Opinion
101957/15
07-19-2016
In the Matter of the Application of Jerry Washington, Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules, v. The New York City Department of Housing Preservation and Development and Vicki Been, as Commissioner of the New York City Department of Housing Preservation and Development, Respondents.
For petitioner: Sheryl Karp, Esq. The Legal Aid Society 230 E. 106th St. New York, NY 10029 212-426-3029 For respondents: Jacqueline Hui, Esq. Zachary W. Carter Corporation Counsel 100 Church St. New York, NY 10007 212-356-2209
For petitioner: Sheryl Karp, Esq. The Legal Aid Society 230 E. 106th St. New York, NY 10029 212-426-3029 For respondents: Jacqueline Hui, Esq. Zachary W. Carter Corporation Counsel 100 Church St. New York, NY 10007 212-356-2209 Barbara Jaffe, J.
By notice of petition dated October 28, 2015, petitioner brings this article 78 proceeding to challenge respondents' decision affirming HPD's denial of petitioner's request for a reasonable accommodation, and enjoining HPD from terminating his enhanced section 8 subsidy for failing to relocate to a smaller apartment. On January 25, 2016 respondents interposed an answer.
I. BACKGROUND
Since March 2005, petitioner, his wife, and two children, have lived in an enhanced section 8 subsidized three-bedroom apartment in Manhattan. In December 2013, petitioner recertified to HPD his and his family's continued residence in the apartment. (Ans., Exh. G).
In December 2014, HPD notified petitioner that his four-member family no longer qualified for its three-bedroom apartment, and that his failure to relocate to a two-bedroom apartment if and when one became available would result in forfeiture of his subsidy. (Id., Exh. H). On January 6, 2015, petitioner received an offer to relocate to a two-bedroom apartment, for which he was given 15 days to respond. (Pet., Exh. K).
On January 9, 2015, petitioner requested from HPD permission to remain in his current apartment as a reasonable accommodation, claiming that
[g]iven the household composition of two adult children of different sexes, the reduction to a two bedroom apartment would require [petitioner] and his wife to sleep in the living room—something they cannot do given her current physical limitations without experiencing great pain and discomfort. Additionally, even the physical work involved in moving itself would create a problem for [petitioner's wife] . . . .(Ans., Exhs. I-J). Petitioner supplemented his request with verification of his wife's disability. (Id., Exh. J).
By letter dated March 20, 2015, HPD concluded that petitioner's "household does not need a larger unit," and denied the request for an accommodation. (Pet., Exh. M). On April 2, 2015, petitioner appealed the determination, and an informal hearing was held before a hearing officer on June 10, 2015. (Id., Exh. N; Ans., Exh. M).
At the hearing, petitioner alleged a link between his wife's disability and his request to remain in the three-bedroom apartment based on his wife's usage of their living room each evening to elevate her leg, which he claimed precludes the use the living room as a bedroom for their son and daughter, and for his wife, who is not "comfortable" sleeping there. Thus, petitioner argued that HPD failed to account for the family's personal circumstances, in violation of HUD regulations and in violation of federal law prohibiting familial status discrimination, and that public policy favors keeping families "in place." (Ans., Exh. X).
By decision dated August 20, 2015, the hearing officer affirmed HPD's denial of petitioner's request, finding that petitioner had failed to demonstrate that his family could not be reasonably accommodated in a two-bedroom unit. He reasoned that even if the living room is unavailable to the children, who had since become adults, they could share a bedroom, or the father and son and/or mother and daughter could share rooms. The hearing officer also denied that HUD regulations require that HPD consider personal circumstances when determining appropriate unit size. Rather, such consideration is discretionary, and a four-member household is not automatically entitled to a three-bedroom apartment. As to the applicable standard, he stated:
In effect since July 15, 2013, [HPD] subsidy standards are based solely on the number of people residing in the household and exceptions will be made if justified by the health and disability of family members. . . .(Id. [internal citations omitted]).
