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BridlesideWestchester County has sent a letter to the monitor overseeing Westchester's affordable housing settlement with the federal government to correct inaccuracies and misimpressions in his most recent assessment of the county's progress.

In addition to objections with the content of the "Monitor's Second Biennial Assessment of the Westchester County's Compliance," the letter points out that the monitor, who works for the U.S. Department of Housing and Urban Development, failed to follow the settlement's requirements for submitting reports to the court. Paragraph 40 of the settlement explicitly requires the monitor to meet with the county "prior to the submission of such reports to the Court." No such consultation occurred prior to the June 26th submission.

Five years into the seven-year term of the settlement, the public record shows the county is in compliance. As such, the county takes strong objection to a number of unsupported assertions in the report by the monitor, James E. Johnson.

"It is critical that the public be given the full and true story about the county's progress and that the federal government be held to the same standards as the county," said Astorino. "My job is to ensure the county meets its obligations, which has been our goal from day one. But I also have an obligation to ensure the federal government plays by the rules and does not use its enormous powers to bully the county into capitulating to demands that go beyond the terms of the settlement."

The settlement, negotiated and approved under former County Executive Andrew Spano, requires the county to develop 750 units of affordable housing in 31 mostly white communities in Westchester by 2017, using $51.6 million of county tax dollars. It also requires the county to conduct an outreach and education effort to individuals, landlords, realtors, condo and cooperative board members, and municipalities. The settlement's application system has attracted interest from 29 states, potential sites have been identified in all 31 communities and the progress to date includes:

  • 407 units with financing in place; (450 is benchmark for this year)
  • 404 units with building permits; (surpasses this year's benchmark of 350)
  • 184 units occupied; (almost 25 percent of the 750 unit total)
  • $34 million of county's $51.6 million budget committed
  • $105 million leveraged from other sources (e.g. state, federal and foundation funds)
  • $2.1 million allocated for outreach, education and housing services
  • 755 meetings with communities, developers and nonprofits
  • 65,000 unique visitors on average to Housing Website each quarter
  • 5,300 households signed up for settlement's 750 units

Factual comments
In the county's letter, written by Deputy County Executive Kevin Plunkett, the county refutes the monitor's charge that the County Executive "misstated the terms of the Settlement and signaled ongoing defiance of its terms." With clear documentation, the letter demonstrates the comments made by the county executive to be factual and in response to statements actually made by HUD and the monitor.

For example, the monitor wrote that the County Executive was in error to suggest that HUD and the monitor were attempting to expand the settlement to increase the number of affordable housing units from 750 to 10,768. But the record clearly shows the figure was introduced by the monitor in his March 21, 2013 Report Cards to local municipalities.

The 10,768 figure comes from a 2004 Rutgers University study and a derivative 2005 allocation plan, neither of which was ever adopted by the County Executive, the Board of Legislators or local municipalities. Nevertheless, figures from these reports were incorporated into the monitor's report cards, and municipalities were told they had "an obligation" to meet these unadopted allocations, despite the fact that no such requirement is mentioned in the settlement.

The allocations in the Report Card called for 5,847 units of affordable housing to be built in the 31 communities involved in the Settlement. Not surprisingly, public concern and confusion followed. It was the county executive's responsibility to correct the record, which he did.

"This was a perfect example of how frustrating it can be in dealing with HUD and the monitor," said Astorino. "They give you a number that no one has agreed to, criticize you for not meeting it, pretend they never really meant it in the first place, and then blame you for creating confusion. Not to bring this to the public's attention would have been irresponsible."

It should be noted that the only way to react to the monitor's report cards was in public, because the county was never given the courtesy to review them ahead of time. The first time the county saw the report cards was after they were sent to municipalities, who then forwarded them to the County Planning Department. Had the county been given the courtesy to review documents before public release, the confusion, which the monitor complains about, may have been avoided.

"The monitor seems to be suggesting that no one is allowed to question him or the federal government," Astorino said. "But what good is a settlement if the federal government gets to make and change all the rules. That's not a contract, it's a dictate with no checks or balances, and that's not what the county agreed to or how government in the United States is supposed to operate.

Duties to analyze zoning
The county also strongly disagrees with the Monitor's contention the county "either failed or refused to comply with the duties to analyze zoning." There is no evidence to support this assertion. In fact there is overwhelming evidence to the contrary.

The only current area of dispute between the county and HUD is the submission of an Analysis of Impediments (AI) that is acceptable to HUD. To date, the county has submitted eight AI's to HUD. HUD has rejected all eight submissions because it wants the county to change its conclusions. The county has refused, saying there is no basis to do so.

The county's eight AI's total thousands of pages of data, maps, charts, analysis and action steps and are the most comprehensive AI's ever received by the agency. All 853 of the county's zoning districts have been reviewed and no evidence of exclusionary zoning was found. Separate reports by the Pace University Land Use Law Center and the monitor's team from Pratt Institute support the county's conclusion. Analysis by the county also included the Berenson and Huntington tests, which also found no evidence of exclusionary zoning.

"A fair question to ask is at what point do HUD's rejections become unreasonable," the letter states. "HUD's rejections also have to be viewed in the light of the agency's decision to eliminate AI's on a nationwide basis. HUD's new proposed rules for Affirmatively Furthering Fair Housing no longer require AI's, saying the documents have "not been as effective as had been envisioned.""