Memo to Members continues to summarize comments submitted by 84 organizations, agencies, and individuals regarding the proposed rule implementing the National Housing Trust Fund (see Memo, 3/4 and 3/11). Additional comments will be presented in a subsequent issue of Memo to Members.

Tenant protections. According to the NHTF statute, activities must comply with laws relating to tenant protections and tenants' rights to participate in the decision making regarding their homes. Because the proposed rule is silent on this subject, NLIHC urged that the rule add a new subsection to comply with the statute and provide for tenant protections consistent with HUD Handbook 4350.3. The National Housing Law Project provided a number of suggestions addressing tenant selection policies and lease provisions protecting ongoing tenancy. The Manufactured Home Owners Association of America wrote that there should be an explicit right for manufactured home park residents to organize.

Resident and public participation. The statute requires public participation in the development of the NHTF Allocation Plan. The proposed regulation merely requires states to submit a Consolidated Plan (ConPlan) following the ConPlan regulations, which do have public participation requirements. 

NLIHC commented that in order to demonstrate the importance of public participation in the creation of an NHTF Allocation Plan, the NHTF regulations must explicitly declare, separately from the ConPlan regulations, that in order to receive NHTF money states and any subgrantees must develop their Allocation Plans using the ConPlan public participation rules.

The National Housing Law Project provided a list of specific recommendations ranging from requiring a ConPlan Annual Action Plan to identify barriers to public participation and set out a plan for addressing those barriers, to requiring owners of existing housing developments to notify residents and enable them to participate in the development of an NHTF application.

Fair housing. A number of civil rights organizations recommended that the final rule:

• Require developments over a certain size to have some reasonable mixed-income standards in order to avoid undue concentrations of extremely low income (ELI) households (those with incomes below 30% of area median, or AMI) in a given building, development, or neighborhood.
• Prohibit local residency or employment preferences.
• Select tenants by lottery, rather than by chronological selection from a waiting list.
• Adopt affirmative marketing requirements stronger than those of HOME.
• Clarify that properties should not be held to strict compliance with local zoning requirements because that affords veto power to jurisdictions that do not want affordable housing.
• Require states to certify that allocation of NHTF dollars will not be subject to state or local policies that impose local approval or contribution requirements that exceed those applicable to similar unsubsidized residential uses. 

Disability. Seven organizations submitted comments touching upon serving people with disabilities. National disability rights organizations urged prohibiting segregated housing for people with disabilities, and clearly articulating the limited situations in which “single purpose” permanent supportive housing is permitted by Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. They also suggested improvements that would align tenant selection policies with supportive services financing from the U.S. Department of Health and Human Services:

• Require tenant selection preferences in general occupancy developments for people with disabilities, without regard to the category of disability. In addition, forbid segregation of people with disabilities in separate buildings, floors, or even parts of buildings.
• Offer accessible units on a preferential basis to households with members who need the features of the unit.
• Allow tenant selection preferences in permanent supportive housing to target households eligible for and able to obtain access to supportive services offered in connection with the housing.

Three California organizations suggested that all new construction and substantial rehabilitation units be “visitable” by wheelchair users, and that at least 30% of the units accessible, with the remaining portion adaptable to accessibility.

Manufactured housing. The proposed regulation would allow NHTF money to be used to buy or rehabilitate manufactured homes, or to purchase the land on which a manufactured home sits. The home must, at the time of project completion, be located on land that is owned by the home owner, or land for which the home owner has a lease for a period that at least equals the affordability period.

The Corporation for Enterprise Development provided specific recommendations which were endorsed by another commenter:

• Eligible uses related to manufactured housing should be expanded to include:
  • Removing or decommissioning substandard units.

o   Financing the purchase of land for creating a manufactured home community.

o   Converting manufactured housing communities to resident ownership where 51% of the rental sites are occupied by homes owned or rented by income-qualified households.

• Use of NHTF dollars to replace homes occupied by income-eligible households on a one-for-one basis in the wake of a community being converted to another use, should be considered an eligible “relocation cost.”

Two other comments noted that it was too difficult for manufactured housing communities and home owners to use NHTF if the assisted units must be on land for which the home owner has a lease at least as long as the period of affordability. Another organization recommended language to facilitate the purchase of land to preserve a manufactured housing community by nonprofits and home owners’ associations.

Energy efficiency. Fifteen letters responded to the proposed rule setting out ENERGY STAR and ASHRAE energy standards for various types of properties. The National Housing Trust and Enterprise Community Partners each urged a slightly reduced standard for gut rehabilitation of buildings with four or more stories, a standard exceeding ASHRAE 90.1-2007 by 15% instead of 20%.

Enterprise also noted that the Enterprise Green Communities Criteria and LEED standards include energy efficiency requirements that are substantially equivalent to ENERGY STAR and ASHRAE; therefore, the rule should simply require energy efficiency compliance with any building rating systems that are substantially equivalent to ENERGY STAR and ASHRAE. Five additional respondents offered similar suggestions.

Three comments simply endorsed use of ENERGY STAR. Two respondents wanted states to have the flexibility to devise their own energy standards. One business association objected to the ASHREA energy provisions.

The comments submitted by the National Housing Trust Fund Campaign are available at http://www.nlihc.org/doc/NHTF_Comments_NHTF_Regs_12_28.pd

The comments submitted by NLIHC are available at http://www.nlihc.org/doc/NLIHC_Comments_NHTF_Proposed_Rule.pdf

Copies of all comments are available at www.regulations.gov. The docket number is HUD-2010-0101.