. . . .
While HUD grants [HPD] the discretion to consider personal circumstances, it does not require such discretion be exercised. Accordingly, HPD is not required to take families [sic] concerns for privacy, comfort or scheduling conflicts into consideration unless it is justified by the health or disability of family members.
He also found that as petitioner's children are adults, the claim of housing discrimination fails. (Id.). This proceeding ensued. II. DISCUSSION A. Contentions
In support of his application, petitioner contends that HPD's decision reflects an endorsement of the hearing officer's failure to consider that his two adult children are opposite sexes and keep different schedules, instead adhering to the view that no four-member household may be permitted to live in a three-bedroom apartment, all in violation of HUD and HPD regulations and guidelines, and he maintains that the conclusion that a family of four, one of whom is disabled, is reasonably accommodated by a two-bedroom apartment is arbitrary, capricious, and discriminatory under federal law. He contends that HPD's decision in effect forecloses any future reliance on a disability-related exception. (Pet.).
Petitioner also argues that HPD erroneously relied on the 2015 version of its subsidy standards, which provides an exception only for disability, instead of the 2013 standard, which provides an exception based on broader criteria, but that in any event, an exception should have been granted based on the narrower 2015 standard. (Id.).
HPD disputes petitioner's characterization of the applicable regulations and guidelines, and asserts that it was well within its discretion in denying petitioner's request, under either the 2013 or 2015 standard. Respondent also contends that this action must be transferred to the Appellate Division as its determination followed a full hearing and poses the question of whether HPD's determination is based on substantial evidence. (Ans.).
In reply, petitioner denies that there are any disputed facts warranting transfer to the Appellate Division, and that HPD's admitted reliance on the 2015 standards deprived him of substantive due process. He reiterates his remaining contentions. (Memorandum of Law in Reply to Respondents' Verified Answer, dated Feb. 8, 2016). B. Analysis 1. Transfer to the Appellate Division
Where the petitioner challenges an agency's post-hearing determination on the ground that it is unsupported by substantial evidence (CPLR 7803[4]), the court in which the proceeding is brought must, after disposing of any other issues, "make an order directing that it be transferred for disposition to a term of the appellate division . . . ." (CPLR 7804[g]; Siegel, NY Prac § 568 [4th ed]). "A substantial evidence issue arises only where a quasi-judicial hearing has been held and evidence [has been] taken pursuant to law . . . ." (Matter of Horace v Annucci, 133 AD3d 1263, 1264 [4th Dept 2015] [internal quotation marks omitted]). However, where the petitioner challenges the agency's "application of a rule to undisputed facts," no substantial evidence question lies. (Matter of Manz v County of Suffolk, 95 AD3d 1015, 1016 [2d Dept 2012]; Matter of Rosenkrantz v McMickens, 131 AD2d 389, 390 [1st Dept 1987]).
Here, the hearing officer accepted and adopted petitioner's contentions that four adults live in the two-bedroom apartment, that his wife is disabled, that her disability prevents other family members from using the living room as a bedroom, and that she is uncomfortable sleeping in the living room, and nonetheless determined that the family could be accommodated in a two-bedroom apartment. Petitioner's challenge thus centers on HPD's misapplication and/or unreasonable interpretation of its own guidelines. (See Matter of Manz, 95 AD3d at 1016 [as it was undisputed that petitioner brought knife into juvenile holdover facility, issue turned on whether he carried knife into "detention area," a question of respondents' "interpretation and application of their rule"]). Accordingly, transfer to the Appellate Division is unwarranted. 2. HPD's decision
The deference given to the determination of an administrative agency is reflected in the court's limited review of it. Thus, the only question that may be raised in an article 78 proceeding, as pertinent here, is whether the determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion . . . ." (CPLR 7803[3]). In reviewing an agency determination as to whether it is arbitrary and capricious, the test is whether the determination "is without sound basis in reason and is generally taken without regard to the facts." (Matter of Pell v Bd. of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).
