seven pointers for enforcing reasonable utility allowances for public and assisted housing presented...
TRANSCRIPT
Seven Pointers for Enforcing Reasonable Utility Seven Pointers for Enforcing Reasonable Utility Allowances for Public and Assisted HousingAllowances for Public and Assisted Housing
Presented by:Presented by:Roger ColtonRoger Colton
Fisher, Sheehan & ColtonFisher, Sheehan & ColtonBelmont, MA 02478Belmont, MA 02478
April 2007April 2007
Pointer #1:Pointer #1:Goal is not to show “wrong” but to show “unlawful.”Goal is not to show “wrong” but to show “unlawful.”
Failure to take into account substantive Failure to take into account substantive requirements.requirements.
Failure to “take into account” as opposed Failure to “take into account” as opposed to failure to “consider.” to failure to “consider.” – Examine relevant data.Examine relevant data.– Identify “facts found.” Identify “facts found.” – Articulate connection between facts found and Articulate connection between facts found and
choices made. choices made.
Pointer #2:Pointer #2: Know your nine mandatory factorsKnow your nine mandatory factors
Established by 24 CFR 965.505(d)(1) – (d)(9)Established by 24 CFR 965.505(d)(1) – (d)(9)Examples:Examples:– Climatic conditions (965.505(d)(2)).Climatic conditions (965.505(d)(2)).
Affect more than heating/cooling allowances: see e.g., Affect more than heating/cooling allowances: see e.g., refrigerator consumption.refrigerator consumption.
– Physical condition of housing (965.505(d)(7))Physical condition of housing (965.505(d)(7))Insulation levels degrade over time.Insulation levels degrade over time.
– What usage is intended to be covered (965.505(d)What usage is intended to be covered (965.505(d)(6)).(6)).
Electricity usage: include “leaking” electricity.Electricity usage: include “leaking” electricity.– Construction and design of housing unit (965.505(d)Construction and design of housing unit (965.505(d)
(4)).(4)).Thermal “bridges” and housing “leaks.” Thermal “bridges” and housing “leaks.”
Pointer #3:Pointer #3:Know your two “Dorsey factors”Know your two “Dorsey factors”
In addition to the nine mandatory factors In addition to the nine mandatory factors established by regulation, federal courts*** established by regulation, federal courts*** have imposed two additional mandatory have imposed two additional mandatory factors:factors:– A utility allowance must cover all consumption “not A utility allowance must cover all consumption “not
within the ability of the tenant to control.”within the ability of the tenant to control.”
– The distinction between a “necessary” and “luxury” The distinction between a “necessary” and “luxury” usage should reflect “local usage and custom usage should reflect “local usage and custom patterns.”patterns.”
***Dorsey v. Housing Authority of Baltimore City***Dorsey v. Housing Authority of Baltimore City, 984 F.2d 622 (1993)., 984 F.2d 622 (1993).
Pointer #4:Pointer #4: Know your judicially-imposed legal inferences.Know your judicially-imposed legal inferences.
Inference #1Inference #1:: If Tenant consumption is routinely in If Tenant consumption is routinely in excess of PHA utility allowances, an inference arises that excess of PHA utility allowances, an inference arises that the utility allowance is inadequate.the utility allowance is inadequate.Inference #2Inference #2:: If Tenant consumption is routinely in If Tenant consumption is routinely in excess of PHA utility allowance, that excess is “material excess of PHA utility allowance, that excess is “material evidence” that:evidence” that:– The utility allowance is in noncompliance with the nine The utility allowance is in noncompliance with the nine
mandatory factors; mandatory factors; oror– The excess consumption is not within the ability of the tenant to The excess consumption is not within the ability of the tenant to
control.control.
To rebut inferences, the PHA must provide evidence of non-To rebut inferences, the PHA must provide evidence of non-energy conservative behavior on part of the Tenant.energy conservative behavior on part of the Tenant.
Pointer #5:Pointer #5: Enforce the “safe and healthy environment” Enforce the “safe and healthy environment”
requirement.requirement.
The statutory requirement that a utility The statutory requirement that a utility allowance be consistent with a “safe and allowance be consistent with a “safe and healthy environment” is not surplusage.healthy environment” is not surplusage.
Examples: Examples: – 120 degree hot water temperature: consider 120 degree hot water temperature: consider
impact on asthma prevention.impact on asthma prevention.– Lighting requirements: Consider IESNA Lighting requirements: Consider IESNA
standards.standards.
Pointer #6:Pointer #6: Know your utility rate structure.Know your utility rate structure.
Utility rates are often based on block rates, with Utility rates are often based on block rates, with higher rates applying to higher “blocks” of higher rates applying to higher “blocks” of usage. usage.
Utility rates generally include not simply a fixed Utility rates generally include not simply a fixed customer charge and a per unit of energy customer charge and a per unit of energy charge, but miscellaneous “riders” and “taxes” charge, but miscellaneous “riders” and “taxes” (e.g., franchise fees).(e.g., franchise fees).
Water and sewer rates are related, but distinct Water and sewer rates are related, but distinct rates that impose different financial obligations.rates that impose different financial obligations.
Pointer #7:Pointer #7: Don’t’ forget your relief!Don’t’ forget your relief!
IGGG By Unit SizeUnit Size # Units Refund/Unit Total Refund
1-person 25 $891 $22,286
2-person 390 $909 $354,537
3-person 1,884 $956 $1,801,080
4-person 434 $1,178 $511,134
5-person 428 $1,377 $589,545
6-person 157 $1,541 $242,008
An Aside: An Aside: Air conditioning is an entirely different animal.Air conditioning is an entirely different animal.
Distinguish between “air conditioning” and Distinguish between “air conditioning” and “cooling.”“cooling.”Know the law that favors granting an air Know the law that favors granting an air conditioning allowance. conditioning allowance. Is air conditioning a “luxury” as measured Is air conditioning a “luxury” as measured by local usage and custom in your area?by local usage and custom in your area?Consider asking for air conditioning as a Consider asking for air conditioning as a “reasonable accommodation” for disabled “reasonable accommodation” for disabled (and aged).(and aged).
Finally: A ChallengeFinally: A Challenge
How to impose liability on the How to impose liability on the consultantsconsultants who prepare inadequate utility allowances:who prepare inadequate utility allowances:– Eight gallons of hot water per person per day.Eight gallons of hot water per person per day.– Failure to account for lack of insulation.Failure to account for lack of insulation.– Two 40 watt bulbs per room for lighting.Two 40 watt bulbs per room for lighting.– No television, microwave, radio, or No television, microwave, radio, or
miscellaneous appliances.miscellaneous appliances.
For more information, see:For more information, see:
http://www.fsconline.comhttp://www.fsconline.com(FSC Library)(FSC Library)
(FSC News)(FSC News)
