# COMAR Title 05 — Department of Housing and Community Development

## Subtitle 10 — Assisted Housing Preservation

### Chapter 02 — Exemptions

**Authority:** Housing and Community Development Article, §§7-101—7-501, Annotated Code of Maryland

**Administrative History:** Effective date: April 18, 2011 (38:8 Md. R. 505)

#### Regulation .01 Federal Preemption.

*COMAR 05.10.02.01*

A. These regulations and the Act shall be read in conjunction with the federal Low Income Housing Preservation and Resident Homeownership Act of 1990, 12 U.S.C. §§4101—4125 (“LIHPRHA”). To the extent that §232(a)(1) of LIHPRHA, 12 U.S.C. §4122(a)(1), expressly preempts certain portions of the Act, actions subject to LIHPRHA are exempt from the Act.

B. If a protected action is subject to LIHPRHA and, as required by §232(a)(1) of LIHPRHA, 12 U.S.C. §4122(a)(1), is exempt from the Act, the owner shall give written notice to the Secretary of the steps the owner has taken to comply with LIHPRHA.

#### Regulation .02 Authorized Exemptions.

*COMAR 05.10.02.02*

The Secretary, by written determination, may grant exemptions from the following requirements:

A. The right of first purchase under §§7-204—7-211 of the Act;

B. Tenant relocation assistance under §7-212(b)(1) and (2) of the Act;

C. One-year lease extensions under §7-212(b)(3) of the Act; and

D. Designated household assistance of 3-year lease extensions and additional relocation assistance for certain households under §§7-214—7-219 of the Act.

#### Regulation .03 Standards for Exemptions.

*COMAR 05.10.02.03*

A. The Secretary may grant exemptions under Regulation .02 of this chapter to:

  (1) Diminish the burdens on a project owner of complying with similar requirements in federal law and in the Act when compliance with both sets of requirements would not provide any appreciable benefit to assisted tenants beyond compliance with the federal law; or

  (2) Prevent the inconsistent or inequitable application of federal law and the Act to a property owner, when compliance with both sets of requirements would:

    (a) Be impossible due to conflicts between the requirements;

    (b) Impose inequitably duplicative high costs or burdens on the property owner; or

    (c) Otherwise result in an unreasonable application of the requirements or procedures of the Act on the property owner considering full compliance with federal law.

B. The following factors shall be taken into consideration in determining whether to grant an exemption:

  (1) Type of protected action;

  (2) Size and location of the project;

  (3) Nature of the assisted households of the project;

  (4) Availability of other assisted housing in the area, including whether tenant based rental assistance will be available and accepted at these projects;

  (5) Extent of benefit to the assisted tenants which would be retained as a result of the exemption;

  (6) Availability of alternative rental subsidies or other assistance to tenants for use at the project;

  (7) Provision by the project owner of notices and other benefits to the tenants beyond the requirements of the Act;

  (8) Compliance by the owner with requirements of federal law relating to the protected action or tenant benefits generally;

  (9) Extent of conflicts which would result from the owner’s full compliance with federal law and the Act;

  (10) Extent of costs or other burdens on the owner which would result from full compliance with federal law and the Act; or

  (11) Other relevant factors as determined by the Secretary.

C. Additional Requirements.

  (1) Provide a portion of the benefits set forth in the Act;

  (2) Accept the use by assisted households of rental assistance at the project for a certain period following the protected action;

  (3) Provide, as is appropriate, other benefits to all or a portion of the assisted households;

  (4) Provide initial or supplemental notices to the tenants, containing some or all of the information required by §7-202(b) of the Act, as applicable to the exemption conditions being imposed and for such length of time before the protected action as the Secretary determines is necessary and desirable to carry out the purposes of the Act; or

  (5) Execute a written agreement specifying, or provide other assurances of compliance by the owner with, any conditions required in connection with the granting of an exemption.

D. Failure by the owner to comply with any conditions shall be grounds for the Secretary to withdraw the exemption and require the owner to comply fully with all requirements of the Act.

