Can an out-of-state entity administer Idaho's federal Section 8 project-based housing contracts, and which Idaho entities can serve the whole state?

Plain-English summary

Senator Dean Mortimer asked Attorney General Lawrence Wasden two related questions about who can administer Section 8 project-based housing contracts in Idaho. The AG concluded that only Idaho-statute housing authorities qualify, and only the Idaho Housing and Finance Association (IHFA) has statewide jurisdiction.

The first question was whether an out-of-state entity could serve as Idaho's project-based contract administrator. To do that role, an entity must meet the federal definition of a "public housing agency" under the United States Housing Act of 1937. The opinion concluded that in Idaho, the only kind of entity that qualifies is a "housing authority," which is a creature of Idaho statute. An out-of-state entity simply cannot be an Idaho housing authority. So the answer was no.

The second question was which Idaho entities, beyond IHFA, could operate statewide. The opinion found that city housing authorities are generally limited to operating within city limits plus a five-mile zone. County housing authorities operate within the county but typically cannot operate inside any incorporated city within the county. Only IHFA, by separate statute, has jurisdiction across the entire population of Idaho.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The federal Section 8 project-based program subsidizes private rental housing for low-income tenants by paying the difference between a contract rent and the tenant's contribution. The U.S. Department of Housing and Urban Development (HUD) administers the program through public housing agencies (PHAs) that hold the project-based contracts.

Idaho's housing-authority statutes create three tiers of agencies: the statewide Idaho Housing and Finance Association (a quasi-governmental successor to the Idaho Housing Agency), city housing authorities, and county housing authorities. Each operates within statutory geographic limits. The federal definition of "public housing agency" cross-references state law, so an entity that is not an Idaho statutory housing authority cannot meet the federal definition for purposes of administering Idaho project-based contracts.

Common questions

Q: Why couldn't HUD just designate an out-of-state administrator?
A: HUD's authority to designate a contract administrator runs through the federal "public housing agency" definition. That definition requires status under state law, so HUD cannot bypass the state-law definition.

Q: Could two Idaho housing authorities partner to cover an area neither alone reaches?
A: The opinion didn't address inter-authority cooperation, but Idaho law generally permits joint exercise of governmental powers under statutory frameworks. A workable structure would have to keep each authority within its own statutory geography.

Q: Is the Idaho Housing and Finance Association a state agency?
A: It is a quasi-governmental, self-supporting entity created by statute. The opinion treats it as the only Idaho entity with statewide jurisdiction over project-based contract administration.

Q: What happens to housing in unincorporated areas?
A: County housing authorities cover unincorporated parts of their county, and IHFA can also operate there. Cities inside the county are typically excluded from county-authority jurisdiction.

Citations and references

Statutes:
- United States Housing Act of 1937, as amended (federal)
- 42 U.S.C. § 1437a (public housing agency definition)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion12-2.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

ATTORNEY GENERAL OPINION NO. 12-2

To:

The Honorable Dean Mortimer
Idaho State Senate
7403 S. 1st E.
Idaho Falls, ID 83404
Per Request for Attorney General's Opinion

You have requested an Attorney General's Opinion regarding whether an out-ofstate entity may operate as an Idaho project based contract administrator. 1 You also
ask what Idaho entities, other than the Idaho Housing and Finance Association, may
operate as a project based contract administrator throughout the entire State of Idaho.
This opinion addresses those questions.
QUESTIONS PRESENTED

1.

Under Idaho law, mayan out-of-state entity operate as a project based contract
administrator in Idaho?

2.

What Idaho entities, other than the Idaho Housing and Finance Association, may
operate as a project based contract administrator throughout the State of Idaho?
CONCLUSIONS

1.

To serve as a project based contract administrator, an entity must meet the
definition of a "public housing agency" under the United States Housing Act of
1937, as amended. In Idaho, the only type of entity that qualifies as a public
housing agency is a "housing authority," which is a creature of Idaho statute.
Because an out-of-state entity cannot qualify as a housing authority in Idaho, it
does not meet the definition of a "public housing agency", and, therefore, may not
operate as a project based contract administrator in Idaho.

1 "Project based contract administrator" is a term defined by the United States Housing Act of
1937, as amended, and refers, in part, to entities that administer federal housing subsidies under Section
8 of the Housing Act.

P.O. Box 83720, Boise, Idaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suit 210

The Honorable Dean Mortimer
Page - 2

2.

