[ Reply ]
From: Judith Liben
email: mailto:jliben@gbls.org
link: http://
date: 11/21/0 13:59
Date: 12/21/00
Time: 1:06:33 PM
Remote Name: 207.251.188.199
Here, for your interest, is a recent letter some of us in Mass. wrote to HUD as a way of slowing down a scheduled demolition of state public housing in Lowell, Mass. We haven't heard of other similar efforts (that is, challenging the details of a community's alleged replacmement plan) so if you know of any, please let us know. Thanks
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Massachusetts Law Reform Institute 99 Chauncy Street, Suite 500, Boston, MA 02111-1722 (617) 357-0700 FAX (617) 357-0777
November 9, 2000
Miniard Culpepper Assistant General Counsel United States Department of Housing and Urban Development Massachusetts Office O'Neill Federal Building 10 Causeway Street Boston, MA 02222
Re: The City of Lowell's Plans to Demolish and Relocate the Families at the Julian Steele Development Are In Violation of Federal Replacement, Relocation, and Fair Housing Requirements
Dear Mr. Culpepper:
We write to you on behalf of the Massachusetts Union of Public Housing Tenants (Mass. Union), a statewide organization of public housing residents devoted to the maintenance and improvement of state and federal public housing in Massachusetts. The purpose of this letter is to notify you about irregularities associated with the City of Lowell's use of public housing and community planning and development funds to demolish the state funded Julian D. Steele ("JDS") family public housing development. Mass. Union is concerned about the City's violations of the following statutory and regulatory obligations:
• The City has failed to submit to HUD, or make public, preliminary information about replacement of demolished JDS units.
• To the extent the City has developed plans for replacement housing, the plans do not adequately provide for one-for-one replacement of demolished JDS apartments.
• The City has failed to develop and submit a relocation assistance plan that meets the requirements of federal law.
• To the extent the City has engaged in any relocation planning, those plans rely on public housing resources in a potentially illegal manner.
• Finally, the City and the Lowell Housing Authority's (LHA) intentions to demolish JDS and relocate its residents will violate fair housing and civil rights laws.
Because the City has not prepared and submitted the legally required preliminary information to HUD and the public, we do not have access to all of the facts. Nevertheless, currently available documents suggest the potential for serious violations of federal law. We therefore ask you to investigate and take immediate corrective action. Specifically, we request that the appropriate HUD officials: 1) require the City to immediately draft and submit complete and specific documents describing plans for relocation assistance and replacement housing; 2) initiate monitoring and performance reviews of the City's use of CDBG funds in connection with the demolition of JDS and the displacement and relocation of its residents, including a review of the fair housing aspects of this project under Title VI of the Civil Rights Act of 1964; and 3) pending the outcome of these reviews, reverse approval of Lowell's Consolidated Plan and instruct the LHA and the City to cease any actions taken in preparation of the demolition or the relocation of JDS residents.
I. Background of the JDS Demolition and the Use of Federal Funds
The JDS development has 284 units of family housing. Although the residents are mostly extremely low income and minority (primarily Hispanic), the development is located on about twenty acres in a more "suburban" census tract of Lowell—a tract that is relatively racially and economically integrated. Similarly, among Massachusetts state public housing developments, the physical condition of JDS is somewhat above average, although it requires upgrading. The state has set aside funds for just this purpose, although the LHA has rejected the money. For several years, the LHA and the City tried to obtain the state's permission to demolish JDS; however, the Massachusetts Department of Housing and Community Development (DHCD) consistently refused permission, because such a demolition would violate state law which does not allow demolition of the adequate and viable units at the JDS development. Under Massachusetts law, state funded public housing may be demolished only if "the development no longer provides decent, safe and sanitary housing and cannot feasibly be operated or renovated." G.L. c. 121B, § 26(k)(1). DHCD has repeatedly informed the LHA that JDS does not fall into this category and is not a candidate for demolition under the statute.
Stymied in their efforts to tear down this critically needed housing resource and eliminate this neighborhood of poor and minority families, the City and the LHA sought, and ultimately obtained, legislative approval to avoid the requirements of state law. The resulting law, Chapter 193 of the Acts of 2000 ("the Act," attached here as Exhibit 1) permits the 284 JDS family apartments to be demolished and replaced with 180 private housing units on-site and 220 units off-site. The majority of the on-site units are for families whose incomes are greater than 80% of area median. The 220 off-site "replication" units are for persons of very low, low and moderate income. The Act requires the LHA to make 157 of these 220 replication units available to very low-income households (at or below 50% of Lowell's area median), but it appears that remainder of the 220 units can be priced above the "lower income" threshold established by federal replacement rules. The legislation requires the LHA to provide DHCD with a "development plan" for the affordability of a portion of the new units at the JDS site, and DHCD must promulgate regulations to implement the development plan. The Act imposes no obligations on the City except to approve the development plan written by the LHA. To our knowledge the LHA has not yet submitted such a plan to the City. But no matter what the LHA does, the City, as the Community and Planning Development (CPD) funds recipient, is independently obligated to comply with federal relocation, replacement and civil rights requirements, which go well beyond the minimal and general criteria in the Act. Even if the LHA should meet the standards in the Act, the City's obligations under federal law will not be satisfied.
