HomeMy WebLinkAbout02 AFFIRM THE TRANSFER BY OPERATION OF LAWAgenda Item 2
AGENDA REPORT
Oversight Board of the Successor Agency to the
Tustin Community Redevelopment Agency
MEETING DATE: JUNE 12, 2012
SUBJECT /ACTION: AFFIRM THE TRANSFER BY OPERATION OF LAW OF THE
FORMER TUSTIN COMMUNITY REDEVELOPMENT AGENCY'S
HOUSING ASSETS AND RESPONSIBILITIES AND ALL RIGHTS,
POWERS, DUTIES AND OBLIGATIONS ALONG WITH THE
ENCUMBERED AMOUNTS FROM THE LOW AND MODERATE
INCOME HOUSING FUND TO THE TUSTIN HOUSING AUTHORITY
PURSUANT TO HEALTH AND SAFETY CODE SECTIONS 34176
AND 34181
RECOMMENDATION / PROPOSED ACTION
Adopt Oversight Board Resolution No 12 -02 to affirm the transfer of the former Tustin
Community Redevelopment Agency's housing assets and responsibilities and all rights,
powers, duties, and obligations, along with the encumbered amounts from the Low and
Moderate Income Housing Fund to the Tustin Housing Authority pursuant to Health and
Safety Code Sections 34176 and 34181.
BACKGROUND AND DISCUSSION
Under the Dissolution Act, the city that formed a redevelopment agency became the
successor agency, unless it opted not to by January 13, 2012. As of February 1, 2012,
all redevelopment agencies were dissolved and thereby all assets, properties, contracts,
leases, books and records, buildings and equipment of the former Tustin Community
Redevelopment Agency (Agency) (except for most affordable housing assets)
transferred by operation of law to the City of Tustin acting and serving as the Successor
Agency of the former Agency. The Successor Agency manages redevelopment
projects that are the subject of Enforceable Obligations, makes payments on
Enforceable Obligations identified on the Enforceable Obligation Payment Schedule
(FOPS) and Recognized Obligations Payment Schedule (ROPS), unwinds and
liquidates the non - affordable housing assets and properties under the supervision and
control of, and as directed by the Oversight Board.
Prior to February 1, 2012, and pursuant to Section 34176, the City of Tustin made an
election whether to retain, or decline to retain, the affordable housing assets and
functions previously performed by the Agency. The City so declined and selected the
Tustin Housing Authority to assume the housing assets and functions of the former
Agency. Housing assets that transfer to this "Housing Successor" include real property,
Agenda Report
June 12, 2012
Page 2
personal property, contracts, leases, books and records, buildings, equipment,
encumbered fund balance of the Low and Moderate Income Housing Fund
( "Housing Fund "), and other revenues of the former Agency. However, the
unencumbered balances in the former Agency's Housing Fund would not transfer to the
Housing Successor and would remain on account with the Successor Agency until such
monies are remitted to the County Auditor - Controller.
While the Housing Successor is not subject to control by the Oversight Board
(with limited exceptions), as the Housing Successor, the Tustin Housing Authority is
subject to the California Housing Authorities Law, Health & Safety Code Section 34200,
et seq.) and is acting in that capacity. On February 1, 2012, under Section 34176, all
affordable housing assets of the former Agency (excluding unencumbered Housing
Fund balances) were transferred by operation of law to the Tustin Housing Authority
acting as the Housing Successor. However, Section 34181 clouds the presumption of
this transfer as it provides the Oversight Board to direct the Successor Agency to
"[t]ransfer housing responsibilities and all rights, powers, duties, and obligations along
with any amounts on deposit in the Low and Moderate Income Housing Fund to the
appropriate entity pursuant to Section 34176."
The Successor Agency has existed since February 1, 2012, but the Oversight Board
was just recently formed, and there has not been legal certainty among attorneys, title
companies, banks, and other interested parties that all housing assets have, in fact,
transferred to the Tustin Housing Authority acting as the Housing Successor; however,
most arguably the Housing Successor now holds all housing assets of the former
Agency. Also unclear is the disposition of the existing Housing Fund balance since (i)
Section 34177(d) requires the Successor Agency to remit unencumbered funds, both
non housing and housing, to the County Auditor- Controller for distribution to the taxing
entities as property taxes; but, as noted, (ii) Section 34181(c) states that the Oversight
Board direct this transfer; and, again, (iii) Section 34176 provides the entire Housing
Fund balance (except unencumbered funds) is assumed by Housing Successor.
