Aponte-Rosario v. Vila, Civil No. 06-1578CCC.

591 F.Supp.2d 130

Arcadio APONTE-ROSARIO, Mirta Colon-Pellicier, Rosanna De-Leon-Rivera, Iris Margarita Aponte-Marrero, Luz Elena Ramos Ayala, on behalf of themselves and all others similarly situated, as residents of Las Gladiolas Public Housing Project, Plaintiffs v. Honorable Anibal Acevedo VILA, Governor of the Commonwealth of Puerto Rico, Honorable Jorge Rivera, Secretary of Housing of the Commonwealth of Puerto Rico, Carlos Laboy, Director of the Puerto Rico Public

Housing Administration, Honorable Alphonso Jackson, Secretary of the United States Department of Housing and Urban Development, Michael Colon, Field Office Director and Olga Saez, Public Housing Director of the Office for Puerto Rico/Virgin Islands of the United States Department of Housing and Urban Development, All in their Official and Representative Capacities and American Management, Inc., Defendants.

Civil No. 06-1578CCC.

United States District Court, D. Puerto Rico.

December 10, 2008.

Myrta Morales-Cruz, Esq., for Plaintiffs.

Roberto J. Sánchez-Ramos, Secretary of Justice, Comm. of Puerto Rico, Jose Enrico Valenzuela-Alvarado, Esq., Mariliz Vázquez-Marrero, Esq., Commonwealth of Puerto Rico, Rosa Emilia Rodríguez-Veléz, United State Attorney, San Juan, PR, Agnes I. Cordero, Assistant U.S. Attorney, for Defendants.

OPINION AND ORDER

CARMEN CONSUELO CEREZO, District Judge.

Before the Court is the amended Motion for Summary Judgment filed by defendants Anibal Acevedo-Vila, Governor of the Commonwealth of Puerto Rico (Commonwealth), Jorge Rivera, Secretary of the Department of Housing of the Commonwealth and Carlos Laboy, Director of the Public Housing Administration of the Commonwealth (the Commonwealth defendants) on March 4, 2008 (docket entry 161) and plaintiffs' amended opposition filed on March 24, 2008 (docket entry 166). Although the amended dispositive motion did not include the corrections set forth in the January 29, 2008 Order (docket entry 157), so as not to further delay proceedings this ruling shall make the necessary modifications regarding exhibit numbers and/or statements of uncontested material facts (SUMF). The Court notes that movants did comply with the January 29, 2008 Order (docket entry 158) regarding the submission of specific evidence, except for the minutes of the March 11, 2002 meeting of the Puerto Rico public housing authority and the Las Gladiolas Residents Council which was purportedly a part of enclosure A-3 of exhibit 4-G (the application for demolition approval).

Plaintiffs' amended opposition, as did its previous opposition (docket entry 100), abandoned the alleged violation of 42 U.S.C. § 1437c-1(e) based on the claim that the Commonwealth defendants did not develop its five-year and annual Agency Plans in consultation with a Resident Advisory Board(s)(RAB). Both the original version and the amended opposition identify and discuss the issues as the existence of a de facto demolition of the Las Gladiolas public housing complex in violation of 42 U.S.C. § 1437p(d) and the lack of consultation in the development of the application for demolition approval under 42 U.S.C. § 1437p(b)(2). The amended Motion for Summary Judgment addressed plaintiffs' § 1437c-1(d) action at pages 29 through 40 and listed as supporting amended SUMFs those numbered 22 through 41. All of these provide information regarding the annual Agency Plans presented since the year 2001 by the Puerto Rico Public Housing Administration (PRPHA) which include a proposal for demolition for Las Gladiolas I and II through the year 2005. Plaintiffs not only ignored the entire discussion on this subject; they also responded to these particular SUMFs by repeatedly stating, on ten occasions, that "[w]hat is at issue is whether the complex is in good maintenance and operating conditions and the lack of consultation to residents in the development of the application for demolition, as required by 42 U.S.C. § 1437p." See amended Opposing Statement of Material Facts (docket entry 167), at items 22, 23, 24, 25, 26, 27, 29, 30, 31 & 37. Other similar references used in dismissing their § 1437c-1(d) are the following: "[i]n the case at hand, what is at issue is the lack of consultation to residents in the development of the application for demolition, as required by 42 U.S.C. § 1437p" (see id., at items 28, 35, 36, 41 & 42) and "... the requirements for the development of a Public Housing Administration (PHA)'s Annual Plan are not at issue in the case at hand." Id., at item 39. Plaintiffs having relegated their § 1437c-1 claim as an irrelevant matter, the Court shall adjudicate the § 1437p consultation claim and the de facto demolition issue.

