Mitchell-Lama

Preservation Strategies

(Auditorium)

Biographical Information

Steven J. Weiss concentrates his practice in the areas of affordable housing and community development law and corporate finance transactions using Low-Income Housing Tax Credits (LIHTC's), New Markets Tax Credits, Historic Tax Credits, Brownfield Tax Credits and other tax incentives. He has testified before the United State House of Representatives Ways and Means Committee and before the New York State Assembly Committee on Housing and regarding the LIHTC program. Prior to forming his own law firm, he was a partner and served as Chair of the Corporate Department and the Multi-Family Housing and Community Development Group, of a large Buffalo, New York law firm. Mr. Weiss participated in Leadership Buffalo's class of 1997, and was named to Business First of Buffalo's "40 Under 40," an award given to those who have achieved records of professional success and community involvement. He was born in Buffalo, New York on March 28, 1965 and is admitted to practice in New York . Mr. Weiss received his education at the State University of New York at Buffalo School of Management (B.S. 1987, M.B.A. 1988), and the State University of New York at Buffalo School of Law (J.D., 1991). Mr. Weiss is a member of the American Bar Association Forum on Affordable Housing and Community Development Law, the New York State Bar Association Real Estate Committee, and is a Director of the City of Buffalo Neighborhood Revitalization Corporation, among several other community organizations. Mr. Weiss served on the Affordable Housing Policy Committee, which was part of former New York Governor Eliot Spitzer’s transition team, and Mr. Weiss is currently serving as the Co-Chair of the Low Income & Affordable Housing Committee, a subcommittee of the New York State Bar Association Real Estate Committee. David B. Cabrera is the Deputy Commissioner for the Office of Housing Operations. He has previously served the Division, as the Deputy Counsel and Assistant Commissioner for the Office of Rent Administration and as the General Counsel. Prior to joining the Division, Mr. Cabrera was in private practice with a law firm specializing in real estate litigation and transactions. Niall J. Murray is President of Rockabill Advisors LLC a firm specializing in advising not-for-profit entities in the development and financing of affordable housing and assisted living projects. Rockabill’s expertise is principally in the innovative use of low income housing tax credits and tax-exempt bonds to finance development. Niall has advised on the development and financing of over 5,000 units of affordable housing and has been to the forefront in using the capital markets for such programs as affordable assisted living, qualified zone academy bonds, Public Housing Authority privatization and HUD and Mitchell-Lama Preservation deals. Niall is a qualified accountant with the Association of Certified Chartered Accountants (CPA equivalent), an internationally recognized accountancy organization. David Walsh is the Senior Vice President, Multifamily Programs State of New York Housing Finance Agency. Named to his position at in April 2008, he oversees the asset management, construction, development, preservation and special projects areas of the agencies. Previously, Mr. Walsh served for five years as Director of NYC Housing

Development for Common Ground Community, a non-profit housing development organization specializing in housing for the homeless, overseeing the design and development of some 1,000 units of supportive housing in the metropolitan area. Prior to working at Common Ground, Mr. Walsh served for two years as the Director of Brokerage in the Real Estate Investment area of the Wafra Investment Advisory Group, which is a U.S. registered investment advisor wholly owned by the Public Institute of Social Security for Kuwait. Prior to working with Wafra, Mr. Walsh served as Senior Vice President of the LCP Group, LP, a privately held real estate investment holding company acquiring net leased properties of behalf of in-house investment partnerships and institutional clients. Mr. Walsh received his Masters Degree with a concentration in Real Estate Development from the School of Architecture, Preservation & Planning at Columbia University and an undergraduate degree from Western New England College.

Mitchell-Lama Preservation Strategies

I. Introduction of Moderator/Panelists (5 minutes) II. Overview of Session (10 minutes)

a. Mitchell-Lama Regulations b. Mitchell-Lama Statute

III. New York State Division of Housing and Community Renewal (20 minutes)

a. DHCR Video Presentation b. Role of Agency and Process

IV. New York State Housing Finance Agency (20 minutes)

a. Background of HFA b. Role of Agency

V. Finance Strategy (20 minutes)

a. Overview of Shore Hill Mitchell Lama Preservation b. Review of Budget Summary

VI. Q & A (15 minutes)

Moderator: Steven J. Weiss, Cannon Heyman & Weiss Panelists: David Cabrera, NYS DHCR Niall Murray, Rockabill Advisors David Walsh, NYS HFA

A COMPLETE COPY OF THESE REGULATION CAN BE FOUND UNDER THE RESOURCE LINKS TAB AT WWW.CHWATTYS.COM

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE

OF NEW YORK

TITLE 9. EXECUTIVE DEPARTMENT SUBTITLE S. DIVISION OF HOUSING AND COMMUNITY RENEWAL

CHAPTER IV. STATE-ASSISTED HOUSING CONSTRUCTED BY PRIVATE ENTERPRISE

SUBCHAPTER A. GENERAL PROVISIONS Section 1700.1 Scope.

