Seymour Housing Authority Tenants Ass'n v. Housing Authority of Town of Seymour

• Decision Date: 16 May 1989
• Docket Number: No. 6322,6322
• Citation: 18 Conn.App. 393,558 A.2d 1002
• Parties: SEYMOUR HOUSING AUTHORITY TENANTS ASSOCIATION et al. v. HOUSING AUTHORITY OF the TOWN OF SEYMOUR et al.
• Court: Connecticut Court of Appeals

Page 1002

558 A.2d 1002

18 Conn.App. 393

SEYMOUR HOUSING AUTHORITY TENANTS ASSOCIATION et al. v. HOUSING AUTHORITY OF the TOWN OF SEYMOUR et al.

No. 6322.

Appellate Court of Connecticut.

Argued Nov. 10, 1988.

Decided May 16, 1989.

Richard P. Gilardi, Stratford, for appellants (plaintiffs).

Louis A. Silverstein, Ansonia, for appellees (defendants).

Before SPALLONE, NORCOTT and FOTI, JJ.

NORCOTT, Judge.

The plaintiffs, the Seymour Housing Authority Tenants Association (association) and some members of the association in their individual capacity, appeal a decision by the trial court in an action brought against the defendants, the housing authority of the town of Seymour (authority) and Norman Ray, its executive director. ¹

After some members of the association received eviction notices from the authority, the plaintiffs brought this action alleging that the defendants had arbitrarily set the maximum allowable income limits for residence in the moderate income housing project in violation of General Statutes § 8-72a. ² They contended that this allegedly improper determination resulted in their being overcharged for the continued occupancy of their apartments and improperly subjected them to eviction. In their prayer for relief, the plaintiffs requested, inter alia, a declaratory judgment that § 8-72a is unconstitutional, an injunction restraining the authority from attempting to evict them, an order that the income limits were arbitrary, unreasonable, unlawfully determined and void, an accounting of the improper surcharges paid by the plaintiffs and a distribution thereof to the plaintiffs. ³

The trial court determined that the authority had violated § 8-72a by not considering the average wage for the town of Seymour in its computation of the maximum income limits, and granted the injunctive relief requested, restraining the defendants from attempting to evict the plaintiffs until the defendants properly determined the maximum income limits. Although the court held that it lacked jurisdiction to make a declaratory judgment because proper notice had not been given to all interested parties, it nevertheless held that the statute in question was not unconstitutional on either due process or equal protection grounds or as an unconstitutional delegation of legislative power. The court also held that the plaintiffs did not have a constitutionally protected property interest in retaining their incomes that required due process protection, and that the plaintiffs were not entitled to an accounting and distribution of the unlawfully accumulated surcharge.

On appeal, the plaintiffs claim that the trial court erred in determining (1) that the plaintiffs did not have property interests entitled to constitutional protection and (2) that they were not entitled to an accounting and distribution of any excessive surcharges paid. ⁴ We find error in part.

The trial court's memorandum of decision reflects that the parties stipulated to the following facts relevant to this appeal. Since 1976, some resident plaintiffs have earned annual incomes purportedly exceeding the maximum limits set out in General Statutes § 8-72a. Those plaintiffs have continued to occupy their units since that time, with the approval of the defendants, under a surcharge arrangement that requires over-income residents to pay, in addition to their rent, a monthly surcharge of 2 percent of their incomes that is in excess of the maximum limit. The maximum income limit has remained at $11,000 since 1981. In 1982, 46 percent of the tenants were classified as over-income. Prior to 1982, the authority made no attempt to evict over-income tenants. Also prior to 1982, the plaintiffs questioned the basis and formula for setting maximum income limits and surcharges.

In 1982, the authority moved to evict all tenants who had been classified as over-income for at least two years. Without prior notice or an opportunity for tenants to be heard, the authority, in March, 1982, issued sixty-day notices to vacate pursuant to General Statutes § 8-73. ⁵ Despite the parties' reported agreement to suspend further action pending a meeting among them to discuss the evictions and the policy on setting maximum income limits, some, but not all, over-income tenants received notices to quit before the meeting took place. No further action pursuant to these notices had been taken by the time of trial.

