Residents' Lead-Paint Grievances Suited for State Court

Facts: A group of residents sued the New York City Housing Authority (NYCHA) in federal court for familial discrimination and allegedly depriving them of their property right to a habitable residence free from dangerous conditions. They asked the court to appoint an independent monitor to oversee NYCHA’s lead-based paint remediation efforts.

NYCHA’s issues with lead-based paint on its sites became apparent in November 2017 when the city’s Department of Investigations (DOI) concluded that NYCHA had violated city and federal laws by failing to conduct mandatory safety inspections for lead paint and, since 2013, had falsely certified to HUD that it was in compliance with federal law.

HUD requires all public housing authorities to conduct annual visual assessments of apartments where lead-based paint may be present. Under this requirement, NYCHA was required to inspect approximately 55,000 units in 2016. And because NYCHA receives HUD funding, it must annually certify its compliance with all applicable federal regulations.

Separately, the city’s law requires owners to annually inspect all apartments built before 1960 when the apartment houses a child under the age of 6. In addition, all apartments built between 1960 and 1978 must be inspected annually where the “owner has actual knowledge of the presence of lead-based paint.”

The DOI found that certain senior NYCHA officials were aware that the PHA was violating the law as early as 2015. In or around August 2012, NYCHA ceased performing annual lead-based paint inspections, and thereafter falsely reported to HUD from 2013 through 2016 that it had complied with the inspection requirements. In July 2017, the PHA acknowledged its failure to conduct lead-based paint inspections and disclosed that it was cooperating with the U.S. Attorney’s Office for the Southern District of New York.

The residents argued that the PHA’s failure to inspect for and remediate lead-based paint imposes a predictable and actual disparate impact on families with young children. As nearly all individuals harmed by exposure to lead-based paint are children, they asserted that families with young children are subject to disproportionately dangerous living conditions and increased risk of injury and medical expense.

In addition, the residents claimed a violation of due process against NYCHA. They alleged that they were deprived of their property right to a habitable residence free from dangerous conditions, and to safe ingress and egress from their apartments without a pre-deprivation notice and hearing.

Ruling: A New York district court denied the residents’ request for an independent monitor.

Reasoning: The court ruled that the residents’ complaints were for breach of contract and personal injuries, matters suited for resolution in state court.

Although the residents alleged that families with young children are disproportionately harmed, the court found that the claim is insufficient to establish disparate impact liability under the Fair Housing Act. The residents couldn’t claim that this harm led to or predictably will lead to an underrepresentation of families with young children in NYCHA’s public housing. And they offered no evidence that families with young children moved out of units or were dissuaded from renting there.

Also, the court stated that there is “no constitutional right of access to a certain quality of housing.” Here, federal regulations require public housing agencies to “utilize leases which—obligate [them] to maintain the project in a decent, safe, and sanitary condition.” The residents didn’t claim that NYCHA failed to utilize such leases. Instead, they alleged that NYCHA failed to comply with the promises in those lease agreements. Therefore, the court found there was no federal claim here.

• Paige v. New York City Housing Authority, March 2018