received.
The Board has approved two waiver requests of this same provision of the rules within the last two years; however, there is a clear distinction between those requests and this one. For the prior requests, the relevant State Representatives both provided a revised letter prior to the Full Application Delivery Date, and both State Representative expressed a desire to withdraw their initial letter. For the subject Application, no such letter was received prior to that date. This distinction is important, because Tex. Gov’t Code §2306.6708 prohibits an Applicant from changing or supplementing and Application after the filing deadline except at the Department’s request.
The Applicant contends that granting the waiver would advance several statutory purposes under Tex. Gov’t Code Chapter 2306, including increasing the supply of affordable housing; however, the request does not establish that this specific waiver is needed for this specific Application in order to meet those purposes, as there are other Applications in the subregion that do not require such a waiver to move forward.
In summary, the opposition letter from the State Representative was received prior to the Full Application Delivery Date, and in accordance with statute, this results in a point deduction for the Application. Department rules prohibit the letter from being withdrawn, and state statute prohibits the Application from being changed or supplemented after the filing deadline. No alternative letter was submitted by the State Representative either before or after the filing deadline, and the Representative’s office has not contacted the Department to request that the opposition letter be withdrawn. Because of this, staff recommends that the waiver of 10 TAC §11.9(d)(5)(A) be denied.