planned to conduct HQS inspections by the end of this fiscal year. Id. at 93-94.
d. Fire Safety
Although Mr. Smith's sampling method was questionable, his investigation demonstrated that at least some aspects of CHA's fire prevention and warning systems were not adequate. Smith found some hard-wired alarm systems were inappropriately wired through circuit breakers; other detectors were broken or missing. Smith, Tr. 5/3/93 at 93-96, 98. However, there was no evidence that inappropriately wired systems were not functioning properly.
The majority of battery-operated detectors inspected by Smith did not operate; some of these detectors had roaches inside. Some residents may have removed the batteries to prevent false alarms because of this situation. Id. at 96. Smith estimated that approximately 80-85% of the units in the small sample of units he investigated had missing or inoperative smoke detectors. Smith, Tr. 5/4/93 at 42. The apartments in Chester Towers had heat detectors instead of smoke detectors, and fire extinguishers at Chester Towers were in cabinets that could not be readily opened. Smith, Tr. 5/3/93 at 96-99. Some fire walls in basement and maintenance areas had holes in them. Id. at 103.
The CHA/HUD maintenance staff repairs smoke detectors on tenant request. Collins, Tr. 5/5/93 at 34. Of approximately 3,100 work orders in the three months prior to trial, only 23 were for broken, inoperable, or missing smoke detectors. Collins, Tr. 5/12/93 at 39. Collins has instructed his staff to replace or repair smoke detectors if they notice them missing or inoperative while working in a unit. Collins, Tr. 5/5/93 at 34-35. CHA/HUD relies on Chester housing inspectors to notify it if detectors are incorrectly located, but Collins did not know of any unit that had failed an inspection for that reason. Id. at 35-36. CHA/HUD was to inspect its smoke detectors within a month-and-a-half of trial during its HUD-mandated annual inspection. Id. at 36-37.
e. Lead-Based Paint
There was some lead-contaminated paint used at Lamokin Village and McCaffery Village. There was a lead abatement study recommending abatement at Lamokin Village on window sills, kitchen walls, closet shelf supports, interior door jams, baseboard quarter moldings, external handrails, lentils, entrance door headers, stair stringers and risers. Collins, Tr. 5/5/93 at 71. The study recommended testing or abatement at McCaffery Village on kitchen walls, stairwell walls, window sills, living room walls, closet shelves, exterior door casings, lentils, and handrails. Id.
Upon written notification accompanied by laboratory test results that a child under age 7 had an elevated lead blood level, CHA would either test the unit for lead or move the child's family to a lead-free unit. Def. CHA Ex. 41. If CHA/HUD chose to test the unit and found lead, CHA/HUD would abate the lead in the unit within fourteen days. Id. At time of trial, CHA/HUD defined an elevated blood lead level as 20 micrograms per deciliter rather than 25 micrograms per deciliter required by HUD regulations. Watts, Tr. 5/12/93 at 124-25.
Collins stated that he had been notified of only two children with elevated blood lead levels. Collins, Tr. 5/5/93 at 82. The director of the City of Chester's Lead Poisoning Prevention Program was aware of only one child with an elevated blood lead level living in a CHA unit. Odgen, Tr. 6/15/93 at 178.
The MROP proposals for Penn and Bennett include lead-based paint abatement. Watts, Tr. 5/12/93 at 107-07. The Comprehensive Grant ("Comp Grant") funding for Lamokin and Bennett also includes funds for lead-based paint abatement; however, abatement may not be completed until 1997. Id. at 192-93.
As of trial, CHA/HUD had nearly completed testing vacant units at Lamokin Village and McCaffery Village for lead-based paint; CHA/HUD planned to complete testing at Lamokin Village, McCaffery Village, Penn, and Bennett by the end of 1993. Watts, Tr. 5/12/93 at 124, 127. There was no evidence of large amounts of flaking or peeling lead-based paint or large numbers of children with elevated blood lead levels;
on this record, it would not be necessary to move people out of units containing lead-based paint forthwith. Ewall, Tr. 5/11/93 at 164; Todd, Tr. 5/10/93 at 140-42, 178-80. The risk from lead-based paint could be managed until the units undergo modernization or reconstruction. Todd, Tr. 5/11/93 at 166.
