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Cabrini-Green Local Advisory Council v. Chicago Housing Authority

January 29, 2007


The opinion of the court was delivered by: David H. Coar


Now before this court is a motion to compel enforcement of this Court's consent decree of August 30, 2000 ("the decree"), filed by Plaintiffs Cabrini-Green Local Advisory Council and Dorothy Gautreaux ("Plaintiffs" or "LAC") against the Chicago Housing Authority ("Defendant" or "CHA") with respect to a lease provision being used in the Old Town Parkside mixed-income community ("Parkside") under development at Cabrini-Green. Plaintiff claims that it contains language requiring eviction of felony convicts residing in the complex, in a manner that violates the Decree. For the reasons stated below, Plaintiff's motion is GRANTED.


The parties have been in dispute over the development of Cabrini-Green for over ten years. As a result of prior legal battles, the parties are now moving forward under the standing consent decree issued by this Court, which established guidelines by which CHA can continue to develop the land in question and LAC can be involved in that process and provide oversight. According to that arrangement, this Court has been responsible for facilitating negotiations between the two parties, conducting arbitration where necessary, and ensuring compliance with the decree's terms. Since this approach was undertaken in 2000, the projects at Cabrini-Green have moved forward, with development taking place, guarantees made for limitations on resident displacement and lower-income housing, and general cooperation from both parties.

LAC now moves this Court to compel enforcement of the decree, namely, Section II.A of its terms, which requires that public units be maintained and operated in accordance with all applicable requirements applicable to public housing agencies ("PHAs"). LAC is troubled by a provision included in Park side leases that would allegedly require eviction whenever a resident was found to have been convicted of a felony. The contentious language is found in the lease rider ("rider") at para. 13(c)(9), and states: "For termination of the LEASE, the following procedures shall be followed by LESSOR and the TENANT: ...The LEASE may be terminated...[when] [t]he TENANT or any authorized family member is convicted of a felony." This language was added to the document on August 24, 2006, subsequent to public comment and final CHA Board approval on June 20, 2006, but prior to the closing date of October 9, 2006 for the construction of Parkside Phase 1. 2nd Mot. at 2. Plaintiff alleges that this clause violates the Federal limitation on public housing projects, requiring that leases "not contain unreasonable terms and conditions," 42 U.S.C.A. § 1437d(l)(2), and is contrary to federal law and public policy.


This Court has retained jurisdiction over this matter only as far as necessary to enforce the terms of the decree. A consent decree "is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992) (emphasis added). "From the standpoint of interpretation, a consent decree is a contract." Cook v. City of Chicago, 192 F.3d 693, 695 (7th Cir.1999).


This motion to enforce is brought on the limited grounds that Defendant CHA, by including the contested language in its leases, has failed to operate the public housing units "in accordance with all applicable public housing requirements." 2nd Mot. ¶ 2 (citing Decree § II.A). Though the parties have only addressed the Public Housing Act of 1937 and its amendment under the Quality Housing and Work Responsibility Act ("QHWRA"), public housing agencies are also guided by the Secretary of the Department of Housing and Urban Development directives found in 24 C.F.R. 966.

As an initial matter, it should be noted that public housing leases are already required to enable property managers to terminate leases based on perceived threats to community safety. The requirement is found in 42 U.S.C. Section 1437d(1)(6), which provides that "[e]ach public housing agency shall utilize leases which...provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." However, in the instant case this demand has been met by other clauses in the lease that Plaintiff has not contested. See 13(c)(5-6, 12). The contested language found in 13(c)(9), however, would expand termination authority beyond the "drug-related criminal activity" and threats to the "health, safety or right of peaceful of the premises" included in these required terms.