These rules and regulations relate to the initiation, development and operation of private housing projects under the sponsorship of private enterprise and the ownership of limited dividend or limited profit housing companies, which in return for State and municipal financial aid or assistance and the grant of municipal tax exemption, voluntarily submit to public supervision during the period of time State or municipal assistance, including in the case of limited profit housing companies, loans by the State of New York or the New York State Housing Finance Agency, and in certain instances, State subsidies, remain in full force and effect. Limited profit and limited dividend housing companies are organized pursuant to the provisions of articles 2 and 4, respectively, of the Private Housing Finance Law. For the purposes of this Chapter, the public supervision herein above referred to is that exercised by the Commissioner of Housing and Community Renewal. Limited profit projects benefiting from municipal loans are under the supervision of a supervising agency which may be either the municipal comptroller or the chief fiscal officer of the municipality wherein the project is located, except that in the City of New York it shall be the Housing and Development Administration. With such municipal limited profit projects we are not here concerned except to the extent of the limited supervision over such companies given to the Commissioner of Housing and Community Renewal. These rules and regulations shall also apply to all housing projects initiated by the Urban Development Corporation and presently under the supervision of the commissioner.

Section 1700.2 Definitions. (a) As used in these rules and regulations:

(1) Commissioner shall mean the State Commissioner of Housing and Community Renewal. (2) Company shall mean (i) a limited profit housing company duly incorporated pursuant to the provisions of article 2 of the Private Housing Finance Law, or a company incorporated pursuant to the Membership Corporation Law and article 2 of the Private Housing Finance Law for the purpose of providing housing and auxiliary facilities for staff members, employees or students of a college, university or hospital and their immediate families or for aged persons of low income, pursuant to article 2 of the Private Housing Finance Law, or (ii) a limited dividend housing company duly incorporated pursuant to the provisions of article 4 of the Private Housing Finance Law. (3) Mutual company (cooperative) shall mean a company operated exclusively for the benefit of the persons or families who are entitled to occupancy in a project of such company by reason of ownership of stock in such company.

(4) Municipality and municipal corporation shall mean a city, town or village.

A COMPLETE COPY OF THIS STATUTE CAN BE FOUND UNDER THE RESOURCE LINKS TAB AT WWW.CHWATTYS.COM 1 of 44 DOCUMENTS

NEW YORK CONSOLIDATED LAW SERVICE Copyright © 2008 Matthew Bender & Company, Inc.

a member of the LexisNexis Group. All rights reserved

*** THIS SECTION IS CURRENT THROUGH CH. 328, 07/21/2008 ***

PRIVATE HOUSING FINANCE LAW

ARTICLE II. LIMITED-PROFIT HOUSING COMPANIES

Go to the New York Code Archive Directory

NY CLS Priv Hous Fin Article II Note (2008) Note HISTORY: Add, L 1961, ch 803, eff Mar 1, 1962. Substance derived from former Pub Hous Law art 12. NOTES: New York References: This article referred to in §§ 2, 10, 11-a, 12, 13, 13-a, 15, 16, 17, 18, 20, 21, 22, 23, 23-a, 23-b, 24, 26, 26-b, 26-c, 27, 28, 29, 31, 32, 32-a, 32-b, 33, 34, 35, 36, 36-a, 37, 42, 44, 44-c, 85-a, 126, 451, 551, 555, 572, 573, 577-a, 606, 654, 654-a; CLS Educ § 408; CLS Gen Bus §§ 352-e, 352-eee, 352-eeee; CLS Gen City § 20-d; CLS Gen Mun § 507; CLS Loc Fin §§ 11.00, 21.00, 23.00, 152.00, 153.00, 154.00; CLS Pub A §§ 1974, 1974-a, 1977-a; CLS Pub Hous §§ 3, 58, 58-a; CLS Real P Tax §§ 422, 467-b, 467-c; CLS St Fin §§ 60, 61; CLS Tax § 209; CLS Unconsol Ch 252 §§ 3, 12, 15; Ch 252-A, §§ 3, 7, 9; Ch 252-C § 15 This article referred to in CLS Ins § 107 Exemption from franchise tax, CLS Tax § 209 Corporations organized and operating under this article not subject to tax under article 9-A of Tax law, CLS Tax § 209 State Urban Development Corporation Act, CLS Unconsol Ch 252 Additional state debt for limited profit housing, CLS Unconsol Ch 255-C

