HOUSING AUTHORITY OF THE CITY OF PASSAIC v. CRASHELL JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1843-09T3

HOUSING AUTHORITY OF THE

CITY OF PASSAIC,

Plaintiff-Appellant,

v.

CRASHELL JACKSON,

Defendant-Respondent.

_______________________________________

November 14, 2011

Submitted October 20, 2010 - Decided

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. LT-7173-09.

Breslin and Breslin, P.A., attorneys for appellant (Terrence J. Corriston, on the brief).

Northeast New Jersey Legal Services, Inc., attorneys for respondent (Edgar F. Espinosa and N. Anthony Palumbo, on the brief).

PER CURIAM

In this appeal, plaintiff Housing Authority of Passaic (PHA) asserts, as it did before the Law Division, Special Civil Part, that it had the sole discretion to determine to evict a tenant for drug-related activity of the tenant's family member and that the court improperly substituted its view for that of the PHA. Based upon our review of the record and applicable law, we reject the assertion of the PHA and affirm the determination of the Law Division because the PHA did not present proofs from which the Law Division could evaluate and confirm whether the PHA's decision to evict was a reasonable exercise of discretion.

The record established at trial is quite limited. The proofs focused upon whether defendant Crashell Jackson's eighteen-year-old son, Dwight, had moved out of defendant's apartment in early to mid-2008 or whether Dwight was still living in defendant's apartment when he was arrested and found guilty in municipal court of possession of marijuana on PHA property on August 21, 2008 and on March 12, 2009.

Based upon its review of the documentary evidence and pertinent testimony presented in support of the respective positions of the litigants, the court found that there was no evidence as to when PHA first learned of Dwight's arrests nor as to when Jackson became aware of her son's drug involvement. Nevertheless, the court was satisfied that, contrary to the assertions of defendant, Dwight was, in fact, living in defendant's apartment at the critical time period. The court also made the following findings:

In looking at the total picture here, I'm dealing with a woman who has been a tenant for 19 years. There's nothing to suggest that she was anything other than a good tenant. There have never been any issues. In fact, the testimony was that they never had a problem with her.

. . . .

I am also satisfied that [defendant] is totally innocent as far as any wrongdoing on the part of her son. The activity was not committed in her apartment. It was not committed in her building. There is nothing to suggest that she had any knowledge or involvement with this activity.

These considerations1 led the court to ask the question which lies at the heart of this appeal, namely: "is it automatic that [defendant] has to be evicted [following her son's drug-related activity] or do [f]ederal regulations permit or allow the [PHA] and the [c]ourt to exercise discretion and to assess in a way various factors in determining whether or not an eviction should take place . . .[?]" Posed differently, the court queried:

If an individual, who is sought to be evicted, is perhaps technically in violation of the lease because someone who was living with her committed drug offenses, does this mean that there is absolutely no discretion to be exercised? Or can the [c]ourt simply view all of the factors and simply place a burden upon the Housing Authority to show a good reason as to why that person should now be evicted?

Counsel for the PHA expressed the views, reiterated in this appeal, (a) that "the discretion is wholly with the [PHA]" and (b) that it is not "the [c]ourt's role to second guess . . . the determination of the [PHA]." The court gave the parties an opportunity to brief whether or not the court had the right to weigh the factors outlined in Oakwood Plaza Apartments v. Smith, 352 N.J. Super. 467 (App. Div. 2000). The factors include, among others, the degree at which the housing project suffers from rampant drug-related or violent crime, the seriousness of the offending action, and the reasonable steps taken by the leaseholder to prevent or mitigate the offending action. Id. at 471-72.

On the return date, the court rendered its decision from the bench. The court observed that the United States Supreme Court in Department of Housing & Urban Development v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002), and this court, in Long Branch Housing v. Villano, 396 N.J. Super. 185 (App. Div. 2007) and Oakwood, supra, 352 N.J. Super. at 474, have recognized that a violation by an innocent tenant of federally mandated lease terms does not automatically require the tenant's eviction. Rather, a violation of such a lease provision permits eviction after a suitable weighing of positive and negative factors. The court observed that a full consideration of a number of factors should be taken into account before the ultimate decision is made upon whether or not the tenant should be evicted.

Although the court says at one point that "the court basically can do this weighing process[,]" we do not understand it to mean the court, instead of the PHA, shall determine in the first instance the relevant factors that should influence the decision to evict. Instead, appropriate factors are to be taken into account by the PHA subject to review by the court under an abuse of discretion standard. In its discussing of the weighing process, the court quoted our opinion in Oakwood, where we said, "The federal statutory framework . . . does not permit a Section 8 landlord to act in an arbitrary or capricious fashion. Because no administrative procedure for eviction and challenges to eviction exists, the responsibility lies with the court in the first instance to determine whether a Section 8 [or PHA] landlord has exercised its discretion in a manner consistent with federal statute." Oakwood, supra, 352 N.J. Super. at 474-75.

At issue here is whether the PHA abused its discretion to consider all circumstances relevant to the particular case. 24 C.F.R. 966.4(l)(5)(vii)(B) (2011); Rucker, supra, 535 U.S. at 129, 122 S. Ct. at 1232-33, 152 L. Ed. 2d at 265; Villano, supra, 396 N.J. Super. at 195. As in Oakwood, supra, 352 N.J. Super. at 475-76, the record developed at trial does not permit an informed determination to be made because plaintiff's position has consistently been that the sole discretion is vested with the PHA, not with the court. Accordingly, it declined to adduce any evidence to support its decision to sue for possession of defendant's premises. Similarly on appeal, plaintiff argues it acted within its sole prerogative, pointing to a 2002 letter from associate general counsel at HUD interpreting HUD's view on evictions, which suggests that "there is no legal bar to PHA policy of evicting an entire household every time the relevant lease provision is violated."

We do not know from the record whether the PHA was acting pursuant to such a blanket enforcement policy or whether it did consider defendant's circumstances and simply declined to reveal to the court the factors it considered in the exercise of that discretion. As the PHA declined the opportunity to so inform the court, it was not unreasonable, under the unique circumstances of this case, for the court to have conducted a review of the relevant factors and to have concluded that an eviction was not warranted. See Cmty Realty Mgmt. v. Harris, 155 N.J. 212, 239 (1998). See also 24 C.F.R. 966.4(l)(5)(vii)(B); N.J.S.A. 2A:18-61.1.

Affirmed.

1 The court also noted that as of the time of the notice to quit, Dwight had been effectively removed, was no longer there, and there was no evidence whatsoever that there was any continuing or ongoing activity which in any way posed a threat to any other resident of the complex.