Housing authorities created by Idaho cities or counties are empowered to
operate only within their limited boundaries. A city housing authority generally
may operate within its city limits plus five miles, and a county housing authority
may operate within the county, excluding any city located inside the county. The
Idaho Housing and Finance Association, on the other hand, has statutory
authority to serve the entire population of Idaho.
BACKGROUND

For over 30 years, the Idaho Housing and Finance Association (“IHFA”) has
served as the U.S. Department of Housing and Urban Development’s (“HUD”) only
project based contract administrator (“PBCA”) in Idaho. On February 29, 2012, HUD
announced a Notice of Funding Availability (“NOFA”) for the Project Based Contract
Administrator Program for the Administration of Project Based Section 8 Housing
Assistance Payments Contracts.2 To receive funding under the NOFA, the applicant
must fall within the definition of a “public housing agency.”
The question has arisen whether a housing agency of another state may serve
as a PBCA in Idaho. HUD has stated in its NOFA that it will consider out-of-state
applicants only if it fails to receive an application from a legally qualified in-state
applicant. If HUD receives an application from a legally qualified in-state applicant,
HUD will reject the out-of-state application. Assuming IHFA applies, HUD will consider
it and will not consider any out-of-state applicants.
LEGAL STANDARDS
1.

United States Housing Act of 1937

In section 1441 of the United States Housing Act of 1937, as amended by the
Housing and Community Development Act of 1974 (“Housing Act”), Congress explains
that the United States has a shortage of safe, decent and affordable housing for lowincome families. See 42 U.S.C. § 1441. To help address this problem, HUD is
empowered to enter into annual contributions contracts with public housing agencies to
administer the Housing Act’s Section 8 housing program. Section 8 is a housing
subsidy program created to help low-income families obtain decent, safe and sanitary
dwellings, while also promoting economically mixed housing. See 42 U.S.C. § 1437f
and 24 C.F.R. § 882.101.
The Housing Act defines a “public housing agency” as “any State, county,
municipality, or other governmental entity or public body (or agency or instrumentality
thereof) which is authorized to engage in or assist in the development or operation of
low income housing.” 42 U.S.C. § 1437a(b)(6). Similarly, HUD regulations define a
“public housing agency” as “[a]ny State, county, municipality or other governmental
entity or public body (or agency or instrumentality thereof) which is authorized to
2

The NOFA is published on HUD’s website at www.hud.gov.

The Honorable Dean Mortimer
Page - 3

engage in or assist in the development or operation of housing for low-income
Families.” 24 C.F.R. § 882.102.
2.

Idaho Housing Authorities and Cooperation Law

Finding that Idaho lacks safe and sanitary housing for low-income3 families and
declaring that “insanitary and unsafe dwelling accommodations” encourage the spread
of disease and crimes and constitute a menace to the health, safety, morals and welfare
of Idahoans, in 1967, the Idaho Legislature enacted the Housing Authorities and
Cooperation Law, title 50, chapter 19, Idaho Code. Section 50-1905 of the Housing
Authorities and Cooperation Law provides:
In any city of the state of Idaho, there may be created an independent
public body corporate and politic to be known as a housing authority,
which shall not be an agency of the city; provided, however, that such
authority shall not transact any business or exercise its powers hereunder
until or unless the governing body of the city, by proper resolution, shall
declare . . . that there is need for an authority to function in such city.
A city housing authority’s area of operation is limited to the city and the area
within five miles of its territorial boundaries, but may not operate within the jurisdiction of
another city’s housing authority or another county’s housing authority. See Idaho Code
§ 50-1903(g). Within its area of operation, a city housing authority may, among other
things:
1.
2.
3.
4.
5.
6.
7.

8.

Contract with other housing authorities for services;
Prepare, carry out, acquire, lease and operate housing projects;4
Contract for the furnishing by any person of services, privileges, works or
facilities for a housing project;
Lease or rent any dwellings, houses, buildings or facilities embraced in
any housing project;
Investigate into living, dwelling and housing conditions and into the means
and methods of improving such conditions;
Conduct examinations and investigations at public or private hearings;
Make, purchase, invest in or acquire loans to persons of low income to
enable them to acquire, construct, improve, lease or refinance their
dwellings; and
Make, purchase, invest in or acquire loans for the acquisition,
construction, improvements, leasing or refinancing of land, buildings or
developments for housing for persons of low income.

