Wisconsin Legislature: Destination-22

71 Op. Att'y Gen. 74, 78 (1982)

If the bonds so issued meet all requirements of the federal act, then the interest payable on such bonds will be exempt from federal taxation. The amount of bonds issued must be included in the state ceiling amount. I.R.C. 103A(g).

71 Op. Att'y Gen. 74, 78 (1982)

With one exception, the authorities possessing analogous bonding authority are created by ch. 66, Stats. The exception is sec. 59.075, Stats., which allows the creation of county housing authorities. Section 59.075(1), Stats., makes secs. 66.40 to 66.404, Stats., applicable to counties.

71 Op. Att'y Gen. 74, 78-79 (1982)

Sections 66.40 to 66.404, Stats., are referred to as the "Housing Authorities Law." To bring a housing authority into existence, a city council, by resolution, declares a need for an authority to function in the city. Upon the adoption of said resolution, sec. 66.40(4)(a), Stats., provides that "a public body corporate and politic shall then exist in the city and be known as the 'housing authority' of the city. Such authority shall then be authorized to transact business and exercise any powers herein granted to it."

71 Op. Att'y Gen. 74, 79 (1982)

The powers granted to a city by secs. 66.40 to 66.404, Stats., extend to villages, pursuant to sec. 61.73, Stats., which provides in part:

71 Op. Att'y Gen. 74, 79 (1982)

The provisions of ss. 66.40 to 66.425 shall apply to villages, and the powers and duties conferred and imposed by these sections upon mayors, councils and specified city officials are hereby conferred upon presidents, village boards and village officials performing duties similar to the duties of such specified city officials respectively.

71 Op. Att'y Gen. 74, 79 (1982)

Let us assume either a county housing authority (under sec. 59.075, Stats.), a village housing authority (under sec. 61.73, Stats.) or a city housing authority (under secs. 66.40 to 66.404, Stats.) intends to issue bonds and use the proceeds indirectly to furnish mortgage loans for owner-occupied residences since no direct specific statutory authority exists. One of the few workable sequences appears to be as follows. An eligible borrower selects a residence which the authority buys (or had bought) with bond proceeds. The authority then sells it to the eligible borrower, taking back a purchase money mortgage.

71 Op. Att'y Gen. 74, 79 (1982)

Bonding authority is found in sec. 66.40(13)(a), Stats.: "An authority shall have power to issue bonds from time to time in its discretion, for any of its corporate purposes." Authority to sell acquired real estate is found in sec. 66.40(9)(j), Stats.: "[An authority shall have power] [t]o contract for sale and sell any part or all of the interest in real estate acquired and to execute such contracts of sale and conveyances as the authority may deem desirable." A mortgage is a conveyance. Sec. 706.01(3), Stats.

71 Op. Att'y Gen. 74, 79 (1982)

It would appear that all counties, villages and city housing authorities in Wisconsin would be statutorily authorized to issue bonds for housing loans using this procedure.¯

Because of the holding in

Jolly v. Greendale Housing Authority

, 259 Wis. 407, 49 N.W.2d 191 (1951), I cannot give you an unqualified opinion to that effect if this indirect approach is used.

71 Op. Att'y Gen. 74, 80 (1982)

Jolly

, the Greendale Housing Authority agreed to sell Mr. Ward its housing authority bonds, the proceeds of which were to be used to purchase a tract of land upon which were existing houses. Mr. Jolly sued and alleged there was no shortage of dwellings in Greendale at rents which low income persons could afford and that the authority did not intend to destroy the homes for slum clearance. Therefore, he argued, the authority exceeded its stated powers. The supreme court agreed and reversed the trial court's decision sustaining a demurrer to the complaint.

71 Op. Att'y Gen. 74, 80 (1982)

The supreme court reviewed the purpose of sec. 66.40, Stats., the Housing Authority Law. The court held "the act [sec. 66.40, Stats.] does not grant unlimited authority to engage in the housing business regardless of the nature, character or purpose of the venture. It is only when the purpose of the law is to be effectuated that the Authority may proceed."

Jolly

, 259 Wis. at 409.

71 Op. Att'y Gen. 74, 80 (1982)

A determination of whether this use of housing authority bonding power effectuates the purpose of the law is needed but is beyond the scope of this opinion. I suggest you require any authority which proposes to use this method to furnish an opinion from bond counsel that such proposed bond issue effectuates the purpose of the law (sec. 66.40, Stats.). In the alternative, you may ask me for my opinion when the need arises.

71 Op. Att'y Gen. 74, 80 (1982)

The remaining authorities created by ch. 66, Stats., are redevelopment authorities and community development authorities.

