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215 Alliance v. Cuomo

61 F.Supp. 2d 879, No. 98-64 DWF/AJB (D. Minn. Aug. 30, 1999).
Summary: Successful challenge to HUD's approval of opt-out using HUD form notice due to lack of clarity regarding owners intent and failure to state reasons (the latter required by the version of 42 USC §1437f(c)(9) then in effect, since repealed); HUD's enhanced voucher policy of not subsidizing subsequent rent increases contrary to authorizing law; favorable dicta on Fair Housing claims 42 U.S.C. §§ 3604 and 3608, failure to consider the effects on racial minorities, disabled individuals, and failure to affirmatively further fair housing.

Memorandum in Opposition to Plaintiff's Motion for Summary Judgment (DOC)

* Plaintiffs are demanding maximum federal rent subsidies possible by relying on misinterpretation of plain language of Pub. Law 104-204.
* Issue of proper notice is moot because there is no possibility of recurrence in affected project and no evidence of similarly situated tenants in other projects who might be affected by the bad process.

Department of Housing and Urban Development's Memorandum in Support of Motion for Summary Judgment (DOC)

* Inadequate notice aspect of case should be dismissed by court due to lack of subject matter jurisdiction
* HUD has not violated 12 U.S.C. Section 4113.

o HUD implemented a Congressional mandate by following the plain language of the authorizing statutue, Title II of Public Law 104-204
* HUD notice PIH 98-19 did not violate any law.
o The notice follows the Congressional mandate laid out in Public Law 104-204.
o The Supreme Court holds that without further correction or clarification from Congress, HUD's reasonable construction of the statute must be followed

Strategy Memo (2/15/00) (PDF)

Reviews strategies for implementation of the 215 decision with respect to enhanced vouchers and Section 8 opt-outs.

Memorandum Opinion and Order (PDF)

* Justiciability—Plaintiffs' claims are ripe and are not moot.
* Insufficient notice under 42 U.S.C. § 1437(f)(c)(9)
* Challenges to HUD's interpretation of Enhanced Vouchers under Public Law 104-204—the Court finds that vouchers are to be provided so long as the administering public housing agency finds that rent is reasonable (not HUD's interpretation that only the first rent increase shall be provided for.)
* Fair Housing Act Claims

Memo in Opposition to Federal Defendant's Motion for Summary Judgment (PDF) (DOC)

* HUD's Policy Regarding Enhanced Voucher Rent Levels Subsequent to the Initial Rent Increase Are Contrary to Statutory Requirements.

o HUD's Policy Regarding Enhanced Voucher Rent Levels Subsequent to the Initial Rent Increase Are Contrary to the plain language of the authorizing statute.
o Congress has not acquiesced to HUD's interpretation of the statute.
o HUD's interpretation of the authorizing statute violates its duty to affirmatively further fair housing under 42 U.S.C. § 3608.
* Plaintiffs' Claims Relating to HUD's Illegal Approval of the Owner's Termination of the Project Based Section 8 Are Not Moot
o HUD has not met its heavy burden of demonstrating that events have completely and irrevocably eradicated the effects of HUD's illegally permitting termination of the section 8 contracts.
o HUD has not met its heavy burden of demonstrating that there is no reasonable expectation hat the alleged violation will recur; HUD's insistence that its actions were legal demonstrates the likelihood of recurrence.

Plaintiff's Reply Memo in Support of Motion for Summary Judgment (DOC) (PDF)

HUD' s Enhanced Voucher Policy Violates the Authorizing Statute and 42 U.S.C. § 3608.

Memo in Support of Plaintiff's Motion for Summary Judgment (DOC)

* Plaintiffs Are Entitled to A Declaratory Judgment that HUD's Policy Regarding Enhanced Voucher Rent Levels Subsequent to the Initial Rent Increase Are Contrary to Statutory Requirements (PL 104-204).

* b. Plaintiffs Are Entitled to A Declaratory Judgment that HUD's Policy Regarding Enhanced Voucher Rent Levels Subsequent to the Initial Rent Increase Are Contrary to the Requirements of 42 U.S.C. § 3608.

* c. Plaintiffs Are Entitled to A Declaratory Judgment that HUD's Approval of the Section 8 Contract Terminations Was In Violation of Federal Statute.

Federal Defendant's Response to Plaintiff's Request for Admissions (PDF)

Admissions from HUD regarding Fair Housing.

Sample Tenant Declaration on Prepayment/Enhanced Voucher (PDF)

Suggested language for tenant declaration, use as a starting point.

Sample Tenant Declaration on Opt-out (PDF)

Suggested language for tenant declaration, use as a starting point.

Complaint and Supplemental Complaint (PDF)

* The Owner has violated the requirements of 42 U.S.C. § 1437f(c)(9)and Minn. Stat. § 504.32 by refusing to renew the section 8 contracts covering 166 units at Oak Grove Towers without giving the one year written notice of such refusal to the residents or to HUD, entitling plaintiffs to declaratory and injunctive relief.

* HUD has violated the requirements of 42 U.S.C. § 1437f(c)(9) by failing to consider and take an obvious measure to avoid termination of the section 8 contracts, refusing to find that the Owner's patently inadequate notices met the requirements of the statute, and has disregarded the requirement of its own Handbook 4350.2 Rev-1, paragraph 3-4.B. requiring HUD to act affirmatively to protect the tenants from an illegal termination, entitling plaintiffs to declaratory and injunctive relief.

* HUD's actions in permitting the Owner to refuse to renew the section 8 contracts at Oak Grove Towers without giving the one year written notice of such refusal to the residents or to HUD is arbitrary, and capricious, and not in accordance with law, entitling plaintiffs to declaratory and injunctive relief under the Administrative Procedures Act, 5 U.S.C. § 701, et seq.

* HUD's position that residents of Oak Grove Towers are denied the protections of § 4113 "in perpetuity" because they received enhanced vouchers for one year is contrary to the provisions of 12 U.S.C. § 4113 and Pub.L. 104-204 and entitles plaintiffs to declaratory relief.

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