There are substantial federal interests in the JDS demolition, both with respect to the City of Lowell, and also with the LHA. First, since at least 1995 the City of Lowell, as a HUD grantee, has provided the LHA with over $120,000 in CDBG funds to pay for the services of a consultant to plan for the JDS demolition. Because CDBG funds have been expended directly on the demolition project, the City must adhere to the relevant CDBG requirements as to relocation and one-for-one replacement.
Second, the City has in the past, and will in the future, spend substantial CPD dollars on what it calls "replication," or off-site, units. The City has consistently characterized the demolition of JDS and the replication housing as essentially a single project, claiming that the replication units are an integral and necessary part of the JDS demolition project. Indeed, the City's 2000 Consolidated Plan, its recent Annual Action Plan, the LHA's Public Housing Agency Plan, and the City's Home Rule bill on Julian Steele specify that demolition and replication are a package deal. Because the demolition and the CPD funded "replication" are part of a single, unitary project, these activities are clearly done "in connection" with each other, triggering federal replacement, relocation, and fair housing laws.
Finally, because it is the LHA's intention to use Section 8 resources for replacement housing and relocation assistance, and federal public housing as relocation assistance, the housing authority's planning process and its affirmative duty to further fair housing are also implicated. Each of these three areas are discussed below. II. The City's Actions Will Violate One-for-One Replacement Requirements
The primary purpose of the federal one-for-one replacement requirement is "to ensure that activities sponsored under the CDBG program will not result in a diminution of the existing housing supply." The purpose of the rule is "the maintenance of the housing stock available to low and moderate income persons . . . (and to) . . . encourage communities to maintain their available standard housing stock . . ." The rule is designed to provide for "additions to the housing stock to be considered as replacement housing." See generally CDBG; Relocation, Displacement, Acquisition and Replacement of Housing, Final Rule, 55 Fed. Reg. 29296 (July 18, 1990) (emphasis supplied). In the case of Lowell, this means that three years after the demolition commences, there should be 284 new lower income dwelling units added to the housing stock in the City to compensate for those lost at JDS. Unfortunately, the City's proposed actions will result in a substantial net loss of lower income housing in violation of the letter and objective of the one-for-one replacement rule.
A. The City has failed to make public and submit a one-for-one replacement plan to HUD.
Under 24 C.F.R. § 42.375(c), before a recipient enters into a contract to provide CPD funds for any activity that will directly result in demolition of lower income units, it must provide for one-for-one replacement of the units by making public and submitting to HUD a plan that includes a description of the demolition activity, time schedules for the demolition, maps of the location of replacement units, the source of funding for the replacement units, the schedule for replacement, the basis for concluding the replacement units will maintain ten year affordability restrictions, and information indicating that the replacement units will be comparable to the demolished apartments. The City of Lowell has submitted no such plan to HUD, and has yet to make public a plan that contains the information required by HUD rules, even though it has allocated CDBG assistance to the JDS demolition efforts since at least 1995!
B. Lowell's various plans fail to meet one-for-one replacement standards.
1. Regulatory requirements for one-for-one replacement. HUD's regulations at 24 C.F.R. § 42.375 require one-for-one replacement of "all occupied and vacant occupiable lower income dwelling units" demolished in connection with an assisted activity. The demolished units must be replaced with comparable lower income dwelling units, meaning those with rents (including utilities) not greater than the applicable Section 8 fair market rents (FMR). 24 C.F.R. § 42.305 (definition of "lower income dwelling unit'). Acceptable replacement units must be in the jurisdiction and, to the extent feasible, located within the same neighborhood as the demolished units. In general, replacement units must be of the same bedroom size, and may not be smaller than the demolished units.
Further, replacement units must be in standard condition. Existing vacant units may be brought up to standard condition only if no one was displaced from the unit and the unit was vacant for at least three months before the sales agreement with owner. The replacement units must initially be made available for occupancy for a period beginning one year before the City makes public the information required by § 42.375(b) and (c) and ending three years after commencement of demolition. Replacement units must be designed to remain "lower income" units for at least ten years from date of initial occupancy.