#### Regulation .04 Exemption Application Procedures.

*COMAR 05.10.02.04*

A. Requests for secretarial exemptions under this regulation shall include:

  (1) A letter requesting the exemption and outlining the reasons why the property owner believes the exemption is appropriate under the Act and these regulations;

  (2) A description of the nature of the proposed protected action;

  (3) A list of the federal program or programs which govern the federally-assisted mortgage;

  (4) A description of any federal project-based assistance;

  (5) A description of any other state, local government, or other assistance to the project;

  (6) Copies of the notices of intent given under §7-201 of the Act, and copies of all other notices delivered in connection with the proposed protected action, including notices to or required by HUD or other federal regulatory agencies, and any notices in connection with any state or local proceedings concerning the assisted households’ leases at the project;

  (7) A statement as to the expected impact of the proposed protected action on rents and the continued occupancy by existing assisted households for 3 years following the date of the protected action;

  (8) Data which shows the number of:

    (a) Assisted households;

    (b) Assisted households with senior citizens and handicapped persons; and

    (c) Assisted households with minors;

  (9) An explanation of any provisions planned or previously given to provide assisted households with adequate alternative housing or other assistance, including any federal rental assistance;

  (10) The timetable anticipated for taking any protected action;

  (11) The anticipated dates on which the protected action would result in dispossession of any assisted households at the project;

  (12) A statement certifying that the owner has not taken any of the following actions, or any other action before the date of the protected action in order to avoid the owner's obligations in conjunction with the protected action:

    (a) Termination without cause of the lease of any tenant occupying an assisted unit;

    (b) Alteration of any of the terms and conditions of executed leases of existing tenants;

    (c) Interference with any existing rights of tenants to occupy their units in the assisted project under existing leases or under any applicable federal, state, or local law;

    (d) Interference with the efforts of individual tenants to obtain housing subsidies or other public assistance; or

    (e) Discrimination in the leasing of units in the project based on source of income or receipt of rent subsidies provided by governmental or other sources; and

  (13) Other supporting documentation required by the Director.

B. Timing for Requests for Exemption.

  (1) To permit compliance with the notice requirements of the Act, requests for exemption should ordinarily be submitted at least 1 year and 60 days before the effective date of any protected action, except as permitted under §B(2) of this regulation.

  (2) In an emergency situation when urgent action is required, requests for exemption may be considered in the discretion of the Secretary if submitted at least 90 days before the effective date of any protected action.

C. Requests for secretarial exemption shall be submitted to the Secretary of Housing and Community Development, Department of Housing and Community Development, Attn: Director, Division of Credit Assurance, 100 Community Place, Crownsville, Maryland 21032.

D. Copies of Exemption Requests.

  (1) Copies of the letter requesting an exemption described under §A(1) of this regulation shall be delivered to the following parties not later than 3 days after the request is made to the Secretary:

    (a) The chief executive officers of each local jurisdiction in which the assisted project is located;

    (b) Any public housing authority existing in any local jurisdiction where the assisted project is located; and

    (c) Each assisted household of the assisted project.

#### Regulation .05 Review and Determination of Exemption Requests.

*COMAR 05.10.02.05*

A. The Director or the Director’s designee shall review each request to determine if the request conforms to the standards for exemption. When reviewing the request, the Director or the Director’s designee shall consider the factors set forth in Regulation .03B of this chapter and any other information made available to the Director or the Director’s designee concerning the impact of the protected action on the property owner and the assisted households.

B. Upon completion of the review, the Director shall make a recommendation to the Secretary for approval or disapproval of the request for exemption. Upon approval or disapproval of the request for exemption by the Secretary, a notification of the Secretary's determination shall be sent to the owner. The notification shall be issued within 30 days of receipt of the request for exemption and any required supplemental documentation.

C. The determination by the Secretary or a redetermination of any decision to grant or not to grant an exemption from any requirements of the Act is not a contested case within the meaning of the Administrative Procedure Act or COMAR 05.01.01.02.