Rivas v. Chelsea Hous. Auth.

• Decision Date: 08 February 2013
• Docket Number: SJC–11090.
• Parties: Elizabeth RIVAS v. CHELSEA HOUSING AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 329

982 N.E.2d 1147

Elizabeth RIVAS

v.CHELSEA HOUSING AUTHORITY.

SJC–11090.

Supreme Judicial Court of Massachusetts,

Suffolk.

Submitted Oct. 2, 2012.

Decided Feb. 8, 2013.

Held Invalid

760 CMR 49.05(8)(b).

Joshua N. Garick, Braintree, (Stephen J. Callahan with him) for the plaintiff

Thomas F. Feeney for the defendant.

James M. McCreight, for Massachusetts Union of Public Housing Tenants, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

CORDY, J.

Elizabeth Rivas has received housing assistance through the Massachusetts rental voucher program (voucher program) since 1998. The voucher program is a State-funded program that provides rental assistance to low-income tenants who lease apartments from private landlords. The voucher program participants contribute a percentage of their household net income toward rent, and the State pays the remainder of the rent directly to the landlord. The program is administered by the Department of Housing and Community Development (department) ¹ through local housing authorities, and is governed by 760 Code Mass. Regs. §§ 49.00 (2012).

Rivas rented an apartment in the city of Chelsea and received her voucher through the Chelsea Housing Authority (authority). Rivas's voucher was considered a “project-based” voucher, meaning it could only be used to subsidize her rent at a particular housing unit: 12 Fourth Street, Apartment 4, Chelsea. See 760 Code Mass. Regs. § 49.02 (1998) (definition of project-based voucher); 760 Code Mass. Regs. § 49.06 (2000) (project-based voucher requirements). On July 9, 2009, Rivas received notice from the authority's voucher program representative, Carmen Torres, that the authority was terminating her voucher, effective August 31, 2009, because she did not report “changes in family composition and in family's income” within thirty days of the change, as required by the conditions of her voucher. The notice informed Rivas of her right to request a grievance hearing pursuant to 760 Code Mass. Regs. § 6.08(4)(a) (1998).²

Specifically, the authority alleged that Rivas had failed to report to the authority that her mother, Ana Burgos, had begun to live with her at 12 Fourth Street, Apartment 4. Burgos, who had formerly rented an apartment from the authority before moving to Virginia, returned to Chelsea from Virginia in early 2008. On her return, she spent at least two weeks of every month living with Rivas, and spent the remaining two weeks living with her other daughters. ³ On May 5, 2009, Burgos applied for her own housing with the authority.⁴ That application, along with additional supporting documentation, listed Burgos's current address as Rivas's apartment. See note 3, supra. The decision to revoke Rivas's voucher was reportedly premised on the information provided in Burgos's application.

Rivas timely requested a hearing before the authority's grievance panel. By letter dated July 30, 2009, the authority notified Rivas that a grievance hearing had been scheduled for August 12, 2009. At no point did the authority offer Rivas the opportunity to engage in an informal settlement conference prior to the grievance hearing, as required by 760 Code Mass. Regs. § 6.08(4)(b) (1998). Rivas, represented by counsel, presented evidence at the August 12 hearing. The authority's grievance panel upheld the termination.

Pursuant to 760 Code Mass. Regs. § 6.08(4)(h) (1998), Rivas appealed to the authority's board of commissioners (board). Rivas presented evidence before the board at a hearing held on September 16, 2009. After Rivas had presented her case to the board and had left the room with her attorney, Torres entered and provided the board with a package of documentary evidence that she had previously presented at the grievance panel hearing. Torres then answered questions from the board regarding both the regulations governing the voucher program and the contents of the evidence package.⁵ Following the hearing, the board affirmed the grievance panel's decision.

Rivas sought review of the authority's decision in the Superior Court. ⁶ The Superior Court judge granted leave to expand the record to include the depositions of Torres and then executive director of the authority, Michael McLaughlin, who had been present at the board hearing. On cross motions for judgment on the pleadings, the judge directed entry of judgment in favor of the authority and dismissed Rivas's complaint. The Appeals Court affirmed the judgment of the Superior Court in a two-to-one decision. Rivas v. Chelsea Hous. Auth., 80 Mass.App.Ct. 294, 952 N.E.2d 941 (2011)( Rivas ). We granted Rivas's application for further appellate review and now reverse.⁷

On appeal, Rivas argues that (1) the Superior Court judge improperly deferred to the authority's interpretation of the voucher program regulations; (2) she was prejudiced by the authority's unlawful failure to conduct an informal settlement conference; (3) the applicable regulations are unconstitutionally vague; (4) the grievance panel's decision was premised on inadequate findings of fact and conclusions of law; and (5) the ex parte presentation of evidence to the board violated her due process rights.

