(2) provides a range of services that are tailored to the needs of elderly persons occupying such housing.
The Secretary is authorized to provide assistance to private nonprofit organizations and consumer cooperatives to expand the supply of supportive housing for the elderly. Such assistance shall be provided as (1) capital advances in accordance with subsection (c)(1), and (2) contracts for project rental assistance in accordance with subsection (c)(2). Such assistance may be used to finance the construction, reconstruction, or moderate or substantial rehabilitation of a structure or a portion of a structure, or the acquisition of a structure, to be used as supportive housing for the elderly in accordance with this section. Assistance may also cover the cost of real property acquisition, site improvement, conversion, demolition, relocation, and other expenses that the Secretary determines are necessary to expand the supply of supportive housing for the elderly.
A capital advance provided under this section shall bear no interest and its repayment shall not be required so long as the housing remains available for very low-income elderly persons in accordance with this section. Such advance shall be in an amount calculated in accordance with the development cost limitation established in subsection (h).
Contracts for project rental assistance shall obligate the Secretary to make monthly payments to cover any part of the costs attributed to units occupied (or, as approved by the Secretary, held for occupancy) by very low-income elderly persons that is not met from project income. The annual contract amount for any project shall not exceed the sum of the initial annual project rentals for all units so occupied and any initial utility allowances for such units, as approved by the Secretary. Any contract amounts not used by a project in any year shall remain available to the project until the expiration of the contract. The Secretary may adjust the annual contract amount if the sum of the project income and the amount of assistance payments available under this paragraph are inadequate to provide for reasonable project costs.
A very low-income person shall pay as rent for a dwelling unit assisted under this section the highest of the following amounts, rounded to the nearest dollar: (A) 30 percent of the person's adjusted monthly income, (B) 10 percent of the person's monthly income, or (C) if the person is receiving payments for welfare assistance from a public agency and a part of such payments, adjusted in accordance with the person's actual housing costs, is specifically designated by such agency to meet the person's housing costs, the portion of such payments which is so designated.
All units in housing assisted under this section shall be made available for occupancy by very low-income elderly persons for not less than 40 years.
The initial term of a contract entered into under subsection (c)(2) shall be 240 months. The Secretary shall, to the extent approved in appropriation Acts, extend any expiring contract for a term of not less than 60 months. In order to facilitate the orderly extension of expiring contracts, the Secretary is authorized to make commitments to extend expiring contracts during the year prior to the date of expiration.
(6) such other information or certifications that the Secretary determines to be necessary or appropriate to achieve the purposes of this section.
The Secretary shall not reject an application on technical grounds without giving notice of that rejection and the basis therefor to the applicant and affording the applicant an opportunity to respond.
(H) such other factors as the Secretary determines to be appropriate to ensure that funds made available under this section are used effectively.
(iv) agrees to issue a firm commitment within 12 months of delegation.
(B) The Secretary shall retain the authority to process funding under this section in cases in which no State or local housing agency has applied to provide delegated processing pursuant to this paragraph or no such agency has entered into an agreement with the Secretary to serve as a delegated processing agency.
(C) The Secretary shall develop a schedule for reasonable fees under this subparagraph to be paid to delegated processing agencies, which shall take into consideration any other fees to be paid to the agency for other funding provided to the project by the agency, including bonds, tax credits, and other gap funding.
(iv) identify the terms under which such services will be made available to residents of the project.
(E) Under such delegated system, the Secretary shall retain the authority to approve rents and development costs and to execute funding under this section within 60 days of receipt of the commitment from the State or local agency. The Secretary shall provide to such agency and the project sponsor, in writing, the reasons for any reduction in funding under this section and such reductions shall be subject to appeal.
In carrying out the provisions of this section, the Secretary shall ensure that housing assisted under this section provides a range of services tailored to the needs of the category or categories of elderly persons (including frail elderly persons) occupying such housing. Such services may include (A) meal service adequate to meet nutritional need; (B) housekeeping aid; (C) personal assistance; (D) transportation services; (E) health-related services; (F) providing education and outreach regarding telemarketing fraud, in accordance with the standards issued under section 671(f) of the Housing and Community Development Act of 1992 (42 U.S.C. 13631(f)); and (G) such other services as the Secretary deems essential for maintaining independent living. The Secretary may permit the provision of services to elderly persons who are not residents if the participation of such persons will not adversely affect the cost-effectiveness or operation of the program or add significantly to the need for assistance under this Act.
(C) seek on a continuous basis new sources of assistance to ensure the long-term provision of supportive services.
Any cost associated with this subsection shall be an eligible cost under subsection (c)(2).
Any cost associated with employing or otherwise retaining a service coordinator in housing assisted under this section shall be considered an eligible cost under subsection (c)(2). If a project is receiving congregate housing services assistance under section 8011 of title 42, the amount of costs provided under subsection (c)(2) for the project service coordinator may not exceed the additional amount necessary to cover the costs of providing for the coordination of services for residents of the project who are not eligible residents under such section 8011 of title 42. To the extent that amounts are available pursuant to subsection (c)(2) for the costs of carrying out this paragraph within a project, an owner of housing assisted under this section shall provide a service coordinator for the housing to coordinate the provision of services under this subsection within the housing.
(G) the cost of land, including necessary site improvement.
In establishing development cost limitations for a given market area under this subsection, the Secretary shall use data that reflect currently prevailing costs of construction, reconstruction, or rehabilitation, and land acquisition in the area. For purposes of this paragraph, the term "congregate space" shall include space for cafeterias or dining halls, community rooms or buildings, workshops, adult day health facilities, or other outpatient health facilities, or other essential service facilities. Neither this section nor any other provision of law may be construed as prohibiting or preventing the location and operation, in a project assisted under this section, of commercial facilities for the benefit of residents of the project and the community in which the project is located, except that assistance made available under this section may not be used to subsidize any such commercial facility.
(C) the cost of the land on which the housing and related facilities are located.
The Secretary shall adjust the cost limitation not less than once annually to reflect changes in the general level of construction, reconstruction, or rehabilitation costs.
(iv) enhance tenant comfort and convenience.
The special housing account established under subparagraph (A) may be used (i) to supplement services provided to residents of the housing or funds set aside for replacement reserves, or (ii) for such other purposes as determined by the Secretary.
The Secretary shall, to the extent practicable, give owners the flexibility to design housing appropriate to their location and proposed resident population within broadly defined parameters.
An owner shall be permitted voluntarily to provide funds from sources other than this section for amenities and other features of appropriate design and construction suitable for supportive housing for the elderly if the cost of such amenities is (A) not financed with the advance, and (B) is not taken into account in determining the amount of Federal assistance or of the rent contribution of tenants. Notwithstanding any other provision of law, assistance amounts provided under this section may be treated as amounts not derived from a Federal grant.
An owner shall adopt written tenant selection procedures that are satisfactory to the Secretary as (A) consistent with the purpose of improving housing opportunities for very low-income elderly persons; and (B) reasonably related to program eligibility and an applicant's ability to perform the obligations of the lease. Such tenant selection procedures shall comply with subtitle C of title VI of the Housing and Community Development Act of 1992 [42 U.S.C. 13601 et seq.] and any regulations issued under such subtitle. Owners shall promptly notify in writing any rejected applicant of the grounds for any rejection.
The Secretary shall provide to an appropriate agency in each area (which may be the applicable Area Agency on the Aging) information regarding the availability of housing assisted under this section.
The Secretary shall make available appropriate technical assistance to assure that applicants having limited resources, particularly minority applicants, are able to participate more fully in the program carried out under this section.
Each owner shall certify, to the satisfaction of the Secretary, that assistance made available under this section will be conducted and administered in conformity with title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], the Fair Housing Act [42 U.S.C. 3601 et seq.], and other Federal, State, and local laws prohibiting discrimination and promoting equal opportunity.
The Secretary shall require an owner to deposit an amount not to exceed $25,000 in a special escrow account to assure the owner's commitment to the housing. Such amount shall be used only to cover operating deficits during the first 3 years of operations and shall not be used to cover construction shortfalls or inadequate initial project rental assistance amounts.
The Secretary may reduce or waive the owner deposit specified under paragraph (1) for individual applicants if the Secretary finds that such waiver or reduction is necessary to achieve the purposes of this section and the applicant demonstrates to the satisfaction of the Secretary that it has the capacity to manage and maintain the housing in accordance with this section. The Secretary shall reduce or waive the requirement of the owner deposit under paragraph (1) in the case of a nonprofit applicant that is not affiliated with a national sponsor, as determined by the Secretary.
The Secretary shall notify an owner not less than 30 days prior to canceling any reservation of assistance provided under this section. During the 30-day period following the receipt of a notice under the preceding sentence, an owner may appeal the proposed cancellation of loan authority. Such appeal, including review by the Secretary, shall be completed not later than 45 days after the appeal is filed.
The Secretary shall take such action as may be necessary to ensure that all laborers and mechanics employed by contractors and subcontractors in the construction of housing with 12 or more units assisted under this section shall be paid wages at rates not less than the rates prevailing in the locality involved for the corresponding classes of laborers and mechanics employed on construction of a similar character, as determined by the Secretary of Labor in accordance with sections 3141–3144, 3146, and 3147 of title 40.
(iii) is not otherwise employed at any time in the construction work.
The Secretary shall authorize the owner of a project assisted under this section to use any residual receipts held for the project in excess of $500 per unit (or in excess of such other amount prescribed by the Secretary based on the needs of the project) for activities to retrofit and renovate the project described under section 8011(d)(3) of title 42, to provide a service coordinator for the project as described in section 8011(d)(4) of title 42, or to provide supportive services (as such term is defined in section 8011(k) of title 42) to residents of the project. Any owner that uses residual receipts under this paragraph shall submit to the Secretary a report, not less than annually, describing the uses of the residual receipts. In determining the amount of project rental assistance to be provided to a project under subsection (c)(2) of this section, the Secretary may take into consideration the residual receipts held for the project only if, and to the extent that, excess residual receipts are not used under this paragraph.
