A recent court ruling found that County Executive Rob Astorino and Westchester County did not engage in housing discrimination. However, the court upheld HUD’s decision to withhold federal funding from the county due to the discrepancies over implementation of the affordable housing settlement. File photo
By Sibylla Chipaziwa
A Sept. 25 appellate court ruling found that the U.S. Department of Housing and Urban Development’s decision to withhold funds from Westchester County did not violate federal law.
The U.S. Court of Appeals in the Second District also found that HUD is therefore allowed to reallocate 2013 funds to other jurisdictions and withhold the remaining funds from 2011, approximately $750,000. The court also said that the 2014 funds—approximately $5 million in Community Block Development Grants—must be delayed from being reallocated by HUD until the county exhausts its right to seek additional legal review of the matter.
But the court’s ruling also made it clear that the county neither violated the Fair Housing Act, nor engaged in housing discrimination. And that ruling provided an opportunity for the Republican administration of Westchester County Executive Rob Astorino to claim victory in his ongoing battle with HUD.
Regarding the court’s ruling, Ned McCormack, communications director for the county executive, said that “it takes away any legitimacy from HUD’s claims that [the county’s] zoning is exclusionary.”
Circuit court judges Jose A. Cabranes, Reena Raggi and Richard C. Wesley said in their ruling, “We merely conclude that HUD’s decision—in the context of providing federal funds—to require the county to redo its zoning analysis and to develop strategies to overcome impediments to fair housing did not violate federal law” and added that “there has been no finding, at any point, that Westchester actually engaged in housing discrimination.”
Whether the county is guilty of discrimination is a separate, pending lawsuit, according to Holly M. Leicht, HUD’s regional administrator.
Leicht added that contrary to Astorino’s victory comments, the appeals court “in fact determined that…HUD has the authority to require prospective grantees to analyze their local zoning laws for discriminatory impact, and to reject those analyses when they are inadequate,” adding that HUD gave detailed reasons for its rejections and gave the county “multiple opportunities to make changes and resubmissions, but the county refused to do so.”
This issue over affordable housing in Westchester dates back to 2009, when former County Executive Andy Spano, a Democrat, reached a settlement with the federal government to provide 750 units of affordable housing in 31 Westchester communities within a seven-year timeframe under the threat of lawsuit.
Other requirements of the agreement included completing an analysis of impediments, AI—a review of factors affecting affordable housing development, such as a municipality’s zoning codes—and passing legislation that bans housing discrimination based on a person’s source of income, such as Social Security or Section 8.
The AI issue has led to a stalemate between the Astorino administration and HUD. To date, the county has submitted eight analyses of impediments, none of which have been accepted and approved by HUD. Ultimately, this led HUD to withhold federal funding and as a result, the matter ended up in the courts.
In July 2015, Westchester County appealed a district court decision to deny its motion for a preliminary injunction—a request that prevents a party from pursuing a particular course of action until a final decision is made—against HUD for withholding of federal funds. The county’s complaints were dismissed when the district court granted HUD’s summary judgment motion, deciding the case without a trial.
As a result, Westchester is no longing seeking additional funds from HUD for fiscal years 2015 through 2017. However, according to the decision, the county still has to meet the obligations of the 2009 settlement, including submitting an AI that HUD finds acceptable. Because of these circumstances, the court left open the question of how HUD would enforce the 2009 affordable housing agreement against the county and how the county could “end further supervision over its housing policies.”
McCormack told the Review that the next step is the county continuing to comply with the benchmarks in the 2009 settlement to build the 750 affordable housing units.
When asked if the quota would be reached in time—the end of 2016—he said, “We have plans to get there, and we’ve met all the benchmarks so far and our plan is to continue to meet them.”
According to McCormack, as of Sept. 30, 2015, out of the 750 affordable units to be built, 489 have financing and 442 have building permits.
In a statement, Westchester’s Board of Legislators Chairman Michael Kaplowitz, a Yorktown Democrat, said, “It is good to know that the Appeals Court recognizes that [the county’s] communities are not discriminatory.”
Kaplowitz added that the real issue was whether HUD had a right to withhold funds but also said that none of the eight AIs the county provided to HUD were acceptable.
“I urge the county executive and HUD to keep the dialogue open so that we can eventually satisfy this requirement of the 2009 settlement,” the legislator said.