HCR-29-15-00002-P Give PHAs Greater Discretion in Establishing Standards for Admission and Continued Occupancy in State-Aided Housing Projects

7/22/15 N.Y. St. Reg. HCR-29-15-00002-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 29

July 22, 2015

RULE MAKING ACTIVITIES

DIVISION OF HOUSING AND COMMUNITY RENEWAL

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HCR-29-15-00002-P

Give PHAs Greater Discretion in Establishing Standards for Admission and Continued Occupancy in State-Aided Housing Projects

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of section 1627-7.2 and addition of new section 1627-7.2 to Title 9 NYCRR.

Statutory authority:

Public Housing Law, sections 14(1) and 19

Subject:

Give PHAs greater discretion in establishing standards for admission and continued occupancy in State-aided housing projects.

Purpose:

To eliminate outmoded standards of eligibility for State-aided public housing projects.

Text of proposed rule:

Section 1627-7.2 of 9 NYCRR is repealed and a new section 1627-7.2 of 9 NYCRR is added as follows:

Standard for admission or continued occupancy.

a) In addition to income eligibility, an authority may establish standards for use in approving eligibility for admission or continued occupancy of a household in any authority project. Such standards shall include that the household will not, or does not, constitute:

1) a detriment to the health or safety of its neighbors or the community;

2) a source of danger to the peaceful occupation of the other tenants;

3) a source of danger or cause of damage to residents, personnel, property or premises of the authority; or

4) such other lawful and non-discriminatory eligibility or continued occupancy criteria as may be established by the authority.

b) An authority may admit or continue the tenancy of a household which might otherwise be ineligible under subdivision a of this section due to behavior that does not result in a criminal conviction if:

1) the person responsible for the prohibited action demonstrates rehabilitation or good conduct, demonstrated by, among other things, completion of a credible rehabilitation program;

2) the household demonstrates to the authority’s satisfaction that the person is no longer engaging in drug or alcohol-related activity, if the behavior stemmed from the use or abuse of drugs or alcohol in a way that interfered with the health, safety, or right to peaceful enjoyment of the premises by other residents; or

3) the household member(s) determined to have engaged in the behavior will not reside in the unit. If the member is a minor, the authority may consider individual circumstances including the advice of Juvenile Court officials.

c) In determining a household’s eligibility for admission or continued occupancy, an authority may give consideration to a household member’s criminal convictions that involved physical violence to persons or property or that adversely affected the health, safety and welfare of other people. The authority may not reject an applicant or remove a tenant based solely on that fact that a household member has such a conviction(s) but must conduct an individualized assessment of each household member who has such convictions, taking into account:

1) the time which has elapsed since the criminal conviction(s);

2) the age of the person at the time of the conviction(s);

3) the seriousness of the conviction(s);

4) any information produced by the household member, or produced on his or her behalf, in regard to rehabilitation and good conduct, including, but not limited to, evidence of completion of treatment, rehabilitative programming, history of employment and tenancy, volunteer or community activity, and letters of reference from employers, landlords, community members or others who could speak to the person’s conduct since the conviction; and

5) where termination of continued occupancy is considered, the effects that termination of occupancy would have on household members who do not have convictions.

If, after conducting this assessment, the authority determines that the household is not eligible for tenancy, it must be able to articulate its reasoning with specificity. The authority shall communicate its decision to the household, together with the reasons for its determination.

d) Notwithstanding subdivision (c) of this section, household members with the following convictions shall be ineligible for occupancy in an authority project:

1) Convictions that lead to lifetime registration in a State Sex Offender Registration Program. Provided however, if such lifetime registration requirement is removed, the underlying convictions will be assessed in accordance with subdivision (c) of this section.

2) Convictions for the manufacture or production of Methamphetamine on premises of assisted housing (including privately owned units occupied by Section 8 Voucher Program participants).

Text of proposed rule and any required statements and analyses may be obtained from:

Mark C. Colon, Deputy Counsel, New York State Division of Housing and Community Renewal, 25 Beaver Street - 7th Floor, New York, New York 10004, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Section 14(1)(a) of the New York State Public Housing Law (“PHL”) authorizes the Division of Housing and Community Renewal (“DHCR”) to formulate regulations in relation to public housing authorities and their functions. Section 19 of the PHL gives DHCR the authority to promulgate, amend and repeal rules and regulations to effectuate its powers and duties.