Each owner shall operate housing assisted under this section in compliance with subtitle C of title VI of the Housing and Community Development Act of 1992 [42 U.S.C. 13601 et seq.] and any regulations issued under such subtitle.
Amounts for project reserves for a project assisted under this section may be used for costs, subject to reasonable limitations as the Secretary determines appropriate, for reducing the number of dwelling units in the project. Such use shall be subject to the approval of the Secretary to ensure that the use is designed to retrofit units that are currently obsolete or unmarketable.
(1) The term "elderly person" means a household composed of one or more persons at least one of whom is 62 years of age or more at the time of initial occupancy.
(2) The term "frail elderly" means an elderly person who is unable to perform at least 3 activities of daily living adopted by the Secretary for purposes of this program. Owners may establish additional eligibility requirements (acceptable to the Secretary) based on the standards in local supportive services programs.
(3) The term "owner" means a private nonprofit organization that receives assistance under this section to develop and operate supportive housing for the elderly.
(iii) a limited liability company wholly owned and controlled by one or more organizations meeting the requirements under subparagraph (A).
(5) The term "State" includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States.
(7) The term "supportive housing for the elderly" means housing that is designed (A) to meet the special physical needs of elderly persons and (B) to accommodate the provision of supportive services that are expected to be needed, either initially or over the useful life of the housing, by the category or categories of elderly persons that the housing is intended to serve.
(8) The term "very low-income" has the same meaning as given the term "very low-income families" under section 1437a(b)(2) of title 42.
Of any amounts made available for assistance under this section, such sums as may be necessary shall be available for funding capital advances in accordance with subsection (c)(1). Such amounts, the repayments from such advances, and the proceeds from notes or obligations issued under this section prior to November 28, 1990, shall constitute a revolving fund to be used by the Secretary in carrying out this section.
Of any amounts made available for assistance under this section, such sums as may be necessary shall be available for funding project rental assistance in accordance with subsection (c)(2).
Not less than 15 percent of the funds made available for assistance under this section shall be allocated by the Secretary on a national basis for nonmetropolitan areas. In complying with this paragraph, the Secretary shall either operate a national competition for the nonmetropolitan funds or make allocations to regional offices of the Department of Housing and Urban Development.
There is authorized to be appropriated for providing assistance under this section $710,000,000 for fiscal year 2000.
There are authorized to be appropriated for providing assistance under this section such sums as may be necessary for each of fiscal years 2001, 2002, and 2003.
This Act, referred to in subsec. (g)(1), is Pub. L. 86–372, Sept. 23, 1959, 73 Stat. 654 , as amended, known as the Housing Act of 1959. For complete classification of this Act to the Code, see Short Title of 1959 Amendment note set out under section 1701 of this title and Tables.
The Housing and Community Development Act of 1992, referred to in subsecs. (i)(1) and (j)(7), is Pub. L. 102–550, Oct. 28, 1992, 106 Stat. 3672 . Subtitle C of title VI of the Act is classified generally to subchapter I (§13601 et seq.) of chapter 135 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title of 1992 Amendment note set out under section 5301 of Title 42 and Tables.
The Civil Rights Act of 1964, referred to in subsec. (j)(2), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241 , as amended. Title VI of the Act is classified generally to subchapter V (§2000d et seq.) of chapter 21 of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.
The Fair Housing Act, referred to in subsec. (j)(2), is title VIII of Pub. L. 90–284, Apr. 11, 1968, 82 Stat. 81 , as amended, which is classified principally to subchapter I (§3601 et seq.) of chapter 45 of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 3601 of Title 42 and Tables.
"Sections 3141–3144, 3146, and 3147 of title 40" substituted in subsec. (j)(5)(A) for "the Act of March 3, 1931 (commonly known as the Davis-Bacon Act)" on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303 , the first section of which enacted Title 40, Public Buildings, Property, and Works.
Section was enacted as part of the Housing Act of 1959, and not as part of the National Housing Act which comprises this chapter.
2014-Subsec. (f)(2)(A). Pub. L. 113–76, §241(a)(1), in introductory provisions, substituted "The Secretary shall establish procedures to delegate the award, review and processing of projects, selected by the Secretary in a national competition, to a State or local housing agency that-" for "In issuing a capital advance under this subsection for any project for which financing for the purposes described in the last two sentences of subsection (b) is provided by a combination of a capital advance under subsection (c)(1) and sources other than this section, within 30 days of award of the capital advance, the Secretary shall delegate review and processing of such projects to a State or local housing agency that-".
Subsec. (f)(2)(A)(iii). Pub. L. 113–76, §241(a)(2), substituted "funding" for "capital advance" and a semicolon for a comma.
Subsec. (f)(2)(B). Pub. L. 113–76, §241(b), substituted "funding under this section" for "capital advances".
Subsec. (f)(2)(C). Pub. L. 113–76, §241(c), struck out first sentence "An agency to which review and processing is delegated pursuant to subparagraph (A) may assess a reasonable fee which shall be included in the capital advance amounts and may recommend project rental assistance amounts in excess of those initially awarded by the Secretary."
Subsec. (f)(2)(D), (E). Pub. L. 113–76, §241(d), (e), added subpar. (D), redesignated former subpar. (D) as (E), and in subpar. (E), substituted "execute funding under this section" for "execute a capital advance" and "in funding under this section" for "in capital advance amounts or project rental assistance".
2011-Subsec. (f)(1)(F) to (H). Pub. L. 111–372, §101, added subpar. (F) and redesignated former subpars. (F) and (G) as (G) and (H), respectively.
Subsec. (h)(1). Pub. L. 111–372, §102, inserted "reasonable" before "development cost limitations" in introductory provisions.
Subsec. (j)(3)(A). Pub. L. 111–372, §103, inserted after period at end "Such amount shall be used only to cover operating deficits during the first 3 years of operations and shall not be used to cover construction shortfalls or inadequate initial project rental assistance amounts."
Subsec. (k)(4). Pub. L. 111–372, §104, amended par. (4) generally. Prior to amendment, par. (4) defined "private nonprofit organization".
Subsec. (l)(3). Pub. L. 111–372, §105, inserted after period at end "In complying with this paragraph, the Secretary shall either operate a national competition for the nonmetropolitan funds or make allocations to regional offices of the Department of Housing and Urban Development."
2008-Subsec. (f). Pub. L. 110–289 substituted "Initial selection criteria and processing" for "Selection criteria" in heading, designated existing provisions as par. (1) and inserted heading, redesignated former pars. (1) to (7) as subpars. (A) to (G), respectively, of par. (1), and added par. (2).
2000-Subsec. (b). Pub. L. 106–569, §833(1), struck out "from the Resolution Trust Corporation" after "or the acquisition of a structure".
Subsec. (g)(1)(F), (G). Pub. L. 106–569, §851(c)(1), added cl. (F) and redesignated former cl. (F) as (G).
Subsec. (h)(1). Pub. L. 106–569, §835, inserted at end of concluding provisions "Neither this section nor any other provision of law may be construed as prohibiting or preventing the location and operation, in a project assisted under this section, of commercial facilities for the benefit of residents of the project and the community in which the project is located, except that assistance made available under this section may not be used to subsidize any such commercial facility."
Subsec. (h)(2). Pub. L. 106–569, §833(2), substituted "Acquisition" for "RTC properties" in heading and struck out "from the Resolution Trust Corporation under section 1441a(c) of this title or from the Federal Deposit Insurance Corporation under section 1831q of this title" after "related facilities to be acquired" in introductory provisions.
Subsec. (h)(6). Pub. L. 106–569, §832, substituted "sources other than this section" for "non-Federal sources" and inserted at end "Notwithstanding any other provision of law, assistance amounts provided under this section may be treated as amounts not derived from a Federal grant."
Subsec. (j)(8). Pub. L. 106–569, §834, added par. (8).
Subsec. (k)(4). Pub. L. 106–569, §831, inserted concluding provisions.
Subsec. (m). Pub. L. 106–569, §821, added subsec. (m) relating to authorization of appropriations for fiscal years 2001 to 2003.
1999-Subsec. (m). Pub. L. 106–74 added subsec. (m) relating to authorization of appropriations for fiscal year 2000.
1992-Subsec. (e)(5) to (7). Pub. L. 102–550, §602(b), redesignated pars. (6) and (7) as (5) and (6), respectively, and struck out former par. (5) which read as follows: "a certification from the appropriate State or local agency (as determined by the Secretary) that the provision of services identified in paragraph (4) is well designed to serve the special needs of the category or categories of elderly persons the housing is intended to serve;".
Subsec. (f)(2). Pub. L. 102–550, §602(c), which directed insertion of ", taking into consideration the availability of public housing for the elderly and vacancy rates in such facilities" at end, was executed by making insertion before semicolon at end.
Subsec. (g)(1). Pub. L. 102–550, §602(a)(1), struck out "and persons with disabilities" after "elderly persons" in last sentence.
Subsec. (g)(2). Pub. L. 102–550, §677(a)(A), struck out at end "Any cost associated with the employment of a service coordinator shall also be an eligible cost except where the project is receiving congregate housing services assistance under section 8011 of title 42."
Subsec. (g)(3). Pub. L. 102–550, §677(a)(B), added par. (3).
Subsec. (h)(2). Pub. L. 102–550, §1604(c)(3), made technical amendment to reference to section 1831q of this title to correct reference to corresponding provision of original act.
Subsec. (i)(1). Pub. L. 102–550, §682(c)(1), inserted after first sentence "Such tenant selection procedures shall comply with subtitle C of title VI of the Housing and Community Development Act of 1992 and any regulations issued under such subtitle."
Subsec. (i)(1)(A). Pub. L. 102–550, §602(a)(2), substituted "elderly persons" for "persons with disabilities".
