April 10, 2013 -- Calling a threat from the U.S. Department of Housing and Urban Development to take away $7.4 million in funds for Westchester and its communities "extortion based on nothing more than its unsupported opinions," County Executive Robert P. Astorino has asked for a formal hearing with HUD to give the county the due process it is entitled to and for a partnership from the Board of Legislators in seeking an injunction to prevent HUD from arbitrarily taking away the funds that had been promised to Westchester communities two years ago.
"In a nation of laws, the rules apply to everyone and that includes HUD," said Astorino. "If HUD has issues, there is a process to be followed. What HUD is doing is extortion based on nothing more than its unsupported opinions. The county is asking for nothing more than to be treated fairly under HUD's own rules."
On March 25, the county was notified by Vincent Hom, director, community planning and development of HUD, that the $7.4 million would be taken away from the county and reallocated to other communities around the nation on April 25 based on the agency's claim that the county has failed to "affirmatively further fair housing." For three years, HUD has promised to provide a definition of what "affirmatively further fair housing" means, but has failed to do so. More broadly, HUD is trying unilaterally to expand the terms of the 2009 federal affordable housing settlement to dismantle local zoning.
Under the terms of the settlement, entered into by former County Executive Andrew Spano, the county must come up with a document called an "Analysis of Impediments," or AI, that is acceptable to HUD. The county has submitted five AI's to date, all of which have been rejected by HUD because the agency claims the county has not developed a "satisfactory plan ... to overcome exclusionary zoning," has not notified municipalities of the "changes that must be made, and if not, the consequences of municipalities' failure to make them."
HUD has labeled standard zoning as "exclusionary." In its view, normal zoning criteria governing such things as lot size, height, number of bedrooms, density, setbacks, sewers and environmental considerations, are "restrictive practices" that as of HUD's March 25 letter must be corrected as part of the county's "civil rights obligations."
HUD has offered no proof to support its contentions. The county, on the other hand, has conducted a comprehensive analysis of every zoning district in the county – consisting of more than a dozen criteria covering 26,443 data points, as well engaged an outside legal analysis by the Pace University Land Use Center, and found no evidence of exclusionary zoning based on race.
"Let's be clear what's going on here," said Astorino. "HUD refuses to accept the conclusion of our objective and thorough analysis. To force the county to change its conclusions, it is holding hostage money that's been promised to our communities, some of them not even a party to the settlement and with the biggest needs. How that helps advance affordable housing, which we all agree is vitally important, is best left to HUD to explain."
Astorino emphasized that the county is in full compliance with the settlement and where there have been disagreements it has availed itself of the dispute resolution process outlined in the agreement. He also noted that the county is well ahead of schedule in building the housing. As of today, the county has 305 units with financing in place. Only 300 are required by the end of 2013. More than 100 units are already occupied.
In a letter dated April 4 to HUD Secretary Shaun Donovan, Astorino formally requested a hearing and disputed the HUD assertion that the county has not complied with statutory requirements to qualify for the money, which is given to local communities under three federal programs: Community Development Block Grant (CDBG), HOME Investment Partnership and Emergency Shelter Grants (ESG), and that HUD has any right to withhold the money without giving the county any chance to refute HUD's assertions.
"In light of the unprecedented amount of work, analyses and submissions by the county, HUD's claim that the county has failed to submit appropriate documentation to HUD's satisfaction is simply unreasonable, arbitrary and capricious," Astorino writes.
As part of his ongoing commitment to comply with the settlement, Astorino sent a letter to members of the Board of Legislators today again asking for them to reintroduce so-called source of income legislation as a follow up to last week's ruling by the U.S. Second Circuit Court of Appeals.
He also sent a second letter, this one formally requesting that the board adopt an act authorizing the County Attorney to institute legal proceedings on behalf of the County of Westchester against HUD to challenge the determination to deny and reallocate the federal funds.
"I am asking for the Board of Legislators to stand up for Westchester and against this punitive action brought on by HUD, and I am asking for them to do so expeditiously," Astorino said. "There will be very minimal expense to the county because the matter will be handled in house, but it is important that Westchester protect itself from the federal government taking away money without any due process," said Astorino.
The call for the hearing with HUD is one of several recent developments that relates to the 2009 housing settlement that requires the county government to facilitate the construction of 750 units of 'fair and affordable" housing in 31 so-called eligible (mostly white) communities by 2016. As part of that settlement, a housing monitor was appointed to oversee the county's compliance.
To date, legal disputes have evolved over so-called source of income legislation and the county's zoning practices. These issues have spilled over to effect the county's funding from HUD allocated in past years.
At issue currently is $7.4 million in funds awarded to the county for federal fiscal year 2011. The money was allocated to fund a variety of local projects, including park improvements, playgrounds and sidewalk improvements in local municipalities throughout the county. In addition, the money was allocated to fund eviction prevention and homeless services and affordable housing construction.