days after notice was given. In light of our discussion in the next section, this statute, and the fact that the defendants gave 60 days notice to vacate, and gave notice not as a landlord but as a municipal government exercising its police powers, the plaintiffs did not have a reasonable expectation to remain in possession beyond the notice period and no compensable taking has occurred.
3. Reasonable Expectation of Continued Occupation in an Uninhabitable Rental Home.
Analyzing only the reasonableness of an expectation of continued occupation of a place unfit for human habitation yields the same result. Plaintiffs at one point argue that the properties were not unfit for human habitation until a subjective act of government declared them so. (Plaintiffs' Brief in Support at 28-30; Plaintiffs' Reply Brief at 5 n.1.) We do not agree, particularly on the facts of this case. Such a government declaration merely sets in motion the mechanism to condemn properties. The fact remains that the condition of the properties does not change upon such a declaration. The properties in issue did not have, inter alia, heat, sewer, kitchen or bath facilities prior to the Notices of Condemnation. These circumstances are so objectively violative of housing codes and community standards that there is no question that the properties are uninhabitable. See e.g., Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897, 906 (1979) (declining to hold that a determination of breach of implied warranty is dependant on proof of housing code violations; and discussing cases defining habitability in terms of "contemporary community standards"; "lack of Potable water supply to the home prevented its use as habitation").
We cannot conclude, given the condition of the properties and all other facts of this case, the laws governing the condition of such properties, and the generally accepted standards of acceptable living conditions in this area, that there could be a reasonable expectation, "a legitimate claim of entitlement", Board of Regents v. Roth, 408 U.S. at 577, to continued possession of properties such as these.
We sympathize with the unfortunate financial plight under which plaintiffs find themselves and recognize that they may not easily find adequate housing let alone housing equipped with many of today's amenities. Further, we recognize that it may appear that plaintiffs could be caught in an unfortunate cycle of having to rent sub-standard, sub-code housing and thus continually face the threat of condemnation. We do note, however, that this is not the case here, as there are programs available to assist the plaintiffs in securing adequate and acceptable housing, and in fact, such a program actually was used to allow plaintiffs to find housing that otherwise would be beyond their financial means.
We also note that plaintiffs have certain self-help remedies under Pennsylvania law, remedies which might be more effective than looking to government, or risking dependance upon local bureaucrats, for help, such as, inter alia, repair and deduct, rent withholding, suits in equity and or law. See e.g., 35 Pa. Con. Stat. Ann. § 1700-1; Pugh v. Holmes, 405 A.2d at 907-908. While plaintiffs' would like to be characterized as blameless with all fault to be placed upon the landlord and even the defendants, see, Plaintiffs' Brief in Support at 21-28, plaintiffs themselves must take some responsibility for the condition of the properties, particularly if their interest in remaining there is so strong. (See e.g., Plaintiffs' Brief in Support, at 22.) 68 Pa. Con. Stat. Ann. § 250.552-554 provides not only the landlord's duties and the tenant's rights, but also the tenant's duties which include, inter alia, observing all codes and regulations.
B. Development Act Relocation Expenses.
1. Interpretation of the Development Act.
To decide this issue, we are required to construe the Housing and Community Development Act. The Development Act contains a mechanism to provide assistance to low and moderate income persons who are displaced as a result of a Development Act assisted project. In order to receive a Community Development Block Grant ("CDBG"), 42 U.S.C.A. § 5304(d) requires the potential CDBG recipient to certify that an anti-displacement and relocation assistance program is in effect. Section 5304(d)(2) provides that "the residential antidisplacement and relocation assistance plan shall in connection with a development project assisted [with CDBG funds]
(A) in the event of such displacement, provide that -- (iii) relocation benefits shall be provided for all low or moderate income persons who occupied housing demolished or converted to a use other than for low or moderate income housing. . . ."
The City of Lancaster, a CDBG recipient, has certified and implemented an antidisplacement plan. Because CDBG funds were used to pay for the City of Lancaster's housing inspectors and related code enforcement activities, but no other CDBG funded activities with respect to the properties has occurred, the question we must decide is whether plaintiffs' displacement due to the defendants' code enforcement activities alone triggers relocation benefits.
The very language of this section conditions the payment of relocation benefits upon the displacement occurring in connection with a development project. Reference throughout the statute to "assisted activities" consisting of demolition, rehabilitation, or conversion of the properties to another use shows that a project is contemplated to be more than mere code enforcement. We conclude the statue does not require the payment of benefits when the displacement occurs solely as a result of code enforcement activities.
