Urban Law Annual ; Journal of Urban and Contemporary Law Volume 51 January 1997 Helter Shelter: The D[ is]organization of Public Housing Policy Michael D. Weiss Lauri Thanheiser Follow this and additional works at: https://openscholarship.wustl.edu/law_urbanlaw Part of the Law Commons Recommended Citation Michael D. Weiss and Lauri Thanheiser, Helter Shelter: The [Dis]organization of Public Housing Policy, 51 Wash. U. J. Urb. & Contemp. L. 189 (1997) Available at: https://openscholarship.wustl.edu/law_urbanlaw/vol51/iss1/3 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Urban Law Annual ; Journal of Urban and Contemporary Law by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. HELTER SHELTER: THE [DIS]ORGANIZATION OF PUBLIC HOUSING POLICY MICHAEL D. WEISS* LA URI THANHEISER * * TABLE OF CONTENTS I. INTRODUCTION ................................................................................. 190 II. PUBLIC HOUSING POLICY ................................................................ 194 A. Relationship to State Landlord-TenantLaw ...................... 198 B. Housing Assistance Programs............................................ 204 III. PUBLIC HOUSING MANAGEMENT .................................................. 212 A . F unding .............................................................................. 2 16 1. Operating Subsidies ...................................................... 218 2. Modernization .............................................................. 222 3. A ccountability .............................................................. 229 B . Litigation ........................................................................... 232 1. Section 1983 Causes of Action ..................................... 234 2. Procedural Due Process ................................................ 239 a. Eviction .................................................................... 240 b. Rent or Service Charge Increases ............................ 244 c. Tenant Selection Procedures .................................... 245 * Research Director, Texas Public Policy Foundation; Adjunct Professor of Law, University of Houston Bates College of Law; Partner, Lawson, Weiss & Danzinger, Houston, TX. ** Adjunct Professor of Law, University of Houston Bates College of Law (Fall 1995); Associate, Bayko, Gibson, Carnegie, Hagen, Schoonmaker & Meyer, L.L.P., Houston, TX. Washington University Open Scholarship 190 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 51:189 c. Tenant Selection Procedures .................................... 245 3. Demolition and Constructive Demolition of Public H ousing ....................................................................... 249 4. Other Substantive Federal Rights ................................. 250 5. Third-party Beneficiary to ACC ................................... 255 IV. REFORMING PUBLIC HOUSING MANAGEMENT ............................ 259 V . CONCLUSION ................................................................................... 272 I. INTRODUCTION Now is then a tumultuous time for national housing policy. In early 1995, then Housing Secretary Henry Cisneros' put forth the Department of Housing and Urban Development's ("HUD") budget proposal for the fiscal year 1996.2 According to Cisneros, the proposal will "transform" public housing by consolidating "60 HUD programs into three flexible, performance-based funds."3 The entire Board of the Chicago Housing Authority resigned a few months later, transferring control of one of the nation's largest public housing authorities to federal hands.4 Furthermore, the Republican Senate majority wants to abolish HUD entirely.5 The Cisneros reorganization proposal, for instance, would give "residents market choice in the search for affordable housing [and] end[] the monopoly of housing authorities over Federal housing 1. On January 27, 1997, Andrew Cuomo, formerly a HUD Assistant Secretary, was confirmed as the new Housing Secretary. CONGRESS DAILY (Jan. 29, 1997), available in 1997 WL 7761220. To date, Secretary Cuomo has continued the Cisneros initiatives. 2. U.S. DEP'T OF Hous. & URBAN DEV., EXECUTIVE SUMMARY, FISCAL YEAR 1996 BUDGET (1995) [hereinafter HUD EXECUTIVE SUMMARY). 3. Id. at 2. 4. Graft and Mortar, ECONOMIST, June 3-9, 1995, at 22; HUD Takes Over Chicago Housing Agency, FACTS ON FILE, June 1, 1995, at 389; Don Terry, Chicago HousingAgency To Be Taken Over by U.S., N.Y. TIMES, May 28, 1995, at 1,27. 