See Idaho Code § 50-1904.
3
4

“Person of low income” is defined in Idaho Code § 50-1903(i).
“Housing project” is defined in Idaho Code § 50-1903(b).

The Honorable Dean Mortimer
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To help it carry out housing projects within its area of operations, a city housing
authority is authorized to “accept contributions, grants or other financial assistance from
the federal government.” Idaho Code § 50-1923. In addition, the authority may lease or
manage any housing project or undertaking constructed or owned by the federal
government. See id.
3.

Idaho County Housing Authorities and Cooperation Law

Codified in 1970, the County Housing Authorities and Cooperation Law, title 31,
chapter 42, Idaho Code, is similar to the Housing Authorities and Cooperation Law, title
50, chapter 19, Idaho Code, in that the Idaho Legislature enacted the County Housing
Authorities and Cooperation Law to combat the pervasive problems of insanitary and
unsafe housing conditions and to provide habitable accommodations for Idaho’s lowincome families. See Idaho Code § 31-4202. A county housing authority, which may
operate throughout the county except within the limits of a city, is an independent public
body corporate and politic and not a county agency. The governing body of the county
creates a county housing authority after determining that the need for one exists.
A county housing authority’s powers mirror those of a city housing authority. See
generally Idaho Code §§ 31-4204; 31-4207; 31-4209; 31-4213; 31-4214; 31-4216; and
31-4218. Significantly, a county housing authority is empowered to:
[B]orrow money or accept contributions, grants or other financial
assistance from the federal government for or in aid of any housing project
within its area of operation, to take over or lease or manage any housing
project or undertaking constructed or owned by the federal government,
and to these ends to comply with such conditions and to make such trust
indentures, leases or agreements as may be necessary, convenient or
desirable. It is the purpose and intent of this act to authorize every
authority to do any and all things necessary or desirable to secure the
financial aid or cooperation of the federal government in the undertaking,
construction, maintenance or operation of any housing project by such
authority.
Idaho Code § 31-4223.
4.

Idaho Housing and Finance Association

In 1972, the Idaho Legislature created IHFA to help address a myriad of social
and economic troubles, including, but not limited to, a shortage of decent housing for
Idaho’s low-income5 population. See Idaho Code §§ 67-6201 and 67-6202. IHFA is an
independent public body corporate and politic with extensive authority to operate

5

“Person of low income” is defined in Idaho Code § 67-6205(j).

The Honorable Dean Mortimer
Page - 5

throughout the state of Idaho. See Idaho Code § 67-6205(h). Some of IHFA’s more
significant public and essential government functions include:
1.
2.
3.

4.
5.
6.
7.
8.
9.
10.
11.

Cooperating with housing authorities6 throughout Idaho in the
development of housing projects;7
Executing agreements with any housing sponsor,8 mortgage lender,9
governmental agency or other entity;
Leasing, selling, constructing, financing, restoring, operating or renting any
housing projects, nonprofit facilities, houses, lands or buildings embraced
in any housing project;
Owning, holding and improving real or personal property;
Acquiring any real property to sell, lease, exchange or dispose of;
Investigating the housing conditions of its area of operations;
Providing research and technical assistance to eligible agencies to
develop low-cost housing;
Making and undertaking commitments to make mortgage loans to persons
of low income and to housing sponsors;
Acting as the designated housing resource clearinghouse in the state for
matters relating to affordable housing;
Coordinating the development and maintenance of a housing policy for the
state; and
Entering into agreements with and accepting grants, reimbursements or
other payments from the United States, the State of Idaho or any
municipality for furtherance of Idaho’s housing policies.

See Idaho Code § 67-6207. IHFA also has authority to publish rules regarding its
mortgage lending standards and the power to supervise housing sponsors and examine
the income of any Section 8 renter. See Idaho Code §§ 67-6207A to 6207D. Within its
area of operation, IHFA is authorized under title 67, chapter 62, Idaho Code, “to do any
and all things necessary or desirable to secure the financial aid or cooperation of the
state or federal government in the undertaking, construction, maintenance or operation
of any housing project, nonprofit facility, economic development project or agricultural
facility by IHFA.”

6

“Housing authority” is defined as a housing authority established under the Housing Authorities
and Cooperation Law, title 50, chapter 19, Idaho Code. Idaho Code § 67-6205(m).
7
“Housing project” is defined in Idaho Code § 67-6205(b).
8
“Housing sponsor” is defined in Idaho Code § 67-6205(p).
9
“Mortgage lender” is defined in Idaho Code § 67-6205(q).

