409 Mass. 354 | Mass. | 1991
This case presents the question whether a regulation governing tenant selection by local housing authorities in connection with the Commonwealth’s “707 rental assistance program,” promulgated by the Secretary of the
A judge denied the prayer for preliminary injunctive relief. A second judge then allowed the parties’ joint motion to report the case on the merits without decision. A statement of agreed facts was included as part of the report to the Appeals Court. This court granted the parties’ joint application for direct appellate review. We now remand this case to the Superior Court for the entry of a judgment declaring 760 Code Mass. Regs. § 44.00 invalid and the entry of an injunction permanently restraining the defendants from enforcing those regulations.
General Laws c. 6A, § 2, establishes an Executive Office of Communities and Development serving directly under the Governor. That office is headed by a secretary pursuant to c. 6A, § 3. General Laws c. 23B, § 1, creates a “department of community affairs,” and provides that that department “shall be under the supervision and control of the secretary of communities and development.” The parties have stipulated that the defendant Secretary of the Executive Office of Communities and Development (hereinafter, the Secretary and the Executive Office are referred to collectively as EOCD) “is responsible for supervision and control of all local housing authorities and has authority to issue regulations governing their state-aided programs.” See G. L. c. 23B, § 6.
After the priority categories, the regulations provide that within each of the categories, certain preferences shall apply. 760 Code Mass. Regs. § 44.08 (2) (1989). The preferences are as follows: “(a) Veteran — for Chapter 707 housing in the following order: 1. families of Veterans with service connected disability; 2. families of deceased Veterans whose death was service connected; and 3. families of Veterans other than the above . . . (b) Local Resident, (c) Affirmative Action (if required).” The regulations then go on to provide guidelines for determining the affirmative action preference. 760 Code Mass. Regs. § 44.08 (3). The regulations as promulgated by EOCD contemplate that the preferences only apply within each priority category.
The plaintiff housing authorities correctly argue that, although EOCD has authority to issue regulations governing their State-aided programs, EOCD does not have authority
General Laws c. 121B (1988 ed.) governs housing and urban renewal. Sections 25-37 of c. 121B fall under the subheading, “Housing Programs,” and the statement of emergency in § 25 indicates that the statutory provisions within that subheading address “the clearance of substandard or decadent areas and the provision of housing for persons of low income.” Sections 25-37 are directed at renovating existing housing projects and constructing new ones in order to provide decent and affordable housing for persons of low income. See G. L. c. 121B, § 26 (j).
Sections 42-44A of G. L. c. 121B contemplate a different program. Those sections come under the subheading, “Rental Assistance Program.” The declaration of necessity in c. 121B, § 42, states as follows: “(e) [A] program of rental assistance operated through the housing authorities in the cities and towns would help end the undesirable concentration and segregation of families of low income, in separate, concentrated areas of our cities and towns and help give every citizen an equal opportunity to enjoy decent, safe and sanitary housing in a neighborhood of his own choice.” In connection with such a rental assistance program, G. L. c. 121B, § 44, provides that “[t]he requirements with respect to rentals and tenant selection for low-rent housing projects shall apply to units leased by a housing authority under the rental assistance program, except that (a) as between applicants, who need not be residents of the city or town, but shall be residents of the commonwealth who applied at the same time and are eligible for occupancy, preference shall be given in the selection of tenants to the following types of applicants: first to families with four or more minor dependents, then to families displaced by public action, then to elderly persons of low income, and then to handicapped persons of low income or families of low income of which one or more
A comparison of 760 Code Mass. Regs. § 44.08 with G. L. c. 121B, § 44, shows that, with reference to tenant selection for the rental assistance program, the statute requires that “preference shall be given” to categories of applicants that are defined wholly without reference to homelessness or risk thereof, while homelessness and risk of homelessness are dominant considerations with respect to the “priority categories” set up by the regulation. If, as the plaintiffs argue, the regulation’s “priority categories” are “preferences” within the meaning of the statute, there is clear conflict and the regulation cannot survive. However, if, as EOCD argues, priority categories distinguish applicants according to need, placing those equally in need in the same category, and “preferences” within the statutory meaning only operate within such categories in keeping with the priority-preference structure of 760 Code Mass. Regs. § 44.08, there is no conflict — at least there is no conflict that would invalidate the regulation’s priority categories. EOCD’s view is that the Legislature authorized EOCD to create by regulation priorities in tenant selection according to need, and reserved to itself only the determination of preferences within such categories with the result that there is no conflict between the statutory “preferences” and the regulation’s “priorities.”
In support of its position, EOCD points to language contained in G. L. c. 121B, §§ 32 and 34. Section 32 provides in relevant part that “[i]n the operation or management of state-aided low-rent housing projects an authority shall at all times observe the following requirements with respect to
We agree that it is unlikely that the Legislature intended the repeated word “preference” to have different meanings within the same statute. It does not follow from that fact, however, that the Legislature intended all the preferences created by G. L. c. 121B to operate only within previously created categories. It is true, as EOCD points out, that c. 121B, § 32, does provide for preferences within categories of need. However, c. 121B, § 44, clearly appears to create preferences without any such limitation. Nothing in § 32, it seems to us, suggests that the Legislature intended the word, “preference,” anywhere in c. 121B to have a different meaning from “priority” as those words are commonly used. The mere presence of both words in c. 121B, without more, is not enough to warrant the distinction in meanings or application for which EOCD argues.
We reject EOCD’s further argument that the provision in c. 121B, § 34, that EOCD “shall promulgate . . . regulations . . . which shall establish the order of priority governing the selection of tenants,” demonstrates a legislative intention to
We conclude that 760 Code Mass. Regs. § 44.00 is invalid because of its inconsistency with G. L. c. 121B, § 44. Therefore, we remand this case to the Superior Court for the entry of a declaratory judgment to that effect and for an injunction permanently restraining the defendants from enforcing 760 Code Mass. Regs. § 44.00.
So ordered.