HARRISBURG – The Supreme Court of Pennsylvania found that a Pittsburgh ordinance which forbid landlords from denying rental units to tenants who use federal housing vouchers was not legal under the state’s Pennsylvania Human Relations Act and thus, was unconstitutional to business.
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, 2019, 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 in the summer of 2019, 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, 2019, the state 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, 2019 decision from the Supreme Court, it said that the Commonwealth Court was directed to include in its review the sections of the Second Class City Code and the Pennsylvania Human Relations Act cited by the City.
However, the Commonwealth Court totally disagreed with the City in its analysis of the law in its March 12, 2020 decision, authored by Commonwealth Court Judge Ellen Ceisler.
“Applying the Supreme Court’s reasoning in Pennsylvania Restaurant to the source-of-income ordinance, we conclude that the City has failed to satisfy the exception to the Business Exclusion of the Home Rule Law. There is an insufficient nexus between the cited provision of the Second Class City Code or the cited provisions of the PHRA and the Ordinance’s mandate that all residential landlords in the City participate in the federal Section 8 Program,” Ceisler said.
“The ordinance here broadly encompasses all property owners who operate residential rental businesses in the City. By defining ‘source of income’ to include federal housing assistance and Section 8 Program vouchers, the ordinance goes far beyond its intended objective of protecting City residents from housing discrimination. The City has now made a voluntary federal program mandatory for all residential landlords in the City.”
Ceisler stated as a result, the landlords in question will be “required to enter into contracts with the Housing Authority, accept rental payments from the Housing Authority, and comply with the numerous terms and conditions applicable to Section 8 program participants prescribed by the federal government.”
“As in Pennsylvania Restaurant, we conclude that ‘no statutory provision cited by the City comes close to authorizing such requirements.’ While the City’s enactment of the ordinance was undoubtedly well intended, we find that the ordinance places more than mere ‘incidental or de minimis’ burdens on private businesses in violation of the Business Exclusion. Accordingly, because we conclude that the City has not established express statutory authority to enact the source-of-income ordinance pursuant to Pennsylvania Restaurant, we affirm the trial court’s order.”
UPDATE
In an Oct. 21 ruling authored by state Supreme Court Justice David N. Wecht, Pennsylvania’s top court affirmed the earlier decision of the Commonwealth Court, finding that the ordinance was unconstitutional and precluded by the Home Rule Charter.
“The City is correct that the lower court’s analysis focuses upon the severity of the Section 8 burden on landlords to the exclusion of the critical question of statutory authority, at least by word count and frequency of reference. The City also is correct that, in doing so, the lower court’s analogy to our rejection of the Buildings Act is weakened by the undeniable fact that the Sick Days Act, too, created substantial and new responsibilities, both fiscal and administrative, for businesses,” Wecht said.
“But despite its digressions concerning the burdens of Section 8 compliance, the Commonwealth Court nonetheless recognized that, the affirmative burden having been established, only the question of express statutory authority remained. In that regard…we agree with the lower court that the PHRA cannot carry the Nondiscrimination Ordinance in the same way the Disease Prevention and Control Law carried the Sick Days Act.”
Wecht added that the “nexus between the PHRA’s intent and that of the Nondiscrimination Ordinance may be clearer than that between the Buildings Act and the statutes offered in its support, and arguably more resembles the connection between the Sick Days Act and the DPCL.”
“In both cases, the statutes invoked simply do not confer broad ordinance-making authority of the sort ventured by the City. Consequently, whichever of the Sick Days Act or the Buildings Act the Nondiscrimination Ordinance more closely resembles in its goals relative to the statutory authority submitted in its favor, it remains more analogous to the Buildings Act in the most critical way: The PHRA simply does not provide clear statutory authority to go as far as the City did with the ordinance. Consequently, the Nondiscrimination Ordinance must yield to the Business Exclusion,” Wecht said.
Supreme Court of Pennsylvania case 26 WAP 2020
Commonwealth Court of Pennsylvania case 528 C.D. 2020
Allegheny County Court of Common Pleas case GD-16-000596
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com