When the State Legislature lets the Division of Housing and Community Renewal's authority to administer New York's federal HOME affordable-housing funds lapse, can the Governor unilaterally designate a different state corporation to keep the program running, or does that require legislative approval?

Subject

Whether the Governor of New York has unilateral authority to designate the Housing Trust Fund Corporation to administer the federal HOME Investment Partnerships Program on behalf of New York State, in the absence of new authorizing legislation, after the prior State administering agency's statutory authority lapsed.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/96-F3_pw.pdf

Plain-English summary

The federal HOME Investment Partnerships Program (42 USC §§ 12741 et seq.) is a major federal affordable housing block grant. HUD allocates HOME funds by formula to "participating jurisdictions," which can be States, certain local governments, or consortia. Once admitted, a participating jurisdiction uses the funds (matched with non-federal money) to support acquisition, rehabilitation, and new construction of affordable housing, as well as tenant-based rental assistance.

In 1992 New York enacted Article XXIV of the Private Housing Finance Law (L 1992 Ch 794), designating the Division of Housing and Community Renewal (the Division) to administer the HOME Program on behalf of the State. The statute included a sunset clause in § 1172(7): "Notwithstanding any contrary provision of law, on and after June thirtieth, nineteen hundred ninety-five, the division shall not issue notices of fund availability, accept applications or enter into any new agreements pursuant to the provisions of this section." That clause was meant to force a legislative review of the Division's administration. When the 1995-1996 session ended without an extension agreement (the Senate and Assembly disagreed about whether to also raise the cap on the SCOR Housing Bond Program), the Division's authority to make new HOME awards lapsed.

The Governor responded by designating the Housing Trust Fund Corporation (a State-created entity under Private Housing Finance Law § 45-a) to act on behalf of the State for the 1995 federal-fiscal-year HOME grant, with the Division continuing on the older grants. The Chairman of the Housing Trust Fund Corporation asked the AG to confirm whether the Governor had authority to do this without further legislative action.

The AG said yes, for several intersecting reasons. Federal law (24 CFR § 92.2; 42 USC § 12704(2), (4)) lets a State qualify as a participating jurisdiction through "any agency or instrumentality thereof that is established pursuant to legislation and designated by the chief executive officer to act on behalf of the State." The Housing Trust Fund Corporation is exactly that: a corporation established by State legislation (§ 45-a). The Governor's designation under federal regulation does not require legislative concurrence. New York's § 1172(7) sunset only stopped the Division from entering new agreements; it did not bar the State from continuing in the HOME Program or require the Legislature to designate a successor.

The Legislature had also affirmatively acquiesced in continued HOME participation by including administrative funds for HOME in the Capital Projects Budget for 1995-1996. The Housing Trust Fund Corporation is authorized by § 45-a(9) to facilitate coordination of State, federal, and local housing programs and is supported by the Division under § 45-a(11). And as a matter of separation of powers, requiring legislative pre-approval of the Governor's federal-program designation would intrude on the chief executive's implementation role (Bourquin v Cuomo; Clark v Cuomo). Legislative inaction, as the Court of Appeals has held, "affords the most dubious foundation for drawing positive inferences" of disapproval.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the HOME Investment Partnerships Program?
The largest federal affordable-housing block grant program, codified at 42 USC §§ 12741 et seq. HUD allocates HOME funds to "participating jurisdictions" by formula. Participating jurisdictions use the money, with required non-federal match, to fund a multi-year housing strategy: home purchase assistance, rental rehabilitation, new construction of affordable units, and tenant-based rental assistance, among other eligible activities. HOME is one of the workhorse vehicles for state and local affordable housing development.

Why did the Division's authority expire?
Because Private Housing Finance Law § 1172(7) imposed a June 30, 1995 sunset on the Division's authority to enter new HOME agreements. The Senate and Assembly both wanted to extend the Division's authority but disagreed about other unrelated legislative items, particularly an increase in the SCOR Housing Bond cap, and the conference process did not resolve the disagreement before adjournment. The sunset took effect.

What is the Housing Trust Fund Corporation?
A New York public benefit corporation established under Private Housing Finance Law § 45-a. The Corporation administers various State affordable housing programs and is statutorily authorized to coordinate State, federal, and local housing programs. The Division provides services to the Corporation under § 45-a(11). The Corporation has a board chaired by a Governor-designee and includes the Commissioner of Housing and Community Renewal.

