Code 6: Tenants who are "overcrowded," defined to mean living in an apartment with more than twice as many people as the number of bedrooms, see TSAP § III(B) at 4. Such transferees must choose their current project. However, if they remain on a wait list for more than two years at their project, transferees requiring a Larger Apartment may only chose a borough (and be certified to OCD); transferees requiring a Smaller Apartment may choose any project anticipating vacancies from the users guide.
Tenants required to travel more than 90 minutes due to change in work location or elderly who wish to move to an from a general population project to an elderly designated project.
At each of the projects, a waiting list is kept by apartment size. The waiting list is defined "as all of the applications and transfer requests awaiting rentals at each project." TSAP § VII(A) at 23. The waiting list is composed of applications and transfer requests that are "certified" to the project. If a certified applicant rejects an offer of an apartment more than two times, that applicant's request is deemed "dead."
When a vacancy occurs, the project manager notifies the Command Center.
If the Command Center has an applicant for the apartment, the project manager will assign the apartment to that applicant. If there is no applicant at the Command Center, the Command Center "releases" the vacancy to the project manger who will assign the apartment, in accordance with the TSAP-defined income guidelines, to the applicant with the highest priority and the oldest certification date.
For "Smaller Apartment" vacancies released by the Command Center, the project manager may offer the vacancies to applicants off the project waiting list. For "Larger Apartment" vacancies released by the Command Center, project managers will contact OCD and compare the intra-project transfer requests on the project waiting list with the borough-wide applications list pending at OCD. "The [Larger Apartment] shall be rented to the appropriate applicant, using the criteria of apartment size, 'Income Tier,' priority and date of certification, in that order." TSAP § VII(B) at 27.
C. Borrowing Applications from a Neighboring Project
The TSAP allows a project manager to "borrow" applications from a neighboring project, with the District Supervisor's permission, if there are no applications for "Smaller Apartments" or if there is a vacancy that all the certified applicants for that apartment size have refused. TSAP § VII(A) at 28-29. However, in the event the "borrowing project's tenant body is more than 30% white, OCD shall not select a project whose tenant body is also more than 30% white" from which to borrow applicants. TSAP § VII(A) at 29.
Pursuant to OCD's approval, the borrowing manager will request a list of all the applicants certified to the neighboring project who qualify for the appropriate vacant apartment size and mail a "canvass" letter to applicants on the list informing them that they may elect to have their applications transferred to the borrowing project. The letter "shall explain that applicants may have their applications remain at the original project without penalty." TSAP § VII(A) at 29.
D. Applications Outreach
In the event a project fails to attract sufficient applicants through Project Outreach, or cannot use Project Outreach because none of the neighboring projects have enough applicants on their own waiting lists, the TSAP provides that the District Supervisor shall request that such an under-subscribed project be included in the Applications Outreach Plan. The Applications Outreach Plan may also be used if the Department of Housing Applications determines that borrowing will not solve the project's need for applications or if in the next six months a project is likely to generate several unfilled vacancies.
The Applications Outreach Plan permits the Department of Housing Applications to poll its computer data base to locate applicants of the appropriate family size (and income levels for projects with income restrictions) from the under-subscribed project's borough list. Applicants identified by this method shall be canvassed by NYCHA to find out if they wish to be interviewed for the under-subscribed project. Applicants responding to the canvass letter agreeing to waive the right to select projects not included in the Applicants Outreach Plan shall be scheduled for an eligibility interview in the order in which their responses are received. Upon eligibility determination, such applicants will be certified to the outreach projects and will be processed with the other applications on the project waiting list. Applicants refusing certification to the outreach projects will have their applications returned the computer data base to await their interview under the regular new applicants procedure.
E. Tenanting New Projects
The three sentences constituting the entirety of the TSAP's provision for tenanting new projects are:
IX. Tenanting New Projects
Projects under construction shall be designated on the Interviewer's Guide as anticipating vacancies approximately six months prior to their scheduled opening date. In addition, prior to opening, new projects may be included in the Applications Outreach Plan set forth in Section VIII B above. After opening, projects shall be tenanted in accordance with the provisions of this Plan.
No other section of the TSAP identifies itself as relating to the tenanting of new projects.
V. The Pending Motion
On October 8, 1993, NYCHA moved this court for an order clarifying the Consent Decree filed with this Court on November 17, 1992. On October 19, 1993, the Davis Plaintiffs cross-moved this court to enforce the Consent Decree and the Government moved to enjoin NYCHA from proceeding with its plan for tenanting the Berry Street Project as set forth in its October 8, 1993 papers. On October 29, 1993 the United Jewish Organizations of Williamsburg, Inc., moved this court for leave to appear as amicus curiae. In anticipation of the ascension of Judge Leval to the Court of Appeals, this consolidated action and the pending motions were transferred to this Court on November 16, 1993, pursuant to Local Rule 13.
