Federal housing monitor Jim Johnson, center, who is overseeing the 2009 affordable housing settlement between Westchester County and the federal government, met with county legislators on Sept. 10 to discuss his recently completed Huntington analysis. Photo/Chris Eberhart
By CHRIS EBERHART
Westchester County did not submit a completed and accepted analysis of impediments to the federal Department of Housing and Urban Development by a Sept. 15 deadline, which was a requirement of the 2009 affordable housing settlement.
As a consequence, Westchester is now out $15.6 million in federal grant money.
The 2009 settlement, made between HUD and then Democratic County Executive Andy Spano, required the county to build 750 units of affordable housing in Westchester over a seven-year period; complete source of income legislation—which bans discrimination against potential renters and home buyers based on their source of income—and complete an analysis of impediments, which is a review of the barriers affecting the development of affordable housing.
The county is on pace to fulfill the 750 units requirement.
Source of income legislation was passed last year. The analysis of impediments was nearly complete, but was still missing the Huntington analysis, which determines if there is exclusionary zoning in a given area based on race.
The administration of current County Executive Rob Astorino, a Republican, submitted eight analyses of impediments to HUD, all of which were rejected. HUD said the Huntington analyses that were submitted were incomplete.
As per paragraph 32 of the 2009 settlement, the analysis of impediments “must be deemed acceptable by HUD,” and, since it has not been deemed acceptable, HUD said the county is not in compliance with the 2009 settlement and has withheld millions of dollars in federal grant money.
Earlier this year, the county lost a 2011 grant worth $7.2 million. Now the 2012, 2013 and 2014 grant money—worth a combined $15.6 million, earmarked for affordable housing and revitalizing low-income neighborhoods—has been lost and reallocated by the federal government before the start of the new federal fiscal year, which starts on Oct. 1. Although the new fiscal year doesn’t begin until the first of October, the reallocation process takes place in mid-September.
The deadline to send the analysis of impediments to HUD was Monday, Sept. 15, just one week after the county Board of Legislators received the last piece of the analysis of impediments—the Huntington analysis, which was completed by court-appointed federal monitor Jim Johnson, an attorney from Debevoise and Plimton who was tasked with overseeing implementation of the settlement, as a favor to the county after “productive and amicable” discussions with the Board of Legislators.
Two days later, chairman of the Board of Legislators Mike Kaplowitz, a Yorktown Democrat, called on Astorino to bundle Johnson’s analysis with the completed Berenson analysis—which determines if there is exclusionary zoning in a given area based on socioeconomic factors—along with the previously completed work done by the county and send it to HUD as a completed analysis of impediments before the deadline passes.
Astorino declined and outlined his reasons why in a letter to Kaplowitz.
In the letter, Astorino said the Huntington report was incomplete, the Berenson report was inaccurate and incorporating the monitor’s report would “completely undermine the principle of Home Rule since the county would be agreeing to turn over decision making on local zoning to a federal agency.”
The alternative route for Kaplowitz was to vote on and pass his proposed legislation that would send the information to HUD as a 17-member legislature, but he said didn’t have the 12 votes needed to override an anticipated veto from the county executive.
Kaplowitz said, “It was disappointing to lose the $15.6 million in 2012, ’13 and ’14 grant money, but there’s much more at stake with the overall 2009 settlement. We are working to avoid the settlement from being reopened, which could mean we have to build more [than 750] units, and leave us open for fines and more intercepted federal money for not being in compliance.”
He said if the county doesn’t comply with the settlement, the county could lose approximately $540 million, which was an estimate from 2009 when the agreement was first signed.
To put things in perspective, Kaplowitz said, the county receives $200 million in federal aid.
“If we lose that, ball game’s up at that point,” Kaplowitz said.
Legislator Catherine Borgia, an Ossining Democrat, blamed Astorino for putting the county in this situation.
“It’s a shame that we’ve reached this point where we’ve lost an incredible amount of aid that the people of Westchester deserve. The delay strategy and the uncooperative strategy of the Astorino administration has chosen to take over the years has had a direct financial impact on the county,” Borgia said. “And it’s based on stubbornness and pursuit of an ideology that doesn’t benefit the people of Westchester County.”
But legislative opinion about Astorino was split along party lines.
John Testa, a Cortlandt Republican, expressed his support for the county executive.
“Astorino has done everything HUD has asked him to do with eight submissions of analyses of impediments. And each new submission was based on a request from the previous submission. So, when one submission was handed in, HUD would say ‘you’re missing this.’ [Astorino] filled in that missing part and the next one would say ‘you’re missing this,’” Testa said. “The bar kept moving on the [Astorino] administration.”
Deadline or no deadline, the county and the municipalities involved will have to address the monitor’s report, which indicates there are six municipalities—Harrison, Larchmont, North Castle, Rye Brook, Lewisboro and Pelham Manor—that have exclusionary zoning based on the Huntington test.
According to the monitor’s report, the municipalities with exclusionary zoning under the Huntington standard either “perpetuate clustering by restricting multifamily or two-family housing to districts that have disproportionately high minority household populations” or “disparately impact the county minority household population by restricting the development of housing types most often used by minority residents.”
In a roundtable discussion with the Board of Legislators on Sept. 10, Johnson emphasized this report was “evidence” of exclusionary zoning, not “findings,” and what’s being presented is raw data without taking into account various zoning constraints or asking why the zoning code is configured as it is.
Johnson said the analysis of the data comes as part of step two, when the monitor talks with each municipality; this is just the beginning of the process. He said municipalities will have the opportunity to address him and “come forward with legitimate reasons that justify the current zoning provisions” with evidence to support their claims.
“If there are insurmountable environmental issues in that the infrastructure can’t support multifamily housing in the area, that could be a reason,” Johnson said.
Johnson and municipalities have been in talks to rectify zoning concerns stemming from his first report, released in September 2013, that analyzed zoning codes under the Berenson test. In last year’s report, seven municipalities were identified—Harrison, Pelham Manor, Croton-on-Hudson, Lewisboro, Ossining, Pound Ridge and the unincorporated Town of Mamaroneck—to have exclusionary zoning based on the Berenson test.
Since the report was released, municipalities have been working with the monitor to alter their zoning to allow for more affordable housing opportunities. Kaplowitz said all the municipalities have had discussions with the monitor with varying degrees of involvement.
The Town of Mamaroneck has been taken off the list of seven after altering its zoning code, and, according to the monitor’s report, Ossining and Pound Ridge “have made considerable progress in reforming their zoning codes to expand opportunities for affordable housing development.”