The procedure for setting maximum limits has not changed in twenty years. No policies or guidelines are given to authority members who set the limits, nor is there a schedule for reconsidering or adjusting the limits. When a commissioner moves to set a limit, the authority's executive director consults an accountant for an economic overview of the project and then reports to the state housing commissioner. The report contains the dollar amount of the maximum limit requested by the executive director and the number of vacancies and pending applications for admission to the project. In the time that this procedure has been followed, the state department of housing has approved every request for a particular income limit submitted by the defendant authority. Neither the executive director nor any commissioner or other authorized person has ever considered the average wage for the town of Seymour in computing the maximum limit.

The parties have also stipulated to the existence of an amount of annual income derived from the rental of seventy-two units that has remained the same since 1977. They also agreed on the total amount of the surcharges paid by over-income tenants since 1977, and on the amount of cash and additional total reserves accumulated by the authority since 1977.

I

The plaintiffs' first claim is that the trial court erred in finding that they did not have property interests protected under the federal and state constitutions. ⁶ Although the plaintiffs have withdrawn their appeal on the issue of the facial unconstitutionality of the statute, they still claim a constitutional violation in the failure of the defendants to consider all statutorily mandated factors, and seek a remedy of return of the improperly collected surcharges. The plaintiffs' approach to this issue is a confusing one, with intertwined claims of right and remedy, and of equal protection and due process violations; the latter seemingly encompassing both procedural and substantive due process claims and the procedural claim containing both notice and confiscation arguments.

The only discernible constitutional claim supported by any legal authority appears to be the plaintiffs' proposition that tenants of government subsidized housing projects have certain constitutionally protected property interests requiring procedural due process protections. The cases cited by the plaintiffs in support of this claim stand for the proposition that such tenants have property interests in not having their rent increased and in continued residence in public housing, and that these interests are subject to limited constitutionally mandated process. Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.1970), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970); Owens v. Housing Authority of City of Stamford, 394 F.Supp. 1267 (D.Conn.1975); Burr v. New Rochelle Municipal Housing Authority, 347 F.Supp. 1202 (S.D.N.Y.1972), modified, 479 F.2d 1165 (2d Cir.1973); Housing Authority v. McKenzie, 36 Conn.Sup. 515, 412 A.2d 1143, cert. denied, 179 Conn. 751, 405 A.2d 673 (1979). The process found due such tenants consists of varying forms of notice and varying levels of hearing rights before eviction or before rent or additional charges may be levied. ⁷ These cases, however, are inapposite to the plaintiffs' claims on appeal, which, although asserting protected property interests, do not allege violations of their rights to prior notice or an opportunity to be heard, but rather request reimbursement of improperly paid surcharges based on a claimed constitutional right to retain their incomes. ⁸

Because of the plaintiffs' shotgun approach to the constitutional issue, they have not squarely presented an argument that the limited procedural process provided by some courts to tenants of government subsidized housing should be extended to encompass a constitutional due process right to have the defendants comply with the procedures for determining the maximum income limits as set out in General Statutes § 8-72a, and a constitutional right to a monetary remedy for a statutory violation. We therefore do not find this an appropriate case for determining the extent of any constitutional procedural safeguards to which tenants of government subsidized housing may be entitled.

Even assuming the plaintiffs have a property interest in retaining their incomes that might require some due process protection, we conclude that the allegations in their complaint do not correspond to the facts that gave rise to the constitutional remedies in the cases that they cite in support of their claim. Therefore, even if it were erroneous for the trial court not to recognize any such protected interest, it was not error to refuse the constitutionally based remedy requested. We also note that the plaintiffs' wholesale constitutional attack on the court's holding implies their belief that the failure of the authority to comply with the requirements of § 8-72a necessarily violates some constitutional right. Such a belief ignores the fact that we are a nation of limited government and that not every statutory violation implicates constitutional rights. See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir.1985).

II

The plaintiffs also claim that it was error for the trial court to refuse to order an accounting and distribution of the funds collected by the defendants from the plaintiffs in violation of § 8-72a.

The trial court found that the plaintiffs did not meet the requirements necessary for an action for...