2. Lowell's violations of the one-for-one replacement requirements. Although Lowell failed to submit and make public the kind of plan required by 24 C.F.R. § 42.375(c), the City has developed at least three variant proposals that offer limited insight into its flawed plans for replacement housing. The proposals include:
• Lowell's Five Year Strategic Plan and the Annual Action Plan within its Consolidated Plan, which states that its goal is the on-site development of 180 new "mixed income" units and 301 new units off-site;
• Table 5 of the City's packet to the state legislature's Housing and Urban Development Committee in May, 2000 (attached here as Exhibit 2), which proposes 220 off-site units to "replicate" Julian Steele; and
• A Power Point presentation from the same legislative packet (attached here as Exhibit 3), which differs significantly from Table 5 and also from the pertinent sections of the Consolidated Plan. One of the Power Point pages promises that the City will provide 347 additional affordable housing to replicate JDS, rather than 220 units as in Table 5. And some of the units listed as replacements are not the same as the ones listed in Table 5.
A look at the City's various plans to date shows at least the following violations of HUD rules:
• Table 5 proposes 80 home ownership units as replacements under the First Time Homebuyer Program. However, only rental units are appropriate comparable replacements under 24 C.F.R. § 42, not home ownership units which have no guarantee of affordability for any length of time.
• Some of the units restrict occupancy to people with special needs, such as those at the Coburn School listed in Table 5. Other replacement dwellings, like some of the units on Middlesex Street listed in the Power Point presentation, are not the same size or configuration as family housing. These dwellings do not meet regulatory standards for appropriate, comparable, replacement housing.
• Many of the replication units are "lower income" only because the LHA intends to convert some of its current tenant-based Section 8 vouchers to project-based vouchers. Although project-based Section 8 vouchers may be counted as replacements, in this case, the project-based vouchers are not new—they are part of the LHA's current stock of affordable housing resources. They cannot be counted as "replacement" units under federal rules since they are not an addition to the housing stock, rather they constitute a re-use of existing vouchers.
• Very few, if any, of the replacement units are in the JDS neighborhood.
• Many of the proposed replacement units were made available for occupancy more than one year ago, that is, before any possible compliance with the provisions of § 42.375(c). Thus, it appears that at least 70 apartments cannot qualify as replacement housing, including the 41 units in the Chestnut Square Development, 3 units at Dalton Street, and the 26 Acre Triangle units. Additionally, 24 units on Middlesex Street units have estimated completion dates in 2000. It is likely that the City will be unable to certify that these units will qualify as replacement housing.
• Some of the units may only be wishful thinking, or will not be made available for occupancy for many years after demolition commences. Table 5 lists 23 units under the Tax Title Rehabilitation program. However no requests for proposals have issued that would allow development to proceed. The Power Point presentation proposes an additional 19 units of city- owned property and 25 units to be built on undeveloped land, but there is no plan as to when these units will be completed or whether they meet the replacement criteria under federal rules. The Power Point slides also list 189 replacement units which will be built under the Acre Revitalization Plan, but we believe that very few of these units will be made available for occupancy within three years of the commencement of demolition.
• At least 80 of the proposed replacement units listed in Table 5 have only five year affordability periods. In addition, at least 12 units listed in the Power Point presentation are currently in private ownership with no affordability restrictions at all. It is also unclear whether these or any other apartments will meet the anti-displacement and vacancy requirements of the one-for-one replacement rules.
The information on replacement housing is necessarily incomplete because the City has failed to submit the required documents. Nevertheless, it is clear that many of the proposed replacement units fail to meet federal standards.
III. The City's Actions Will Violate Relocation Requirements
A. There is No Residential Anti-displacement and Relocation Assistance Plan (RARAP).
Every consolidated plan must include a certification that the jurisdiction "has in effect and is following a residential anti-displacement and relocation assistance plan in connection with any activity assisted under the CDBG or HOME programs." 24 C.F.R. § 91.225(a)(2). See also, 24 C.F.R. § 92.353(e) (HOME) and § 570.606(c) (CDBG). The jurisdiction must not only develop an anti-displacement plan, it must make the plan public. The plan must describe the specific steps the jurisdiction will take to minimize displacement, it must make specific provisions for relocation assistance, and it must provide for one-for-one replacement of demolished low-income units. 24 C.F.R. § 42.375.
