Remedor v. Massachusetts Department of Housing & Community Development, 18 MASS. L. RPTR. No. 12, 253 (MA 9/9/2004), 033803.

• Decision Date: 09 September 2004
• Docket Number: No. 033803.,033803.
• Citation: 18 MASS. L. RPTR. No. 12, 253
• Parties: Clarisse Remedor v. Massachusetts Department of Housing & Community Development.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 253

18 MASS. L. RPTR. No. 12, 253

Clarisse Remedor v. Massachusetts Department of Housing & Community Development.

No. 033803.

Commonwealth of Massachusetts Superior Court.

Suffolk, Ss.

Memorandum Dated September 9, 2004.

Municipal Corporations — Housing Authorities — Procedural Matters — Applicant's Appeal from a Housing Authority's Refusal to Provide "Emergency Case Status" Is Rendered Moot by the Availability of Alternate Housing.

An appeal by an applicant for public housing from a housing authority's refusal to provide "emergency case status" is rendered moot if the applicant obtains alternate housing, at least where the refusal was based on factual grounds unique to the applicant.

SIKORA, J.

INTRODUCTION

The plaintiff Clarisse Remedor brought this action pursuant to G.L.c. 30A, § 14, for judicial review of the Massachusetts Department of Housing and Community Development's ("DHCD") final decision denying her "emergency case status" in her application for public housing under 760 CMR 5.00 et seq. The parties have filed cross motions for judgment on the pleadings under Mass.R.Civ.P. 12(c). The court heard oral argument on August 2, 2004. At the hearing, it became apparent that Remedor's status as "homeless" under the regulations had changed and that the issue raised in this appeal had become moot. The court invited the parties to submit supplemental memoranda upon the question whether the appeal deserves decision despite its mootness. After careful consideration of the administrative record, the arguments of counsel, and the supplemental memoranda submitted on the mootness issue, I conclude that Remedor's appeal does not present issues justifying a decision despite mootness. For that reason, final judgment of dismissal by reason of mootness will now enter.

BACKGROUND

The following facts emerge from the administrative record as undisputed. Ms. Remedor worked as a certified nurse's aide and lived in an apartment in Waltham for approximately four years prior to 2002. She had always paid her rent on time. She has suffered from multiple ailments, including asthma, high blood pressure, obesity, and diabetes. In February 2002, she lost her job because her health prevented her from working. She continued to pay her rent in full through August 2002 when she depleted her savings. She maintains that conditions in the apartment were substandard, violated the warranty of habitability, exacerbated her illnesses, and endangered her health.

In September of 2002 Remedor's landlord terminated her tenancy for failure to pay rent. The landlord instituted a summary process action. With the assistance of counsel, Remedor negotiated a settlement of the summary process action. It resulted in an agreement for judgment executed in November of 2002. The parties "agreed that judgment shall enter herein for the [landlord] for possession with respect to the property... and against [Remedor]." Remedor agreed to vacate the premises by January 10, 2003, and "acknowledge[d] and agree[d] that the [landlord] [was] entitled to outstanding rent" and "use and occupancy" charges for the months of July through January. However, as part of the agreement, the landlord agreed to waive the claim to those amounts if Remedor vacated the apartment by January 10. Finally, Remedor released any and all claims against the landlord arising from her tenancy in the premises.

Remedor applied to the Waltham Housing Authority (WHA) for placement in public housing on November 22, 2002, and sought "emergency case status" through the WHA's emergency case plan. Emergency case status places an applicant ahead of other "standard" applicants awaiting public housing. WHA's plan conferred emergency case status upon individuals who were "homeless," as defined in 760 CMR 5.03, and whose homelessness was the result of "causes other than the fault of the applicant." The regulation defines the second criterion as "causes outside of the [applicant's] reasonable control, including but not limited to substandard housing conditions which directly and substantially endanger or impair the health, safety, or well-being [of the applicant], and other circumstances as determined by the [Local Housing Authority]." On February 26, 2002, WHA approved her application for public housing but denied her application for emergency case status. It found that she had a history of nonpayment of rent.

The WHA director affirmed the decision. He found that Ms. Remedor had become homeless as a result of her own doing. He cited the terms of the agreement for judgment: Remedor's admission of liability for rent and her waiver of all claims against the landlord. He observed that Ms. Remedor had alleged violations of the warranty of habitability for damages exceeding the amount of rent owed; and that this claim or counterclaim had never reached adjudication or accumulated objective support from evidence. He reasoned that "it cannot be inferred from the agreement that [her allegations were] true." He noted that Ms. Remedor "also claims that she was not evicted but rather reached an agreement to vacate her apartment owing nothing to the landlord." He concluded as follows:

The applicant cannot have it both ways. She vacated the apartment...