In its February 17, 2012 "Report on Unwinding Redevelopment ", the Legislative
Analyst's Office (LAO) states that Successor Agencies and Oversight Boards together
will distinguish between encumbered and unencumbered balances in the Housing Fund
to determine what are the unencumbered funds to be remitted to the County Auditor -
Controller for distribution to taxing entities. The LAO report also notes that "HCD and
SCO have separate criteria for distinguishing between encumbered and unencumbered
funds." The ROPS presented to the Oversight Board by the Successor Agency and
approved and authorized to be modified by earlier agenda items, included Department
of Finance (DoF) approved enforceable obligations that encumber Housing Fund
monies. For example, the Affordable Housing Agreement between the former Agency
and Lennar Homes of California for Coventry Court (units of affordable ownership
Agenda Report
June 12, 2012
Page 3
housing) will continue to be performed and the contract implemented by the Tustin
Housing Authority acting as Housing Successor.
As written, the Dissolution Act is not clear if the Housing Successor must meet any
existing or future affordable housing obligations (such as replacement housing or
inclusionary housing); nor is it clear whether the Housing Successor exercises powers
and performs activities pursuant to the Community Redevelopment Law (CRQ statutes
that have been repealed or otherwise declared inoperative. However, the DoF
responded to a successor agency which posed this question by stating: "there may be
specific housing-related enforceable obligations that would have been satisfied out of
the low-moderate income housing fund. These could include construction contracts,
and purchase of replacement housing for housing that has been demolished as part of
an ongoing project..." This statement by the DoF implies that certain types of housing
obligations may continue to apply. Under Section 34176, the Housing Successor may
enforce affordability covenants and perform related activities pursuant to the CRL (SB
654 & AB 1585 would change "may" to "shall").
The Successor Agency requests that the Oversight Board affirm that the former
Agency's housing assets and housing functions transferred to the Tustin Housing
Authority as of February 1, 2012. Further, the Successor Agency requests that the
Oversight Board affirm that the Tustin Housing Authority, acting as Housing Successor,
now has "rights, powers, duties and obligations" of the former Agency as set forth in the
Dissolution Act. These actions are included in the attached Oversight Board Resolution
No. 12-02. Identified as Exhibit A of Resolution No. 12-02 is a summary of assets and
liabilities and obligations, and other rights, powers and duties of the Tustin Housing
Authority with a summary of the estimated amounts of the assets and estimated
amounts of the debt or total obligations which indicate that transfer of the Low and
Moderate Income Housing Fund to the Tustin Housing Authority is necessary since the
Low and Moderate Income Housing Fund is encumbered with the obligations to be
performed by the Tustin Housing Authority.
Pamela Arends-King
Finance Director
Successor Agency to the Tustin
Community Redevelopment Agency
Attachment: Proposed Oversight Board Resolution 12-02
OVERSIGHT BOARD RESOLUTION NO. 12-02
A RESOLUTION OF THE OVERSIGHT BOARD OF THE
SUCCESSOR AGENCY TO THE TUSTIN COMMUNITY
REDEVELOPMENT AGENCY AFFIRMING THE
TRANSFER BY OPERATION OF LAW OF THE FORMER
AGENCY'S HOUSING ASSETS AND RESPONSIBILITIES
AND ALL RIGHTS, POWERS, DUTIES AND
OBLIGATIONS ALONG WITH THE ENCUMBERED
AMOUNTS FROM THE LOW AND MODERATE INCOME
HOUSING FUND TO THE TUSTIN HOUSING AUTHORITY
PURSUANT TO HEALTH AND SAFETY CODE SECTIONS
34176 AND 34181
The Oversight Board of the Successor Agency to the Tustin Community
Redevelopment Agency finds, determines and declares as follows:
A. The Tustin Community Redevelopment Agency ("Agency") was established
as a redevelopment agency that was previously organized and existing under
the California Community Redevelopment Law, Health and Safety Code
Section 33000, et seq. ("CRL"), and previously authorized to transact
business and exercise powers of a redevelopment agency pursuant to action
of the City Council of the City of Tustin ("City"); and
B. Assembly Bill X1 26 added Parts 1.8 and 1.85 to Division 24 of the California
Health & Safety Code, which laws cause the dissolution and wind down of all
redevelopment agencies ("Dissolution Act"); and
C. On December 29, 2011, in the petition California Redevelopment Association
v. Matosantos, Case No. S194861, the California Supreme Court upheld the
Dissolution Act and thereby all redevelopment agencies in California were
dissolved as of and on February 1, 2012 under the dates in the Dissolution
Act that were reformed and extended thereby ("Supreme Court Decision");
and
D. The Agency is now a dissolved redevelopment agency pursuant to the
Dissolution Act; and
E. By a resolution considered and approved by the City Council at an open
public meeting, the City chose to become and serve as the successor agency
to the dissolved Agency under the Dissolution Act; and
F. As of and on and after February 1, 2012, the City serves and acts as the
"Successor Agency" and will perform its functions as the Successor Agency
