Newark Hous. Auth. v. Martinez-Vega

Citation34 A.3d 1271,424 N.J.Super. 24
PartiesNEWARK HOUSING AUTHORITY, Plaintiff, v. Virginia MARTINEZ–VEGA, Luis Vega, and George Borges, Defendants.
Decision Date26 January 2012
CourtNew Jersey Court of Chancery

OPINION TEXT STARTS HERE

Sarah E. Jones for plaintiff (Ellen M. Harris, Senior Counsel, Department of Community Affairs, Newark Housing Authority, attorney).

Karen Thurston for defendants (Essex Newark Legal Services, attorneys).

FAST, J.S.C. (retired and temporarily assigned on recall).

This is an opinion of first impression, relating to the factors that must be considered before a summary action for possession is commenced when a tenant resides in a federally subsidized publicly owned apartment, as these defendants do. This opinion discusses those factors and their relevance to the decision by plaintiff to proceed with the eviction of a family group.

PROCEDURAL CONSIDERATIONS

This complaint, seeking the eviction of defendants, was based on the statutory grounds for eviction found at N.J.S.A. 2A:18–61.1(e)(2) and (p),1 which provide that:

In public housing under the control of a public housing authority or redevelopment agency, the person has substantially violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal activities, whether or not a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement conforms to federal guidelines regarding such lease provisions and was contained in the lease at the beginning of the lease term.

....

The person has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for an offense under ... the Comprehensive Drug Reform Act of 1987, N.J.S. 2C:35–1 et al., [sic] involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located, and has not in connection with his sentence for that offense either (1) successfully completed or (2) been admitted to and continued upon probation while completing a drug rehabilitation program pursuant to N.J.S. 2C:35–14; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who committed such an offense, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to a person who harbors or permits a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under the said Comprehensive Drug Reform Act of 1987.

There are no procedural issues that have been raised in this case.

FACTS

I find that the facts are not in dispute: On August 19, 2010, Newark police officers executed a search warrant at the subject apartment and arrested Julian Wells, Virginia's older son, then twenty-seven, Duane Danby, and Luis, after having found marijuana, heroin and a gun in a book bag in the apartment. Wells did not live with Virginia at the time of the incident: Virginia testified that she had “put him out of her apartment” approximately four years earlier and that he did not have a key to the apartment because she did not approve of his activities. Wells, who is paralyzed and confined to a wheelchair, had his medical supplies delivered to Virginia's apartment. The medical supplies included diapers, catheters and other items necessary for his condition, and he would come to the apartment periodically to pick up those supplies. (On this day, he was accompanied by Danby, otherwise unrelated to this case.) Wells would call Virginia first to let her know that he was coming and he would only stay for a short time. According to the testimony, neither Virginia nor Borges was home at the time of the arrest.2 Wells is now incarcerated.

Defendants, remaining family members, have defended this action based on their claim of non-involvement in the cause of the arrest, and the impropriety of proceeding against them, as a matter of discretion by the NHA.

As is frequently the situation in this type of case (i.e., proceeding to evict persons who have not been shown to have participated in the offense or been actually knowledgeable about the underlying facts justifying eviction), the evidence of their knowledge is not direct, but must be determined from circumstantial evidence. The evidence presented in this case leads me to the conclusion that defendants did not participate in the offense and had no knowledge of it.

CONSIDERATION OF LEGAL ISSUES

24 C.F.R. § 966.4( l )(5)(vii) provides that:

(vii) PHA action, generally.

(A) Assessment under PHAS. Under the Public Housing Assessment System (PHAS), PHAs that have adopted policies, implemented procedures and can document that they appropriately evict any public housing residents who engage in certain activity detrimental to the public housing community receive points. (See 24 CFR 902.43(a)(5).) This policy takes into account the importance of eviction of such residents to public housing communities and program integrity, and the demand for assisted housing by families who will adhere to lease responsibilities.

(B) Consideration of circumstances. In a manner consistent with such policies, procedures and practices, the PHA may consider all circumstances relevant to a particular case such as the seriousness of the offending action, the extent of participation by the leaseholder in the offending action, the effects that the eviction would have on family members not involved in the offending activity and the extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action.

(C) Exclusion of culpable household member. The PHA may require a tenant to exclude a household member in order to continue to reside in the assisted unit, where that household member has participated in or been culpable for action or failure to act that warrants termination.

Oakwood Plaza Apartments v. Smith, 352 N.J.Super. 467, 474 (App.Div.2002) (footnote omitted) stated that:

The federal statutory framework therefore does not permit a Section 8 landlord to act in an arbitrary or capricious fashion. Because no administrative procedure for eviction and challenges to eviction exists, the responsibility lies with the court in the first instance to determine whether a Section 8 landlord has exercised its discretion in a manner consistent with federal statute. The record below did not permit that determination to be made, since it did not reflect a weighing process over which the court could have asserted its power of review.

Long Branch Housing Authority v. Villano, 396 N.J.Super. 185, 195 (App.Div.2007) stated:

We recognize that the federally mandated terms of defendant's lease may very well warrant her eviction from the premises based on the evidence that L.A. engaged in drug-related criminal activities in the leased premises. Nevertheless, under 24 CFR § 966.4( l )(5)(vii)(B) (2007), the Authority retains the discretion to consider “all circumstances relevant to a particular case” before invoking its rights under the lease.

I must therefore engage in the “weighing process” required by federal and state legislation and case law.3 Indeed, plaintiff has formalized the factors to be considered before commencing an eviction action against, arguably, non-culpable tenants 4 and occupants. 5 Those factors are included in plaintiff's “Admissions and Continued Occupancy Policies” (commonly referred to as the “ACOP” factors) and are found on page 124 of plaintiff's current ACOP.

Plaintiff did present testimony relating to the consideration of the ACOP factors.6

The factors listed in plaintiff's ACOP are:

a. The seriousness of the offending action, especially with respect to how it would affect other residents;

b. The extent of participation or culpability of the leaseholder, or other household members, in the offending action, including whether the culpable member is a minor;

c. The effects that the eviction will have on other family members who were not involved in the action or failure to act;

d. The effect on the community of the termination, or of NHA's failure to terminate the tenancy; e. The effect of the NHA's decision on the integrity of the Public Housing program;

f. The demand for housing by eligible families who will adhere to lease responsibilities;

g. The extent to which the leaseholder has shown personal responsibility and whether they have taken all reasonable steps to prevent or mitigate the offending action;

h. The length of time since the violation occurred, the family's recent history, and the likelihood of favorable conduct in the future; and

i. In the case of program abuse, the dollar amount of the underpaid rent and whether or not a false certification was signed by the family.

The property manager, Robert Griffin, testified about his consideration of the ACOP factors, on behalf of the NHA. When questioned by plaintiff's attorney about which factors he considered, Griffin read each factor word for word. I find that his consideration was not a genuine consideration of the factors, but rather that it was a rote statement of the factors. I therefore conclude that NHA did not truly consider its own formulation of the ACOP factors.

Furthermore, after reading the first factor, plaintiff's attorney asked whether Griffin weighed it heavily. He said “yes” and was then asked “why?” He paused and...

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