Court of Appeals Finds County Violated Housing Settlement

The U.S. Court of Appeals for the Second Circuit upheld a lower court’s ruling Friday that Westchester County violated terms of the 2009 affordable housing settlement.

The bluntly worded seven-page decision concluded that the county has been “engaging in total obstructionism” because it has failed on numerous occasions to submit an Analysis of Impediments (AI) that is acceptable to the Department of Housing and Urban Development (HUD) and the courts.

Under the terms of the agreement, Westchester was to have submitted an acceptable AI which adequately analyzed the impediments that municipal zoning laws present to fair housing choice within 120 days from the time the agreement was reached in August 2009.

The court also threw out the county’s arguments that HUD’s refusal to accept nine AIs submitted by the county is unreasonable and, therefore, it should no longer be required to submit one.

But Friday’s decision stated that the county’s assertions were without merit and warned it to comply with the terms of the agreement.

“The County would be well-advised to stop making excuses and to complete its obligations under the Consent Decree with diligence and dispatch,” the ruling stated.

Friday’s development came four months after County Executive Rob Astorino proclaimed that Westchester had complied with the terms of the agreement by having built or having building permits in place for 790 units of new affordable housing by the end of 2016, 40 more than had been required. He also mentioned that about 100 additional units are also in the pipeline.

Ned McCormack, the communications director for the county, said Friday in a statement that the administration was “surprised” by the court’s comments as Westchester has complied with the unit count and has been working with U.S. District Court Judge Denise Cote and the new housing monitor to wrap up the settlement.

“Since Judge Cote’s opinions last summer, the county has worked with the new monitor and consultant approved by the monitor to complete its two remaining obligations – the ‘One Community’ educational campaign and the Analysis of Impediments,” McCormack’s statement read. “Given that the One Community campaign is already under way and the monitor-approved consultant, VHB, has found no evidence of exclusionary zoning based on race, we are confident the remaining requirements can be met and the settlement concluded in a timely manner.”

Recently, VHB, prepared a 10^th AI for the county but that also was rejected by HUD. The Court of Appeals decision did not address the latest rejection.

Board of Legislators Chairman Michael Kaplowitz (D-Somers) said the ruling amounted to a “judicial smack down” of the county and its arguments.

Although the court also found that the county violated the settlement because it failed to quell community opposition to Conifer Realty’s controversial 28-unit affordable housing project in downtown Chappaqua, Kaplowitz said the AI is the central issue and must be addressed by Astorino or Westchester risks severe fines and penalties potentially totaling millions of dollars.

Also, HUD or the courts could potentially force the county to build additional units if it is fails to comply with the settlement, he said.

Westchester lost close to $25 million in federal Community Development Block Grant (CDBG) from 2011 to 2014, money that had been withheld for lack of compliance.

“The worst is not even the money that’s been lost, the worst case is the money that could be potentially lost in the future,” Kaplowitz said.

He said he believes Astorino may be hoping that he can eventually convince HUD Secretary Ben Carson or even President Donald Trump to be more sympathetic to the county’s plight.

“That’s a gamble, and unfortunately, that gamble is with great stakes being played with taxpayer money,” Kaplowitz said.

Kaplowitz, whose district includes the Town of New Castle, said he was not concerned about the court’s finding regarding the Conifer project in Chappaqua because it is on track to be built. There were delays because approvals were needed from the state Board of Review and the MTA and a site remediation plan to clean up the land was required.

New Castle town officials have consistently voiced their opposition to the project, arguing that the location on Hunts Place is a poor location for housing because its between the Metro-North tracks and the Saw Mill Parkway.