Doesn't the Legislature have to authorize each new use of state agency authority?
Not quite. The Legislature has constitutional authority under N.Y. Const. art. XVIII, § 2 to participate in federal housing programs and has implemented that authority through a network of statutes (Social Services Law § 29 for DSS; Public Housing Law § 14 for HCR; Unconsolidated Laws § 6252 for UDC; etc.). When the Governor designates an entity that already has statutory authority to perform similar work, the designation is an executive implementation of an existing legislative grant, not a creation of new authority.

What is the separation-of-powers argument?
Under Bourquin v Cuomo and Clark v Cuomo, the Legislature makes policy and the Executive Branch implements it. Requiring the Legislature to pre-approve every federal program designation would shift implementation responsibility from the Executive to the Legislature, contrary to that division. The AG read the legislative inaction (not enacting an extension before the sunset) as exactly the kind of ambiguous signal that Clark held cannot, by itself, define legislative intent.

Does this mean the Governor could redirect any federal program any time?
The opinion's reasoning is narrower than that. The Governor's designation power runs to a federally created designation slot (here, the participating jurisdiction designee). The State entity designated must itself have statutory authority to perform the relevant function; the Housing Trust Fund Corporation's § 45-a powers covered it. A governor cannot simply pick any state agency or private organization to administer a federal program; the underlying state-law authority must exist.

Background and statutory framework

The HOME Program was authorized by the National Affordable Housing Act of 1990 (codified at 42 USC §§ 12741 et seq.). Implementing regulations are at 24 CFR Part 92. A State qualifies as a participating jurisdiction by submitting a Consolidated Plan to HUD and receiving HUD's approval. Once admitted, the State receives an annual formula allocation and may use the funds for a five-year strategy. HUD's revocation authority under 24 CFR § 92.107 allows it to revoke a State's participating-jurisdiction designation if the State is unwilling or unable to carry out the program.

New York's Article XXIV of the Private Housing Finance Law was enacted in 1992 (L 1992 Ch 794). It designated HCR's Division of Housing and Community Renewal as the State HOME administrator and laid out program rules. The 1995 sunset in § 1172(7) was an unusual feature; its purpose was a legislative review, but the review-and-extension mechanism stalled when the two chambers diverged on the SCOR Bond cap.

The Housing Trust Fund Corporation is one of several State corporations active in housing finance. Its statutory powers include administering the State's Housing Trust Fund Program, the Homes for Working Families Program, and (per § 45-a(9)) facilitating coordination of State, federal, and local programs. The 1996 AG opinion's holding became the basis for the Corporation's continued role in HOME administration through the rest of the 1990s.

Separation of powers in New York follows the standard tripartite model implied by the State Constitution. The Court of Appeals in Bourquin v Cuomo and Clark v Cuomo emphasized that legislative inaction does not, without more, signal legislative disapproval. That principle did much of the work in the 1996 opinion: the Legislature's failure to enact an extension only meant that the Division could no longer enter new HOME agreements, not that the State had to exit the HOME Program.

Citations

• N.Y. Const. art. XVIII, § 2 (legislative authority for federal housing program participation)
• Private Housing Finance Law § 45-a (Housing Trust Fund Corporation)
• Private Housing Finance Law § 1172 (Article XXIV HOME Program administration)
• Public Housing Law § 14 (HCR powers)
• Social Services Law § 29 (DSS federal housing program powers)
• 24 CFR §§ 92.1, 92.2, 92.105, 92.107 (HUD HOME regulations)
• 42 USC §§ 12704, 12741 et seq. (HOME statute)
• L 1992 Ch 794 (enabling legislation for Article XXIV)
• Bourquin v Cuomo, 85 NY2d 781 (1995) (separation of powers)
• Clark v Cuomo, 66 NY2d 185 (1985) (legislative inaction)

Original opinion text

NY CONST ART XVIII(2); PRIVATE HOUSING FINANCE LAW ART XXIV, §§ 44, 45-a, 571, 920, 1051,
1100, 1110, 1120, 1130, 1172; PUBLIC HOUSING LAW § 14; SOCIAL SERVICES LAW § 29;
UNCONSOLIDATED LAWS CH 252, §§ 5, 8622; 24 CFR §§ 92.1, 92.2, 92.105, 92.107; 42 USC
§§ 12704(2), (4), 12741, et seq.; L 1992 CH 794.
The Governor is authorized to designate the Housing Trust Fund Corporation to administer the Federal
Home Investments Partnership Program without legislative approval.
March 13, 1996

Hon. Joseph H. Holland
Chairman
Housing Trust Fund Corporation
One Fordham Plaza
New York, New York 10458