In Lowell's FY 2000 Consolidated Plan, the City certifies that it has in effect and is following a relocation plan. Consolidated Plan at page 5-33. However, the City's description of the plan merely recites HUD's regulatory requirements. It lacks the specific provisions and protections required by 24 C.F.R. § 42.350. The plan fails to specify how it will minimize displacement of JDS residents. It makes no provision for the rights of the residents to return to a "re-invented" Julian Steele development. See, e.g., 24 C.F.R. § 92.353(a). As to relocation, the City does not indicate what advisory services, moving expenses, security deposits, credit check assistance, interim living costs and replacement housing assistance will be offered to displaced families. The City does not address the ways in which it will locate housing for minority JDS families outside segregated areas of Lowell. And as previously explained, the plan fails to provide for one-for-one replacement units as required by 24 C.F.R. § 42.325(b)(3).
Finally, a recent review of housing authority eviction activity indicates that the LHA entered some 68 summary process matters against JDS residents over the last nine months. Mass. Union is deeply concerned that the LHA is seeking to remove families from the development without notice of displacement as a means of evading its obligation to pay relocation assistance.
B. The Existing Relocation Plans Will Violate HUD Relocation Rules.
Although Lowell lacks an anti-displacement plan that conforms to federal requirements, the City and the LHA partially address JDS relocation issues in at least three documents: the FY 2000 Consolidated Plan; the City's presentation to the state legislature in May 2000; and the Lowell Housing Authority's FY 2000 One Year PHA plan. The provisions in these documents are inconsistent and they also violate HUD rules.
1. Violations associated with HUD's community planning and development rules. The description of the relocation of JDS families in the Consolidated Plan is vague and difficult to understand. Consolidated Plan at page 4-20. It asserts that "all current residents of JDS will be provided with housing options that will consist of about 67 on-site units, 120 tenant based rental certificates, 220 off-site replication units, or replacement housing from the existing LHA portfolio. No Julian Steele resident will lose their deep rent subsidy."
Nothing in the plan describes the terms or conditions under which a family might return to JDS, or how returning families will be selected. Such critical matters will affect family entitlement to interim living costs and replacement housing assistance under 24 C.F.R. § 42.374(d) and (e). Moreover, under state public housing rules, JDS residents pay about 30% of family income for rent. Without provisions for additional assistance, Section 8 vouchers will not have the same value, and their use as relocation assistance will violate HUD and Uniform Relocation Act rules. See 24 C.F.R. § 42.375(e), § 92.353(c) and § 570.606(b). See also 49 C.F.R. § 24.2(d)(8) (URA rules). Last, it is our understanding that JDS residents may be relocated with the use of CDBG funds. Given the relatively good condition of the development, we have significant concerns that the proposed demolition is an "eligible activity" with the meaning of 24 C.F.R. § 570.208(b) and (d).
2. Relocation issues related to public housing. The relocation plans submitted to the state legislature in May of 2000 provide that most JDS families will be relocated to federal public housing developments or given Section 8 vouchers from the LHA's current inventory. In particular, the City and the LHA allocate 87 vacancies at federal public housing developments for displaced JDS residents along with 86 Section 8 tenant-based subsidies from current stock.
The federal public housing to which JDS families will be moved is described in the LHA's FY 2000 PHA Plan as over-concentrated with extremely low income households. See LHA Annual PHA Plan pages 18-19 (attached here as Exhibit 4). The LHA regards this concentration problem as so serious that the PHA plan adopts new admissions preferences and other methods to reduce the number of extremely low income tenants, and attract higher income applicants to occupancy. Nevertheless, the JDS relocation plan would move many JDS families, almost all of whom are themselves very poor into the LHA's federal public housing developments. Thus, the plan to relocate JDS families into federal public housing developments exacerbates serious problems of concentration in violation of 24 C.F.R. § 903.7(c)(2). Mass. Union's fair housing and civil rights concerns are presented in the next section of this letter. One point is worth making in the context of public housing considerations. The LHA has selected but one strategy to meet the disproportionate housing needs of the City's low income racial and ethnic groups; the use of Section 8 vouchers to remove these families "outside the City of Lowell." See PHA plan at page 11. JDS residents are predominantly Hispanic. Whatever value such a strategy may have as a tool to affirmatively further fair housing in general, as applied to JDS residents, it is certain to violate the obligation to "minimize the adverse impacts of displacement." 49 C.F.R. § 24.205(a).
IV. Fair Housing Concerns
The demolition of JDS using federal CPD dollars raises civil rights concerns under the Fair Housing Act (Title VIII of the Civil Rights Act of 1968), Title VI of the Civil Rights Act of 1964, its implementing regulations at 24 C.F.R. Part 1.4, and the civil rights-related provisions of the Consolidated Plan programs. It also raises the question of whether the City is using its CPD dollars in a manner that affirmatively furthers fair housing goals under those laws. Although the replication and relocation plans are not in legally required form, there is enough information to warrant a full fair housing review by HUD. In this letter we are only raising the most obvious issues and questions concerning the fair housing treatment of current residents and the civil rights implications of the "reinvention" of JDS and the "replication" of JDS units.
