The opinion of the court was delivered by: CAHN
EDWARD N. CAHN, UNITED STATES DISTRICT JUDGE.
The question before the court is whether a local housing authority can deny an application for low-income housing assistance solely on the basis that the applicants are unmarried. I find that this practice is in conflict with the purposes of the United States Housing Act of 1937 ("USHA"), as amended, 42 U.S.C. § 1437f, and the regulations promulgated by the Department of Housing and Urban Development ("HUD") to effectuate the Act.
The plaintiffs, Cindy Hann and James Webster, are unmarried but are the natural parents of three children. The Housing Authority of the City of Easton ("HACE") is a state-chartered public housing agency as defined in 42 U.S.C. § 1437a(b)(6). HACE owns and operates low-income housing units as well as administers the Section 8 program for the City of Easton, Pennsylvania. Defendant Gary A. Smith is the Executive Director of HACE, and Defendant Catherine Benton is the Coordinator of the Section 8 program at HACE.
Under Section 8 of USHA, HUD enters into annual contribution contracts with Public Housing Agencies ("PHAs"), and the PHAs then subsidize the rent payments of low-income tenants. The PHAs are responsible for determining whether applicants are eligible for participation in the program. PHAs examine the financial eligibility and family status of applicants. Eligible applicants are issued either a Certificate of Family Participation or a Voucher. Once eligibility has been established and a Voucher or Certificate issued, the selection of tenants is left to individual landlords.
Hann and Webster were living together with their two minor children, ages four and one respectively,
when they and all the tenants in their apartment complex were given notices of eviction. Defendant Benton announced at a public meeting that HACE had procured authority from HUD to issue housing vouchers to eligible applicants who were going to be displaced by the mass eviction. The plaintiffs applied for assistance, but their application was rejected because HACE stated that "our Authority does not accept common-law relationships." Under a resolution passed by HACE's Board of Commissioners, HACE interprets the term "family" as used in USHA and HUD regulations to mean "two or more persons who will live together in the dwelling and are related by blood, marriage or adoption." Since Hann and Webster were not married, HACE refused to acknowledge they and their children constituted a family. HACE has stipulated that "the primary policy reason for Defendant HACE's 'family definition' policy embodied in Resolution 1980-1126 is that HACE's Board of Commissioners believes that cohabitation (unmarried adults of the opposite sex living together) is immoral."
The task before me is to determine whether defendant's restrictive definition of "family" is permissible. Defendants assert that the spirit of cooperative federalism embodied in USHA empowers PHAs to make their own judgments about what constitutes a family. The plaintiffs argue that the defendants have little authority to set eligibility requirements and, in any case, not enough discretion to define "family" so as to exclude the plaintiffs from participating in low-income housing.
The USHA Declaration of Policy states that the purpose of the Act is to provide housing to "families of low income." 42 U.S.C. § 1437. HUD has promulgated regulations interpreting the word "family":
Family. "Family" includes but is not limited to -- (a) An Elderly Family or Single Person as defined in this Part. (b) The remaining member of a tenant family, and (c) A Displaced Person.
24 C.F.R. § 812.2 (1988). The open-ended phrase, "includes but is not limited to," does little to advance the analysis. The definition, however, was not always so vague. HUD once attempted to clarify the ambiguity, but its efforts only resulted in a squabble with Congress.
In 1977 HUD published new regulations defining family which read:
Family means (1) two or more persons sharing residency whose income and resources are available to meet the family's needs and who are either related by blood marriage or operation of law, or ...