NYCRR References: Budget/rent determination procedure. 9 NYCRR §§ 1728-1.1 et seq Chart of accounts for regulated housing companies. 9 NYCRR § 1740.1 Research References & Practice Aids: 66 NY Jur 2d, Infants and Other Persons Under Legal Disability §§ 220, 241 NY Jur 2d, Interim Topic Service, Housing Laws and Urban Renewal §§ 5-7, 11, 12, 28, 29, 33-36, 50-54 87 NY Jur 2d, Public Housing and Urban Renewal §§ 2, 24, 28-30, 35, 62, 64, 90, 95, 96, 98

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Presented by:

David B. Cabrera, Deputy CommissionerNYS Division of Housing & Community Renewal25 Beaver StreetNew York, NY 10004(212) 480-6440DCabrera@nysdhcr.gov

MITCHELL-LAMA PRESERVATION STRATEGIES

OVERVIEW

OF STATE ASSISTED PORTFOLIO

State Mitchell-Lama’s Originally Constructed: 269 Developments & 105,236 Units Dissolutions 91 Developments & 31,566 Units Remaining State Mitchell-Lama’s 178 Developments & 73,670 Units

ATTITUDE TOWARD PRESERVATION

BUDGET – OVERVIEW

The new budget includes a $200 million increase in funding over traditional levels. The new funds will help build and preserve affordable housing all across the State and increase the effectiveness of important state programs that provide a wide variety of services.

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BUDGET – OVERVIEW

$100 Million in dedicated funding from the Mortgage Insurance Fund (MIF).

$54 million for the NYS Housing Finance Agency for its Mitchell-Lama Rehabilitation and Preservation and All Affordable programs.

ATTITUDE TOWARD PRESERVATION

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BUDGET – OVERVIEW$100 Million increase in bonded capital program funding (total of $174.2 million).

$60 million for the Housing Trust Fund Corporation.$17.8 million for the Public Housing Modernization program.

ATTITUDE TOWARD PRESERVATION

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EVOLVING POLICIES & REGULATORY REVIEW

• Our regulations, policies and procedures are outdated and require revision.

• Compliance with our regulations, policies and procedures is not easy and the burden (cost to our “compliers”) can be difficult and expensive.

• We have not involved staff and customers in five step process to promote voluntary compliance.

WHY WE ARE REVISING REGULATIONS

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STRATEGIES

“Winning compliance” involves five steps:

1. Involving the compliers in the rule-making process.

2. Educating compliers.3. Making compliance simple i.e. Removing

obstacles to compliance.

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STRATEGIES“Winning compliance” involves five

steps:

4. Providing compliers, with feedback about the level of their compliance.

5. Making compliance consequential by establishing standards by regulation that would permit us to devote less supervision to developments that have good compliance records.

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Regulations & Compliance

This is what we did:

- Reached out to owners and managing agents- Met with the Bar Association- Hired an outside consultant- Met with other housing agencies to determine

best practices.

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Next Steps• Submit to Governors Office Regulatory Reform

– no time period• Submit proposed rule to Department Of State• Notice & comment period (minimum of 45

days)• No public hearing necessary• Final submission effective on publication

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EVOLVING POLICIES & REGULATORY REVIEW

• Re-organization of bureau.• Training for staff.• Implementation of risk analysis model.

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MEMORANDUM OF UNDERSTANDINGPurpose:

HFA and DHCR entered into a master agreement for the coordination of DHCR and HFA supervision of Mitchell-Lama developments to be refinanced by HFA.

The MOU is intended to avoid duplication of HFA’s and DHCR’s asset management requirements as part of a redevelopment.

EVOLVING POLICIES & REGULATORY REVIEW

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• DHCR will issue its approvals as required by statute.

• Each project refinanced by HFA will enter into a Supplemental Agreement with DHCR and HFA confirming the projects continued Mitchell-Lama obligations and other matters that arise on a project by project basis.

EVOLVING POLICIES & REGULATORY REVIEW

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EVOLVING POLICIES & REGULATORY REVIEW

Procurement – Clarify Refinancing Supervision

A new section will streamline refinancing transactions by allowing DHCR to subordinate aspects of its supervision to a private lender with appropriate safeguards.

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The specific portfolios to be inventoried and analyzed are:

MITCHELL-LAMA

PUBLIC HOUSING

EARLY LOW INCOME HOUSING TAX CREDIT PROPERTIES

NEW YORK STATE HOUSING TRUST FUND PROPERTIES

USDA Section 515 LOANS

HOME PROPERTIES

PRESERVATION INITIATIVES

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• In February 2007 the State housing agencies began an initiative to preserve Mitchell-Lama housing.

• An analysis was performed of every project in the portfolio to identify a priority list of preservation candidates.

• The agencies proactively reached out to housing company owners to discuss and propose refinancing opportunities.

