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UNDERWOOD v. HILLS

June 8, 1976

MYRNA UNDERWOOD, Plaintiff, SHEILA FAZANDE, ANNIE JOHNSON, JEROME SMITH, CORA EWERS, FRANCES JARDIN, LURA R. STENTZ, CHARLOTTE WEST, ARITISHA MC GEE, individually and on behalf of all others similarly situated
v.
CARLA A. HILLS, Individually and in her official capacity as Secretary of the United States Department of Housing and Urban Development H. R. CRAWFORD, Individually and in his official capacity as Assistant Secretary for Housing Management of the United States Department of Housing and Urban Development, Defendants



The opinion of the court was delivered by: PRATT

 This is a nationwide class action brought by tenants in federally subsidized, multifamily housing projects to obtain an operating subsidy enacted by Congress in 12 U.S.C. § 1715z-1(f)(3) and (g) to enable these projects to keep pace with mounting utility bills and local property taxes and at the same time to maintain rents at and to reduce rents to levels appropriate for lower income tenants. Faced with comparable actions, at least nine district courts throughout the United States have already held that payment of this operating subsidy is mandatory. This Court agrees and enters the following Findings of Fact and Conclusions of Law.

 Findings of Fact

 1. Each of the named plaintiffs is a tenant in a housing project federally subsidized pursuant to 12 U.S.C. § 1715z-1, and each pays more than 30% of his or her adjusted monthly income for rent. Costs of local property taxes and utilities have increased in each of the housing projects in which the named plaintiffs reside, and such increased costs have been or will be passed on to the named plaintiffs in the form of increased rents.

 2. Plaintiffs represent a nationwide class of similarly situated tenants. The class is so numerous that joinder of all members is impracticable; there are more than 3,600 federally subsidized housing projects in the United States which are eligible for additional assistance payments for operating subsidies. There are questions of law and fact common to the class; the central issue of this case which is common to all class members is whether the defendant has a mandatory duty to implement the operating subsidy provisions of 12 U.S.C. § 1715z-1(f)(3) and (g). The claims of the named plaintiffs are typical of the class in that the named plaintiffs claim that they are being illegally required to bear the financial burden of increasing costs of property taxes and utilities in their housing projects which HUD is required by law to subsidize. The named plaintiffs will fairly and adequately protect the interest of the class. Defendant has acted on grounds generally applicable to the class by illegally refusing to implement the operating subsidy program nationwide, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.

 3. The cost of local property taxes and utilities in most housing projects nationwide which are federally subsidized pursuant to 12 U.S.C. § 1715z-1 have increased since the projects first became fully occupied. These increased costs have been passed on to plaintiffs and the class they represent in the form of increased rents or will be so passed on if operating subsidies are not paid, with the result that plaintiffs and members of the class have been or will be required to pay more than 30% of their adjusted monthly income for rent.

 4. Defendant Carla Hills is the Secretary ("Secretary") of the Department of Housing and Urban Development ("Department") and is responsible for executing, personally and through subordinates, 12 U.S.C. § 1715z-1 (Section 236).

 5. The matter in controversy as to each plaintiff exceeds the sum of $10,000, exclusive of interest and costs, and arises under Section 236.

 7. In 1974 Congress enacted the Housing and Community Development Act, Pub. L. 93-383, 88 Stat. 633, which added Section 236(f)(3) and amended Section 236(g) so as to provide for an "operating subsidy" -- in addition to the production subsidy -- to cover increased utility costs and local property taxes and thereby prevent such costs from being passed on to tenants. 12 U.S.C. § 1715z-1(f)(3) and (g). Section 236(f)(3) provides in pertinent part:

 
"For each project there shall be established an initial operating expense level, which shall be the sum of the cost of utilities and local property taxes payable by the project owner at the time the Secretary determines the property to be fully occupied, taking into account anticipated and customary vacancy rates. At any time subsequent to the establishment of an initial operating expense level, the Secretary is authorized to make, and contract to make, additional assistance payments to the project owner in an amount up to the amount by which the sum of the cost of utilities and local property taxes exceeds the initial operating expense level, but not to exceed the amount required to maintain the basic rentals of any units at levels not in excess of 30 per centum . . . of the income of tenants occupying such units. Any contract to make additional assistance payments may be amended periodically to provide for appropriate adjustments in the amount of the assistance payments. Additional assistance payments shall be made pursuant to this paragraph only if the Secretary finds that the increase in the cost of utilities or local property taxes is reasonable and is comparable to cost increases affecting other rental projects in the community." 12 U.S.C. § 1715z-1(f)(3).

 Section 236(g) provides:

 
"The project owner shall, as required by the Secretary, accumulate, safeguard, and periodically pay to the Secretary all rental charges collected in excess of the basic rental charges. Such excess charges shall be credited to a reserve fund to be used by the Secretary to make additional assistance payments as provided in paragraph (3) of subsection (f) of this section. During any period that the Secretary determines that the balance in the reserve fund is adequate to meet the estimated additional assistance payments, such excess charges shall be credited to the appropriation authorized by subsection (i) of this section and shall be available until the end of the next fiscal year for the purpose of making assistance payments with respect to rental housing projects receiving assistance under this section. For the purpose of this subsection and paragraph (3) of subsection (f) of this section, the initial operating expense level for any project assisted under a contract entered into prior to August 22, 1974, shall be established by the Secretary not later than 180 days after August 22, 1974." 12 U.S.C. § 1715z-1(g).

 8. The Housing and Community Development Act of 1974 also amended Section 236 to provide for a "deep subsidy" in addition to the production subsidy. The deep subsidy is a type of rent supplement paid to owners of projects made subject to contracts under Section 236 after August 22, 1974, generally on behalf of tenants whose incomes are too ...


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