Formal Opinion
No. 96-F3

Dear Commissioner Holland:
You have requested a formal opinion of the Attorney General as to whether the Governor has authority to
designate the Housing Trust Fund Corporation to administer the Federal Home Investments Partnership
Program without legislative approval.
Generally, under the Home Investments Partnership Program (Home Program), the Federal Department
of Housing and Urban Development (HUD) allocates funds by formula to eligible state and local
governments in order to strengthen public-private partnerships in the provision of more affordable
housing. 24 CFR § 92.1; see also, 42 USC §§ 12741, et seq. Federal funds are required to be matched
by non-federal resources. Id. State and local governments that become participating jurisdictions in the
Home Program may use Federal funds to carry out multi-year housing strategies through acquisition,
rehabilitation, and new construction of housing, and tenant-based rental assistance. Id. Participating
jurisdictions may provide assistance in a number of eligible forms approved by HUD including loans,
advances, equity investments and interest subsidies. Id.
One purpose of the Home Program is to expand the supply of decent, safe, sanitary and affordable
housing with primary attention given to rental housing for very low income persons. Id. A second
primary purpose is to mobilize and strengthen the abilities of states and units of general local
governments throughout the United States to design and implement strategies for achieving adequate
supplies of this housing. Id. Also, the Home Program provides participating jurisdictions with various
forms of Federal housing assistance, including capital investment, mortgage insurance, and rental
assistance. Id.
In 1992, the State Legislature enacted Article XXIV of the Private Housing Finance Law, which
designated the Division of Housing and Community Renewal (Division) to administer the provisions of
the Home Program on behalf of New York State. L 1992, ch 794. Article XXIV also sets forth various
Program requirements. Private Housing Finance Law § 1172. The significant provision underlying this
opinion request is

Notwithstanding any contrary provision of law, on and after June thirtieth, nineteen hundred
ninety-five, the division shall not issue notices of fund availability, accept applications or
enter into any new agreements pursuant to the provisions of this section.

Id., § 1172(7). This provision, barring the Division from taking action to make new awards under the
Home Program, apparently was intended to provide the Legislature with an opportunity to review the
administration of the Program by the Division.
In the 1995-1996 session of the Legislature, the Senate and the Assembly failed to reach agreement on a
continuation of the Division's authority to administer the Home Program. While both Houses favored an
extension of the Division's authority, the Assembly until June 30, 1996, and the Senate until June 30,
1998, the Assembly bill also included an increase in the cap on the Housing Bond Program, the so-called
SCOR Bonds. S5329; A8080. This proposed increase was unrelated to the Home Program. New York
State Assembly Memorandum in Support of Legislation, A8080.
You have indicated that HUD representatives have stated that due to the Legislature's failure to extend
the Division's authority to administer the Home Program, previous submissions by the State to HUD may
be considered invalid.

HUD may revoke a jurisdiction's designation as a participating jurisdiction if . . . HUD
finds . . . that the jurisdiction is unwilling or unable to carry out the provisions of [the
Home Program]. . . . When HUD revokes a participating jurisdiction's designation as a
participating jurisdiction, HUD will reallocate any remaining funds in the jurisdiction's
HOME Investment Trust Fund.