Subsec. (j)(3)(B). Pub. L. 102–550, §602(f), inserted at end "The Secretary shall reduce or waive the requirement of the owner deposit under paragraph (1) in the case of a nonprofit applicant that is not affiliated with a national sponsor, as determined by the Secretary."
"(A) In general.-Any contract for the construction of affordable housing with 12 or more units assisted with funds made available under this subtitle shall contain a provision requiring that not less than the wages prevailing in the locality, as predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act (40 U.S.C. 276a–276a–5), shall be paid to all laborers and mechanics employed in the development of affordable housing involved, and participating jurisdictions shall require certification as to compliance with the provisions of this section prior to making any payment under such contract.
"(B) Waiver.-Subparagraph (A) shall not apply if the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered and such persons are not otherwise employed at any time in the construction work."
Subsec. (j)(6). Pub. L. 102–550, §602(e), added par. (6).
Subsec. (j)(7). Pub. L. 102–550, §682(c)(2), added par. (7).
Subsec. (l). Pub. L. 102–550, §601(c)(1), substituted "Allocation of funds" for "Authorizations" in heading.
Subsec. (l)(1). Pub. L. 102–550, §601(c)(2), inserted sentence at beginning, substituted "Such amounts" for "Amounts so appropriated" in second sentence, and struck out former first sentence which read as follows: "There are authorized to be appropriated for the purpose of funding capital advances in accordance with subsection (c)(1) of this section $659,000,000 for fiscal year 1992."
Subsec. (l)(2). Pub. L. 102–550, §601(c)(3), added par. (2) and struck out former par. (2) which read as follows: "For the purpose of funding contracts for project rental assistance in accordance with subsection (c)(2) of this section the Secretary may, to the extent approved in an appropriations Act, reserve authority to enter into obligations aggregating $363,000,000 for fiscal year 1992."
Subsec. (l)(3). Pub. L. 102–550, §602(g), which directed substitution of "15 percent" for "20 percent" in par. (4) was executed to par. (3) to reflect the probable intent of Congress.
Pub. L. 102–550, §601(c)(4), substituted "for assistance under this section" for "under this subtitle".
1991-Subsec. (g)(2). Pub. L. 102–139, amending Pub. L. 101–625, §801(a), struck out "in housing principally serving frail elderly persons" after "coordinator".
Pub. L. 102–139 struck out "or a project where the tenants are not principally frail elderly" before period at end of subsec. (g)(2) as it existed prior to the general amendment of this section by section 801(a) of Pub. L. 101–625.
Subsec. (h)(2). Pub. L. 102–242 inserted "or from the Federal Deposit Insurance Corporation under section 1831q of this title" after "section 1441a(c) of this title".
1990-Pub. L. 101–625, §801(a), amended section generally, substituting present provisions for provisions authorizing loans for housing and related facilities for elderly or handicapped families.
Subsec. (a)(4)(C). Pub. L. 101–625, §801(e), struck out before period at end ", and not more than $666,400,000 may be approved in appropriation Acts for such loans with respect to fiscal year 1984. For fiscal years 1988 and 1989, not more than $621,701,000 and $630,000,000, respectively, may be approved in appropriation Acts for such loans" and inserted at end "For fiscal year 1991, not more than $714,200,000 may be approved in appropriation Acts for such loans."
Subsec. (a)(9). Pub. L. 101–625, §804(b), added par. (9).
Subsec. (c)(3). Pub. L. 101–625, §955(c), designated existing provisions as subpar. (A), struck out before period at end "; but the Secretary may waive the application of this paragraph in cases or classes of cases where laborers or mechanics, not otherwise employed at any time in the construction of such housing, voluntarily donate their services without full compensation for the purpose of lowering the costs of construction and the Secretary determines that any amounts saved thereby are fully credited to the corporation, cooperative, or public body or agency undertaking the construction", and added subpar. (B).
Subsec. (d)(3). Pub. L. 101–625, §804(a), inserted at end "The term also means the cost of acquiring existing housing and related facilities from the Resolution Trust Corporation under section 1441a(c) of this title, the cost of rehabilitation, alteration, conversion, or improvement, including the moderate rehabilitation thereof, and the cost of the land on which the housing and related facilities are located."
Subsec. (g). Pub. L. 101–625, §808, designated existing provisions as par. (1) and added par. (2).
Pub. L. 101–625, §804(c), inserted at end "In the case of existing housing and related facilities acquired from the Resolution Trust Corporation under section 1441a(c) of this title, the term of the contract pursuant to such section 8 shall be 240 months."
Subsec. (k)(3). Pub. L. 101–625, §807, added par. (3).
Subsec. (p). Pub. L. 101–625, §805, added subsec. (p).
1988-Subsec. (a)(3). Pub. L. 100–242, §161(c)(1), designated existing provisions as subpar. (A), substituted "taking into consideration the average yield, during the 3-month period immediately preceding the fiscal year in which the loan is made, on the most recently issued 30-year marketable obligations of the United States" for "of the Treasury taking into consideration the average interest rate on all interest bearing obligations of the United States then forming a part of the public debt, computed at the end of the fiscal year next preceding the date on which the loan is made", and added subpar. (B).
Subsec. (a)(4)(B)(i). Pub. L. 100–242, §161(a), inserted provisions relating to such sums as may be approved for fiscal years 1988 and 1989, and substituted "October 1, 1983, to such sum" for "October 1, 1983, and to such sum".
Pub. L. 100–242, §161(d), substituted "Such notes or other obligations shall bear interest at a rate determined by the Secretary of the Treasury taking into consideration the average yield, during the 3-month period immediately preceding the fiscal year in which the loan is made, on the most recently issued 30-year marketable obligations of the United States." for "Such notes or other obligations shall bear interest at a rate determined by the Secretary of the Treasury, taking into consideration the average interest rate on all interest bearing obligations of the United States then forming a part of the public debt, computed at the end of the fiscal year next preceding the date on which the loan is made."
Subsec. (a)(4)(C). Pub. L. 100–242, §161(b), inserted provisions relating to loan authority for fiscal years 1988 and 1989.
Subsec. (a)(8). Pub. L. 100–242, §161(f), added par. (8).
Subsec. (c)(3). Pub. L. 100–242, §162(b)(3), inserted reference to construction designed for dwelling use by 12 or more elderly or handicapped families.
Subsec. (d)(4). Pub. L. 100–242, §170(g)(1), substituted reference to a handicapped person if such person has a developmental disability as defined in section 6001(7) of title 42, for reference to a handicapped person if such person is a developmentally disabled individual as defined in section 102(5) of the Developmental Disabilities Services and Facilities Construction Amendments of 1950.
Subsec. (d)(9), (10). Pub. L. 100–242, §162(b)(2), added pars. (9), (10).
Subsec. (f). Pub. L. 100–242, §162(c), designated existing provisions as par. (1) and added par. (2).
Pub. L. 100–242, §170(g)(2), substituted "section 133" for "section 134".
Subsec. (h). Pub. L. 100–242, §162(b)(1), amended subsec. (h) generally, changing structure of subsection from one consisting of introductory provisions and two numbered paragraphs to one consisting of four numbered paragraphs.
Subsec. (l). Pub. L. 100–242, §170(g)(3), substituted "different" for "difference".
Subsec. (n). Pub. L. 100–242, §161(e), added subsec. (n).
1984-Subsec. (a)(4)(B)(i). Pub. L. 98–479, §203(h), substituted "chapter 31 of title 31" for "the Second Liberty Bond Act" and "such chapter" for "that Act".
Pub. L. 98–479, §102(c)(1), substituted "October 1, 1984" for "October 1, 1985".
Subsec. (f). Pub. L. 98–479, §201(e), substituted "Health and Human Services" for "Health, Education, and Welfare".
Subsec. (h)(1). Pub. L. 98–479, §102(c)(2)(A), inserted "and" at end.
Subsec. (h)(2). Pub. L. 98–479, §102(c)(2)(B), substituted a period for "; and" at end.
Subsec. (l). Pub. L. 98–479, §102(c)(3), inserted "The Secretary shall not impose difference requirements or standards with respect to construction change orders, increases in loan amount to cover change orders, errors in plans and specifications, and use of contingency funds, because of the method of contractor selection used by the sponsor or borrower."
1983-Subsec. (a)(3). Pub. L. 98–181, §223(a)(1), inserted ", except that such interest rate plus such allowance shall not exceed 9.25 per centum per annum".
Subsec. (a)(4)(B)(i). Pub. L. 98–181, §223(b), struck out "and" after "1980" and inserted ", to $6,400,000,000 on October 1, 1983, and to such sum as may be approved in an appropriation Act on October 1, 1985,".
Subsec. (a)(4)(C). Pub. L. 98–181, §223(c), substituted "$666,400,000" and "1984" for "$850,848,000" and "1982", respectively.
Subsec. (h). Pub. L. 98–181, §223(d)(1), (2), in provisions preceding par. (1), substituted "1983" for "1978", and inserted ", and persons described in subparagraphs (B) and (C) of subsection (d)(4) of this section who have been released from residential health treatment facilities".
Subsec. (h)(1). Pub. L. 98–181, §223(d)(3), (5), substituted "persons described in the first sentence of this subsection" for "handicapped persons", and struck out "and" at end.
Subsec. (h)(2). Pub. L. 98–181, §223(d)(4), (6), substituted "persons described in the first sentence of this subsection who are" for "handicapped persons", and substituted "such community; and" for "such community".
Subsecs. (i) to (m). Pub. L. 98–181, §223(e), added subsecs. (i) to (m).
1981-Subsec. (a)(4)(C). Pub. L. 97–35 inserted provisions relating to fiscal year 1982.
1980-Subsec. (d)(3). Pub. L. 96–399 inserted last sentence relating to housing to meet the needs of handicapped (primarily nonelderly) persons.