I. Claim under 42 U.S.C. § 1437p(b)(2) for the alleged development of the application for demolition without resident consultation.

The statute provides:

The Secretary shall disapprove an application submitted under subsection (a) of this section if the Secretary determines that—

....

(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, if any, of the project (or portion thereof) that will be affected by the proposed demolition or disposition; and

(C) appropriate government officials.

On February 2, 2006, the U.S. Department of Housing and Urban Development (HUD) issued its approval for the PRPHA's request for the demolition of two buildings housing 296 units at Las Gladiolas I and of two buildings housing 380 units at Las Gladiolas II. The applications were both received on April 28, 2005 and supplemental information was received through November 17, 2005. The HUD approval of the PRPHA's proposal for demolition of the two projects sets forth the reasons or justifications for the demolitions, the process for relocation of the remaining residents, resident consultation, board resolution, government consultation, replacement housing and transition funding. The subject matters relevant to a § 1437p resident consultation claim are resident consultation and board resolution. The specific residents organizations listed as having been consulted are Las Gladiolas I Residents' Board (LGIRB) and Las Gladiolas II Residents' Board (LGIIRB). The date taken into account regarding resident consultation are five public hearings held throughout Puerto Rico to present the Agency's Annual Plans for Fiscal Year 2004-2005 to the residents of public housing and a February 22, 2005 meeting of the PRPHA with LGIRB, LGIIRB and Las Gladiolas' residents to discuss the proposed demolition. The application package submitted by the PRPHA for the proposed demolition included meeting notices, sign-in sheets and meeting minutes. These were submitted to the Court by movants in compliance with the Order requesting the three enclosures included in the application package to HUD. The HUD approval mentions, under the heading "Board Resolution," that "[a]s required by the Regulations, the PRPHA's Board of Commissioners approved the submission of the application for demolition of the proposed property on April 15, 2004 via Resolution Number HUD-50077."

Movants have provided supporting documents to show that the resident consultation acknowledged by HUD in its February 2, 2006 approval indeed took place, thus negating plaintiffs' allegation of lack of compliance with § 1437p(b)(2) requirements. The consultation advanced by plaintiffs was conducted through the public hearings on the agency's Annual Plans during a five-year period commencing on April 2, 2001 and ending on March 30, 2005, as well as a February 22, 2005 assembly of residents held at Las Gladiolas housing project covered basketball court organized by the PRPHA. See Exhibit 4G of Commonwealth defendants, Enclosures A-2 on Annual Plans and A-1 on February 2005 meeting.

Enclosure A-2 reflects that each of the five Annual Plans from 2001 through 2005 included the corresponding to a "planned application" for a demolition of the total developments at Las Gladiolas I and II. "Planned application," as reflected in the HUD form, constituted an earlier status than that of "submitted pending approval" and "approved." Each Annual Plan contained a planned-for submission date and a timeline for activity consisting of an actual or projected start date and a projected end date. The 2001 Annual Plan included the activity description for Las Gladiolas I and II, among other housing projects, with a planned-for submission date of August 2001, an actual or projected start date of August 2001 and a projected end date of February 2002. The April 2, 2001 public hearing on the Annual Plan was notified by the PHA in at least two of the principal local newspapers. The newspaper notice gave the dates and locations for the different municipalities in which the 2001 Annual Plan would be discussed and informed the exact location where the proposed Annual Plan of the PHA was available for examination. Eighty persons from Las Gladiolas I and II signed the attendance sheet of such meeting. Mr. Arcadio Aponte, one of the plaintiffs who voiced his opposition to the demolition then and in later years, testified before PHA officials including the Administrator. He acknowledged that there were residents for and against the demolition of Las Gladiolas. At page 67 of the April 2, 2001 transcript he stated the reasons for his opposition and that of other residents for whom he served as spokesperson. He mentioned that the School of Social Work of the University of Puerto Rico had assisted them in organizing a united front of residents (Tr., p. 61) and that Las Gladiolas I and II residents who were against the demolition had organized under the name Residents in Action and were planning to register as a corporation in the Department of State. Tr., p. 67. He mentioned that, among the reasons for rejecting the demolition were the good location of the housing project, which made...