NAC319.984. Administrative review of certain determinations and actions; written request for review; procedure for hearing; transcript of hearing; representation of parties; further proceedings and investigation; final decision; judicial review.

     1. The following determinations or actions by the Division are, upon the request of an applicant, subject to review by the Administrator:

     (a) The rejection of an application;

     (b) The refusal to accept a document or other information from the applicant;

     (c) A tentative award or the denial of a reservation of tax credits and any determination or action upon which the tentative award or denial of the reservation was based;

     (d) A termination of a reservation of tax credits;

     (e) A decision to deny an award of tax credits or the determination of the final award of tax credits;

     (f) A determination or action taken during the compliance period; and

     (g) Any other determination or action for which review by the Administrator is provided for in the annual plan or approved by the Administrator.

     2. To request a review pursuant to this section, the applicant must submit a written request to the Administrator within 7 days after the applicant receives notice of the determination or action for which the review is requested. The request must indicate the nature of the determination or action to be reviewed. The request may specify the reason why the applicant believes the determination or action by the Division was improper. The Division may submit a written response to the Administrator concerning the request.

     3. The Administrator will schedule a hearing on the matter. Before the hearing is conducted, the applicant may inspect any document or other information included in the file of the applicant maintained by the Division regarding the determination or action of the Division, other than confidential communications between an attorney and his or her client. The applicant and the attorney, if any, may interview any officer or employee of the Division who participated in the determination or action. The attorney for the Division may be present at the interview.

     4. At the hearing, the members of the staff of the Division may discuss the reasons for the determination or action and present documents or other information relating to the determination or action. After the discussion, the applicant may present arguments and any evidence supporting those arguments. After the applicant has presented the arguments and evidence, the members of the staff of the Division may respond to the arguments of the applicant. The Administrator may allow closing comments, ask questions at any time during the hearing or require written briefs for the hearing.

     5. Each document in the file of the applicant maintained by the Division shall be deemed admitted in any review conducted pursuant to this section and may be reviewed by the Administrator regardless of whether those documents are marked as exhibits. To create a record of the hearing, a document or any other information that is not included in the file of the applicant maintained by the Division may be submitted at the hearing and considered by the Administrator. Before the document or other information is included in the file, the Administrator must specifically state in the written decision that the document or other information is included in the file. If the Administrator does not make such a statement, the Division will not include the document or other information in the file of the applicant maintained by the Division.

     6. The Administrator will record on audiotape any hearing conducted pursuant to this section. The applicant may, at the expense of the Division, request a copy of the audiotape. If requested by the applicant, the Division will, at the expense of the applicant, provide a transcript of the audiotape to him or her.

     7. The applicant may be represented by an attorney who is licensed to practice law in this State. An attorney who represents the Division may, at the request of the Administrator, be present at any hearing conducted pursuant to this section and may comment on the presentations by the Division and the applicant. If the attorney was involved in the determination or action that is the subject of the review, the attorney shall disclose that fact, but is not required to disclose any confidential communications with an officer or employee of the Division or the Administrator. The Administrator may exclude any other person from the hearing. If a person testifies on behalf of a party at the hearing, the opposing party may cross-examine that person. A review conducted pursuant to this section is not subject to the rules of evidence provided for civil actions. The Administrator will make all procedural and evidentiary decisions.

     8. After a review is conducted pursuant to this section, the Administrator may conduct further proceedings and investigations if any information or arguments presented at the hearing were insufficient. The Administrator may communicate ex parte with the applicant or his or her attorney, the staff of the Division and any attorney representing the Division. If the Administrator:

     (a) Communicates ex parte with any attorney representing the Division, the communication is confidential.

     (b) Discovers a document or other information that is not included in the file of the applicant maintained by the Division or was not submitted at the hearing, and that document or other information is the basis for an adverse decision by the Administrator against the applicant, the applicant may review and comment on the document or other information.

     9. The Administrator will issue the decision in writing. The decision is a final decision for the purposes of judicial review.

     10. If an applicant files a petition for judicial review of a final decision of the Administrator pursuant to chapter 233B of NRS, the Division will, unless enjoined or otherwise ordered by the court in which the petition is filed:

     (a) Reserve and award tax credits for applicants other than the applicant who filed the petition for the plan year in which the petition is filed; and

     (b) Consider the applicant for a reservation or final award of tax credits for the plan year immediately after the plan year in which the petition is filed.

     (Added to NAC by Housing Div. by R057-97, eff. 1-15-98; A by R103-05, 10-31-2005)