The Examiner

Housing Monitor: No. Castle Could Be Sued for Exclusionary Zoning

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North Castle is one of seven Westchester municipalities that the monitor overseeing the affordable housing settlement has suggested the Justice Department could sue for failing to comply with provisions of the agreement.

James Johnson, in his Third Biennial Assessment of Westchester County’s Compliance with the settlement, wrote in his 49-page report issued last Friday that the Justice Department “is encouraged to give serious consideration to bringing legal action” against North Castle and/or any of the other six municipalities because of possible continued exclusionary zoning.

Also listed were Croton-on-Hudson, Harrison, Lewisboro, Pelham Manor, Larchmont and Rye Brook.

Litigation against one of more of those municipalities should be considered as one of the recommended remedies for zoning deficiencies because the county has failed to complete an accepted Analysis of Impediments (AI), Johnson stated in his report.

The monitor also found that Westchester has failed to promote inclusionary zoning and provide incentives to promote adoption of the model zoning ordinance. Only 15 of the 31 mostly white municipalities that are part of the affordable housing settlement have approved the model ordinance, according to Johnson’s report. Lewisboro eventually adopted portions of it, but Yorktown Supervisor Michael Grace recently announced that his town might repeal the ordinance.

Johnson recommended that the federal court judge should order a remedial plan that forces Westchester to propose a consultant within 30 days of a court order who would prepare a valid AI; that the monitor has the discretion to accept or reject the county’s consultant and appoint a different consultant if the county’s choice is unsatisfactory; the consultant should submit an AI within 120 days of a court order; and for the county to provide incentives to those municipalities affected by the settlement to pass the model ordinance.

Suing one or more of the seven municipalities would be part of that remedial plan, Johnson said.

In a statement on Monday, County Executive Rob Astorino blasted Johnson for trying to control local zoning, saying his “level of overreach is breathtaking.” He also said that Johnson has failed to recognize the court has sided with the county in recent decisions, concluding that Westchester does not have discriminatory zoning.

“Now he is trying to put control of local zoning into the hands of an unelected consultant that he appoints,” Astorino said. “These are powers he does not have. They are not in the settlement. Westchester is in compliance with the settlement and will continue to defend its communities against this unprecedented overreach.”

North Castle Supervisor Michael Schiliro said Monday he had trouble understanding Johnson’s assertions in the report because during the past two years the town has adopted the model ordinance and incorporated provisions of the program wherever applicable, resulting in 25 affordable units. North Castle is the only municipality of the seven that has fully adopted the model ordinance.

Schiliro said he and other town officials met with Johnson extensively, including giving him a tour of the entire town, and submitted a detailed report addressing all of his concerns.

“I was disappointed by (the report),” Schiliro said. “We’ve spent a lot of time communicating with the monitor and never heard anything.”

He added that the town looks “forward to continuing a collaborative approach with the Monitor, but we do not agree with his recommendation to the Department of Justice.”

Board of Legislators Chairman Michael Kaplowitz said Astorino’s belligerence toward the monitor and his continued failure to make sure the county’s submits an acceptable AI is hurting Westchester.

Kaplowitz said if the pattern continues, Johnson and the federal government might continue to dog the county beyond this year with threats of litigation when the settlement should be finished.

“In that scenario the only winners are the lawyers and the only losers are the taxpayers,” he said.

Under the terms of the 2009 settlement the county is required to develop 750 units of new affordable housing in the 31 mostly white communities based on the 2000 census. Astorino said in his Apr. 21 State of the County address that at the end of 2015 the county was meeting or exceeding its benchmark.

Financing is in place for 649 units, 49 more than required, and 588 building permits are in place, 63 more than required. The county has exceeded the benchmarks each year since they began in 2011, he said.


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