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A public housing agency may terminate a tenant’s Section 8 benefits for the violent criminal activity of a family member without a showing that the activity threatens the health, safety or right to peaceful enjoyment of the premises by other residents or threatens the health, safety or right to peaceful enjoyment of persons residing in the immediate vicinity of the Section 8 premises, the Pennsylvania Supreme Court has ruled. The decision upholds a series of U.S. Department of Housing and Urban Development regulations issued during the 1990s. Primarily at issue was a rule permitting public housing agencies to deny or terminate Section 8 tenant-based assistance to applicants and participants whose family members engage in drug-related or violent criminal activities. The high court’s stamp of approval reversed a 2000 Commonwealth Court decision declaring the regulations excessive in scope in light of the provisions of Section 8. According to Pennsylvania Justice Ralph J. Cappy, who led the court in Powell v. Housing Authority of the City of Pittsburgh, the U.S. Supreme Court’s decision in Chevron USA Inc. v. Natural Resources Defense Council provided controlling authority for evaluation of whether HUD’s regulations fell within the agency’s lawful interpretative authority. “Under Chevron, a reviewing court is confronted with two questions,” Cappy wrote. “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter… . But if the court determines that Congress has not specifically addressed the question … the question for the court is whether the agency’s answer is based on a permissible construction of the statute… . If a regulation is reasonable, it should not be disturbed, unless it appears from the statute or its legislative history that the agency’s construction of the statute is not one that Congress would sanction.” A majority of the state high court held that the Commonwealth Court failed to correctly apply Chevron. Justices Russell M. Nigro and Thomas G. Saylor concurred on other points. The court had occasion to examine termination of Section 8 benefits because in 1998, Pittsburgh resident Beverly Powell’s two oldest sons carjacked a vehicle in a supermarket parking lot less than a mile from their apartment, spraying an elderly woman with pepper spray and removing her from the car before driving off, according to the opinion. The two boys were adjudicated delinquent. The Housing Authority of the City of Pittsburgh then terminated Powell’s Section 8 assistance on the basis of the carjacking, citing HUD regulations. Powell filed a grievance stating that she “raised her children to the best of her ability and had no idea her two children would commit a carjacking.” Powell said she also needed the assistance for the welfare of her youngest son. A hearing officer terminated Powell’s assistance, relying partially on the fact that Powell had signed a “notice of family obligations,” which said members of the family must not engage in drug-related or violent criminal activity, the opinion stated. Powell appealed to the common pleas court, which remanded for completion of a full and complete record, including detailed information about the location of the alleged criminal activity. The court said legislation governing contracts between public housing agencies and Section 8 owners — U.S.C. � 1437f(d)(1)(b), and legislation covering public housing leases, 42 U.S.C. Section 1437d(1)(6) — allow Section 8 assistance to be terminated only for “non-drug criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by the other tenants or of the residences of persons residing in the immediate vicinity of the premises.” On remand, the hearing officer found that Powell indeed signed the family obligations form and understood that criminal activity by family members would not be tolerated. The officer said the carjacking was a criminal activity that took place in the immediate vicinity of the Powell residence. The grievance was again denied. On a second appeal, the common pleas court granted the grievance, finding Powell’s sons did not threaten the health, safety and right to peaceful enjoyment of persons living in the immediate vicinity of their residence. The court focused on the immediacy of the carjacking location to the Powells’ residence, finding that the supermarket located approximately 10 city blocks away was not within the immediate vicinity of the premises. According to Cappy’s opinion, the Commonwealth Court tracked the reasoning of the common pleas court in affirming its decision. Before launching into its own analysis of Chevron, the Pennsylvania Supreme Court carefully articulated the question posed to its members. “The question the [Pittsburgh Housing Authority's] appeal raises is not whether a PHA may terminate Section 8 assistance when a family member engages in violent criminal activity,” Cappy wrote. “It is instead, whether a PHA may terminate Section 8 assistance when a family member engages in violent criminal activity without having to satisfy Section 1437f(d)(1)(B)(iii)’s standard and establish that the violent criminal activity threatens the health, safety or right to peaceful enjoyment of the premises by other residents or threatens the health, safety or right to peaceful enjoyment of their residences of persons residing in the immediate vicinity of the Section 8 premises.” Pursuant to Chevron, the high court determined that Congress had not “plainly and unambiguously expressed its intent as to whether a PHA may terminate Section 8 assistance based on a family member’s violent criminal activity without having to meet [the health, safety or right to peaceful enjoyment] standard.” In so holding, the court rejected Powell’s argument that Congress intended for the Section 1437 crime-based standards to govern termination of Section 8 subsidies in addition to Section 8 leases. “While [legislative] history demonstrates that Congress has elected not to alter the crime-based standards for terminating leases in 42 U.S.C. Section 1437f(d)(1)(B)(iii) or in 42 U.S.C. Section 1437d(1)(6),” the majority opinion states, “none of it reveals that 42 U.S.C. Section 1437f(d)(1)(B)(iii) is the exclusive repository of Congress’ intent as to either the benefit termination authority a PHA may be given or the crime-based reasons that a PHA may use to terminate Section 8 assistance.” The majority also found itself unable to agree with the Pittsburgh Housing Authority’s assertion that the statutes governing Section 8 housing evidence congressional intent to permit PHAs to terminate the assistance of violent criminal offenders without meeting the health, safety or right to peaceful enjoyment standard. Thus the court turned to Chevron‘s second prong: Are the regulations, insofar as they do not require a PHA to satisfy the health, safety or right to peaceful enjoyment standard before terminating assistance, a permissible construction of the Section 8 statute? “When HUD issued the rule [permitting public housing agencies to deny or terminate Section 8 tenant-based assistance to applicants and participants whose family members engage in drug-related or violent criminal activities,] it believed that the rule’s policies would further the Housing Act’s objectives because those who wish to participate and remain in Section 8 programs would be encouraged to refrain from violent criminal activity,” Cappy wrote. “We find HUD’s views in this regard to be reasonable. Because under the regulations, PHAs are given relatively wide latitude to exclude violent criminal actors from Section 8 programs, where benefits attach to tenants, it is reasonable for HUD to expect that the distribution of benefits, the pool of owners in the private sector who are willing to consider renting to Section 8 participants and the quality and safety of Section 8 housing are all greatly enhanced.” The majority further concluded that the regulations would be acceptable to Congress. The opinion points out that Congress has not changed the Section 8 statute in light of HUD’s rule and regulations, though the legislative body has made other changes to its provisions. “Moreover,” Cappy wrote, “it only stands to reason that Congress would accept a PHA’s ability to terminate benefits without Section 1437f(d)(1)(B)(iii)’s standard, inasmuch as it has given a PHA the power to deny Section 8 assistance to violent criminal offenders without that burden in the first place… . Thus, we conclude that the regulations, insofar as they do not contain Section 1437f(d)(1)(B)(iii)’s standard, are a ‘permissible construction’ of Section 8, and are entitled to our deference.” Nigro joined in the holding and analysis of the majority, his concurring opinion states. The justice wrote separately “solely to emphasize that although HUD regulations authorize a PHA to terminate Section 8 benefits for violent criminal activity of a family member, they by no means require PHAs to do so.” Saylor also wrote a brief concurring opinion, with Chief Justice Stephen A. Zappala not participating in the consideration or resolution of the case. Danielle N. Rodier contributed to this report.

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