JDS is located in a census tract that is racially, ethnically, and economically integrated compared to many other census tracts in Lowell. There is no indication that in relocating the JDS families, the City will offer any significant number of housing referrals to areas that are not minority concentrated in violation of § 42.350(a), Title VI of the 1964 Civil Rights Act the Fair Housing Act, and the City and the LHA's duty to affirmatively further fair housing. Although the various relocation plans released by the City are shifting and inconsistent, there is a unifying principle—the LHA and the City propose to move most JDS residents from adequate and viable homes in a relatively economically and racially mixed census tract to other public housing units in areas of equal if not greater economic and racial concentration. The other major relocation strategy, the use of existing Section 8 tenant-based vouchers, also raises fair housing concerns, since the neighborhoods where Section 8 vouchers are most likely to be used are higher poverty, higher minority areas.
The City states in its Consolidated Plan that the "reinvention" of Julian Steele will "increase housing options for person of low-income." Page 1-3. But in fact the opposite will happen. The demolition of 284 units of permanently affordable public housing in relatively integrated, moderate income census tract, and the replacement of these units in poorer, less integrated census tracts, contradicts important goals of neighborhood integration and provision of opportunities to minorities outside areas of poverty and minority concentration. And only 45% of the 180 units to be rebuilt on the JDS site are reserved for families at or below 80% of median income. Given the confluence between low income and race in the City, the result of this demolition will be greater segregation of housing in Lowell.
Finally, freezing the existing public housing and Section 8 waiting lists for several years in order to relocate Julian Steele tenants will have an adverse effect on applicants currently on the waiting list, a disproportionate number of whom are minority.
V. HUD's Obligations
The City's shifting and ill-defined plans reveal that much of the proposed replacement housing does not meet federal one-for-one criteria, the relocation plan violates CPD and public housing regulations, and serious fair housing concerns are apparent. In response to these concerns, HUD should take swift and firm action to ensure that federal funds are not used in any way to demolish viable lower income units in violation of these mandates, should not allow the stock of lower income housing in Lowell to be reduced with federal assistance, and should intervene to halt plans that would violate fair housing and civil rights laws. We thus ask HUD to immediately take the following steps:
• Require the City to immediately draft and submit a complete and specific anti-displacement and relocation assistance plan.
• Require the City to submit the preliminary information concerning one-for-one replacement required by 24 C.F.R. § 42.375(c). In this regard, Lowell should be specifically instructed on the characteristics of the units that may be counted as replacement units, in terms of affordability, comparability and availability.
• Withhold or reverse approval of Lowell's Consolidated Plan based on inaccurate certifications concerning RARAP, civil rights and affirmatively furthering fair housing, according to 24 C.F.R. § 91.500.
• Withhold or reverse approval of Lowell's PHA plan under 24 C.F.R. § 903.23(b).
• Instruct the City and the LHA to not take any steps towards demolition, and not to move any residents out of JDS, until HUD has reviewed and approved the relocation and one-for-one replacement plans under all applicable laws and regulations.
• Undertake monitoring and compliance activities with respect to each of the of the possible legal violations outlined above, required by 24 C.F.R. § 91.525, § 92.550 and § 92.551 and Part 570, subpart O. VI. Conclusion
We thank you in advance for the careful review and consideration we know you will give to the City's and the LHA's actions. We would like to meet with the appropriate HUD officials about the issues raised in this letter as soon as possible, and we will call shortly to arrange a date.
Sincerely,
_________________________ Judith Liben, Mass. Law Reform Institute
_________________________ Amy Copperman, Mass. Law Reform Institute
_________________________ Marc Potvin, Neighborhood Legal Services 170 Common Street Suite 300 Lawrence, MA 01840
__________________________ Ronald B. Eskin, Law Office of Ronald B. Eskin P.C. 228 Central Street Lowell, MA 01852
cc: Jack Cooper, Mass. Union of Public Housing Tenants
Thomas Rodick, Office of Legal Counsel, HUD
James Barnes, Director, Office of CPD, HUD
Donna Ayala, Director, Office of Public Housing, HUD
Robert Buzza, Director, Office of Fair Housing & Equal Opportunity, HUD
Jim Milinazzo, Director, Lowell Housing Authority
John Cox, City Manager, Lowell