CHAPTER Bea 600 INVESTNH PROGRAM

Statutory Authority: RSA 12-O:69-70

PART Bea 601 PURPOSE AND APPLICABILITY

Bea 601.01 Purpose. The purpose of this chapter is to implement the InvestNH program and fund established pursuant to RSA 12-O:69 -70.

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Bea 601.02 Applicability. The rules of this chapter shall apply to any municipality or housing developer who applies for a grant or loan in the InvestNH program that is supported by the InvestNH fund established by RSA 12-O:69.

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PART Bea 602 DEFINITIONS

Bea 602.01 “Accessory dwelling unit” means “accessory dwelling unit” as defined in RSA 674:71, namely, “a residential living unit that is within or attached to a single-family dwelling, and that provides independent living facilities for one or more persons, including provisions for sleeping, eating, cooking, and sanitation on the same parcel of land as the principal dwelling unit it accompanies.” This term includes “detached accessory dwelling units” as described in RSA 674:73.

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Bea 602.02 “Affordable rent” means housing costs, rent, and utilities, at or below the maximum affordable gross rent, approximately 30 percent of 80 percent of area median income, for the area as determined by the U.S. Department of Housing and Urban Development (HUD) metropolitan or non-metropolitan fair market rent area to which the municipality belongs, as is established and updated annually by HUD.

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Bea 602.03 “Area median income (AMI)” means the median income of the greater region, either the HUD metropolitan or non-metropolitan fair market rent area to which the municipality belongs, as is established and updated annually by HUD.

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Bea 602.04 “Building” means a structure which, when built, has a ceiling supported by walls or columns, and any appurtenances thereto.

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Bea 602.05 “Building permit” means a document issued by the state or by a local municipality, other than a zoning permit or land use permit, granting permission to a building owner or builder to construct or renovate a building, building component, or structure within the state.

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Bea 602.06 “Certificate of occupancy” means a document issued by a local municipality or the state, upon the satisfactory completion of required inspections, granting permission to occupy the building for its intended use.

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Bea 602.07 “Deed restricted” means housing which has a deed rider and is subject to a long-term affordability covenant with a provision for municipal or third-party monitoring which ensures the affordability of the units for a prescribed amount of time and ensures that the occupants of the housing income qualify to live in the housing units.

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Bea 602.08 “Department” means the department of business and economic affairs (BEA).

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Bea 602.09 “Dilapidated” means a building that is no longer fit for habitation or use and cannot reasonably be restored to a habitable or useable state.

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Bea 602.10 “Fire suppression system” means a system which is used to extinguish, control, or in some cases, entirely prevent fires from spreading or occurring and includes, but are not limited to fire sprinkler heads, water piping networks, standpipes, and smoke alarms.

Bea 602.11 “Grant applicant” means the municipality or developer applying for an InvestNH grant or loan.

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Bea 602.12 “Grantee” means a municipality or developer that has been awarded a InvestNH grant or loan.

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Bea 602.13 “Hard cost” means tangible expenses associated with the physical construction of a project.

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Bea 602.14 “Improvements to real property” means anything that makes the property, or any component thereof, more usable, and valuable.

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Bea 602.15 “Incentive” means a monetary form of assistance, support, offset, or the like that motivates or encourages a specific behavior, such as the development of a workforce housing project.

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Bea 602.16 “Local governing body” means “local governing body” as defined in RSA 672:6, namely, “in addition to any other appropriate title:

I. Board of selectmen in a town;

II. City council or board of aldermen in a city;

III. Village district commissioners in a village district;

IV. County commissioners in a county in which there are located unincorporated towns or unorganized places.”

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Bea 602.17 “Loan applicant” means a municipality or housing developer that is applying for InvestNH program funding via a loan.

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Bea 602.18 “Lot” means “lot” as defined in RSA 674:24, namely, “a parcel of land at least sufficient in size to meet the minimum requirements for use, coverage and area and to provide required yards and other open spaces. An undersize lot is permissible if it passes state standards for soil conditions and substantially meets the requirements here and if in existence on the date of adoption of this ordinance.”