1979-Subsec. (a)(4)(B)(i). Pub. L. 96–153, §306(a), provided for increase of notes or other obligations to $3,827,500,000 on October 1, 1979, to $4,777,500,000 on October 1, 1980, and to $5,752,500,000 on October 1, 1981.
Subsec. (a)(6), (7). Pub. L. 96–153, §306(b), added pars. (6) and (7).
Subsec. (d)(8)(A). Pub. L. 96–153, §306(c)(1), substituted "adult day health facilities, or other" for "or infirmaries or other inpatient or".
Subsec. (f). Pub. L. 96–153, §306(c)(2), inserted reference to adult day health services.
Subsec. (g). Pub. L. 96–153, §306(d), inserted provisions that at the time of settlement on permanent financing, the Secretary make appropriate adjustment in the amount of assistance to be provided under a contract for annual contributions pursuant to section 8 of the United States Housing Act of 1937 reflecting the difference between interest rate which will actually be charged in connection with such permanent financing and the interest rate which was in effect at the time of the reservation of assistance in connection with the project.
1978-Subsec. (a)(4)(C). Pub. L. 95–557, §205(b), struck out "in any fiscal year" after "The aggregate loans made under this section", and "for such year" after "lending authority established".
Subsec. (d)(2). Pub. L. 95–557, §205(d), designated provisions beginning "no part of" as par. (A), substituted "member, founder, contributor, or individual" for "private shareholder, contributor, or individual, if such institution or foundation is approved by the Secretary as to financial responsibility", and added pars. (B) and (C).
Subsec. (d)(3). Pub. L. 95–557, §205(c), inserted "the cost of movables necessary to the basic operation of the project as determined by the Secretary," after "related facilities".
Subsec. (h). Pub. L. 95–557, §205(a), added subsec. (h).
1977-Subsec. (d)(3). Pub. L. 95–128, §202(a), provided for determination of "development cost" without regard to mortgage limits applicable to housing projects subject to mortgages insured under section 1715v of this title.
Subsec. (g). Pub. L. 95–128, §202(b), added subsec. (g).
1976-Subsec. (a)(3). Pub. L. 94–375, §11(c)(1), substituted "average interest rate on all interest bearing obligations of the United States then forming a part of the public debt, computed at the end of the fiscal year next preceding the date on which the loan is made" for "current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the average maturities of such loans".
Subsec. (a)(4)(B)(i). Pub. L. 94–375, §11(a), (c)(2), substituted "$1,475,000,000, which amount shall be increased to $2,387,500,000 on October 1, 1977, and to $3,300,000,000 on October 1, 1978" for "$800,000,000" and "the average interest rate on all interest bearing obligations of the United States then forming a part of the public debt, computed at the end of the fiscal year next preceding the date on which the loan is made" for "the current average market yield on outstanding marketable obligations of the United States of comparable maturities during the month preceding the issuance of the notes or other obligations", and inserted provision restricting the amount of notes or obligations issued to the Secretary of the Treasury to not more than $800,000,000.
Subsec. (d)(4). Pub. L. 94–375, §11(b), included in definition of "elderly or handicapped families" two or more elderly or handicapped persons living together, one such person and another providing care for the first, or a surviving member of the family who was living in the unit at the time another member died.
1974-Subsec. (a)(3). Pub. L. 93–383, §210(a), substituted provisions authorizing the Secretary of the Treasury to determine the interest rate, for provisions authorizing the Secretary of Housing and Urban Development to determine the interest rate.
Subsec. (a)(4). Pub. L. 93–383, §210(d), redesignated existing provision as subsec. (a)(4)(A), inserted ", and the proceeds from notes or other obligations issued under subparagraph (B)," after "Amounts so appropriated", and added subsec. (a)(4)(B), (C).
Subsec. (a)(5). Pub. L. 93–383, §210(e), added par. (5).
Subsec. (d)(4). Pub. L. 93–383, §210(b), substituted "an impairment" for "a physical impairment" and inserted provisions relating to developmentally disabled individuals.
Subsec. (d)(8). Pub. L. 93–383, §210(f), inserted "residing in the project or in the area" after "families".
Subsec. (f). Pub. L. 93–383, §210(c), added subsec. (f).
1969-Subsec. (a)(4). Pub. L. 91–152 increased by $150,000,000 on July 1, 1969 the amount authorized to be appropriated for the purposes of this section.
1968-Subsec. (a)(1). Pub. L. 90–448, §1706(1), authorized assistance to limited profit sponsors.
Subsec. (a)(2). Pub. L. 90–448, §1706(2), authorized loans to any limited profit sponsor approved by the Secretary.
Subsec. (a)(3). Pub. L. 90–448, §1706(3), limited the amount of the loan to not more than 90 per centum of the development cost in the case of other than a corporation, consumer cooperative, or public body or agency.
1967-Pub. L. 90–19, §16(a)(1), substituted "Secretary" for "Administrator" wherever appearing in subsecs. (a)(2) to (4), (b), (c)(2), (3), (d)(2), (4), and (e) of this section.
Subsec. (c)(2). Pub. L. 90–19, §16(a)(2), struck out at end ", except that for purposes of this subsection the Administrator shall perform the functions vested in the Commissioner by such section 513".
Subsec. (d)(6). Pub. L. 90–19, §16(a)(3), substituted definition of "Secretary" meaning the Secretary of Housing and Urban Development for "Administrator" meaning the Housing and Home Finance Administrator.
1965-Subsec. (a)(3). Pub. L. 89–117, §105(b)(1), substituted "the lower of (A) 3 per centum per annum, or" for "the higher of (A) 2¾ per centum per annum, or".
Subsec. (a)(4). Pub. L. 89–117, §105(a), increased amount authorized to be appropriated from $350,000,000 to $500,000,000.
1964-Subsec. (a)(1), (2). Pub. L. 88–560, §203(a)(2)(A), substituted "elderly or handicapped families" for "elderly families and elderly persons".
Subsec. (a)(4). Pub. L. 88–560, §201, increased amount authorized to be appropriated from $275,000,000 to $350,000,000.
Subsec. (d)(1). Pub. L. 88–560, §203(a)(2)(B), included in definition of "housing" structures suitable for dwelling use by handicapped families, designated existing provisions as subpar. (A), and added subpar. (B).
Subsec. (d)(4). Pub. L. 88–560, §203(a)(2)(C), substituted definitions of "elderly or handicapped families" and when "a person shall be considered handicapped" for former provisions defining "elderly families" as "families the head of which (or his spouse) is sixty-two years of age or over" and "elderly persons" as "persons who are sixty-two years of age or over".
Subsec. (d)(7). Pub. L. 88–560, §203(a)(2)(D), redefined "construction" to include rehabilitation, alteration, conversion, or improvement of existing structures.
Subsec. (d)(8). Pub. L. 88–560, §203 (a)(2)(E), redefined "existing facilities" by designating existing provisions as cl. (A), inserting in cl. (A) "by elderly or handicapped families" and "workshops", and adding cl. (B).
Subsec. (e). Pub. L. 88–560, §203(a)(2)(A), substituted "elderly or handicapped families" for "elderly families and elderly persons" in two places.
1963-Subsec. (a)(4). Pub. L. 88–158 increased amount authorized to be appropriated from $225,000,000 to $275,000,000.
1962-Subsec. (a)(4). Pub. L. 87–723, §3(a), increased amount authorized to be appropriated from $125,000,000 to $225,000,000.
Subsec. (d)(1). Pub. L. 87–723, §3(b)(1), redesignated subsec. (d)(1)(A) as entire subsec. (d)(1) and struck out subsec. (d)(1)(B) which included in definition of "housing" dwelling facilities provided by rehabilitation, alteration, conversion, or improvement of existing structures which were otherwise inadequate for proposed dwellings used by elderly families and persons.
Subsec. (d)(7). Pub. L. 87–723, §3(b)(2), struck out ", or rehabilitation, alteration, conversion, or improvement of existing structures" after "new structures".
Subsec. (d)(8). Pub. L. 87–723, §3(b)(3), redesignated subsec. (d)(8)(A) as entire subsec. (d)(8) and struck out subsec. (d)(8)(B) which included in definition of "related facilities" structures suitable for essential service facilities provided by rehabilitation, alteration, conversion, or improvement of existing structures which were otherwise inadequate for essential service facilities.
1961-Subsec. (a)(1). Pub. L. 87–70, §201(a)(1), authorized assistance for consumer cooperatives and public bodies and agencies.
Subsec. (a)(2). Pub. L. 87–70, §201(a)(2), authorized loans to consumer cooperatives and to public bodies or agencies, and prohibited loans to public bodies or agencies unless they certify that they are not receiving financial assistance exclusively pursuant to the United States Housing Act of 1937.
Subsec. (a)(3). Pub. L. 87–70, §201(a)(3), (b), substituted "loan under this section" for "loan to a corporation under this section", and "may be in an amount not exceeding the total development cost" for "may be in an amount not exceeding 98 per centum of the total development cost".
Subsec. (a)(4). Pub. L. 87–70, §201(c), increased amount authorized to be appropriated from $50,000,000 to $125,000,000, and struck out provisions which limited the amount outstanding at any one time for related facilities to not more than $5,000,000.
Subsec. (c)(3). Pub. L. 87–70, §201(a)(4), substituted "credited to the corporation, cooperative, or public body or agency undertaking" for "credited to the corporation undertaking".
Subsec. (e). Pub. L. 87–70, §201(d), added subsec. (e).
"(a) In General.-The provisions of this title [see section 801 of Pub. L. 106–569, set out as a Short Title of 2000 Amendment note under section 1701 of this title] and the amendments made by this title are effective as of the date of the enactment of this Act [Dec. 27, 2000], unless such provisions or amendments specifically provide for effectiveness or applicability upon another date certain.
