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).
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