24 CFR § 92.107. In jeopardy is 24.4 million dollars allocated to New York State in Federal fiscal year
1995.
To continue New York's status as a participating jurisdiction, the Governor has officially notified
Secretary Cisneros of HUD that he has designated the New York State Housing Trust Fund Corporation
to act on behalf of New York State with regard to the provisions of the Home Program. The designation
is effective with respect to the grant agreement representing funds for the 1995 Federal fiscal year with
the Division continuing to administer all previous years' funding agreements.
Under Federal law, a state may qualify as a participating jurisdiction for purposes of the Home Program
through "any agency or instrumentality thereof that is established pursuant to legislation and designated
by the chief executive officer to act on behalf of the State with regard to the provisions of this Act
[Part]". 42 USC § 12704(2), (4); 24 CFR § 92.2. Thus, the designation by the Governor of the Housing
Trust Fund Corporation, a corporation existing under provisions of State law (Private Housing Finance
Law § 45-a), clearly meets the requirements of Federal law for eligibility to qualify as a participating
jurisdiction. Federal law does not require that the Legislature concur with the designation by the
Governor. Actual designation as a "participating jurisdiction" does not require any action by the State
Legislature under Federal regulations. 24 CFR § 92.105.
Compliance with the provisions of Federal law governing qualification of a state as a participating
jurisdiction in the Home Program is all that is required and authorized. The overlay of additional or
inconsistent requirements by a state would violate Federal law.
The designation by the Governor of the Housing Trust Fund Corporation for the future administration of
the Home Program is not inconsistent with New York State law. Section 1172(7) of the Private Housing
Finance Law prohibits the Division from issuing notices of fund availability, accepting applications or
entering into new agreements after June 30, 1995. This provision does not state or imply that the Home
Program cannot be administered by New York State subsequent to the termination of the Division's
authority regarding new agreements. Designation by the Governor of a different entity, the Housing
Trust Fund Corporation, to administer the Home Program, is not inconsistent with any provisions of
State law. Indeed, acquiescence by the Legislature to the continuation of the Home Program in the State
is evidenced by inclusion in the Capital Budget of administrative funds to the Division for purposes of
the Program. Capital Projects Budget, 1995-1996. In that the Division is authorized by Private Housing
Finance Law § 45-a(11) to provide services to the Housing Trust Fund Corporation, the designation of
the Corporation by the Governor is consistent with the Legislature's appropriation. The Housing Trust
Fund Corporation has authority to administer the Home Program on behalf of the State. Among its
extensive powers in the housing field, the Corporation is authorized to facilitate the coordination of
existing State, Federal and local programs which promote the development of low income housing.
Private Housing Finance Law § 45-a(9).
Thus, the Governor clearly had authority to designate the Housing Trust Fund Corporation to administer
the Home Program, without legislative approval. The Home Program statute and regulations for State
participation provide this authorization to the Governor. There is no State law that terminates the State's
participation in the Home Program, designates a different agency to administer the Home Program on
the State's behalf or requires legislative approval to designate an agency to administer the Home
Program. Such a requirement would be inconsistent with Federal law.
Also, the position that as a matter of State law legislative approval of the designation is required is an
intrusion on the powers of the Governor as the chief executive officer of the State. Bourquin v Cuomo,
85 NY2d 781 (1995); Clark v Cuomo, 66 NY2d 185 (1985). The constitutional principle of separation
of powers, implied by the separate grants of power to each of the coordinate branches of government,
requires that the Legislature make policy while the Executive Branch's responsibility is to implement
that policy. Bourquin, supra, p 784. The Legislature has made the policy decision to continue
participating in the Home Program through its approval of funds in the Capital Budget specifically for
the Program. Also, the Housing Trust Fund Corporation, which has been designated by the Governor,
has been specifically authorized by the Legislature to facilitate coordination of local housing partnerships
and existing State, Federal and local programs which promote the development of low income housing.
Private Housing Finance Law § 45-a(9). From a Program perspective, the designation by the Governor of
the Housing Trust Fund Corporation is all that is necessary in that Federal laws and regulations
governing the Home Program fully set forth Program requirements. No further act of the State
Legislature is necessary for administration of the Home Program based on this comprehensive setting
forth of Program requirements.
Other State statutes evidence a legislative policy to implement Federal and State housing programs and
establish a broad basis for the Governor's designation for the Home Program. Bourquin, supra; Cuomo,
supra. Article XVIII(2) of the New York State Constitution authorizes the Legislature to participate in
Federal housing programs and the Legislature has implemented this authority by granting powers to
various State entities to participate in these programs. See, Social Services Law § 29 - Department of
Social Services; Unconsolidated Laws § 6252 - Urban Development Corporation; Public Housing Law
§ 14 - Division of Housing and Community Renewal; Private Housing Finance Law § 44 - Housing
Finance Agency. The Legislature has enacted programs similar to the Home Program. See, Private
Housing Finance Law §§ 571, 920, 1051, 1100, 1110, 1120, 1130; Unconsolidated Laws § 8622.
The failure of the Legislature to enact legislation extending the authority of the Division to administer
the Home Program on behalf of the State does not indicate legislative disapproval of the designation by
the Governor. Bourquin, supra, pp 787-788. "Legislative inaction, because of its inherent ambiguity,
`affords the most dubious foundation for drawing positive inferences'". Clark, supra, pp 190-191. In any
event, the failure of the Legislature to agree only prohibited the Division from taking further action to
enter into new agreements under the Home Program but did not bar the State from continuing to
participate in the Program or prohibit the Governor from following Federal statutory guidelines in the
designation, without legislative approval, of a new entity, the Housing Trust Fund Corporation, to
administer the Home Program.
We conclude that the Governor is authorized to designate the Housing Trust Fund Corporation to
administer the Federal Home Investments Partnership Program without legislative approval.
Very truly yours,

DENNIS C. VACCO
Attorney General