2. LEGISLATIVE OBJECTIVE:

The New York State Legislature, by the enactment of the Public Housing Law, authorized the creation of low-rent housing accommodations through the creation of local public housing authorities as it found that there was not an adequate supply of safe and sanitary dwelling accommodations for persons and families of low income. DHCR’s proposed regulation which covers State-aided public housing projects created by housing authorities is consistent with the legislative intent of the PHL as it eliminates outmoded standards of eligibility which may restrict admission or continued occupancy of such persons and families for such housing units.

3. NEEDS AND BENEFITS:

The standards for admission and continued occupancy in State-aided public housing projects were promulgated in 1968 and last amended in 1993. These standards are not reflective of the past twenty-two years of statutory modifications and case law incorporating more up to date fair housing criteria and policy. The proposed regulation takes that into account and also reflects the longstanding experience of housing authorities and gives them greater discretion to utilize affirmative marketing and the admission criteria that are used by private developers. The proposed regulation also incorporates the most recent thinking on the barriers to re-entry experienced by people with criminal convictions, as stated in the June 17, 2011 letter from the U.S. Department of Housing and Urban Development (HUD) to public housing agency directors. That letter clarified HUD’s policy relating to criminal history and encouraged more flexible, reasonable admissions policies for people re-entering communities following incarceration.

4. COSTS:

The cost of creating admission and continued occupancy standards and complying with the proposed regulation will be limited. The proposed regulation only applies to seventeen New York State-aided housing projects; none of them located in New York City. Most of these authorities have federally-aided projects in addition to State-aided projects.

5. LOCAL GOVERNMENT MANDATES:

The proposed regulation will vest State-aided public housing authorities with greater discretion in establishing standards. As public housing authorities must already engage in tenant screening and implementation of admission policies, there is no additional local government mandate imposed by the proposed regulation.

6. PAPERWORK:

As the housing authorities already engage in the process of tenant selection there is no significant increase in paperwork contemplated by this proposed regulation.

7. DUPLICATION:

There is no known duplication of State or federal requirements.

8. ALTERNATIVES:

Given the outmoded language of the existing regulation, DHCR had no alternative but to amend this provision. The 1993 amendment which set forth standards with respect to eviction based on certain specific crimes needed to be changed to create a standard that allows a more individualized and fact based assessment of eligibility for admission and continued occupancy.

9. FEDERAL STANDARDS:

The proposed regulation does not exceed any known minimum federal standards.

10. COMPLIANCE SCHEDULE:

It is not anticipated that regulated parties will require any significant additional time to comply with the proposed regulation. DHCR may administratively extend such compliance period as may be necessary.

Regulatory Flexibility Analysis

1. EFFECT OF RULE:

This proposed regulation affects seventeen New York State-aided public housing projects; all are located outside New York City.

2. COMPLIANCE REQUIREMENTS:

There are no requirements imposed on small businesses by the proposed regulation. The affected public housing authorities may establish standards for admission and continued occupancy for such projects.

3. PROFESSIONAL SERVICES:

The proposed regulation may require some initial help from lawyers and housing managers in reviewing any new criteria but housing authorities have such staff available and DHCR will aid them as necessary.

4. COMPLIANCE COSTS:

There is no indication that the proposed regulation will impose any significant initial costs upon small businesses or on local government as implementation of eligibility standards is already required.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

Compliance with the rule is expected to be feasible for local government both economically and technologically.

6. MINIMIZING ADVERSE IMPACT:

The proposed regulation has limited impact on local government and none upon small businesses but the changes are needed to appropriately enforce a statute designed to protect public health, safety and welfare.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

In addition to specific DHCR reach out, the local governmental units involved are public housing authorities with which DHCR, due to its statutory, regulatory and contractual relationship, maintains an ongoing supervisory role, familiarity with their issues and concerns, and a relationship that is interactive and ongoing with respect to operations and admissions.

Rural Area Flexibility Analysis

The proposed regulation will not impose any adverse impact on rural areas or reporting, record keeping or other compliance requirements on public or private entities in rural areas. As it was evident from the proposed regulation that it would not impose any adverse impact or compliance requirements, no further measures were needed to ascertain that fact and none were taken. Accordingly, a Rural Area Flexibility Analysis is not required.

Job Impact Statement

The proposed regulation eliminates outmoded standards of eligibility for admission and continued occupancy in State-aided public housing projects. As it is readily apparent from the subject matter of the proposed regulation that it will have no impact on jobs and employment opportunities, a Job Impact Statement is not required.