Although there was asbestos in CHA buildings, most of the asbestos was located in boiler rooms, common building basements, or crawl spaces; only a small amount was present in residential areas. Todd, Tr. 5/11/93 at 154, 163. Most of the asbestos was not friable; the small amount of potentially friable asbestos on the ceilings of units at Chester Towers did not pose an immediate danger to residents. Id. at 159-60, 175-77. There was no evidence of asbestos in air samples; defendants' expert believed that sampling would have detected insignificant asbestos fiber levels. Id. at 173-74. The asbestos tiles present in some units did not pose an immediate threat to resident health. Id. at 174-75.
The asbestos at CHA did not require immediate removal. Id. at 159-60, 169-70, 172. CHA/HUD planned to conduct asbestos testing at Penn and Bennett as part of the MROP process. Watts, Tr. 5/12/93 at 101-02.
In April, 1992, approximately 173 families were living in units that CHA/HUD considered too small for them. Brown, Tr. 5/6/93 at 132-37. CHA/HUD identified thirty-five "severely overcrowded families." Cayford, Tr. 6/14/93 at 165-66. CHA considered a family to be "severely overcrowded" if the family needed two additional bedrooms according to standard guidelines suggested by HUD and adopted by CHA. Henderson, Tr. 5/6/93 at 74-75.
CHA/HUD changed its Section 8 Administrative Plan to give priority to severely overcrowded families; CHA then mailed letters informing the thirty-five severely overcrowded families of the availability of Section 8 certificates and encouraging them to apply. Cayford, Tr. 6/14/93 at 166-67. Section 8 certificates entitle families to appropriately sized units in subsidized housing. Id. at 167. "Overcrowded families" that were not "severely overcrowded" were not invited to apply for Section 8 certificates. Henderson, Tr. 5/6/93 at 86. Seventeen of the severely overcrowded families applied for Section 8 certificates. Cayford, Tr. 6/14/93 at 167. Four families failed to comply with verification requirements; thirteen families were issued Section 8 certificates. Id. CHA/HUD sent these thirteen families a list of potential landlords in the area. Id. at 167-68.
CHA/HUD has rehabilitated or is in the process of rehabilitating eight four-bedroom units for occupancy by severely overcrowded families. Id. at 168. Every family requiring four bedrooms has been offered a four-bedroom unit, but some families have chosen not to accept the units offered. Id.
At time of trial, seven families remained on CHA/HUD's severely overcrowded list; two of these had applied for Section 8 certificates. Id. at 169. The families remaining on the severely overcrowded list and others considered severely overcrowded in the future will not be moved into larger units until completion of part of the modernization process. Id. at 169-70. CHA/HUD planned to create additional large units in the comprehensive modernization and reconstruction of CHA units. Henderson, Tr. 5/6/93 at 81.
4. Modernization Plans
In 1992, HUD approved CHA applications for funds to improve conditions at CHA. On September 17, 1992, HUD approved $ 5,011,325 in Comp Grant funds, A.R. at 29713-14; in 1993, CHA/HUD received $ 5,800,000 in Comp Grant funds and was told that figure was an estimate of the amount it would receive for each of the next five years. Watts, Tr. 5/12/93 at 111. On September 24, 1992, HUD approved CHA's MROP applications for $ 13,337,548 to renovate Penn and $ 22,556,265 to renovate Bennett. A.R. at 28906-07, 28902-03. The remainder of a previous 1988 allocation will provide approximately $ 2,200,000 in addition to reconstruct Penn. Watts, Tr. 5/12/93 at 123.
Although plans for reconstruction of Penn and Bennett were not final at the time of trial, CHA/HUD clearly was planning "phased" reconstruction. Pls.' Ex. 87 at 6, 10. Residents will be relocated within the development to vacate entirely one or more buildings; when the empty buildings have been reconstructed, tenants will be moved there and then vacant unrehabilitated buildings will be available for reconstruction. Nutt-Powell, Tr. 5/11/93 at 59-61. Replacing plumbing or wiring systems, or reconfiguring units by demolishing walls, cannot be performed while the buildings are occupied. Id. at 61. Using this phased approach, reconstruction at these developments is expected to take three-and-a-half to four-and-a-half years, id. at 59; Watts, Tr. 5/12/93 at 90-91; however, it is not possible to guarantee that the reconstruction will be completed even then. Nutt-Powell, Tr. 5/11/93 at 131.