"(b) Effect of Regulatory Authority.-Any authority in this title or the amendments made by this title to issue regulations, and any specific requirement to issue regulations by a date certain, may not be construed to affect the effectiveness or applicability of the provisions of this title or the amendments made by this title under such provisions and amendments and subsection (a) of this section."
"(a) In General.-The provisions of this title [see Short Title of 1999 Amendment note set out under section 1701 of this title] and the amendments made by this title are effective as of the date of the enactment of this Act [Oct. 20, 1999], unless such provisions or amendments specifically provide for effectiveness or applicability upon another date certain.
Amendment by sections 677(a) and 682(c) of Pub. L. 102–550 applicable on expiration of 6-month period beginning Oct. 28, 1992, see section 13642 of Title 42, The Public Health and Welfare.
Amendment by section 1604(c)(3) of Pub. L. 102–550 effective as if included in the Federal Deposit Insurance Corporation Improvement Act of 1991, Pub. L. 102–242, as of Dec. 19, 1991, see section 1609(a) of Pub. L. 102–550, set out as a note under section 191 of this title.
Pub. L. 101–625, title VIII, §801(c), Nov. 28, 1990, 104 Stat. 4304 , provided that: "The amendments made by this section [amending this section and section 1439 of Title 42, The Public Health and Welfare] shall take effect on October 1, 1991, with respect to projects approved on or after such date. The Secretary shall issue regulations for such purpose after notice and an opportunity for public comment in accordance with section 553 of title 5, United States Code. Regulations shall be issued for comment not later than 180 days after the date of enactment of this Act [Nov. 28, 1990]."
Amendment by section 955(c) of Pub. L. 101–625 applicable to any volunteer services provided before, on, or after Nov. 28, 1990, except that such amendment may not be construed to require repayment of any wages paid before Nov. 28, 1990, for services provided before such date, see section 955(d) of Pub. L. 101–625, set out as a note under section 1437j of Title 42.
Pub. L. 101–507, title II, Nov. 5, 1990, 104 Stat. 1358 , provided that sections 801, 802, and 811 of Pub. L. 101–625 [enacting sections 8011 and 8013 of Title 42, amending this section and sections 1437g and 1439 of Title 42, and enacting provisions set out as notes under this section] are deemed enacted as of the date of enactment of Pub. L. 101–507, which was approved Nov. 5, 1990.
"(1) Except as otherwise provided in this section, the provisions of, and amendments made by, this section [amending this section and enacting and repealing provisions set out as notes below] shall not apply with respect to projects with loans or loan reservations made under section 202 of the Housing Act of 1959 [this section] before the implementation date under subsection (e) [section 162(e) of Pub. L. 100–242 set out below].
"(2) Notwithstanding paragraph (1), the Secretary shall apply the provisions of, and amendments made by, this section to any project if needed to facilitate the development of such project in a timely manner."
Pub. L. 98–181, title I [title II, §223(a)(2)], Nov. 30, 1983, 97 Stat. 1190 , as amended by Pub. L. 99–120, §5(b), Oct. 8, 1985, 99 Stat. 504 ; Pub. L. 99–156, §5(b), Nov. 15, 1985, 99 Stat. 817 ; Pub. L. 99–219, §5(b), Dec. 26, 1985, 99 Stat. 1732 ; Pub. L. 99–267, §5(b), Mar. 27, 1986, 100 Stat. 75 ; Pub. L. 99–272, title III, §3011(b), Apr. 7, 1986, 100 Stat. 106 ; Pub. L. 99–289, §1(b), May 2, 1986, 100 Stat. 412 ; Pub. L. 99–345, §1, June 24, 1986, 100 Stat. 673 ; Pub. L. 99–430, Sept. 30, 1986, 100 Stat. 986 ; Pub. L. 100–122, §1, Sept. 30, 1987, 101 Stat. 793 ; Pub. L. 100–154, Nov. 5, 1987, 101 Stat. 890 ; Pub. L. 100–170, Nov. 17, 1987, 101 Stat. 914 ; Pub. L. 100–179, Dec. 3, 1987, 101 Stat. 1018 ; Pub. L. 100–200, Dec. 21, 1987, 101 Stat. 1327 , which provided that the amendment made by paragraph (1), amending this section, shall apply only with respect to loan agreements entered into after September 30, 1982, and not later than March 15, 1988, was repealed by Pub. L. 100–242, title I, §161(c)(2), Feb. 5, 1988, 101 Stat. 1856 .
Pub. L. 89–117, title I, §105(b)(2), as added by Pub. L. 89–754, title X, §1001(3), Nov. 3, 1966, 80 Stat. 1284 , provided that: "The interest rate provided by the amendment made in paragraph (1) [amending this section] shall be applicable (A) with respect to any loan made on or after August 10, 1965, and (B) with respect to any loan made prior to such date if construction of the housing or related facilities to be assisted by such loan was not commenced prior to such date, and not completed prior to the filing of an application for the benefits of such interest rate."
Pub. L. 87–723, §3(b), Sept. 28, 1962, 76 Stat. 670 , provided that the amendments made by that section are effective with respect to applications for loans made under this section after Sept. 28, 1962.
Pub. L. 106–74, title V, §502, Oct. 20, 1999, 113 Stat. 1101 , provided that: "The Secretary of Housing and Urban Development shall issue any regulations to carry out this title [see Short Title of 1999 Amendment note set out under section 1701 of this title] and the amendments made by this title that the Secretary determines may or will affect tenants of federally assisted housing only after notice and opportunity for public comment in accordance with the procedure under section 553 of title 5, United States Code, applicable to substantive rules (notwithstanding subsections (a)(2), (b)(B), and (d)(3) of such section). Notice of such proposed rulemaking shall be provided by publication in the Federal Register. In issuing such regulations, the Secretary shall take such actions as may be necessary to ensure that such tenants are notified of, and provided an opportunity to participate in, the rulemaking, as required by such section 553."
Pub. L. 111–117, div. A, title II, Dec. 16, 2009, 123 Stat. 3088 , as amended by Pub. L. 112–10, div. B, title XII, §2256, Apr. 15, 2011, 125 Stat. 197 , provided in part: "That amounts obligated for initial project rental assistance contracts from amounts appropriated in fiscal year 2003 and thereafter shall remain available for the purpose of paying such obligations incurred prior to the expiration of such amounts for a 10 year period following such expiration".
"This title may be cited as the 'Living Equitably: Grandparents Aiding Children and Youth Act of 2003' or the 'LEGACY Act of 2003'.
"(B) is attending school and is not more than 19 years of age.
"(ii) a relative of the child who is raising the child.
"(3) Elderly person.-The term 'elderly person' has the same meaning as in section 202(k) of the Housing Act of 1959 (12 U.S.C. 1701q(k)).
"(A) In general.-The term 'grandparent' means, with respect to a child, an individual who is a grandparent or stepgrandparent of the child by blood or marriage, regardless of the age of such individual.
"(B) Case of adoption.-In the case of a child who was adopted, the term includes an individual who, by blood or marriage, is a grandparent or stepgrandparent of the child as adopted.
"(5) Intergenerational dwelling unit.-The term 'intergenerational dwelling unit' means a qualified dwelling unit that is reserved for occupancy only by an intergenerational family.
"(6) Intergenerational family.-The term 'intergenerational family' means a covered family that has a head of household who is an elderly person.
"(7) Private nonprofit organization.-The term 'private nonprofit organization' has the same meaning as in section 202(k) of the Housing Act of 1959 (12 U.S.C. 1701q(k)).
"(C) is equipped with design features appropriate to meet the special physical needs of young children, as needed.
"(ii) regardless of whether the individual has a legal relationship to the child (such as guardianship or legal custody) or is caring for the child informally and has no such legal relationship with the child.
"(ii) is a relative of the child by blood or marriage, regardless of the age of the individual.
"(B) Case of adoption.-In the case of a child who was adopted, the term 'relative' includes an individual who, by blood or marriage, is a relative of the family who adopted the child.
"(11) Secretary.-The term 'Secretary' means the Secretary of Housing and Urban Development.
"SEC. 203. DEMONSTRATION PROGRAM FOR ELDERLY HOUSING FOR INTERGENERATIONAL FAMILIES.
"(a) Demonstration Program.-The Secretary shall carry out a demonstration program (referred to in this section as the 'demonstration program') to provide assistance for intergenerational dwelling units for intergenerational families in connection with the supportive housing program under section 202 of the Housing Act of 1959 (12 U.S.C. 1701q).
"(3) through the development of an annex or addition to an existing project assisted under section 202 of the Housing Act of 1959 (12 U.S.C. 1701q), that contains intergenerational dwelling units, including through the development of elder cottage housing opportunity units that are small, freestanding, barrier free, energy efficient, removable dwelling units located adjacent to a larger project or dwelling.
"(4) the Secretary may waive or alter any other provision of that section 202 necessary to provide for assistance under the demonstration program.
"(2) to the extent that amounts are made available pursuant to subsection (f), select not less than 2 and not more than 4 projects that are assisted under section 202 of the Housing Act of 1959 (12 U.S.C. 1701q) for assistance under this section, based on the ability of the applicant to develop and operate intergenerational dwelling units and national geographical diversity among those projects funded.
"(2) analyzes the effectiveness of the demonstration program.
"(f) Authorization of Appropriations.-There are authorized to be appropriated $10,000,000 to carry out this section.
"(g) Sunset.-The demonstration program carried out under this section shall terminate 5 years after the date of enactment of this Act.
"SEC. 204. TRAINING FOR HUD PERSONNEL REGARDING GRANDPARENT-HEADED AND RELATIVE-HEADED FAMILIES ISSUES.
"SEC. 205. STUDY OF HOUSING NEEDS OF GRANDPARENT-HEADED AND RELATIVE-HEADED FAMILIES.
"(2) submit a report to Congress regarding the results of the study conducted under paragraph (1).
