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Hinneberg v. Big Stone County Housing and Redevelopment Authority11/23/2005
the portability feature modifies a housing authority's local preference to a degree, Congress mitigated the effect of portability by specifically allowing housing authorities to impose durational residency requirements like the one at issue here. 42 U.S.C. § 1437f(r)(1)(B)(i); see also 24 C.F.R. § 982.353(c)(2)(ii).
In fact, the legislative history of § 1437f(r)(1)(B) shows that Congress intended to authorize housing authorities to restrict access to its funds by nonresidents:
This [portability] system has also led to instances of waiting list shopping where families that reside in areas with long waiting lists, shop the waiting lists in surrounding areas. When they find a shorter list, the family will place their name on the shorter list and upon receiving assistance in this new area will use such assistance in the jurisdiction where the family resides, without ever living in the new area that supplies the assistance. This waiting list shopping has resulted in some small agencies being unable to assist local residents.
Another problem * * * is the effect of the difference in fair market rents between the originating area and the receiving area * * * further undercutting the number of local families the originating agency can serve.
H. R. Rep. No. 102-760, at 90-91 (1992).
Hinneberg counters that the proposed accommodation would create a very limited rule that only requires the proposed accommodation in individual cases where an applicant establishes that her disability prevents her from meeting the residency requirements. But Big Stone County HRA must face the likelihood that the grant of this accommodation to Hinneberg would encourage other similarly situated disabled nonresident applicants to request the same accommodation from the Big Stone County HRA. See DeBord, 126 F.3d at 1106 (recognizing that the cumulative effect that the proposed accommodation would have on the defendant made it unreasonable); Smith & Lee Assocs., Inc. v. City of Taylor, 13 F.3d 920, 931-32 (6th Cir. 1993) (noting unreasonableness is determined by the cumulative effect that all similar accommodations would have on the defendant, not just by the effect that the one individual case before the court would have). If granted, such requests could impair Big Stone County HRA's ability to restrict the portability of its vouchers and, ultimately, could reduce Big Stone County's ability to serve the needs of its own residents, including those with disabilities.
Hinneberg also argues that portability is "fundamental" to the structure of the program. But the Section 8 funding structure and the legislative history of section 1437f(r)(1)(B) persuade us that Big Stone County HRA's residency policy is also fundamental to the Section 8 program. In fact, by authorizing housing authorities to condition portability on satisfaction of a residency requirement, it appears that Congress views residency as a more fundamental element of the program. Therefore we conclude that Big Stone County has satisfied its burden of showing the proposed accommodation would result in undue hardship.
Affirmed; motion to strike granted.
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