Architecture and engineering ("A & E") firms have been selected for the reconstruction efforts at Penn and Bennett. Watts, Tr. 5/12/93 at 78-79. Ella Thompson and Yvonne Carrington, presidents of the tenant associations at Penn and Bennett, participated in the selections of these firms and were satisfied with the firms selected. Id. at 70-79. At time of trial, CHA/HUD believed that HUD approval of the A & E contracts was imminent. Id. at 80. After approval of the A & E contracts and notice to the firms, the A & E firms were to complete research and prepare schematics within six months. Id. at 92. The schematic designs were to be approved approximately 45 days thereafter. Id. Actual preparations of plans, specifications, and bid documents was expected to take an additional 90 days, followed by a 45 day period for reviewing bids. Id. CHA/HUD planned to put construction proposals out to bid within one year of the date of trial. Id.
CHA modernization plans for Lamokin Village include installation of a new heating system, new site lighting, major site work including storm water collection systems, upgrading kitchens, removal of asbestos in boiler rooms, and lead-based paint testing and abatement. Def. CHA Ex. 1 at 11. Plans for McCaffery Village include repair of sanitary and steam line leaks under the buildings, major site changes to control storm water, lead-based paint testing and abatement, increased exterior lighting, and site control through fencing and landscaping. Id. at 13. Plans for Chester Towers include repairs to heating systems and controls, improvements in site security, installation of smoke detectors, and phased replacement of bathrooms and kitchens. Id. at 8. There was no evidence that modernization at those developments would require those buildings to be vacant during the modernization process.
Assuming continuing yearly Comp Grant funding from HUD of $ 5.8 million per year, these funds will cover the costs of modernization for Lamokin and Chester Towers in six years and for McCaffery in seven years, Nutt-Powell, Tr. 5/11/93 at 83, but there is no certainty that the work will be completed within this time. Id. at 131. A few A & E contracts have been signed for the modernization of these projects; however, more contracts for design work will be necessary before CHA/HUD can spend funds on physical repairs and modernization. Id. at 182-83.
5. The ACC
The ACC is a contract between HUD and a PHA by which the PHA agrees to undertake certain obligations in return for HUD funding. Section 101 of the ACC states, "Each Project shall be undertaken in such a manner that it . . . will be developed and administered to promote serviceability, efficiency, economy, and stability and to achieve the economic and social well-being and advancement of the tenants thereof." Section 201 of the ACC between CHA and HUD requires CHA to:
at all times operate each project (1) solely for the purpose of providing decent, safe, and sanitary dwellings (including necessary appurtenances thereto) within the financial reach of Families of Low Income, (2) in such manner as to promote serviceability, efficiency, economy, and stability, and (3) in such manner as to achieve the economic and social well-being of the tenants thereof.
A.R. at 24240. Section 209 of the ACC states, "[CHA] shall at all times maintain each Project in good repair, order, and condition." A.R. at 24243. Subsection 510(B) of the ACC states, "Nothing in this Contract contained shall be construed as creating or justifying any claim against the Government by any third party other than as provided in subsection (A) of this Sec. 510." A.R. at 24286. Subsection 510(A) allows certain bondholders and the local housing authority to sue the Government to enforce the provisions of the ACC. Id.
Section 501 of the ACC states, "Upon the occurrence of a Substantial Default . . . the Local Authority shall, at the option of the Government either (a) convey to the Government title to the Projects as then constituted . . . or (b) deliver possession to the Government of the Projects as then constituted." A.R. at 24280. Section 502 requires CHA to deliver possession of the projects on demand by the Government upon a substantial breach of the ACC. Id.
Subsection 503(A) of the ACC states that the Government, after acquiring title or possession of the projects under sections 501 or 502, shall reconvey or redeliver the projects to the local authority as soon as practicable either after the Government is satisfied that all substantial breaches or defaults under the ACC have been cured and the projects will be administered in accordance with the ACC, or after the termination of the obligation of the Government to make annual contributions to the local authority. Id.
1. Subsection 1437p(d)
Plaintiffs argue that CHA is liable under § 1437p for de facto demolition of CHA public housing units. Plaintiffs also argue that HUD is liable under 42 U.S.C. § 1437p for de facto demolition of CHA public housing units as the oversight agency charged with enforcing § 1437p. Subsection 1437p(d) states: "A public housing agency shall not take any action to demolish or dispose of a public housing project or a portion of a public housing project without obtaining the approval of the Secretary and satisfying the conditions specified in subsections (a) and (b) of this section." Subsection 1437p(a) states in relevant part:
(a) . . . The Secretary may not approve an application by a public housing agency for permission . . . to demolish . . . a public housing project or a portion of a public housing project unless the Secretary has determined that--