under the Dissolution Act to administer the enforceable obligations of the
Agency and otherwise unwind the Agency's affairs, all subject to the review
and approval by a seven-member oversight board ("Oversight Board"); and
Resolution 12-02
Page 1 of 4
G. Section 34179 of the Dissolution Act provides that the Successor Agency
shall have an Oversight Board composed of seven members; and
H. Section 34179 provides that the Oversight Board has fiduciary responsibilities
to holders of enforceable obligations and the taxing entities that benefit from
distributions of property tax and other revenues pursuant to Section 34188 of
Part 1.85 of the Dissolution Act; and
Pursuant to Section 34179, the Successor Agency's Oversight Board has
been formed and the initial meeting has occurred on March 13, 2012; and
By a resolution considered and approved by the City Council at an open
public meeting on January 17, 2012 pursuant to Section 34176 of the
Dissolution Act, the City declined to assume the housing assets and functions
of the Agency and selected the Tustin Housing Authority to so assume such
housing assets and functions, and on such date also pursuant to Section
34176 the Tustin Housing Authority accepted and assumed the housing
assets and functions of the Agency and as of February 1, 2012 became and
serves as the "Housing Successor" of the former Agency pursuant to the
Dissolution Act; and
K. The Oversight Board desires to affirm that the former Agency's housing
assets and housing functions transferred to the Tustin Housing Authority,
acting as Housing Successor, as of February 1, 2012 and a summary of
these are attached as Exhibit A; and
L. The Oversight Board desires to affirm that that the Tustin Housing Authority,
acting as Housing Successor, now has "rights, powers, duties and
obligations" relating to the housing assets and functions of the former Agency
pursuant to the Dissolution Act and a summary of these are attached as
Exhibit A; and
M. Pursuant to the Dissolution Act, the actions of the Oversight Board, including
those approved by this Resolution, do not become effective for three (3)
business days pending any request for review by the Department of Finance
(DoF), and if the DoF requests review hereof, DoF will have 10 days from the
date of its request to approve this Oversight Board action or return it to the
Oversight Board for reconsideration and the action, if subject to review by
DoF, will not be effective until approved by DoF.
NOW, THEREFORE, BE IT RESOLVED BY THE OVERSIGHT BOARD
OF THE SUCCESSOR AGENCY TO THE TUSTIN REDEVELOPMENT
AGENCY:
Section 1. The foregoing recitals are incorporated into this Resolution by this
reference, and constitute a material part of this Resolution.
Section 2. Pursuant to the Dissolution Act, the Oversight Board affirms that
the former Agency's housing assets and housing functions transferred to the
Resolution 12-02
Page 2 of 4
Tustin Housing Authority, acting as Housing Successor, as of February 1, 2012
along with the encumbered amounts from the Low and Moderate Income
Housing Fund to the Tustin Housing Authority pursuant to Health and Safety
Code Section 34176 and 34181.
Section 3. Pursuant to the Dissolution Act, the Oversight Board affirms that
the Tustin Housing Authority, acting as Housing Successor, now has all "rights,
powers, duties and obligations" relating to the housing assets and functions of
the former Agency pursuant to the Dissolution Act.
Section 4. The Oversight Board authorizes the Successor Agency to transmit
this Resolution to the County Auditor - Controller, the State Department of
Finance, and the State Controller's Office.
Section 5. The City Manager of the Successor Agency or his authorized
designee is directed to post this Resolution on the City /Successor Agency
website.
Section 6. This Resolution shall be effective after transmittal of this Resolution
to the DoF and the expiration of three (3) business days pending a request for
review by the DoF within the time periods set forth in the Dissolution Act. In this
regard, if the DoF requests review hereof, it will have 10 days from the date of its
request to approve this Oversight Board action or return it to the Oversight Board
for reconsideration and the action, if subject to review by DoF, will not be
effective until approved by DoF.
Section 7. The Secretary of the Oversight Board shall certify to the adoption of
this Resolution.
APPROVED AND ADOPTED this 12th day of June 2012.
Doug Davert, Chair
Oversight Board of the Successor
Agency to the Tustin Community
Redevelopment Agency
ATTEST:
Jerry Amante, Secretary
Oversight Board of the Successor Agency
to the Tustin Community Redevelopment Agency
Resolution 12 -02
Page 3 of 4
STATE OF CALIFORNIA
COUNTY OF ORANGE ss.
CITY OF TUSTIN
1, Jerry Amante, Secretary of the Oversight Board of the Successor
Agency to the Tustin Community Redevelopment Agency hereby certify that the
foregoing resolution was duly adopted by the Oversight Board at a special
meeting held on the 12th day of June 2012, and that it was so adopted by the
following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Jerry Amante, Secretary
Oversight Board of the Successor Agency
to the Tustin Community Redevelopment Agency
Resolution 12-02
Page 4 of 4
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