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Bea 602.19 “Mortgage subsidy” means a monetary form of assistance, support, offset, or the like that reduces the cost of an individual’s or entity’s mortgage or mortgage related expenses.

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Bea 602.20 “Multi-family housing” means “multi-family housing” as defined in RSA 674:58,II, namely, “a building or structure containing 5 or more dwelling units, each designed for occupancy by an individual household.”

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Bea 602.21 “Other types of housing necessary for the economic development of the state” means any type of housing that is suitable for year-round occupancy and is intended for non-transient occupancy. Other types of housing necessary for the economic development of the state can include, but are not limited to rental housing, housing that is intended for sale, accessory dwelling units, age-friendly housing, cottage courts, starter homes, duplexes, triplexes, quadplexes, and multi-family housing. Other types of housing also include the conversion of existing structures to residential use which results in new housing units, residential lots approved in a conventional or open space subdivision, the conversion of existing structures into condominium form of ownership, and conversion of seasonal housing units into units which are intended for year-round use.

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Bea 602.22 “Overlay district” means a geographic zoning district layered over another existing zoning district or districts, or a defined area within a municipality or territory that lacks zoning, that implements new, additional, or revised regulations.

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Bea 602.23 “Property” means, unless otherwise indicated, real property.

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Bea 602.24 “Real property” means land, including land improvements, structures, and appurtenances thereto, but excludes moveable machinery and equipment.

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Bea 602.25 “Related or affiliated contractor” means a contractor that has a financial, managerial, or familial relationship with the awardee.

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Bea 602.26 “Redevelopment costs” means the costs of land or site acquisition, demolition, abatement, remediation, excavation, and construction of infrastructure.

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Bea 602.27 “Regional revolving loan fund (RLF)” means a source of money from which loans are made in an ongoing manner for the purposes defined within this program, within a defined region of the state of New Hampshire, and with at least the same standards and limitations outlined within the InvestNH program.

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Bea 602.28 “Rental subsidy” means a monetary form of assistance, support, offset, or the like that reduces the cost of an individual’s or entity’s rent related expenses.

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Bea 602.29 “ Residential unit '' means “residential unit” as defined in RSA 483-B:4, XIX, namely “a structure, or portion thereof, providing complete and independent living facilities, including permanent facilities for living, sleeping, eating, cooking, and sanitation which are used in common by one or more persons.” This term includes “dwelling unit” and “housing unit.”

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Bea 602.30 “Residential use” means lands, buildings, or structures or portions thereof used, or designed or intended for use as a home or residence of one or more individuals, and includes a single detached dwelling, a semi- detached dwelling, a multiple-unit dwelling, an apartment dwelling, and the residential portion of a mixed-use building or structure.

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Bea 602.31 “Site acquisition" means the process of identifying, analyzing, and purchasing real property, including securing any requisite zoning approvals or permitting related to that site.

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Bea 602.32 “Site development” means the process and steps necessary to prepare a site for construction, such as drainage, pavement, lighting, earthwork, and other physical infrastructure needed on the site.

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Bea 602.33 “Tax reduction” means a monetary form of assistance, support, offset, or the like that reduces the cost of an individual’s or entity’s tax related expenses, or the use of resources to enact a broad-based reduction in tax rate.

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Bea 602.34 “Unit” means a single-family residence, or a single-family residence within in a multi-family housing development, which includes a private kitchen and private bathroom.

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Bea 602.35 “New unit” means a unit that increases the total net number of units.

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Bea 602.36 “Vacant” means a property that is empty of all personal property generally required for habitation and which has been unoccupied for 90 days.

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Bea 602.37 “Workforce housing” means “workforce housing” as defined in RSA 674:58, namely “housing which is intended for sale and which is affordable to a household with an income of no more than 100 percent of the median income for a 4-person household for the metropolitan area or county in which the housing is located as published annually by the U.S. Department of Housing and Urban Development. ‘Workforce housing’ also means rental housing which is affordable to a household with an income of no more than 60 percent of the median income for a 3-person household for the metropolitan area or county in which the housing is located as published annually by the U.S. Department of Housing and Urban Development. Housing developments that exclude minor children from more than 20 percent of the units, or in which more than 50 percent of the dwelling units have fewer than two bedrooms, shall not constitute workforce housing.”