"(2) include recommendations by the Secretary and the Director of the Bureau of the Census regarding how the major assisted housing programs of the Department of Housing and Urban Development, including the supportive housing for the elderly program under section 202 of the Housing Act of 1959 (12 U.S.C. 1701q) can be used and, if appropriate, amended or altered, to meet the affordable housing needs of covered families."
"(3) notwithstanding paragraph (2)(A), the prepayment and refinancing authorized pursuant to paragraph (2)(B) involves an increase in debt service only in the case of a refinancing of a project assisted with a loan under such section 202 carrying an interest rate of 6 percent or lower.
"(b) Sources of Refinancing.-In the case of prepayment under this section involving refinancing, the project sponsor may refinance the project through any third party source, including financing by State and local housing finance agencies, use of tax-exempt bonds, multi-family mortgage insurance under the National Housing Act [12 U.S.C. 1701 et seq.], reinsurance, or other credit enhancements, including risk sharing as provided under section 542 of the Housing and Community Development Act of 1992 [12 U.S.C. 1715z–22]([former] 12 U.S.C. 1707 note). For purposes of underwriting a loan insured under the National Housing Act, the Secretary may assume that any section 8 rental assistance contract relating to a project will be renewed for the term of such loan.
"(B) in the case of a project refinanced through any other source of refinancing, 15 percent of the acceptable development cost.
"For purposes of paragraph (6)(B), the term 'acceptable development cost' shall include, as applicable, the cost of acquisition, rehabilitation, loan prepayment, initial reserve deposits, and transaction costs.
"(2) to use any reserves for replacement in excess of $1,000 per individual dwelling unit for activities described in paragraphs (2) and (3) of subsection (c).
"(B) under the same rules governing project-based rental assistance made available under section 8 of the Housing Act of 1937 [42 U.S.C. 1437f] or under the rules of such assistance as may be made available for the project.
"(2) Any projects for which a senior preservation rental assistance contract is provided shall be subject to a use agreement to ensure continued project affordability having a term of the longer of (A) the term of the senior preservation rental assistance contract, or (B) such term as is required by the new financing.
"(2) the assumption (which may include the subordination described in paragraph (1)) of the loan for the project under such section 202 in connection with the transfer of the project with such a loan to a private nonprofit organization.
"(g) Flexible Subsidy Debt.-The Secretary shall waive the requirement that debt for a project pursuant to the flexible subsidy program under section 201 of the Housing and Community Development Amendments of 1978 (12 U.S.C. 1715z–1a) be prepaid in connection with a prepayment, refinancing, or transfer under this section of a project if the financial transaction or refinancing cannot be completed without the waiver.
"(2) has determined that the owner of the project has provided the tenants with an opportunity to comment on the owner's request for approval of a prepayment, including on the description of any anticipated rehabilitation or other use of the proceeds from the transaction, and its impacts on project rents, tenant contributions, or the affordability restrictions for the project, and that the owner has responded to such comments in writing.
"(i) Definition of Private Nonprofit Organization.-For purposes of this section, the term 'private nonprofit organization' has the meaning given such term in section 202(k) of the Housing Act of 1959 (12 U.S.C. 1701q(k))."
"(B) expenses for the provision of such services.
Not more than 15 percent of the cost of the provision of services under subparagraph (B) may be considered under this paragraph for purposes of determining the amount of assistance provided.
"(2) Inapplicability of hud reform act provisions.-Notwithstanding section 102 of the Department of Housing and Urban Development Reform Act of 1989 [42 U.S.C. 3545], the provisions of paragraphs (1), (2), and (3) of subsection (a) of such section shall not apply to amendments to contracts under section 8 of the United States Housing Act of 1937 made to carry out the purposes of paragraph (1) of this subsection.
"(3) Limitation.-If a project is receiving congregate housing services assistance under the Congregate Housing Services Act of 1978 [42 U.S.C. 8001 et seq.] or section 802 of the Cranston-Gonzalez National Affordable Housing Act [42 U.S.C. 8011], the amount of costs provided pursuant to paragraph (1) for the project may not exceed the additional amount necessary to cover the costs of providing for the coordination of services for residents of the project who are not eligible residents under such section 802 or eligible project residents under the Congregate Housing Services Act of 1978, as applicable."
as are necessary to ensure the expedited financing and construction of qualified supportive housing for the elderly provided that the Secretary finds that any applicable cost containment rules and regulations have been satisfied.
"(B) for which a loan reservation was made under section 202 of the Housing Act of 1959 [12 U.S.C. 1701q], 3 years before the date of enactment of this Act [Nov. 28, 1990] but for which no loan has been executed and recorded."
"(1) In general.-The Secretary of Housing and Urban Development shall carry out a program to determine the feasibility of including, as an eligible development cost under section 202 of the Housing Act of 1959 [12 U.S.C. 1701q], the cost of purchasing and installing elder cottage housing opportunity units that are small, freestanding, barrier-free, energy efficient, removable, and designed to be installed adjacent to existing 1- to 4-family dwellings. In conducting the demonstration, the Secretary shall determine whether the durability of such units is appropriate for making such units generally eligible for assistance under the programs under such sections.
"(2) Allocation.-Notwithstanding any other law, the Secretary shall reserve from any amounts available for capital advances and project rental assistance under section 202 of the Housing Act of 1959, amounts sufficient in each of fiscal years 1993 and 1994 to provide not less than 100 units under the demonstration under this subsection in connection with each such section. Any amounts reserved under this paragraph shall be available only for carrying out the demonstration under this subsection and, for purposes of the demonstration, the cost of purchasing and installing an elder cottage housing opportunity unit shall be considered an eligible development cost under sections [sic] 202 of the Housing Act of 1959.
"(3) Report.-Not later than January 1, 1994, the Secretary shall submit a report to the Congress on the results of the demonstration under this subsection, which shall be based on actual experience in implementing this subsection.
"(4) Implementation.-The Secretary shall issue regulations to carry out the demonstration under this subsection not later than the expiration of the 6-month period beginning on the date of the enactment of the Housing and Community Development Act of 1992 [Oct. 28, 1992]."
Secretary of Housing and Urban Development to provide a preference to native Hawaiians for housing assistance programs under this section for housing located on Hawaiian home lands, see section 958 of Pub. L. 101–625, set out as a note under section 1437f of Title 42, The Public Health and Welfare.
"(I) an improved program for nonelderly handicapped families will assist in providing shelter and supportive services for mentally ill persons who might otherwise be homeless.
"(2) The purpose of this section is to improve the direct loan program under section 202 of the Housing Act of 1959 to ensure that such program meets the special housing and related needs of nonelderly handicapped families."
Pub. L. 100–242, title I, §162(d), Feb. 5, 1988, 101 Stat. 1859 , provided that: "On and after the first date that amounts approved in an appropriation Act for any fiscal year become available for contracts under section 202(h)(4)(A) of the Housing Act of 1959 [12 U.S.C. 1701q(h)(4)(A)], as amended by subsection (b) of this section, no project for handicapped (primarily nonelderly) families approved for such fiscal year pursuant to section 202 of such Act shall be provided assistance payments under section 8 of the United States Housing Act of 1937 [42 U.S.C. 1437f], except pursuant to a reservation for a contract to make such assistance payments that was made before the first date that amounts for contracts under such section 202(h)(4)(A) became available."
Pub. L. 100–242, title I, §162(e), Feb. 5, 1988, 101 Stat. 1859 , provided that: "Not later than the expiration of the 120-day period following the date of the enactment of this Act [Feb. 5, 1988], the Secretary of Housing and Urban Development shall, to the extent amounts are approved in an appropriation Act for use under section 202(h)(4)(A) of the Housing Act of 1959 [12 U.S.C. 1701q(h)(4)(A)] for fiscal year 1988, publish in the Federal Register a notice of fund availability to implement the provisions of, and amendments made by, this section [amending this section and enacting and repealing provisions set out above]. The Secretary shall issue such rules as may be necessary to carry out such provisions and amendments for fiscal year 1989 and thereafter."
Pub. L. 101–507, title II, Nov. 5, 1990, 104 Stat. 1361 , provided: "That, notwithstanding section 202(a)(3) of the Housing Act of 1959 [12 U.S.C. 1701q(a)(3)], any such obligations [direct loan obligations made in fiscal year 1991] shall bear an interest rate which does not exceed 9.25 per centum, including the allowance adequate in the judgment of the Secretary to cover administrative costs and probable losses under the program."
Pub. L. 101–144, title II, Nov. 9, 1989, 103 Stat. 847 .
Pub. L. 100–404, title I, Aug. 19, 1988, 102 Stat. 1016 .
Pub. L. 100–202, §101(f) [title I], Dec. 22, 1987, 101 Stat. 1329–187 , 1329-190.
Pub. L. 99–500, §101(g) [H.R. 5313, title I], Oct. 18, 1986, 100 Stat. 1783–242 , and Pub. L. 99–591, §101(g), Oct. 30, 1986, 100 Stat. 3341–242 .
Pub. L. 99–160, title I, Nov. 25, 1985, 99 Stat. 911 .
Pub. L. 98–371, title I, July 18, 1984, 98 Stat. 1216 .
Pub. L. 98–45, title I, as added Pub. L. 98–181, title I, Nov. 30, 1983, 97 Stat. 1153 .
Reports Respecting Elderly and Handicapped Housing Programs in Rural Areas, Etc.
Pub. L. 96–153, title III, §306(e), (f), Dec. 21, 1979, 93 Stat. 1113 , required Secretary of Housing and Urban Development, not later than six months after Dec. 21, 1979, to report to Congress on housing needs of elderly and handicapped in rural areas and recommend to Congress on means to reduce costs of program carried out under this section.
"(1) In determining the feasibility and marketability of a project under section 202 of the Housing Act of 1959 [this section], the Secretary shall consider the availability of monthly assistance payments pursuant to section 8 of the United States Housing Act of 1937 [42 U.S.C. 1437f] with respect to such a project.
