Aponte-Rosario, et al v. Jackson, et al

Filing 920100728

Opinion

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var WPFootnote1 = ' Plaintiff-Appellants, Arcadio Aponte-Rosario, Mirta Colón-Pellecier, and Iris Margarita Aponte-Marrero, (collectively,\
Appellants), filed the present case as a class action suit. Class\
certification was never granted as the district court dismissed all\
of Appellants\' claims.\
'

var WPFootnote2 = ' 42 U.S.C. § 1437p(b)(2) provides: \
              "The Secretary shall disapprove an application [for\
demolition or disposition] . . . if the Secretary\
determines that (1) any certification made by the public\
housing agency under that subsection is clearly\
inconsistent with information and data available to the\
Secretary or information or data requested by the\
Secretary; or (2) the application was not developed in\
consultation with-- (A) residents who will be affected by\
the proposed demolition or disposition; (B) each resident\
advisory board and resident council . . . that will be\
affected by the proposed demolition or disposition; . .\
. ." (emphasis added).\
'

var WPFootnote3 = 'The primary statutory criteria for demolition of a public\
housing project are: (i) that the project is obsolete as to\
physical condition, location, or other factors, making it\
unsuitable for housing purposes; and (ii) no reasonable program of\
modifications is cost-effective to return the public housing\
project or portion of the project to useful life. 42 U.S.C. § 1437\
p(a)(1)(A). Appellants have not challenged the PRPHA\'s\
certification that Las Gladiolas met the criteria for demolition.\
'

var WPFootnote4 = '  During a March 11, 2002 meeting with residents, the PRPHA\'s\
plans for demolition were discussed. The minutes of this last\
meeting, however, were not submitted to the district court.\
'

var WPFootnote5 = 'In November 2005, Aponte filed an administrative complaint\
before HUD challenging the alleged unlawful actions taken by the\
Commonwealth defendants and requesting HUD\'s intervention. At the\
time the briefs were filed in this case, HUD had not officially\
responded to Aponte\'s administrative complaint. \
'

var WPFootnote6 = 'The issue, however, was raised by this court at oral argument\
and the parties filed supplemental letters under Rule 28j\
discussing whether a private right of action exists.\
'

var WPFootnote7 = 'In an order issued on February 7, 2007, the district court\
denied HUD\'s Federal Rule of Civil Procedure Rule 12(b) motion to\
dismiss Appellants\' claims for failure to state a cause of action\
against HUD. In its motion, HUD argued that the decision to\
approve the PRPHA\'s application for demolition was committed to the\
Secretary\'s discretion and was thus unreviewable pursuant to\
section 701(a)(2) of the APA. The district court, however, never\
considered whether Appellants had a valid claim under APA section\
702, which provides a cause of action for any "person suffering\
legal wrong because of agency action, or adversely affected or\
aggrieved by agency action within the meaning of a relevant\
statute. . . ." 5 U.S.C. § 702.\
'

var WPFootnote8 = 'The regulation that was in effect when the PRPHA submitted its\
application for demolition provided that the public housing\
authority\'s application for demolition should include "[a]\
description of the PHA\'s consultations with tenants and any tenant\
organizations . . . with copies of any written comments which may\
have been submitted to the PHA and the PHA\'s evaluation of the\
comments." 24 C.F.R. § 970.8 (2005). \
'

var WPFootnote9 = 'Approximately eighty Las Gladiolas residents attended the April\
2001 hearing; twenty-nine residents attended the March 2002\
hearing; thirty-one residents attended the March 2003 hearing; one\
resident attended the March 2004 hearing; and six residents\
attended the March 2005 hearing.\
'

var WPFootnote10 = 'Aponte testified at the April 2, 2001, March 27, 2002, and March\
28, 2003 hearings and stated his opposition to the proposed\
demolition. He also acknowledged that some residents favored\
demolition. \
'

var WPFootnote11 = 'The minutes show that Aponte questioned the agency\'s explanation\
that rehabilitation or remodeling was not feasible due to budgetary\
constraints. \
'

var WPFootnote12 = 'In his testimony at the 2002 annual hearing, Aponte explained\
that a group of residents requested and was granted a meeting with\
the Secretary of the Department of Housing of the Commonwealth of\
Puerto Rico, Ileana Echegoyen, to discuss demolition.\
'

var WPFootnote13 = 'The record shows that residents voiced their opposition to\
demolition before a legislative committee and they also enlisted\
the help of the School of Social Work of the University of Puerto\
Rico in submitting alternative proposals to the PRPHA. The PRPHA\
also established a support center that provided information and\
counseling on demolition and relocation. However, the record does\
not reveal whether the center was established prior to the filing\
of the PRPHA\'s application for demolition.\
'

