March 16, 2012 -- Westchester County won a major victory Friday in its fight with the U.S. Department of Housing and Urban Development over the affordable housing settlement, when a federal magistrate ruled that the monitor in the case selected by HUD "erred in concluding that the County Executive violated the settlement."
County Executive Robert P. Astorino said the decision by the magistrate showed that HUD had clearly overreached in the demands it was trying to impose on the residents of Westchester. Read the full decision.
"My position from the beginning has been that the county will fulfill its obligations under the settlement, but it will not be bullied by the federal government into doing things that were never agreed to," said Astorino. "I have taken principled stands where I believe the government has overreached, and I am pleased and heartened that the magistrate's decision vindicates my actions."
In the case before United States Magistrate Gabriel Gorenstein, HUD and the monitor had argued that the 2009 housing settlement compelled Astorino to sign source of income legislation that would have required property owners to accept government vouchers as rental payments.
Astorino argued that the settlement only called for the county executive to "promote" source of income legislation "currently before the Board of Legislators" back in 2009 and that former County Executive Andrew Spano, who approved the settlement, met that obligation at that time.
Siding with Astorino's position, the magistrate wrote: "We conclude that the parties did not intend the county's duty to 'promote' obligated the County Executive to sign source-of-income legislation passed by the BOL."
The magistrate also said that Astorino was within his rights to veto source of income legislation that came before him in July 2010 and backed up his decision with case law stating: "Courts must abide by the express terms of a consent decree and may not impose supplementary obligations on the parties even to fulfill the purposes of the decree more effectively."
Gorenstein's opinion then goes on to state: "Accordingly, we conclude that the able Monitor erred in concluding that the County Executive violated the Settlement by vetoing the source-of income legislation enacted by the BOL."
Astorino vetoed the source of income legislation that came before him in 2010 calling it "hopelessly flawed."
"My decision was based on my belief that the legislation was a violation of basic property rights," Astorino said. "Landlords who want to accept federal vouchers are free to do so, but they should not be required to do so. This was a governmental intrusion that would have had the unintended consequence of actually working against the settlement because it would have made housing more expensive and less available."
With respect to the zoning portion of the case, the magistrate ruled that the monitor is entitled to information with respect to zoning practices. The county believes this requirement was met on Feb. 29 (after the court papers were filed) when it submitted to the monitor its review of 43 municipal zoning ordinances covering 853 zoning districts.
The housing settlement requires the county government to ensure the development of 750 units of fair and affordable housing over a seven-year period in 31 mainly white communities. The agreement includes benchmarks for financing and obtaining building permits that must be in place by the end of each year. It also requires the county to market the housing in a way to reach African Americans, Hispanics and others least likely to apply, not only in Westchester but also in New York City and surrounding counties. The county faces severe financial penalties if it fails to meet certain benchmarks.
As of this month, the county has 206 housing units approved by the federal housing monitor, of which 196 have all financing in place and 108 units have building permits in place. Under the terms of the settlement with HUD, the county was only required to have 100 units with financing and 50 units with building permits by the end of 2011. The settlement calls for 200 units with financing and 125 with building permits by the end of 2012. The county expects to meet these benchmarks this spring, placing it almost a year ahead of schedule.