"(2) The Secretary shall insure that with the original approval of a project authorized pursuant to section 202 of the Housing Act of 1959, and thereafter at each annual revision of the assistance contract under section 8 of the United States Housing Act of 1937 with respect to units in such project, the project will serve both low- and moderate-income families in a mix which he determines to be appropriate for the area and for viable operation of the project; except that the Secretary shall not permit maintenance of vacancies to await tenants of one income level where tenants of another income level are available."
2 So in original. Probably should be "(n)".


The defendant-appellant, Charles E. Settle, Jr., was convicted of two counts of inadequate care by owner of companion animals and one count of dog at large under a county ordinance, after Fauquier County Sherriff's officers were dispatched to his home on multiple occasions over the course of one calendar year in response to animal noise and health and safety complaints from his neighbors. Consequently, all of the affected dogs were seized from Settle and relocated to local animal shelters. The trial court also declared three of the animals to be dangerous dogs pursuant to another county ordinance. The Court of Appeals of Virginia held that: (1) because the forfeiture of dogs was a civil matter the Court of Appeals lacked subject matter jurisdiction and was not the proper forum to decide the case; (2) that Settle failed to join the County as an indispensible party in the notice of appeal from conviction for the county ordinance violation; and (3) that the evidence was sufficient to identify Settle as the owner of the neglected companion animals.
*1 Charles E. Settle, Jr., (appellant) was convicted in a bench trial of two counts of inadequate care by owner of companion animals, pursuant to Code § 3.1-796.68, and one count of dog at large, pursuant to Fauquier County Code §§ 4-22 and 13-1. Pursuant to Code § 3.1-796.115,FN1 all of the dogs at issue were seized from appellant's control and placed in the care of local animal shelters. Additionally, the trial court declared three of the dogs dangerous pursuant to Code § 3.1-796.93:1.FN2 On appeal, appellant contends the trial court erred in finding the evidence sufficient to prove he was the person who neglected the dogs.
The Commonwealth filed a motion to dismiss the dog at large charge arguing that we do not have jurisdiction to hear the matter because appellant failed to join the County as an indispensable party. Following oral argument, we entered an order directing the parties to file supplemental briefs on the following question: Does this Court have jurisdiction over a civil forfeiture brought pursuant to Code § 3.1-796.115? For the following reasons, we (1) find we have no jurisdiction over appellant's appeal of the forfeiture of his dogs pursuant to Code § 3.1-796.115 and transfer it to the Supreme Court of Virginia; (2) dismiss appellant's appeal challenging his conviction for dog at large; and (3) affirm his convictions of inadequate care by owner of companion animals.
“When the sufficiency of the evidence is challenged on appeal, we review the evidence ‘in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ “ Emerson v. Commonwealth, 43 Va.App. 263, 276, 597 S.E.2d 242, 249 (2004) (quoting Bright v. Commonwealth, 4 Va.App. 248, 250, 356 S.E.2d 443, 444 (1987)). “We will affirm the conviction ‘unless it is plainly wrong or without evidence to support it.’ “ Dunaway v. Commonwealth, 52 Va.App. 281, 299, 663 S.E.2d 117, 126 (2008) (quoting Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 906 (2001)).
So viewed, the evidence established that over the course of approximately one year, Fauquier County sheriff's officers were dispatched to appellant's home on numerous occasions in response to animal noise, and safety and health complaints from appellant's neighbors. On December 31, 2007, after examining the living quarters and health of appellant's dogs, Hillary Bogley, the Fauquier County humane investigator, and Deputy C.L. Phillipe,FN3 an animal control officer, seized all of appellant's dogs and placed them in the care of local animal shelters.
All criminal summons and the civil petition for forfeiture were consolidated in the general district court. Following adverse rulings there, appellant appealed to the circuit court and a trial de novo was held on April 4, 2008. At trial, four Fauquier County sheriff's officers and the county humane officer testified about their interactions with appellant and his dogs.
*2 Deputy Chad Brubaker confirmed in his testimony that on November 30, 2007, he was “dispatched to Mr. Settle's house.” Brubaker explained where Settle's residence is located. Throughout his testimony he referred to acts and statements made by “Mr. Settle.” Brubaker indicated he had been to the residence on several previous occasions and was familiar with the property. Deputy John Arseno testified he was “familiar with Mr. Settle,” and had been to Settle's residence “numerous times.” Arseno described being present at the residence on an occasion when “Mr. Settle and his mother were in an argument [.]” Arseno explained he talked to “Mr. Settle” each time he was at the house and talked to Settle about the reasons he had been called to the property. Deputy Rebecca Cooper testified she knew “Mr. Settle” and was familiar with where he lives. Cooper had also been to the property to investigate neighbor complaints concerning Settle's dogs on previous occasions. Deputy Phillipe also indicated he was “familiar with Mr. Settle,” had been to Settle's residence numerous times, and spoke to Settle about the various complaints of neighbors concerning the dogs. Humane investigator Bogley confirmed she “came into contact with Mr. Settle” on December 31, 2007 at his residence when she seized his animals and removed them from his care.
The various witnesses gave descriptions of appellant's behavior as well as the living conditions of the animals.
Appellant moved to strike at the close of the Commonwealth's evidence, and again at the close of all evidence. The court denied both motions and convicted appellant of one count of dog at large and two counts of inadequate care of companion animals. Three of the dogs were deemed dangerous pursuant to Code § 3.1-796.93:1, and all of the dogs were placed in an animal shelter. This appeal followed.
We first address the issue of the forfeiture of the dogs.
It is well established that the “Court of Appeals of Virginia is a court of limited jurisdiction. Unless a statute confers jurisdiction in this Court, we are without power to review an appeal .” Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va.App. 595, 599, 471 S.E.2d 827, 829 (1996) (citation omitted).
Code § 17.1-406(A) provides that “[a]ny aggrieved party may present a petition for appeal to the Court of Appeals from ... any final conviction in a circuit court of ... a crime.” The statutory language is restrictive, limiting the Court of Appeals' appellate jurisdiction to appeals from final criminal convictions and from action on motions filed and disposed of while the trial court retains jurisdiction over the case. Commonwealth v. Southerly, 262 Va. 294, 299, 551 S.E.2d 650, 653 (2001).
Forfeiture is, however, not a criminal proceeding but a “civil” action against “ res ” unlawfully employed by its owner or other person. Although related to criminal activity, forfeiture is neither “penalty” nor “punishment” for an offense and remains entirely separate and distinct from a prosecution of its owner or other individual.
*3 Jenkins v. Commonwealth, 13 Va.App. 420, 422, 411 S.E.2d 841, 842 (1991) (quoting Commonwealth v. Lincoln Automobile, 212 Va. 597, 599-600, 186 S.E.2d 279, 281 (1972)) (footnote omitted). Furthermore, “this Court has only limited jurisdiction in civil matters and ... statutory forfeiture procedures provide for appellate review only in the Supreme Court of Virginia.” Id. at 423, 411 S.E.2d 841, 411 S.E.2d at 842.
The humane investigator, law-enforcement officer, or animal control officer shall provide for such animal until the court has concluded the hearing. Any locality may, by ordinance, require the owner of any animal held pursuant to this subsection for more than thirty days to post a bond in surety with the locality for the amount of the cost of boarding the animal for a period of time set in the ordinance, not to exceed nine months.
In any locality that has not adopted such an ordinance, a court may order the owner of an animal held pursuant to this subsection for more than 30 days to post a bond in surety with the locality for the amount of the cost of boarding the animal for a period of time not to exceed nine months. The bond shall not be forfeited if the owner is found to be not guilty of the violation.
If the court determines that the animal has been neither abandoned, cruelly treated, nor deprived of adequate care, the animal shall be returned to the owner. If the court determines that the animal has been (i) abandoned or cruelly treated, (ii) deprived of adequate care, as that term is defined in § 3.1-796.66, or (iii) raised as a dog that has been, is, or is intended to be used in dogfighting in violation of § 3.1-796.124, then the court shall order that the animal be: (a) sold by a local governing body; (b) humanely destroyed, or disposed of by sale or gift to a federal agency, state-supported institution, agency of the Commonwealth, agency of another state, or a licensed federal dealer having its principal place of business located within the Commonwealth; (c) delivered to any local humane society or shelter, or to any person who is a resident of the county or city where the animal is seized or an adjacent county or city in the Commonwealth and who will pay the required license fee, if any, on such animal; or (d) delivered to the person with a right of property in the animal as provided in subsection E. Code § 3.1-796.115(D).
Thus, while an animal can only be forfeited upon a finding by the court of criminal conduct, no criminal conviction is required.
*4 Naturally, if the underlying charge is civil in nature, the appeal is also civil in nature. This is not to say that if the underlying charge is criminal in nature, the appeal is automatically criminal in nature. If we were to follow that rationale, we would have to ignore our previous characterization of petitions for habeas corpus and appeals from judgments on habeas petitions as civil in nature. Criminal charges underlie the great bulk of habeas cases, and we are unaware of any disagreement with the proposition that petitions for habeas corpus and appeals from orders in habeas cases are civil in nature. Southerly, 262 Va. at 298-99, 551 S.E.2d at 652.
“A court must first ask whether the legislature, ‘in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or another.’ [ United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) ]. Even in those cases where the legislature ‘has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive in purpose or effect,’ id. at 248-49, as to ‘transform what was clearly intended as a civil remedy into a criminal penalty,’ Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 100 L.Ed. 149 (1956).” Depsky v. Commonwealth, 50 Va.App. 454, 460-61, 650 S.E.2d 867, 871 (2007) (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)).
Hudson, 522 U.S. at 99-100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). “As the Court emphasized, however, ‘these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.’ “ Dorsey v. Commonwealth, 32 Va.App. 154, 162, 526 S.E.2d 787, 791 (2000) (quoting Hudson, 522 U.S. at 100).
