HARRISBURG – The battle over a controversial ordinance enacted by the City of Pittsburgh that would mandate that landlords accept Section 8 housing vouchers from tenants has returned to the Commonwealth Court, which must now determine if a statewide law can justify the ordinance’s validity.
Apartment Association of Metropolitan Pittsburgh v. City of Pittsburgh is centered on a 2015 ordinance that now included “source of income” in the classes of protected fair housing. According to the original decision in the Commonwealth Court, an ordinance which imposed mandates on landlord participation in Section 8 housing, once voluntary, violated the City’s Home Rule Charter.
Undaunted, the City appealed to the Supreme Court of Pennsylvania to review the issue. The state’s top judiciary disagreed with the Commonwealth Court and on Sept. 9, found favor with the City of Pittsburgh’s appeal, vacated the lower court’s order and remanded it to the Commonwealth Court for reconsideration.
It did this due to events that took place this past summer, while the case was being reviewed. In a decision reached in Pennsylvania Restaurant and Lodging Association v. City of Pittsburgh, the Supreme Court examined a pair of Pittsburgh ordinances, the Safe and Secure Buildings Act and Paid Sick Days Act, to see if they violated the City’s Home Rule Charter.
Through a majority opinion released July 17, the Supreme Court ruled that if a statewide law exists that permits the City of Pittsburgh the authority to place such obligations on businesses, then the City would be allowed to enact ordinances on that same basis.
Given this information, the Commonwealth Court did not examine the factor of an underlying statewide law supporting an ordinance regarding Section 8 housing as found in Apartment Association of Metropolitan Pittsburgh v. City of Pittsburgh.
In the Sept. 9 decision from the Supreme Court, it said that the “Commonwealth Court is directed to include in its review the sections of the Second Class City Code and the Pennsylvania Human Relations Act cited by the City.”
Carl Engel of Cohen Seglias Pallas Greenhall & Furman in Philadelphia, said in the case of the Paid Sick Days Act, the Supreme Court did find a state law which would allow for such an ordinance – but said it did not for the Safe and Secure Buildings Act, and indicated that it remained to be seen if such state law existed which would hold up for the one regarding Section 8 housing.
“It’s always going to be a public policy issue here, so the Court is always going to look at the net effect – and they don’t say this in the opinion, but maybe you could argue that they were more inclined to pass the sick leave law because it kind of touches on families and seems to be more of a factor in people’s everyday lives than this disaster training [in the Safe and Secure Buildings Act],” Engel said.
Engel said he didn’t believe that there was an underlying state law that would support the Section 8 housing ordinance, and if there was not, the City’s case was not likely to succeed. But if there was, then the City would have a chance to prevail.
“It’s more of a factual issue than a legal interpretive issue, I believe. The problem is that this Section 8 case was decided before this Pennsylvania Restaurant and Lodging [Association] case, where the Supreme Court gave that guidance with respect to the two ordinances it decided. The Commonwealth Court was asked to reconsider its opinion in light of the Supreme Court’s new guidance that it issued,” Engel stated.
Engel said if there was not an underlying state law permitting Pittsburgh to enact its Section 8 ordinance, the Commonwealth Court would likely reverse its own earlier ruling.
“What the case is going to come down to is whether or not the Pennsylvania State Assembly gave Pittsburgh permission in some statute to do the Section 8 ordinance. I think that’s the way it’s going to unfold.”
On that very note, Pittsburgh’s Assistant City Solicitor Wendy Kobee explained that in a brief filed last week, the City cited both the Second Class City Code and the Pennsylvania Human Relations Act as state laws which would permit the Section 8 housing ordinance.
“Both of those laws are consistent with the Supreme Court's reasoning in the Paid Sick Days case,” Kobee said.
Kobee added the City hoped for a swift resolution to the matter, but noted the Apartment Association now has 30 days from the date the brief was filed, Nov. 21, to file its own reply brief and may request an extension. After the Commonwealth Court receives all the briefs, Kobee said the parties would then be notified if oral arguments were to be scheduled.
As to when those potential oral arguments may take place, Kobee stated it may be in late winter or early spring of 2020.
Supreme Court of Pennsylvania case 107 WAL 2019
Commonwealth Court of Pennsylvania case 528 C.D. 2018
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com