1. Standard of review. There is some debate whether the authority's action is properly appealable under G.L. c. 30A, § 14, or in the nature of certiorari review pursuant to G.L. c. 249, § 4. Rivas's complaint in the Superior Court pleaded both causes of action, although Rivas acknowledges that G.L. c. 249, § 4, is only available for review of agency decisions not reviewable under G.L. c. 30A, § 14, or by other means. See State Bd. of Retirement v. Bulger, 446 Mass. 169, 173, 843 N.E.2d 603 (2006). The Appeals Court treated the matter as the challenge of an agency decision under G.L. c. 30A, § 14, and applied the corresponding standard of review.⁸Rivas, supra at 297–298, 952 N.E.2d 941. However, it is not clear that G.L. c. 30A, § 14, was the proper avenue for review of the authority's decision. The Appeals Court has previously held that because a local housing authority, organized pursuant to G.L. c. 121B, § 3, is not an “agency” within the meaning of G.L. c. 30A, § 1, but is instead a “public body, analogous in various respects ... to a municipal corporation,” review of a housing authority's decision is unavailable under G.L. c. 30A, § 14. Costa v. Fall River Hous. Auth., 71 Mass.App.Ct. 269, 274 n. 6, 881 N.E.2d 800 (2008), S.C.,453 Mass. 614, 903 N.E.2d 1098 (2009), quoting Finance Comm'n of Boston v. McGrath, 343 Mass. 754, 763, 180 N.E.2d 808 (1962). See Simmons v. Clerk–Magistrate of the Boston Div. of the Hous. Court Dep't, 448 Mass. 57, 62, 858 N.E.2d 727 (2006) (“Nothing in [ G.L. c. 121B, § 3,] indicates that [a housing authority] should be treated as a ‘political subdivision’ of the Commonwealth”); G.L. c. 30A, § 1 (agency is “any department, board, commission, division or authority of the state government or subdivision of any of the foregoing”). But see Madera v. Secretary of the Exec. Office of Communities & Dev., 418 Mass. 452, 465, 636 N.E.2d 1326 (1994) (as State agency, department must conduct hearing that complies with provisions of G.L. c. 30A when it adjudicates appeals from local housing authorities).

As a practical matter, the Superior Court apparently regularly hears appeals from local housing authorities pursuant to G.L. c. 30A, § 14, including appeals from the decisions of the authority. See Heinonen vs. Chelsea Hous. Auth., Suffolk Superior Ct., No. 09–2103–A (Dec. 17, 2009) (reviewing authority decision pursuant to G.L. c. 30A, § 14); Huezo vs. Chelsea Hous. Auth., Suffolk Superior Ct., No. 07–4148–C (Sept. 11, 2008) (same); Galeas vs. Chelsea Hous. Auth., Suffolk Superior Ct., No. 035340F (Aug. 8, 2004) (same).

Although there appears to be some confusion over which type of review is proper, where, as here, the agency involved has regarded the matter as falling within the scope of G.L. c. 30A, our analysis of the merits of the case does not hinge on which form of review is properly applied. We reach this conclusion, at least in part, because the “standard of review for an action in the nature of certiorari depends on ‘the nature of the action sought to be reviewed.’ ” Black Rose, Inc. v. Boston, 433 Mass. 501, 503, 744 N.E.2d 640 (2001), quoting Boston Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 49, 371 N.E.2d 728 (1977). See Wightman v. Superintendent, Mass. Correctional Inst., Walpole, 19 Mass.App.Ct. 442, 445, 475 N.E.2d 85 (1985) ( “standard of judicial review under the certiorari statute takes its color from the nature of the administrative action that is being examined”). Thus, for the purposes of this appeal, we treat the matter as it has been treated throughout the appeal process, as a review of an agency decision under G.L. c. 30A, § 14.

We may set aside or modify an agency decision if we determine “that the substantial rights of any party may have been prejudiced” because the agency decision is in violation of constitutional provisions; in excess of statutory authority or jurisdiction of the agency; based on an error of law; made on unlawful procedure; unsupported by substantial evidence; unwarranted by the facts found by the court on the record as submitted or as amplified; or arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. G.L. c. 30A, § 14(7). See Attorney Gen. v. Commissioner of Ins., 450 Mass. 311, 318, 878 N.E.2d 554 (2008).

In reviewing the decision, we are required to “give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G.L. c. 30A, § 14(7). However, this deference is due to the “ ‘agency charged with primary responsibility’ for administering a statute” (emphasis added). Zoning Bd. of Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748, 760, 933 N.E.2d 74 (2010), ...