Code § 3.1-796.115 does not define a crime or prescribe a penalty therefore. Code § 3.1-796.115 merely sets out the administrative process by which an animal warden or officer may seize an animal alleged to have been abused or neglected and provide for its care until the propriety of the seizure is resolved. The statute is civil in nature.
If the General Assembly intended to [make refusal a criminal offense], the 1977 amendment simply could have provided that an unreasonable refusal to submit to [a blood or breath] test is a misdemeanor and not an administrative and civil proceeding. Additionally, such an amendment would have given the right to a jury trial and required proof beyond a reasonable doubt, without the necessity of mentioning them, because both are inherent in criminal prosecutions. Id. at 322, 402 S.E.2d at 19 (emphasis added).
Similarly here, when the General Assembly added almost identical language to Code § 3.1-796.115(C) in 1993, see 1993 Va. Acts, ch. 119, it was on notice of the Court's determination that this language was not necessary in a criminal matter. See, e.g., Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432, 434 (2005) (recognizing the principle that the legislature is presumed to be aware of existing rules and case law when enacting legislation). Thus, by adding this language to Code § 3.1-796.115, the General Assembly implicitly recognized that the nature of the underlying proceeding in such animal seizure cases is civil rather than criminal.
We also conclude that the civil penalty at issue in this case is not “ ‘so punitive in either purpose or effect,’ [ Ward, 448 U.S. at 248], as to ‘transform what was clearly intended as a civil remedy into a criminal penalty,’ Rex Trailer Co.[, 350 U.S. at 154].” Hudson, 522 U.S. at 99. Considering the Mendoza-Martinez factors listed above, we note that Code § 3.1-796.115 does not require a finding of scienter and that the behavior at issue is clearly proscribed as a crime under a different statute, Code § 3.1-796.122. Further, as quoted above, although the owner of an animal found to be abandoned, abused, or neglected “shall be required” to pay for the animal's care, if the animal is sold, any proceeds from the sale remaining after expenses for the sale and care have been paid are to be returned to the animal's owner. See Code § 3.1-796.115(F). Thus, we conclude the animal seizure statute is not so punitive in effect as to transform the civil remedy into a criminal penalty.
It appears that this Court does not have jurisdiction over this case. Code § 3.1-796.115(C). Accordingly, the appellee's motion is granted and the case hereby is transferred to the Court of Appeals of Virginia pursuant to Code § 8.01-677.1.
With the exception of cases with procedural defects and the limited number of cases for which appellate review by the Supreme Court of Virginia is dependent upon “a substantial constitutional question as a determinative issue or matters of significant precedential value” (Code §§ 17.1-410 and -411), the refusal of a petition for appeal constitutes a decision on the merits. Id. at 411, 559 S.E.2d at 619 (emphasis added).
Additionally, “[w]hile a decision ‘on the merits,’ including a denial of a petition for appeal, may have precedential value, discerning the grounds that formed the basis for denial is indispensable in assessing its potential applicability in future cases.” Id. at 411-12, 559 S.E.2d at 619. “However, unless the grounds upon which the refusal is based are discernible from the four corners of the Court's order, the denial carries no precedential value.” Id. at 412, 559 S.E.2d at 619.
We conclude that the grounds upon which the Davis transfer is based are not discernible from the four corners of the order. The order merely states that it “appears” the Supreme Court does not have jurisdiction but provides no rationale or explanation of its decision to transfer the case. Therefore, we find our decision here is not controlled by Davis.
Accordingly, we hold that we have no jurisdiction over this portion of the appeal and transfer it to the Supreme Court of Virginia. See Southerly, 262 Va. at 299, 551 S.E.2d at 653 (ruling that “[u]nder Code § 8.01-677.1, if an appeal is otherwise proper and timely but the appellate court in which it is filed rules it should have been filed in the other appellate court, the court so ruling shall transfer the appeal to the other court”).
On November 30, 2007 Deputy Brubaker issued appellant a summons for “dog at large” in violation of Fauquier County Code §§ 4-22 and 13-1. Following trial, appellant was convicted of the offense and the trial court's April 9, 2008 final order mistakenly indicated appellant had been convicted of violating Code § 3.1-796.128. On August 13, 2009, the trial court entered an order nunc pro tunc to April 9, 2008, correcting the final order to include only the County ordinance.
We dismiss that part of appellant's appeal challenging the local misdemeanor conviction due to his failure to perfect an appeal as to that conviction. For such an appeal, appellant was required to name Fauquier County in the notice of appeal because the County, as the prosecuting authority on the local misdemeanor charge, was an indispensable party. Woody v. Commonwealth, 53 Va.App. 188, 196-200, 670 S.E.2d 39, 43-45 (2008) (holding that Amherst County was an indispensable party in an appeal challenging convictions under both state law and the Amherst County Code, thus requiring that the County be named as a party in appellant's notice of appeal in order to perfect an appeal on the local law conviction). Appellant, however, did not name Fauquier County as a party in either the notice of appeal or the accompanying certificate of service, instead naming only the Commonwealth of Virginia. “[T]he failure to join an indispensable party is a jurisdictional defect that requires dismissal of the appeal.” Id. at 199, 670 S.E.2d 39, 670 S.E.2d at 45. Accordingly, we dismiss the portion of this appeal challenging appellant's conviction for dog at large. See Ghameshlouy v. Commonwealth, 54 Va.App. 47, 675 S.E.2d 854 (2009), appeal granted, No. 091120 (Va. Sept. 11, 2009).
*7 Appellant asserts the evidence was insufficient to support his convictions because none of the witnesses identified him in court as the person they dealt with during their investigations.
“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “In every criminal prosecution the Commonwealth must establish beyond a reasonable doubt all elements of the offense and that the accused did commit it .” Harward v. Commonwealth, 5 Va.App. 468, 470, 364 S.E.2d 511, 512 (1988). The identity of the perpetrator is “an essential element of the offenses,” Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 381 (1988); thus, “the Commonwealth must prove that fact beyond a reasonable doubt,” Crawley v. Commonwealth, 29 Va.App. 372, 378, 512 S.E.2d 169, 172 (1999). “It is ‘within the province of the [fact finder] to determine what inferences are to be drawn from proved facts, provided the inferences are reasonably related to those facts.’ “ Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68 (1976)). “ ‘The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.’ “ Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443 358 S.E.2d 415, 418 (1987)).
In Sheffey v. Commonwealth, 213 Va. 602, 194 S.E.2d 897 (1973), Sheffey was charged with possession of a controlled substance. Prior to the commencement of trial, the trial judge stated that John Henry Sheffey appeared in court in the custody of the jailer. He then introduced Sheffey to the jury. Sheffey did not dispute his identity as the person who was charged with possession of a controlled substance at that time. While testifying, the arresting officer repeatedly called Sheffey “defendant” or “Sheffey,” but did not “point his finger at defendant Sheffey and say he was the person he arrested in Alexandria on May 19, 1971.” Id. at 603, 194 S.E.2d at 898. The Supreme Court concluded that “it [was] clear from [the officer's testimony] that the John Henry Sheffey then on trial was that identical person.” Id. at 604, 194 S.E.2d 897, 194 S.E.2d at 899.
In this case, at the beginning of trial, when asked by the trial court if a certain witness was a defense witness, appellant himself specifically responded, “[h]e's my witness.” Like the defendant in Sheffey, at no time during the presentation of the evidence did appellant raise any question that the individual charged with the crimes was not the person sitting at counsel table.
*8 I don't think there's any question, as the Commonwealth had indicated, that indeed, during the time he asked the officers who went out to the place did they know you, they said they did. They'd been out there before.
Each time they did look at you and make a head nodding that, indeed, you were the individual. I think that is certainly sufficient identification in this courtroom today.
Obviously, the record would have a hard time showing that because they didn't point to you, and [c]ounsel didn't ask me to let the record reflect they had identified those witnesses, but indeed, I feel that is appropriate what they did as far as going forward today in reference to the issue that was raised by [c]ounsel that there was no proper identification.
The record will show certainly they were asked if they knew you. They were asked if they'd been to your place before. They were asked several questions. And what the record won't show, which the Court saw, was the fact that they looked at you and certainly nodded their head toward you.
So I think that has been addressed. They have properly identified you for the purpose of this hearing here today.
We have previously stated, “[t]he trial judge who views the witnesses as their testimony is given is in the better position to evaluate the evidence than an appellate court which reviews only a cold record.” Harris v. Woodrum, 3 Va.App. 428, 433, 350 S.E.2d 667, 670 (1986). We will not second-guess the trial judge's conclusion that appellant was identified through non-verbal nods and acknowledging glances by the Commonwealth's multiple witnesses as the person with whom those witnesses interacted multiple times over the course of one year. We hold that the witnesses' testimony identifying “Charles Settle” was sufficient to prove beyond a reasonable doubt that the defendant, who was sitting in court in the witnesses' presence, was the same person with whom the witnesses dealt on numerous occasions.
For the foregoing reasons, we transfer in part, dismiss in part, and affirm in part the trial court's judgment.
Transferred in part to the Supreme Court of Virginia, dismissed in part, and affirmed in part.
FN1. After all proceedings below had been completed, Title 3.1 was repealed, revised, and reenacted as Title 3.2. See 2008 Va. Acts, ch. 860 (repealing Title 3.1 effective October 1, 2008); 2008 Va. Acts, ch. 510 (reenacting Code § 3.1-796.115, with amendments, as Code § 3.2-6569).
FN2. Effective October 1, 2008, Code § 3.1-796.93:1 was repealed and reenacted as Code § 3.2-6540. See 2008 Va. Acts, ch. 860. While appellant's notice of appeal indicates he appeals from the trial court's declaration that the dogs are dangerous, we do not reach this issue because it was not included in appellant's questions presented. See Rules 5A:12(c), 5A:20(c)-(e).
FN3. The deputy's name is spelled “Felippe” in the transcript. It is spelled “Phillipe” in other documents in the record. We will use the latter spelling in this opinion.