Thursday, June 06, 2019

Housing - Sec. 8 - termination - conduct in immediate vicinity

Cox v. Johnstown Housing Authority – Cmwlth. Court – reported decision – June 5, 2019

Held:  Public drunkenness conviction based on conduct that took place 1.9 miles from sec. 8 residence could not support termination of sec. 8 assistance, where the HA “failed to present one scintilla of evidence” that the resident’s conduct “made other residences of the premises” where he lived, “or persons in the immediate vicinity of those premises, feel insecure or anxious for tehir health, safetly or peaceful enjoyment.”  Thus, there was “no statutory or regulatory basis on which to terminate” the resident’s sec. 8 benefits.  A decision to terminated “may not be based on mere speculation that the residents or persons in the immediate vicinity. . .could or may be threatened at sime point in the future.”

From the opinion –

This Court has recognized:   The relevant provisions of the Housing Act and its associated regulations, which apply throughout the country, provide particularized standards and criteria that all public housing authorities must consider and follow when reviewing an application for public housing. These criteria assure that housing authorities will use only those factors deemed permissible for consideration by the Housing Act and its associated regulations when reviewing applications for public housing and limit the discretion that a public housing authority may exercise in deciding whether to deny applications for public housing. Because a public housing authority’s decision to grant or deny applications must be in accordance with the statutory and regulatory criteria, the public housing authority’s discretion is certainly not ‘unfettered’ and, therefore, should not be ‘unassailable.’ Caba [v. Weaknecht], 64 A.3d [39,] 63 [(Pa. Cmwlth. 2013)]. Bray v. McKeesport Hous. Auth., 114 A.3d 442, 453 (Pa. Cmwlth. 2015) (en banc)
Congress did not state in Section 8 of the Housing Act that any and all criminal activity, wherever it occurs, is grounds to terminate Section 8 Program benefits. Neither did the HUD Regulations, the HAP Contract nor the documents that Cox signed place him on notice that any and all criminal activity and/or alcohol abuse no matter where it takes place constitute grounds upon which the Authority could end his benefits. Rather, based upon Section 8(d)(1)(B)(iii) of the Housing Act and applicable HUD Regulations, the Authority must prove, and the court must find that the tenant: (1) engaged in criminal activity (and/or alcohol abuse); and (2) such activity threatens the health, safety, or right to peaceful enjoyment of residents and/or persons in the immediate vicinity thereof. The second element demands proof of a threat to the health, safety or right to peaceful enjoyment of residents and/or persons  in the immediate vicinity on or near the Section 8 Program leased premises. 14 Thus, it is not the occurrence of the criminal and/or alcohol-related act that is needed to jeopardize Cox’s assistance or the possibility that it could occur, but there must also be proof that the health, safety or peaceful enjoyment rights of those who reside in the “immediate vicinity” of Cox’s premises was “threatened” by that act. 24 C.F.R. § 982.551 [emphais deleted).