Seven Pointers for Enforcing Reasonable Utility Allowances for Public and Assisted Housing

1. Seven Pointers for Enforcing Reasonable Utility Allowances for Public and Assisted Housing Presented by: Roger Colton Fisher, Sheehan & Colton Belmont, MA 02478 April 2007

2. Pointer #1:Goal is not to show “wrong” but to show “unlawful.” • Failure to take into account substantive requirements. • Failure to “take into account” as opposed to failure to “consider.” • Examine relevant data. • Identify “facts found.” • Articulate connection between facts found and choices made.

3. Pointer #2:Know your nine mandatory factors • Established by 24 CFR 965.505(d)(1) – (d)(9) • Examples: • Climatic conditions (965.505(d)(2)). • Affect more than heating/cooling allowances: see e.g., refrigerator consumption. • Physical condition of housing (965.505(d)(7)) • Insulation levels degrade over time. • What usage is intended to be covered (965.505(d)(6)). • Electricity usage: include “leaking” electricity. • Construction and design of housing unit (965.505(d)(4)). • Thermal “bridges” and housing “leaks.”

4. Pointer #3:Know your two “Dorsey factors” • In addition to the nine mandatory factors established by regulation, federal courts*** have imposed two additional mandatory factors: • A utility allowance must cover all consumption “not within the ability of the tenant to control.” • The distinction between a “necessary” and “luxury” usage should reflect “local usage and custom patterns.” ***Dorsey v. Housing Authority of Baltimore City, 984 F.2d 622 (1993).

5. Pointer #4:Know your judicially-imposed legal inferences. • Inference #1: If Tenant consumption is routinely in excess of PHA utility allowances, an inference arises that the utility allowance is inadequate. • Inference #2: If Tenant consumption is routinely in excess of PHA utility allowance, that excess is “material evidence” that: • The utility allowance is in noncompliance with the nine mandatory factors; or • The excess consumption is not within the ability of the tenant to control. To rebut inferences, the PHA must provide evidence of non-energy conservative behavior on part of the Tenant.

6. Pointer #5:Enforce the “safe and healthy environment” requirement. • The statutory requirement that a utility allowance be consistent with a “safe and healthy environment” is not surplusage. • Examples: • 120 degree hot water temperature: consider impact on asthma prevention. • Lighting requirements: Consider IESNA standards.

7. Pointer #6:Know your utility rate structure. • Utility rates are often based on block rates, with higher rates applying to higher “blocks” of usage. • Utility rates generally include not simply a fixed customer charge and a per unit of energy charge, but miscellaneous “riders” and “taxes” (e.g., franchise fees). • Water and sewer rates are related, but distinct rates that impose different financial obligations.

8. Pointer #7:Don’t’ forget your relief!

9. An Aside: Air conditioning is an entirely different animal. • Distinguish between “air conditioning” and “cooling.” • Know the law that favors granting an air conditioning allowance. • Is air conditioning a “luxury” as measured by local usage and custom in your area? • Consider asking for air conditioning as a “reasonable accommodation” for disabled (and aged).

10. Finally: A Challenge • How to impose liability on the consultants who prepare inadequate utility allowances: • Eight gallons of hot water per person per day. • Failure to account for lack of insulation. • Two 40 watt bulbs per room for lighting. • No television, microwave, radio, or miscellaneous appliances.

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12. For more information, contact: roger@fsconline.com