var WPFootnote14 = 'Appellants argue there is a genuine issue of material fact as\
to whether the PRPHA consulted with the resident organization Las\
Gladiolas Vive. Appellants, however, have not offered any evidence\
showing that Las Gladiolas Vive is a resident advisory board or\
residents\' council that should be consulted under\
section 1437p(b)(2). Instead, they claim they are not required to\
offer proof at this stage in the proceedings regarding the\
organization\'s existence. Appellants\' conclusory and unsupported\
assertion is insufficient to overcome the Commonwealth defendants\'\
motion for summary judgment. Martínez-Rodríguez v. Guevara, 597\
F.3d 414, 419 (1st Cir. 2010). Moreover, the record shows that the\
PRPHA met with the established residents\' council of Las Gladiolas\
I and II prior to submitting the application for demolition. \
'

var WPFootnote15 = 'Appellants ground their constructive demolition claim on a\
series of cases that recognized a private right of action for\
constructive demolition under a repealed version of section\
1437p(d), which required HUD approval before a public housing\
authority could "take any action to demolish or dispose of a public\
housing project." United States Housing Act of 1937, amended by\
Pub. Law No. 100-242, § 121(d), 101 Stat. 1815 (1988). Courts\
applying the former § 1437p(d) framework held that neglect of a\
development could establish a de facto demolition claim. See,\
e.g., Tinsley v. Kemp, 750 F. Supp. 1001 (W.D. Mo. 1990); Concerned\
Tenants Ass\'n of Father Panik Village v. Pierce, 685 F. Supp. 316,\
321 (D.Conn. 1988). In 1998, the Quality Housing and Work\
Responsibility Act eliminated the requirement of prior HUD\
Secretary approval. Pub. Law No. 105-276, § 531(a), 112 Stat.\
2461, 2570 (1998). However, the regulation that was in effect when\
the PRPHA filed its application for demolition, 24 C.F.R. § 970.12,\
53 Fed. Reg. 30984 (1988) (repealed, October 24, 2006), stated that\
a Public Housing Authority (PHA) may not take any action to\
demolish a building without prior HUD approval. Similarly, the\
current regulation, 24 C.F.R. § 970.25 (effective November 24,\
2006), requires a PHA to obtain HUD approval prior to taking any\
action to demolish a public housing unit. We need not decide\
whether a right of action for constructive demolition exists under\
the applicable regulations. As the district court did, we assume\
that such an enforceable right exists.\
'

var WPFootnote16 = 'Aponte declared under oath the following: \
              The living conditions in Las Gladiolas are very far from\
being sanitary and decent. Before 2001, when the process\
of relocation started, all the apartments received\
satisfactory ratings on the annual inspections. Since\
2001 the condition of the 4 towers has deteriorated\
rapidly. The vacated apartments are filled with debris,\
dirty water, and old clothes left there by the previous\
tenants. Overall, most apartments have broken sinks and\
water filtrations [sic]. The complex is experimenting\
[sic] an infestation of plagues that include rats,\
cockroaches, mosquitoes and bees. There has been almost\
no efforts to fumigate, only one, but it was only a few\
apartments. The handrails are rotting, there is a\
deficient illumination of the premises (especially in\
common areas) and the storage rooms on every floor are\
filled with debris and dead animals. The parking area\
has no illumination and the grass around it is not\
trimmed as it should be. The sewers constantly overflow,\
the recreation areas for the children are completely\
abandoned and vandalized, and the basketball courts are\
semi-painted [sic]. . . . Out of the ten (10) elevators\
only two (2) are partially working. It is getting worse\
and worse with the passing of time. It was not like this\
before they decided to implode the complex. \
'

var WPFootnote17 = 'In his deposition testimony, the Director of the PRPHA, Mr.\
Carlos Laboy-Díaz, recognized that as of 2007, the PRPHA had\
received complaints from residents regarding problems with the\
buildings\' elevators and water system and complaints regarding\
security issues in Las Gladiolas. Mr. Laboy explained that the\
PRPHA had expended funds to repair the elevators and to fix\
problems with the water system. He also explained that in 2005,\
security cameras were installed.\
'

var WPFootnote18 = 'Given that Appellants failed to shoulder the burden of showing\
that a triable issue exists as to their de facto demolition claim,\
we need not examine whether the district court abused its\
discretion in admitting and considering the maintenance expense\
reports of Las Gladiolas submitted by the Commonwealth defendants \
which do not appear to have been properly authenticated as required\
by Federal Rule of Civil Procedure 56(e). See Carmona v. Toledo,\
215 F.3d 124, 131 (1st Cir. 2000) ("To be admissible at the summary\
judgment stage, documents must be authenticated by and attached to\
an affidavit that meets the requirements of Rule 56(e)." (citations\
and internal quotation marks omitted)).\
'

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