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PART Bea 603 PROGRAM ROLES

Bea 603.01 Department Roles. The InvestNH program shall be administered by the department, such as utilizing staff in authorized positions, contingent upon availability of funding and with the support of a third-party vendor if the department deems it necessary to ensure the effective administration of the program and available funding for administrative purposes allows.

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PART Bea 604 INVESTNH PROGRAM ELIGIBILITY, OPERATION, AND OVERSIGHT

Bea 604.01 InvestNH Purpose and Applicability.

(a) The purpose of the InvestNH program is to make grants and loans to municipalities and to housing developers for the purpose of improving the ability to accelerate the approval of affordable workforce housing as defined in RSA 674:58, IV, and other types of housing determined by the department to be important for the economic development of the state including housing for sale or for rent.

(b) Grants and loans shall be made by the department to municipalities and to housing developers in which at least 20 percent of the housing units to be developed will be affordable for a period of at least 10 years. Such units shall be affordable to and intended for occupancy by households with incomes up to 80 percent of the AMI, as established by the HUD.

Bea 604.02 Eligibility for InvestNH Program Grants and Loans.

(a) Municipalities within the state of New Hampshire shall be eligible to apply for available InvestNH program grants and loans, subject to available funding, program guidance, and application requirements.

(b) For profit and non-profit housing developers shall be eligible to apply for available InvestNH program grants and loans, subject to available funding, program guidance, and application requirements.

(c) Participation in the InvestNH program shall be voluntary. Each eligible municipality and developer has the option, in its sole discretion, to apply to the department to receive available funding.

(d) Eligible municipalities may apply either on their own behalf or on behalf of an eligible private housing developer. In such circumstances, the municipality or housing developer shall either hold title to the property that is the subject of the program application or have a contract in place that will result in the acquisition of title to the property within 12 months, and if the municipality does not or will not hold title to the property, the municipality shall have an enforceable commitment that guarantees the property will be used for the purpose stated in the InvestNH funding application.

(e) Award recipients shall not be debarred or suspended from programs and activities involving federal financial and non-financial assistance or benefits.

(f) Award recipients shall be in good standing, where applicable, with the New Hampshire department of revenue and New Hampshire secretary of state.

(g) All award recipients shall affirm their awareness and understanding of all tax implications and any applicable state or federal requirements.

(h) All award recipients shall be subject to a risk assessment and shall comply with monitoring processes as required based on that assessment.

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Bea 604.03 Eligible and Ineligible Uses of Funds Received Through InvestNH Program Grants and Loans.

(a) For housing developments with either single or multi-family homes for sale or for rent, the following costs shall be eligible under this program:

(1) Redevelopment costs for affordable housing development;

(2) Site development;

(3) Site acquisition;

(4) Code required improvements, such as fire suppression systems;

(5) Costs related to development of affordable housing focused overlay districts;

(6) Regional revolving loan funds (RLF); and

(7) Hard costs associated with the housing project.

(b) Funds shall not be used for costs related to incentives, tax reductions, or rental or mortgage subsidies.

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Bea 604.04 Application for InvestNH Program Grants and Loans. To apply to the InvestNH program, the applicant shall submit the following information and documentation to the department:

(a) Municipality or housing developer name;

(b) Municipal or housing developer contact information;

(d) Type of municipality, whether a city, town, village district, or county in which there are located unincorporated places, or housing developer, whether for-profit or non-profit;

(e) Name of county in which project is located;

(f) Population based on the most recent census conducted by the U.S. Census Bureau;

(g) Amount of funding requested, intended use of funds, and reason for need or request;

(h) Project name;

(i) Project address;

