1. Seven Pointers for Enforcing Reasonable Utility Allowances for Public and Assisted Housing Presented by: Roger Colton Fisher, Sheehan & Colton Belmont, MA 02478 April 2007

2. Pointer #1: Goal is not to show “wrong” but to show “unlawful.” Failure to take into account substantive requirements. Failure to “take into account” as opposed to failure to “consider.” –Examine relevant data. –Identify “facts found.” –Articulate connection between facts found and choices made.

3. Pointer #2: Know your nine mandatory factors Established by 24 CFR 965.505(d)(1) – (d)(9) Examples: –Climatic conditions (965.505(d)(2)). Affect more than heating/cooling allowances: see e.g., refrigerator consumption. –Physical condition of housing (965.505(d)(7)) Insulation levels degrade over time. –What usage is intended to be covered (965.505(d)(6)). Electricity usage: include “leaking” electricity. –Construction and design of housing unit (965.505(d)(4)). Thermal “bridges” and housing “leaks.”

4. Pointer #3: Know your two “Dorsey factors” In addition to the nine mandatory factors established by regulation, federal courts*** have imposed two additional mandatory factors: –A utility allowance must cover all consumption “not within the ability of the tenant to control.” –The distinction between a “necessary” and “luxury” usage should reflect “local usage and custom patterns.” ***Dorsey v. Housing Authority of Baltimore City, 984 F.2d 622 (1993).

5. Pointer #4: Know your judicially-imposed legal inferences. Inference #1: If Tenant consumption is routinely in excess of PHA utility allowances, an inference arises that the utility allowance is inadequate. Inference #2: If Tenant consumption is routinely in excess of PHA utility allowance, that excess is “material evidence” that: –The utility allowance is in noncompliance with the nine mandatory factors; or –The excess consumption is not within the ability of the tenant to control. To rebut inferences, the PHA must provide evidence of non- energy conservative behavior on part of the Tenant.

6. Pointer #5: Enforce the “safe and healthy environment” requirement. The statutory requirement that a utility allowance be consistent with a “safe and healthy environment” is not surplusage. Examples: –120 degree hot water temperature: consider impact on asthma prevention. –Lighting requirements: Consider IESNA standards.

7. Pointer #6: Know your utility rate structure. Utility rates are often based on block rates, with higher rates applying to higher “blocks” of usage. Utility rates generally include not simply a fixed customer charge and a per unit of energy charge, but miscellaneous “riders” and “taxes” (e.g., franchise fees). Water and sewer rates are related, but distinct rates that impose different financial obligations.

8. Pointer #7: Don’t’ forget your relief!

9. An Aside: Air conditioning is an entirely different animal. Distinguish between “air conditioning” and “cooling.” Know the law that favors granting an air conditioning allowance. Is air conditioning a “luxury” as measured by local usage and custom in your area? Consider asking for air conditioning as a “reasonable accommodation” for disabled (and aged).

10. Finally: A Challenge How to impose liability on the consultants who prepare inadequate utility allowances: –Eight gallons of hot water per person per day. –Failure to account for lack of insulation. –Two 40 watt bulbs per room for lighting. –No television, microwave, radio, or miscellaneous appliances.

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12. For more information, contact: roger@fsconline.com