The parties have misstated the requirements under the law and the demands of the rider CHA has advanced. Plaintiff maintains that the language in question "violates federal law governing public housing leases," 2nd Mot. ¶ 5, because it "requires eviction for a resident convicted of any felony," id. at 1; see also 2nd Mot. Mem. at 2 (referring to the clause as a "[b]lanket eviction for tenants who are convicted of felonies"). While such a clause might in fact violate federal law, as Plaintiff states elsewhere the current language only "allows the owner to evict a public housing resident who has been convicted of any felony." Id. ¶ 4 (emphasis added). Similarly, Defendant overstates the relevant law, claiming that the contested lease provision "is required by federal law." Opp. Br. at 2. This is not supported by any proffered citation. The only question is whether CHA may choose to give Lakeside managers the discretion to evict for any felony -- in addition to their unquestioned "one-strike" eviction powers -- or whether that choice is contrary to 42 U.S.C. Section 1437d(l)(2)'s prohibition against "unreasonable terms and conditions" or other federal law.

Plaintiff claims that the clause is overly broad and not related to a legitimate purpose. LAC bolsters this argument with extensive analysis of Richmond Tenants Org., Inc. v. Richmond Redevelopment and Hous. Auth., which requires that "lease terms must be rationally related to a legitimate housing purpose." 751 F. Supp. 1204, 1205-06 (E.D. Va. 1990). According to Plaintiff, moving beyond the one-strike bases for lease termination grants a degree of discretion that cannot be justified under that standard -- the required clauses already accomplish any legitimate housing purpose, and the additional, broader language only serves to grant an inappropriate degree of discretion to the property manager. The Richmond case is not directly on point and is not binding authority. However, this Court may still give weight to its reasoning , particularly where application to the instant case would not unreasonably burden the developer and would avoid unnecessarily broad lease terms. While there is no denying that safety is one of HUD's primary concerns and that felony convictions might be an effective indicator of housing community dangers, the Richmond standard would at least narrow discretion to avoid some of those situations where termination would be untenable. How could a felony conviction for a non-threatening action possibly necessitate lease termination? Why should it be necessary to allow discretionary authority over any instance of a felony, when this clause could very easily be rewritten to include only those drug and violent crimes that might actually pose a threat to the community?

Under the Richmond standard, Defendant has completely failed to demonstrate how providing a landlord with the discretion to terminate leases based on such crimes could be "rationally related to a legitimate housing purpose." 751 F. Supp. at 1205-06. CHA claims that "striking the provision now -- before it has been implemented -- needlessly and prematurely removes an important tool from the property manager's management portfolio." Opp. Br. at 11. However, Plaintiff is not arguing that managers should not have the tools and the discretion to evict some criminals from the property, but only that their power should not be unfettered. Defendant has failed to identify a single instance of a felony for which 13(c)(9) would allow a lease termination not already provided for by other rider terms, but still "rationally related to a legitimate housing purpose." As Plaintiff points out, seemingly non-threatening violations of the law such as wireless service theft presently fall under 13(c)(9), and it would not be burdensome to redraft the document so that manager discretion would not incorporate every felony in the state of Illinois.

While the above analysis might suggest that the language of 13(c)(9) is unnecessary, however, it is nonetheless necessary to verify that the Richmond standard is an appropriate interpretation of PHA regulations. There is little in the statutory language or legislative history to suggest that the Virginia court was incorrect. Plaintiff generally maintains that the language is prohibited along with all "unreasonable terms and conditions" that are contrary to the explicit language of 1437d(l)(2), but the lack of a clear definition of this term demands that we look further to determine the meaning of this requirement. Defendant argues that any felony can reasonably form the basis for termination, and seeks support in QHWRA language extending minimum notice protections and the potential for expedited proceedings to lease terminations resulting from "any drug-related or violent criminal activity or any felony conviction." See 42 U.S.C. ยงยง1437d(l)(4); d(k) (emphasis added). However, the fact that these requirements are to be applied to "any felony conviction" or even "any activity resulting in a felony conviction" does not mean that lease terminations themselves can be so broadly based. Instead, the language cited by Defendant means only that where a "felony conviction" forms the basis of an allowable termination under QHWRA ...

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