(j) Additional project or property related data, such as when it was purchased or will be, when it was last occupied or will be, overall project plan, design, timeline, total and per unit costs, and description, project or property condition, available infrastructure, applicable zoning requirements, or relevant environmental considerations;

(k) Description of municipal oversight plan for housing developer, if applicable;

(l) The municipality’s or housing developer’s written procurement procedures, if applicable;

(m) The municipality’s or housing developer’s written standards of conduct regarding conflicts of interest and the selection, award, and administration of contracts, if applicable;

(n) The project’s comprehensive development budget that includes land costs, soft costs, hard costs, contingencies, estimated financing costs, and income and expense projections. Examples include a project budget and proforma;

(o) Information on any other funding sources being utilized on the project or property;

(p) Number of new housing units, type, and rent or cost that are expected to result from the project or investment;

(q) Enforcement mechanism for the project or property’s affordability commitment or requirements and period of affordability or restriction;

(r) Whether the project or property fits into a local or regional plan such as, the municipal master plan, or the regional comprehensive economic development Strategy (CEDS), and, if so, the plan’s name, relevant section, and page number;

(s) Supporting documentation for the application, such as actual and estimated costs, relevant permits, proof of ownership or purchase and sale contract, project or property plans, condition, affordability or deed restriction, and financing commitments; and

(t) Other information the department deems necessary for the comprehensive review.

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Bea 604.05 Application Scoring and Funding Determinations.

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(a) The department shall utilize a scoring matrix on a scale of 0-100 pursuant to (b) below. An award cap shall be administered based on availability of funding.

(b) The department shall utilize a scoring matrix, in which 50 points is the minimum for funding consideration as follows:

(1) A maximum of 30 points shall be awarded for the use of funds to increase workforce housing and other affordable housing availability utilizing the following criteria:

a. How the use of awarded funds will be utilized to increase the availability of workforce and other housing in the municipality and region relative to other applicants;

b. An emphases on developing workforce housing and housing affordable for households at 150 percent of AMI or less, while ensuring at least 20 percent of the units in a given project are affordable for households at 80 percent of AMI or less; and

c. Reward affordability requirements in excess of 10 years:

(2) A maximum of 30 points shall be awarded for municipal and regional housing needs, collaboration, and project location utilizing the following criteria:

a. needs in the municipality or region relative to other applicants;

b. Prioritize issuing awards statewide and avoid a concentration of investments; and

c. Give weight to funding for smaller municipalities:

(3) A maximum of 25 points shall be awarded for available infrastructure and infrastructure needs utilizing the following criteria:

a. Prioritize projects utilizing existing municipal infrastructure including but not limited to wastewater collection, water lines, sidewalks, and proximity to community green spaces;

b. Incentivize projects repurposing existing structures or infill in community centers and downtowns;

c. Reward projects utilizing renewable energy, high efficiency ratings, and creative solutions to reduce or stabilize housing costs to renters; and

d. Incentivize collaboration among community and regional stakeholders to help ensure funded projects or programs will experience success; and

(4) A maximum of 15 points shall be awarded for demonstrated ability and capacity to complete the project utilizing the following criteria:

a. Ensure funding is provided to financially sound projects; and

b. Encourage using funds in ways distinct from other available funding sources to fill gaps missed by those funding sources but meeting a need in the housing market.

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Bea 604.06 Funding Allocation, Distribution of Funds, and Award Terms.

(a) Funds received by eligible entities in this program shall be on a reimbursement basis upon submission by the awardee of required expense and supporting documentation. The department shall request additional supporting documentation if the submitted documentation gives rise to questions regarding the allowability of an expense, and the department shall deny reimbursement for unallowed expenses.

(b) Additional contractual terms that outline the manner and frequency of reimbursement, as well as other requirements such as reporting, oversight, and compliance, shall be contained in the award agreement signed by the state and the awardee, and subsequently authorized through the governor and executive council.

(c) The basis of that agreement shall be the state’s G-1 agreement, or other similar form that may be developed or modified by the New Hampshire department of justice or the department of administrative services.