Oral argument on the motions was heard by the court on November 17, 1993. At that time, the court granted leave to United Jewish Organizations of Williamsburg to submit their amicus curiae brief.
Findings of Fact
Since the entry of the Consent Decree in November, 1992, NYCHA has built or is in the process of building four new projects: Berry Street, Sutter Avenue, Howard Park, and West Side Development Project. NYCHA's plans for tenanting one of these projects, Berry Street, has created the storm which has resulted in these proceedings. Berry Street, a newly constructed 150-unit low-rise public housing project located in the Williamsburg area of Brooklyn, is ready for imminent occupancy, and NYCHA intends to tenant it with both new applicants and transfer applicants from a unified waiting list arranged by priority code. Sutter Avenue project will consist of approximately 100 units and is expected to open in March 1994. It was listed in the Interviewer's Guide on October 12, 1993. Howard Park, a project with approximately 156 apartment, was listed in the Interviewer's Guide on November 24, 1992 and was opened in May 1993. West Side Development Project is restricted to the elderly. Because of an unexpected acceleration in its completion date, Berry Street was placed in the Interviewer's Guide on July 6, 1993, only four months prior to anticipated rent up.
On July 13, 1993, NYCHA issued a directive, General Memorandum 3468, to all its project managers to survey those applicants and transfer applicants who had been on their projects' waiting lists for two or more years. The memorandum advised project managers that every prospective tenant or transfer tenant needing a "Smaller Apartment" may request reassignment to the Waiting List of a project then appearing in the Interviewer's Guide or chose to remain on their own projects' waiting lists. Transfer tenants waiting on a project list for "Larger Apartments" were to be told that they could opt to be placed on a borough-wide waiting list and at the same time remain on their original projects' waiting list.
The NYCHA also included certain "deemed" transfer requests that had been on the intra-project waiting lists for more than two years. According to the 1980 Management Manual, project managers are to prepare overcrowded apartment transfer cards as soon as it becomes known that an apartment is overcrowded or underoccupied. The Management Manual also requires a tenant requesting a transfer to prepare and sign a tenant request for transfer form. Although transfer requests are supposed to be in writing, NYCHA project managers commonly prepared an intra-project transfer file card, as a result of an annual review of the tenants in the project, or oral or written request by a tenant. NYCHA contends that this practice is consistent with the definitions section of the Consent Decree which defines a transfer applicant to "mean any person or family who submits a written request for a transfer, or oral request that is corroborated by a notation, form, or other document in his or her tenant file." Consent Decree at § I, P 1(c).
Pursuant to this canvassing procedure, nearly 200 project managers reviewed their project waiting lists to determine whether new and transfer applicants on those lists for longer than two years wished to select a different project (for "Smaller Apartments") or be placed on a borough-wide waiting list (for "Larger Apartments"). All told, 9,417 families (8,119 tenant transfer applicant and 1,298 new applicants) who had been waiting on project waiting lists for more than two years were canvassed.
The racial composition of the 8,119 eligible tenant families awaiting transfer for more than two years was 51.5% Black, 34.9% Hispanic and 12.5% White. In contrast, currently only 6.5% of new applicants on the Housing Application Tracking System ("HATS") are White.
Of the 9,417 families, 8,136 required "Smaller Apartments" and 1,281 required "Larger Apartments." Of the total canvass, approximately 1,100 families responded positively, 3,450 requested to remain on their current waiting and 4,800 did not respond. Of the 1,100 families who responded positively 47% are White. Of those responding to the canvass seeking three and four-bedroom apartments, 40% are White. Of the 1,281 requiring "Larger Apartments," 446 (35%) requested to be placed on the borough-wide list. Of these 446, 45% are Black, 32% are Hispanic and 23% are White. Of the 611 "Larger Apartment" families waiting on project waiting lists in Brooklyn, 42% are Black, 42% are White and 16% are Hispanic. Of the 168 "Larger Apartment" families requesting to be placed on the Brooklyn borough-wide waiting list, 47% are White, 45% are Black and 8% are Hispanic.
According to NYCHA's plans, the likely racial composition of Berry Street is as follows:
Apartment Number of Number of Number of
Size Apartments Whites Black/Latino
1-bedroom n8 22 0 22
2-bedrooms n9 76(61) 5 56
3-bedrooms n10 46 12 34
4-bedrooms n11 6 6 0
150(135) 26 124
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