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April 26, 2013 -- With the backing of County Executive Robert P. Astorino and the Board of Legislators, Westchester County on Friday went to court to block the Department of Housing and Urban Development from abusing its power by taking away $7.4 million that it had promised to Westchester two years ago, much of it for the county's neediest residents to prevent homelessness and foreclosures and to improve neighborhoods.

The papers served in federal court seek immediate injunctive relief to prevent HUD from giving away money allocated to Westchester County in 2011 to other communities around the country.

"HUD is not allowed to make up its own rules for this money," Astorino said. "Westchester is entitled to fairness and due process just like every other community in the country. What makes matters worse is that HUD is hurting the very people it claims it is always trying to help. This money is designated for some of Westchester's neediest residents including the homeless and those facing foreclosure. This is HUD behaving badly – both legally and morally – and the county, on a bi-partisan basis, is going to court to stop it."

HUD began withholding money from what is called Community Planning and Development, or CPD, funds two years ago in an effort to force Westchester County to go, in HUD's words, "beyond the four corners"  of the affordable housing settlement reached by former County Executive Andrew Spano and the federal government in 2009.

The county maintains that it is in full compliance with the settlement and that HUD has no right to make demands that go beyond the terms of the agreement. Much of the $7.4 million that HUD has refused to release to the county would go to municipalities not associated with the settlement.

The settlement calls for 750 units of affordable housing to be built in 31 so-called "eligible" or mostly white communities by the end of 2016 with $51.6 million of county funding. The county is ahead of schedule in meeting its goals with 305 units having financing in place and 110 units already occupied.  

As further evidence of compliance, in response to HUD's most recent demand, the county has sent to HUD an update to a document called an AI or "analysis of impediments," which looks at potential obstacles to building fair and affordable housing, such as zoning.  

Under the settlement, the county must produce an AI that is acceptable to HUD. So far HUD has rejected all of the county's previous submissions, despite the fact that they have been far more comprehensive than any other AI ever produced for HUD by communities around the country.

One of the county's legal arguments is that every time it has submitted additional information to HUD, the agency does not comment except to say it is insufficient and then layers on additional demands with each rejection. The latest AI, submitted to HUD on Wednesday,  is 236 pages and includes a 74-page Action Plan and an additional 1,500 pages of supporting documents. HUD has routinely accepted AI's that have been much less detailed with Action Plans of only a couple of pages with little or no discussion of zoning.  (Link: www.westchestergov.com/housingsettlementAI )

"HUD has never demanded another entitlement grant applicant to satisfy such far-reaching and exhaustively time consuming corrective action to approve its AI," the county's lawsuit states. Accordingly, HUD has treated Westchester County "different" and the "treatment has occurred without a rational basis and is irrationally and wholly arbitrary."

 The impasse is over HUD's refusal to accept the conclusion of the county's exhaustive analysis that zoning in Westchester is not exclusionary based on race. To back up its conclusion, the county analyzed all 853 zoning districts in Westchester, across 31 criteria that produced 26,443 data points. In addition, John Nolon of  Pace University conducted a separate legal analysis that supports the county's conclusion. As more evidence that Westchester's zoning is not exclusionary, the county points to the fact that it would be impossible for the 31 communities in the settlement to be ahead of schedule in building affordable housing if their zoning codes excluded affordable housing.

 "HUD could not dispute the accuracy of the county's conclusions, nor could HUD demonstrate a single municipality in Westchester County that had a zoning ordinance with discriminatory or segregative impact," the lawsuit states. "As HUD could not legitimately dispute the conclusions reached by the county, HUD simply rejected the analysis, continuing to move the target beyond the county's reach."

The lawsuit also points out that HUD's own rules prevent it from applying new requirements to the disbursement of grants after they have been allocated and that the agency failed to give the county any chance to appeal.  "HUD [is] impermissibly using CPD funds to leverage compliance with its interpretation of the settlement," the lawsuit states. "This is an abuse of HUD's power under the statutes authorizing the granting of CPD funds, as none of those statues allow conditioning of funds."

Lawyers for the county are scheduled to appear before Judge Denise Cote at noon in federal court in Manhattan.