(d) All loan agreements entered into as an award vehicle for this program, shall carry a zero percent interest rate and be forgivable, unless the financial structure of a given project would be negatively impacted by such terms.

(e) An awardee shall repay a loan if the awardee fails to comply with the conditions of the loan agreement, with potential waivers for incidental deviations from agreed upon terms that do not substantially alter the original agreement.

(f) All funds awarded shall be subject to affordability requirements memorialized in a deed restriction, which shall include at least:

(1) Twenty percent of the housing units to be developed shall be affordable for a period of at least 10 years; and

(2) Such units shall be affordable to and intended for occupancy by households with incomes up to 80 percent of the AMI, as established by HUD.

(g) Relative to affordability requirements attached to rental units, the period for which affordability requirements begin shall be upon occupancy, not upon completion of the unit. A committed affordable unit may be taken off the market for up to 180 days out of any 18 month period without extending the affordability restriction period if the unit is undergoing necessary repairs or upgrades that make occupation impossible or impracticable. If the unit is unavailable for rent for more than 180 days, the rent restriction shall toll, adding one day to the rent restriction period for every day over 180 days it remains unavailable.

(h) Relative to affordability requirements attached to purchased homes or units, or homes or units for sale, the period for which affordability requirements begin shall be upon occupancy, not upon completion of the home or unit. A home or unit with affordability requirements attached may be taken off the market for up to 180 days out of any 18 month period without extending the affordability restriction period if the unit is undergoing necessary repairs or upgrades that make occupation impossible or impracticable, or it has been listed for sale. If the home or unit is unavailable for more than 180 days, the affordability restriction tolls, adding one day to the affordability restriction period for every day over 180 days it remains unavailable.

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Bea 604.07 Funding Round Priorities. Funding priorities shall be set based on available funding. Funding priorities shall relate to the eligible uses of funding within the InvestNH program.

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Bea 604.08 InvestNH Grant and Loan Award Oversight.

(a) Reports for projects expenditures shall:

(1) Be reported to the department at the frequency mandated by the award agreement with the eligible entity, typically monthly until the project is completed; and

(2) Be supported by related documentation, which shall be provided along with invoices or reports.

(b) Additional reporting, such as quarterly and annually, shall be required to validate ongoing compliance and project progress.

(c) Municipalities shall abide by their own structured procurement guidelines and requirements, and any additional requirements outlined in the award agreement. Awardees, municipalities, or housing developers shall not enter into contracts with related or affiliated contractors for materials, labor, or services without demonstrating to the department that the terms of those contracts are fair and competitive.

(d) Awardees shall:

(1) Certify that all related or affiliated contractors are billing at rates consistent with industry-accepted market rates. This self-certification shall be submitted as part of the grant application and annually thereafter;

(2) Maintain and provide upon request documentation that demonstrates compliance with industry-accepted market rates. Documentation may include, but is not limited to:

a. Market rate surveys;

b. Competitive bids;

c. Published price lists; or

d. Invoices from unrelated third-party contractors for similar services;

(3) Whenever possible, and in the case of municipalities, in compliance with applicable procurement standards and requirements, use a competitive bidding process to select contractors, including affiliated or related contractors. The process shall be documented and retained for audit purposes; and

(4) Have a conflict-of-interest policy that addresses the engagement of affiliated or related contractors. This policy shall include:

a. Disclosure requirements for any relationships between the awardee and the contractor; and

b. Procedures for ensuring fair and transparent procurement processes.

(e) If an awardee is found to be non-compliant with the requirements of this section, the department shall take corrective actions, which shall include:

(1) Requiring the awardee to refund disallowed costs;

(2) Imposing additional reporting and monitoring requirements; or

(3) Suspending or terminating the grant.

(f) The department shall utilize the services of a third-party vendor to assess industry standards or best practices as they pertain to affiliated or related parties in determining whether any agreements or contracts with such parties achieve those standards or best practices.