2. Department of Housing and Urban Development Regulations.
In addition, there are extensive regulations and commentary is sued by the Department of Housing and Urban Development ("HUD") implementing the Development Act. Since our interpretation of 42 U.S.C.A. § 5304(d) is the same as HUD's, and since the exact issue with which we are currently faced was raised by others in response to requests for public comment and is, therefore, addressed in the HUD commentary, we will allow ourselves to be guided by HUD's detailed and expert analysis of the issue.
On July 18, 1990, HUD published a final rule relating to relocation benefits and which amended, inter alia, 24 C.F.R. Part 570.496a. (55 Fed.Reg. 29296). This rule was intended to implement the revisions to § 104(d) of the Development Act, 42 U.S.C.A. § 3104(d), as contained in § 509 of the Housing and Community Development Act of 1987. (Pub. L. 100-242, Feb. 5, 1988). The preamble to the revised regulation, under the heading "II. Activities Subject to Section 104(d)", states that "the most frequently asked question was whether the section 104(d) requirements were triggered by CDBG-funded code enforcement activities." This is the very issue which we must address.
Although the preamble stated that code enforcement activity is not covered under this rule, it went on to state
Where CDBG assistance is used solely to pay the administrative costs of code enforcement (such as payment of the salaries of code enforcement inspectors who condemn buildings), and the resulting demolition or rehabilitation is privately funded, the statute does not mandate coverage, since section 104(d)(2) requirements are limited to displacement "in connection with a development project assisted under section 106 or 119."
Although the properties at issue herein were not demolished or rehabilitated, but simply remain vacant by choice of the landowner, the net effect is the same. While the code enforcement efforts resulted in the condemnation of the properties, the choice of the landlord not to effect repairs is the functional equivalent of privately funded demolition or rehabilitation. Thus, code enforcement alone does not trigger § 5304(d) relocation benefits.
Plaintiffs argue that the statute requires compensation when CDBG efforts lead to the conversion of low to moderate income housing to another use and stress that this, i.e., conversion to another use, has occurred in the instant case. We reiterate, however, that there is no activity involving CDBG funds which led to a conversion in the properties in the current case. At section "VII. Relocation Assistance Under Section 104(d) -- General Provisions", the preamble to the final rule states that a person must be provided with relocation assistance when that person is displaced as a direct result of the conversion to another use "in connection with an activity assisted" with CDBG funds. The only CDBG assisted efforts involved were code enforcement. No CDBG funds have been expended in furtherance of any project, which under the statute is clearly contemplated as being demolition, rehabilitation or other affirmative renewal or change program. Further, despite this conclusion, no CDBG funds have been used to retain the properties in their current condition. There simply has been no use of CDBG money, beyond the code enforcement efforts, such that we could find that there is a CDBG assisted project which has converted the properties to a use other than low/moderate income housing. The property owners' decision not to effect any repairs, particularly when they are not CDBG receipients, is not a conversion to another use.
IV. DISMISSAL OF THIS ACTION.
Plaintiffs' moved for summary judgment; defendants, did not cross move or otherwise seek to dismiss this action but sought a trial of this matter. Upon review of our analysis, however, we determine that plaintiffs have failed to state a claim and we will dismiss their action.
Although we are not determining a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), we have essentially accepted plaintiffs' statement of the facts and have reviewed all the evidence most favorably towards the plaintiffs. Plaintiffs' have also, by filing their motion for summary judgment, asserted that no issue of material fact is in dispute. Thus, we conclude that, taking all the undisputed material facts as presented by plaintiffs, and our analysis of the pertinent law (which was also when possible, we feel, construed in a manner more favorable towards plaintiffs) plaintiffs' have failed to state a claim. In the interests of economy and efficiency, the court and the parties should not be further burdened with this case and hence we will dismiss the action.
Based upon the foregoing reasons, we conclude that plaintiffs' motion for summary judgment will be denied. Further, we find that this case should be dismissed. Hence, an appropriate order follows.
AND NOW, this 10th day of July, 1992, upon consideration of Plaintiffs' Motion for Summary Judgment (Doc. #21) and the response thereto, IT IS ORDERED that the motion is DENIED.
IT IS FURTHER ORDERED that upon consideration of the facts and issues raised in said motion and our analysis of same, the above-captioned action is DISMISSED and the Clerk is directed to mark this matter "closed".
E. Mac Troutman, S.J.