The Honorable Dean Mortimer
Page - 6

ANALYSIS
I.
AN OUT-OF-STATE ENTITY MAY NOT SERVE AS A PROJECT BASED CONTRACT
ADMINISTRATOR IN IDAHO
The IHFA, along with Idaho’s city and county housing authorities, are
“authorized to engage in or assist in the development or operation of low income
housing.” 42 U.S.C. § 1437a(b)(6). As such, Idaho’s housing authorities are public
housing agencies under the federal Housing Act and may serve as PBCAs in Idaho.
The separate question is whether a public housing agency created by a foreign
state may serve as a PBCA in Idaho. The answer is no, because only IHFA and Idaho
city- and county-established housing authorities are authorized under Idaho law to act
as public housing agencies in Idaho. An out-of-state public housing agency’s authority
under a foreign state’s law is irrelevant. A foreign state may not authorize an out-ofstate public housing agency to exercise the powers that Idaho has granted to its
housing authorities. See Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306
U.S. 493, 501, 59 S. Ct. 629, 632, 83 L. Ed. 940 (1939). Furthermore, the State of
Idaho is under no obligation to accept the laws of another state, particularly when those
laws conflict with Idaho law or state policy. See Nevada v. Hall, 440 U.S. 410, 421, 99
S. Ct. 1182, 1188, 59 L.Ed.2d 416 (1979).
An out-of-state entity cannot meet the requirements necessary to qualify as an
Idaho housing authority because the entity is, obviously, not the IHFA, nor the creation
of an Idaho city or county. Consequently, without the ability to become a housing
authority in Idaho, it cannot meet the definition of a public housing agency in Idaho and
cannot serve as a PBCA in Idaho.
II.
ONLY THE IDAHO HOUSING AND FINANCE ASSOCIATION HAS STATUTORY
AUTHORITY TO OPERATE AS A PROJECT BASED CONTRACT ADMINISTRATOR
THROUGHOUT THE STATE OF IDAHO
An authorized Idaho housing authority may serve as a PBCA within its limited
area of operation, which is defined as the city and area within five miles of the city’s
territorial boundaries, Idaho Code § 50-1904(g), or as the entire county except within
the corporate limits of a city within the county, Idaho Code § 31-4204(g). Only IHFA,
however, has a defined area of operation that encompasses the entire state. See Idaho
Code § 67-6205(h).
No Idaho-created entity other than IHFA is statutorily qualified to implement
HUD’s Section 8 programs throughout Idaho. Every city- or county-established housing

The Honorable Dean Mortimer
Page - 7

authority, by definition, will be limited to the territorial limits of its establishing entity.
IHFA is the proper entity to continue serving as Idaho’s statewide PBCA under the
Housing Act.
AUTHORITIES CONSIDERED
1.

Federal Code:
42 U.S.C. § 1437a(b)(6).
42 U.S.C. § 1437f.
42 U.S.C. § 1441.

2.

Idaho Code:
Title 31, chapter 42.
§ 31-4202.
§ 31-4204(g).
§ 31-4207.
§ 31-4209.
§ 31-4213.
§ 31-4214.
§ 31-4216.
§ 31-4218.
§ 31-4223.
Title 50, chapter 19.
§ 50-1903(b).
§ 50-1903(g).
§ 50-1903(i).
§ 50-1904.
§ 50-1904(g).
§ 50-1905.
§ 50-1923.
Title 67, chapter 62.
§ 67-6201.
§ 67-6202.
§ 67-6205(b).
§ 67-6205(h).
§ 67-6205(j).
§ 67-6205(m).
§ 67-6205(p).
§ 67-6205(q).
§ 67-6207.
§ 67-6207A to 6207D.

The Honorable Dean Mortimer
Page - 8

3.

Federal Regulations:
24 C.F.R. § 882.101.
24 C.F.R. § 882.102.

4.

U.S. Supreme Court Cases:
Nevada v. Hall, 440 U.S. 410,99 S. Ct.1182, 59 L.Ed.2d 416 (1979).
Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S.
Ct. 629, 83 L. Ed. 940 (1939).
DATED this 31 st day of May, 2012.

LAWRENCE G. WASDEN
Attorney General

Analysis by:
STEPHANIE GUYON
Deputy Attorney General