71 Op. Att'y Gen. 74, 80 (1982)

Redevelopment authorities are granted bonding power by secs. 66.431(5)(a)4.a. and 66.431(5)(c), Stats. Power to acquire and dispose of real estate is granted by sec. 66.431(5)(a)3., Stats.

71 Op. Att'y Gen. 74, 80 (1982)

If a community development authority is created by a city pursuant to sec. 66.4325(1), Stats., the creation thereof operates to terminate the operations of a housing authority and/or a redevelopment authority. Sec. 66.4325(1)(a), Stats. Under sec. 66.4325(4), Stats., the community development authority has all powers set out in secs. 66.40 and 66.431, Stats.

71 Op. Att'y Gen. 74, 80 (1982)

Section 66.436, Stats., provides that villages shall have all of the powers of cities under secs. 66.43, 66.431 and 66.4325, Stats.

71 Op. Att'y Gen. 74, 80-81 (1982)

Let us assume that a village or city redevelopment authority or community development authority uses the procedure just described, intending to use bond proceeds for home mortgages. Because of the

Jolly

holding, such use must effectuate the purposes of the law (sec. 66.431, Stats.). Section 66.431(10), Stats., requires the authority to:

71 Op. Att'y Gen. 74, 81 (1982)

[P]repare a plan which shall be submitted to the local legislative body for approval which shall assure that decent, safe and sanitary dwellings substantially equal in number to the number of substandard dwellings to be removed in carrying out the redevelopment are available or will be provided at rents or prices within the financial reach of the income groups displaced.

71 Op. Att'y Gen. 74, 81 (1982)

Therefore, bond proceeds could be used for residential mortgages only to the extent that such mortgage loans are made in connection with the furnishing of a replacement dwelling at a price within the financial reach of the displaced owner. However, the federal act will limit the use of the bond proceeds for such a use to not more than five percent of the issue.¯

If more than five percent of the proceeds are so used, the authority will run afoul of the requirement in I.R.C. 103A(e) which requires that a purchasing mortgagor not have had an interest in a principal residence during the three-year period prior to executing the mortgage. The three-year restriction will not apply if the

new

house is in a targeted area. However, if the mortgage loans are less than five percent of the issue, the bonds are not mortgage subsidy bonds and the amounts need not be included in the ceiling amount set forth in I.R.C. 103A(g).

71 Op. Att'y Gen. 74, 81 (1982)

Finally, one redevelopment authority possesses specific statutory authority to use bond proceeds for mortgage loans. That authority is the Redevelopment Authority of Milwaukee.

71 Op. Att'y Gen. 74, 81 (1982)

The authority is granted by ch. 20, sec. 1023(g), Laws of 1981, which creates sec. 66.431(5m), Stats. Subsection (a) thereof provides:

71 Op. Att'y Gen. 74, 81-82 (1982)

Subject to par. (b), a redevelopment authority in a 1st class city may issue bonds to finance mortgage loans on owner-occupied dwellings located in an abandoned highway corridor. Bonds issued under this paragraph may be sold at a private sale at a price determined by the redevelopment authority. No bonds may be issued under this paragraph on or after July 1, 1984, except bonds issued to refund outstanding bonds.

71 Op. Att'y Gen. 74, 82 (1982)

Paragraph (b) requires common council approval.

71 Op. Att'y Gen. 74, 82 (1982)

Once the bond proceeds are received, sec. 66.431(5m)(c), Stats., allows the redevelopment authority to:

71 Op. Att'y Gen. 74, 82 (1982)

1. Issue mortgage loans for the rehabilitation, purchase or construction of any owner-occupied dwelling in an abandoned highway corridor in the city.

71 Op. Att'y Gen. 74, 82 (1982)

2. Issue loans to any lending institution within the city which agrees to make mortgage loans for the rehabilitation, purchase or construction of any owner-occupied dwelling in an abandoned highway corridor in the city.

71 Op. Att'y Gen. 74, 82 (1982)

3. Purchase loans agreed to be made under subd. 2.

71 Op. Att'y Gen. 74, 82 (1982)

I therefore conclude, pursuant to sec. 66.431(5m), Stats., that the Redevelopment Authority of Milwaukee has authority to issue bonds to be used for mortgage loans for owner-occupied residences. To the extent that the Redevelopment Authority of Milwaukee complies with all provisions of the federal act, the interest will be exempt from federal taxation. The amount issued must be included in the state's ceiling amount under I.R.C. 103A(g).

71 Op. Att'y Gen. 74, 82 (1982)

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