The court must defer to the agency's "rational interpretation of its own regulations in its area of expertise" (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; Matter of City of New York v New York State Nurses Assn., 130 AD3d 28, 34 [1st Dept 2015]), and is limited to a review of the record before the agency (Belok v New York City Dept. of Hous. Preserv. & Dev., 89 AD3d 579, 580 [1st Dept 2011]). However, courts "must scrutinize administrative rules for genuine reasonableness and rationality in the specific context presented by a case." (Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 654-655 [2013]).
Pursuant to HUD regulation 24 CFR § 982.54, HPD shall "adopt a written administrative plan that establishes local policies for administration of the [section 8 voucher] program in accordance with HUD requirements," including "subsidy standards." (24 CFR § 982.54[a], [d][9]). The subsidy standards promulgated by HPD "must provide for the smallest number of bedrooms needed to house a family without overcrowding." (24 CFR § 982.402[a][1], [b][1]).
Effective in 2013, HPD promulgated subsidy standards (HPD Housing Choice Voucher Program Administrative Plan [Admin. Plan], Ans., Exh. A), which provide that "[t]he unit size on the [section 8] voucher will be determined solely by the number of people in the household," and that families of three to four qualify for a two-bedroom apartment. (Admin. Plan § 7.2.4). However, HPD "may grant an exception to [the] subsidy standards if the exception is justified by the age, sex, health, disability, relationship of family members, or other personal circumstances." (Id. § 7.2.5; see also 24 CFR § 982.402[b][8]). Participants in the program may also request a "reasonable accommodation," and "certify (if apparent) or verify (if not apparent) that they are a person with a disability" as defined by federal law, and demonstrate that there is an "identifiable relationship between the requested accommodation and the individual's disability." (Id. § 2.3). Although not pertinent here, even if such an "identifiable relationship" is demonstrated, HPD may deny the request "if it will cause an undue financial or administrative burden, or will change the fundamental nature of the program." (Id.).
Effective April 15, 2015, HPD promulgated new subsidy standards providing in pertinent part that HPD "may grant an exception to these subsidy standards if the exception is justified by the health or disability of family members," thereby restricting the criteria it had the discretion to consider under the 2013 standards. (HPD Housing Choice Voucher Program Administrative Plan; Pet., Exh. F). It is undisputed that the 2013 standards apply.
Here, the hearing officer referenced the pertinent 2013 standards for granting exceptions, but apparently applied the 2015 standards when he concluded that health and disability were the only factors to consider, thereby upholding HPD's determination that it was not required to consider personal circumstances unless they were related to the health or disability of petitioner's family members. While HPD is afforded the discretion not to consider familial and/or other personal circumstances under the 2013 standards, the 2015 standards contain no enumeration of the other discretionary factors set forth in the 2013 standards. Thus, it may be reasonably inferred that the hearing officer disregarded the other discretionary factors set forth in the 2013 standards: age, sex, relationship of family members, or personal circumstances, in the mistaken belief that they did not apply. As the denial of petitioner's appeal was based on HPD's misapplication of its own guidelines (see Matter of Gerard v Koweek, 122 AD3d 1112, 1114 [3d Dept 2014] [respondent's denial of petitioner's application for gun permit based on misinterpretation of Penal Law]; Lihs Beverages, Inc. v New York State Liq. Auth., 202 AD2d 1050, 1050 [4th Dept 1994] [respondent applied incorrect standard, as Alcohol Beverage Control Law had been amended to remove provision on which respondent relied]), it merits no deference and is arbitrary and capricious. III. CONCLUSION
Accordingly, it is hereby
ORDERED and ADJUDGED, that the petition is granted to the extent that HPD's decision dated August 20, 2015 is annulled and vacated, and the matter is remanded to HPD for further proceedings consistent with this decision. Barbara Jaffe, JSC DATED: July 19, 2016 New York, New York