(g) Property constructed, improved, or acquired with InvestNH program funds shall be subject to a deed restriction for affordability requirements of at least 10 years that binds the awardee and any successors, heirs, or assignees to the program affordability requirements and other program conditions during that restricted period. This deed restriction shall survive sale, inheritance, bankruptcy, foreclosure, and any other form or means of transferring interest or title.

(h) If compliance with deed restrictions becomes impossible or impracticable, the person(s) or organization holding title to the property shall seek disposition instructions from the department and comply with those instructions.

(i) The department shall engage in the requisite due diligence to confirm awardees satisfy the mandatory eligibility criteria, including but not limited to a debarment search, risk assessment, and assessment of whether the entity is in good standing with the secretary of state’s office and the department of revenue administration, where applicable.

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PART Bea 605 WAIVERS

Bea 605.01 Waivers.

(a) The department, upon the department’s own initiative or upon request by an applicant, shall waive any requirement of Bea 600 if such waiver does not contradict the objective or intent of the rule and:

(1) Applying the rule provision would cause confusion or would be misleading to applicants;

(2) The rule provision is in whole or in part inapplicable to the given circumstances;

(3) There are specific circumstances unique to the situation such that strict compliance with the rule would be onerous without promoting the objective or intent of the rule provision; or

(4) Any other similar extenuating circumstances exist such that application of an alternative standard or procedure better promotes the objective or intent of the rule provision.

(b) No requirement prescribed by statute shall be waived unless expressly authorized by law.

(d) A request for a waiver shall specify the basis for the waiver and proposed alternative, if any.

(e) Waivers that are granted shall be in effect for the period of time requested and approved by the commissioner.

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PART Bea 606 ADMINISTRATIVE REVIEW

Bea 606.01 Administrative Review Procedure and Time Limits.

(a) This section shall be applicable to each applicant that has applied for InvestNH funds and either received no funds or fewer funds than requested.

(b) Applicants may apply for an administrative review of the scoring of its application by filing a written request within 15 calendar days after an award notice by the department.

(c) The request for an administrative review shall be signed by the chief executive officer of the municipality or the governing body’s designee and shall contain the reason for the requested review. A request for administrative review by a private developer shall be signed by its authorized designee. The request shall not introduce new information and shall only explain or clarify information contained in the application submitted.

(d) The department shall review and respond to the written request within 15 calendar days after receipt of the request. The department, based on the information in the request as well as the scoring criteria, shall affirm or modify the prior decision.

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APPENDIX I

Provision of the Proposed Rule	Specific State or Federal Statutes or Regulations which the Rule is intended to implement
Bea 601.01	RSA 12-O:69; RSA 12-O:70
Bea 601.02	RSA 12-O:69
Bea 602.01	RSA 12-O:70; RSA 674:71; RSA 674:73
Bea 602.02-Bea 602.10	RSA 12-O:70
Bea 602.11	RSA 12-O:70; RSA 541-A:29
Bea 602.12-Bea 602.13	RSA 12-O:70
Bea 602.14	RSA 12-O:70; RSA 672:6
Bea 602.15	RSA 12-O:70; RSA 541-A:29
Bea 602.16	RSA 12-O:70; RSA 674:24
Bea 602.17	RSA 12-O:70
Bea 602.18	RSA 12-O:70; RSA 674:58, II
Bea 602.19	RSA 12-O:70
Bea 602.20-Bea 602.25	RSA 12-O:70
Bea 602.26	RSA 12-O:70; RSA 483-B:4, XIX
Bea 602.27-Bea 602.32	RSA 12-O:70
Bea 602.33	RSA 12-O:70; RSA 674:58
Bea 603.01	RSA 12-O:70
Bea 604.01	RSA 12-O:70; RSA 674:58, IV
Bea 604.02-Bea 604.03	RSA 12-O:70
Bea 604.04	RSA 12-O:70; RSA 541-A:29
Bea 604.05	RSA 12-O:70
Bea 604.06	RSA 12-O:69
Bea 604.07	RSA 12-O:70; RSA 541-A:15
Bea 604.08	RSA 12-O:70
Bea 605.01	RSA 541-A:37
Bea 606.01	RSA 12-O:70