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Presentation, discussion, and possible action on a waiver of 10 TAC §11.9(d)(5) related to Community Support from State Representative for GardenWalk of West Columbia (#25185)
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RECOMMENDED ACTION
recommendation
WHEREAS, GardenWalk of West Columbia is an active 2025 9% competitive housing tax credit Application that requests $700,000 in housing tax credits for the rehabilitation of a 56 unit USDA Development in West Columbia, Brazoria County;
WHEREAS, 10 TAC §11.8(d) related to Community Support from State Representative allows an Application to be awarded up to eight points for written support from the appropriate State Representative;
WHEREAS, this Application received a letter from the State Representative expressing neutrality, which results in zero points being awarded under the rules;
WHEREAS, the Representative submitted a second letter that was intended to rescind the initial letter of neutrality, which is disallowed by the rules;
WHEREAS, the Applicant timely submitted a waiver with Application that asks the Board to waive 10 TAC §11.8(d), which states that, “once a letter is submitted to the Department it may not be changed or withdrawn;” and
WHEREAS, staff is unable to determine that this request meets the standards for waivers established at 10 TAC §11.207.
NOW, therefore, it is hereby
RESOLVED, that the waiver of 10 TAC §11.8(d) for GardenWalk of West Columbia is hereby denied.
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BACKGROUND
GardenWalk of West Columbia is an active 2025 9% competitive housing tax credit Application that requests $700,000 in housing tax credits for rehabilitation of a 56-Unit USDA Development in West Columbia, Brazoria County. The Qualified Allocation Plan (QAP) includes a point category related to Community Support from State Representative, which allows for up to eight points to be awarded to an Application based on written support from the appropriate State Representative. Presuming that all requirements of the rules are met, the point values available under this scoring item are:
• Letters that express support are awarded eight points.
• Letters that express neutrality are awarded zero points.
• Letters that express opposition result in an eight point deduction.
• If no letter is received, or if a letter is received stating that the Representative will not be submitting a written statement, then the points available in this category are awarded based on support expressed by either the municipal or county government, depending on the Development’s location. Critically, this option is only available if no written statement is received. If a neutral written statement is received, then the Application is awarded zero points.
A written statement from the State Representative that expresses neutrality for the subject Application was submitted to the Department by the deadline. In accordance with the rules, this results in zero points being awarded with no opportunity to achieve those points through the municipal support option.
After the submission of the initial written statement, the Representative’s office submitted a second written statement which expressed a desire to rescind the neutral statement and, instead, provide no statement concerning the Application. While the Department can accept this second letter as general public comment, it cannot be used for scoring purposes, as 10 TAC §11.8(d) is clear that, “once a letter is submitted to the Department it may not be changed or withdrawn.” The statutory provisions upon which this section of the QAP is based (Sections 2306.6710(b)(1)(J); and 2306.6710(f)-(g)) of the Tex. Gov’t Code ) contain the same evaluation criteria, but do not expressly prohibit the change or withdrawal of a State Representative’s written statement.
The Applicant timely submitted a request for the Department to waive the rule in question that prohibits a written statement from a State Representative from being changed or withdrawn. In the request, the Applicant states that:
The Representative was unaware that this neutral position would have an adverse effect on the scoring of the application for GardenWalk of West Columbia. The Representative was unfamiliar with the specific TDHCA scoring requirements related to input from State Representatives. Upon learning about the specific requirements and the impact of state representative letters on TDHCA applications, Rep. Vasut issued a second letter to TDHCA, dated February 11, 2025 (the “Revised Letter”), which revoked the initial letter of neutrality and stated that “no written statement of support, neutrality, or opposition is intended or will be provided by me for TDHCA application #25185
The requirements for waivers are established in 10 TAC §11.207. These requirements include that the waiver must either not within the control of the Applicant or due to an overwhelming need, and that granting the waiver must better serve the policies and purposes of the Department outlined in the Texas Government Code. While the contents of the initial written statement were outside of the Applicant’s control, the receipt of a neutral letter is a situation that is clearly contemplated in the QAP, as is the prohibition on that written statement being changed or withdrawn after being submitted. Department staff is unable to determine whether the policies and purposes of the Department are better served by modifying or waiving the ability to receive a modified State Representative letter for a single Application, and therefore recommends that the waiver be denied by the Board.