MITCHELL-LAMA PRESERVATION PROGRAM

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• The funds would allow for capital needs to be addressed and preserve affordability for low and moderate income families.

• After initial contacts, a list of preservation candidates was developed.

• In July of 2007, the HFA board approved the first Mitchell-Lama refinancing, Admiral Halsey, a 119 unit senior citizen Mitchell-Lama located in Poughkeepsie.

• The HFA board has approved refinancing for the following Mitchell-Lama developments:– Creek Bend Heights − Ithaca Elm Maple– Children’s Village − Brookdale Village– West Village Apts. − Shore Hill– Admiral Halsey − Park Drive Manor

• Since September 2007 1,886 units have been preserved in the program.

MITCHELL-LAMA PRESERVATION PROGRAM

5th Annual Upstate Affordable Housing Conference Buffalo, New York September 23, 2008

Shore Hill Mitchell Lama Preservation:

The Financing Strategy

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1. The Project:

• 558 unit property Sponsored by a Lutheran Medical Center - Built in 1977; - Prime real estate location; - 100% seniors / 100% project based Section 8; - 30 year HFA Loan was up as of May 2008; - Owner required cash to fund primary mission - Healthcare.

2. The Sponsor was looking at 2 Options:

• Take the $15m in existing residual receipts for its healthcare operations ; • Sell the property to the highest bidder and allow the new owners to

potentially take it out of the Mitchell Lama program.

DHCR regulations did not allow for the first option but did not wish to see the non profit pursue the second.

3. The proposed financing structure:

• Preserve the Mitchell Lama entity and sell the beneficial interest in the property to a Limited Partnership controlled by the Sponsor;

• Issue tax exempt bonds through HFA for acquisition & use the existing reserves to pay for the renovation costs;

• Issued sufficient bonds to meet the 50% test requirement and thereby qualifying for the 4% as of right credits;

• Equity from the sale of the credits allowed the Sponsor to make a developer fee.

4. Financing issues:

• Section 8 HAP contract terminated upon repayment of original debt, Sponsor did not want Vouchers (which go with the tenant). Both HUD & DHCR agreed to continue the HAP Contract;

• Tax Credit equity pricing issues: - Section 8 Overhang (the difference between the Section 8

contract rent and the maximum tax credit rent); - Depressed pricing market for credits generally; - Timing of closing with syndicator & closing with their

investor. Worked with WNC & Associates to place $23m in equity at 98 cents and structure around the other investor guarantee requirements.

• Debt Structure - issued the bonds as variable rate bonds through HFA with a letter of credit from JP Morgan Chase for construction & Wachovia/Freddie Mac for the permanent phase. Issues included:

- Section 8 Contract & overhang – Freddie underwrote to Max tax credit rents only;

- Structure of guarantee, Sponsor had existing lender covenants that prevented them from providing guarantees;

• Entered into a 15 year SWAP to fix the interest rate (eliminating interest rate risk for the Sponsor) – all in rate including servicing fees was a little over 5.00%

5. Pulling all the financing pieces together:

• Close Co-operation at each stage with DHCR & HFA to agree on the basic structure of the transaction;

• Worked with HFA to structure the bond issuance, receive bond cap and board approval;

• Worked with DHCR to receive approval for the transfer and use of the residual receipts and replacement reserves by the Limited Partnership;

• HFA & DHCR entered into a Memorandum of understanding on how the property would be overseen from a regulatory perspective going forward;

• Required HUD Approval on the Section 8 HAP Contract and 2530 clearance for the new entities;

• Worked with the AG’s office for Supreme Court approval to sell the beneficial rights from the existing non profit entity;

• Worked with Wachovia to process the Freddie Mac commitment.

6. The Result:

• 558 at risk units were preserved and will remain affordable for the next 40 years;

• Property will remain subject to Mitchell Lama regulatory oversight; • Approx. $17m worth of renovation work will upgrade the property; • Section 8 HAP Contract will remain in place thus serving those seniors in

the lowest income categories; • No other State subsidy required to make the transaction feasible; • Control of the property remains with this long standing community based

Non Profit; • Non Profit Sponsor received a significant return from the transaction

which will be invested in its mission as a community healthcare and housing provider.

Development Budget Summary Permanent

Phase Sources: ($000’s)Tax Credit Investor Equity 22,442Tax-Exempt Bonds 19,500Income during construction 1,937Reserves 15,500Seller Note 12,000Deferred Developer Fee 2,210Total Sources $73,588 Uses: Acquisition of Property 42,268Construction Costs 15,750Construction Contingency 1,370Professional & Soft Costs 1,172 Developer Fee 6,445Financing Costs 3,957Project Reserves 1,558Bond Issuance Costs 1,069Total Uses $73,588