5. See Peter W. Salsich, Jr., Solutions to the Affordable Housing Crisis: Perspectiveson Privatization, 28 J. MARSHALL L. REV. 263 (1995); see also Dan Freeman, Republicans Criticize HUD, Praise Cuomo, ALBANY TIMES UNION (Jan. 23, 1997) (noting 1996 republican legislation to abolish HUD). https://openscholarship.wustl.edu/law_urbanlaw/vol51/iss1/3 1997] PUBLIC HOUSING POLICY resources." It would also "accelerate[] the demolition of uninhabitable or non-viable public housing developments."7 To meet these goals, the Section 8 rental assistance programs8 would be consolidated into a single performance-based fund.9 HUD's intention, through this reorganization, is to ultimately cease all direct capital and operating subsidies to public housing authorities (PHAs), and to convert federal subsidy funds into rental assistance certificates." Two interim funds, the Public Housing Operating Performance Fund" and the Public Housing Capital Performance Fund,'2 would terminate at the end of the transition period. 3 Housing authorities would then be required to compete with other providers of rental housing in the marketplace for low-income residents. 6. HUD EXECUTIVE SUMMARY, supra note 2, at 9. Part IV of this Article addresses the fact that this proposal also appears to transform low-income housing into federal housing stock from its original character as local housing stock. See infra Part IV. 7. Id. 8. The Section 8 programs were created to "provideD low income families with direct cash assistance for the acquisition of 'decent,' affordable housing." Deborah Kenn, Fighting the Housing Crisis with UnderachievingPrograms: The Problem with Section 8, 44 WASH. U. J. URB. & CONTEMP. L. 77, 78 (1993) (citing Title II of the Housing and Community Development Act of 1974, 42 U.S.C. § 5301, which created Section 8). The rental assistance programs include "certificates, vouchers, contract renewals, certificates for persons with special needs, and Choice In Residency, and self-sufficiency programs." HUD EXECUTIVE SUMMARY, supranote 2, at 8. 9. HUD EXECUTIVE SUMMARY, supranote 2, at 8. 10. Id. at 1-2. 11. Id at 10. During the transition period, operating funds would be allocated according to the existing performance funding formula. Id. 12. Id.atlO-11. 13. Id. [During the transition period, f]unds for public housing capital and management improvement would be allocated by a formula similar to that used in the current comprehensive grant program. Funds could be used for the entire range of purposes currently permitted under the programs being consolidated, including: development of new units; vacancy reduction; modernization, including management improvements; demolition and relocation; supportive services coordination and delivery; support of resident empowerment; economic development; community service; and replacement reserves. Washington University Open Scholarship 192 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 51:189 This Article argues that such efforts to streamline public housing funding, despite some admittedly good policy choices, will do little toward improving public housing management unless the management activities of the public housing programs are also changed.'4 Such an argument is true whether the housing consists of publicly-managed units or whether control is solely maintained by conditioning the receipt of federal money on substantive requirements. It is this management aspect of housing which the current policy proposals are ignoring to their, and ultimately our, peril. While the solution for improving public housing management is a policy matter, it is apparent that HUD has neither accurately diagnosed nor suitably addressed the problems with housing management. Many of the current problems have been created or worsened by previous policy solutions. 5 Currently, housing management suffers from three fundamental problems: (1) there are too many levels in the management structure; (2) there are too many policy goals; and (3) management methods are not responsive to market forces.16 With regard to the problems in public housing management, Congress is a primary culprit. Congress has amended the housing statutes and regulations numerous times in an effort to add accountability to PHA management, and to provide incentives for tenants to become better consumers of public housing.'7 Ironically, these additional oversight and accountability measures have only served to further encumber the ability of PHAs to effectively manage their housing stock.' Now, a public housing project is subject to 14. For purposes of this Article, "public housing policy" will be distinguished from "public housing management" HUD's proposed transformation includes changes in both policy and management HUD's consolidation is also much broader than the Section 8 and Public and Indian Housing Programs, which are the focus of this Article. 15. See infra Part III.A. 16. HUD alleges,