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Kemp v. Chicago Housing Authority

July 21, 2010

JUDY KEMP, PLAINTIFF,
v.
CHICAGO HOUSING AUTHORITY, A MUNICIPAL CORPORATION, AND HISPANIC HOUSING DEVELOPMENT CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Judy Kemp has filed a five-count amended complaint against the Chicago Housing Authority ("CHA") and the Hispanic Housing Development Corporation ("HHDC") (collectively, "defendants"), primarily seeking declaratory and injunctive relief regarding the proposed termination of her public housing assistance.*fn1 Before the court are defendants' motions to dismiss. For the following reasons, the motions [#11, 12] are granted.

BACKGROUND

I. Relevant Allegations

Kemp has been a CHA resident since 1996 and lived with her two sons, Jerome and Jaheim Anderson, at 2741 W. Crystal St., Apt. A until January 4, 2010. Her unit is owned by CHA, a municipal corporation that administers the public housing program in Chicago, and managed by HHDC, a corporation contracted by CHA to lease and manage Kemp's unit. In September and October 2009, three acts of criminal damage to Kemp's unit occurred, allegedly undertaken by members of a local gang led by Roman Mason, who had a dispute with Jerome. Mason was convicted and imprisoned for his participation in this damage. On October 11, 2009, Mason also allegedly vandalized and set on fire Kemp's car. Kemp asked HHDC for a transfer to a different neighborhood based on these acts but was told that there were no units available. Kemp contacted CHA's Victim Assistance Program but was told that she did not qualify for a transfer because the incidents were not considered a "threat."

On January 4, 2010, Kemp's unit was substantially destroyed by a fire. Kemp suspects that Mason and other gang members were involved. That day, HHDC offered Kemp an emergency transfer to an apartment in Little Village, but Kemp rejected the unit as she considered it to be in a high crime area with substantial gang activity. On January 14, 2010, defendants offered Kemp a unit in Wentworth Gardens, but Kemp again rejected this site as she was concerned about crime and gang activities, had a relative who was murdered in that area, and had an intimidating and hostile encounter with men loitering around the unit when she went to visit. On March 2, 2010, Kemp was shown a third unit at 1325 W. Huron but voiced concern over its proximity to Mason's home. Defendants informed Kemp she had until Friday, March 5, 2010 to accept the unit. Although Kemp alleges she decided to accept the unit, she did not call to do so until Monday, March 8 and did not get through to the appropriate person, Mike Sanchez, at that time, although she informed an HHDC receptionist that she wanted to speak to Sanchez to accept the unit on March 9.

On March 12, 2010, Kemp was served with a notice of termination. The notice provided that her lease would be terminated in 30 days because (1) she owed $1090 in rent even though her unit had been damaged by fire because she had refused alternate accommodations and (2) she had violated various provisions of her lease, including Section 13(e), and the CHA's Admissions and Continued Occupancy Policy because her "unit was damaged by fire due to [her] neglect, negligence and or carelessness." Ex. F to Am. Compl. ¶ 5(g). The notice of termination further provided, "On information and belief, the fire started in two different sections of [Kemp's] unit, with an open flame and/or smoke materials and there was not any sign of forced entry. [She was] offered alternative housing and/or a transfer to another unit and refused the alternative housing and/or transfer." Id. When Kemp reached Sanchez on March 16, 2010, she was informed that she received the notice of termination because she did not accept the third unit and that the third unit had been rented.

Defendants accuse Kemp's son, Jerome, of starting the fire, although he has not been arrested or charged in connection with the fire. Kemp denies this accusation, and Jerome claims not to have been home when the fire started. Kemp also claims that she is entitled to abatement of rent because the fire rendered the unit uninhabitable and she had good cause to reject the first two units and never refused the third.

On March 17, 2010, Kemp requested an informal grievance with HHDC to contest the notice of termination. She attended an informal grievance hearing on April 20, 2010 but has not been provided with a written decision. On May 18, 2010, HHDC filed a forcible entry and detainer action in the Circuit Court of Cook County.

II. Relevant Statutory and Regulatory Requirements and the CHA Lease

The United States Housing Act of 1937 was implemented to, among other things, "promote the goal of providing decent and affordable housing for all citizens through the efforts and encouragement of Federal, State, and local governments, and by the independent and collective actions of private citizens, organizations, and the private sector." 42 U.S.C. § 1437(a)(4). The Secretary of Housing and Urban Development is directed to "establish housing quality standards . . . that ensure that public housing dwelling units are safe and habitable." Id. § 1437d(f)(2). Public housing agencies, such as CHA, must use leases which "require that the public housing agency may not terminate the tenancy except for serious or repeated violation of the terms or conditions of the lease or for other good cause." Id. § 1437d(l)(5). Regulations further elaborate upon proper grounds for termination of tenancy. See 24 C.F.R. § 966.4(l)(2). If a unit is damaged making it uninhabitable, the lease is to provide that rent will be abated if the public housing agency does not make repairs within a reasonable time or offer standard alternative accommodations in the interim, "except that no abatement of rent shall occur if the tenant rejects the alternative accommodation or if the damage was caused by the tenant, tenant's household or guests." 24 C.F.R. § 966.4(h)(4).

CHA's lease recites that it is between CHA and/or its property manager and the tenant. Ex. A to Am. Compl. Section 13(e) provides:

If the resident's dwelling unit is uninhabitable or is hazardous to life, health, and safety, and if a decent and sanitary alternative accommodation that does not contain hazardous defects is offered and refused and the resident refuses to leave the ...


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