May 2, 2016 - Monitor to Department of Justice: Sue seven Westchester municipalities in connection with the 2009 affordable housing settlement if they don’t change their zoning. That is the latest line of attack from James Johnson, the monitor assigned to the housing settlement who serves at the pleasure of the Department of Housing and Urban Development.
In his “Third Biennial Assessment” of the housing settlement, which was released on Friday, Johnson admits that the county has met its latest annual benchmarks for developing affordable housing.
Nevertheless, the monitor claims that Croton-on-Hudson, Harrison, Lewisboro, Pelham Manor, Larchmont, North Castle and Rye Brook have “zoning that could result in liability” and that “the Department of Justice is encouraged to give serious consideration to bringing legal action against one or more of these municipalities.”
Westchester County Executive Robert P. Astorino said the latest action by the monitor was more confirmation of the county’s predictions of federal overreach stripping away local control of zoning and land use decisions.
“The level of overreach is breathtaking,” Astorino said. “In March, the monitor questioned our First Amendment rights to challenge him and HUD. Now he is trying to put control of local zoning into the hands of an unelected consultant that he appoints. 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.”
Specifically, the monitor is now asking the court to change the settlement so that it gives him the power “to approve or reject” and “determine” a consultant that would “submit an AI [analysis of impediments of county zoning] for HUD’s review and approval within 120 days;” the county would then be “ordered to implement the strategy to overcome the impediments identified by the AI;” with no feedback by the county other than “to review the AI prepared by the consultant prior to its submission to HUD;” and if the zoning is not changed, the “Department of Justice is encouraged to bring litigation against municipalities.” Even before such a report is commissioned, the monitor has concluded that seven Westchester municipalities “have zoning that could result in liability.”
Much of Johnson’s latest report ignores or dismisses recent legal decisions supporting the county’s long held position that local zoning in Westchester is not discriminatory and that the county is meeting the terms of the settlement.
In a September ruling, the United States Court of Appeals for the Second Circuit said that “there has been no finding, at any point, that Westchester actually engaged in housing discrimination.” In November, the U.S. Magistrate assigned to the case ruled that the county had provided financing for enough units to meet its 2014 benchmark and that there was no basis for the county to be held in contempt. Judge Gabriel Gorenstein ruled that 28 units in the Chappaqua Station development “should be counted,” and he also sided with the county on the contempt issue, saying the federal government had failed to meet the standard for showing such a charge was warranted. The county argued successfully that its behavior had to be measured against what the settlement actually says, not what the Monitor claimed it said in his report.
Under the terms of the 2009 settlement reached between the federal Department of Housing and Urban Development and the administration of former County Executive Andrew Spano, the county is required to spend at least $51.6 million to develop 750 units of affordable housing by the end of 2016 in 31 so-called “eligible” or mostly white communities based on 2000 census data.
Along the way, the settlement calls for the county to meet annual, interim benchmarks. By the end of 2015, the county had financing in place for 649 units, 49 more than required, and building permits in place for 588 units, 63 more than required. The county has exceeded the benchmarks each year since they began in 2011.
A key concern for the county is that the monitor’s latest report appears to further a strategy by the federal government to make the housing settlement never ending. As Astorino said in his 2016 State of the County Address: “I really believe HUD does not want us to build the 750 units on time.” He warned that the federal government wanted to tie up the county with legal maneuvers.
“Once in court, stay in court. And that’s HUD’s end game: a settlement that never ends,” he said.
On this point, the Second Circuit in its September ruling called on the lower court to “apply a flexible standard” with the goal that “at some point in time this litigation has to be ended.”
Astorino said the county would continue to follow its two-pronged strategy of following the law and continuing to defend the rights given to Westchester’s local municipalities under the law.