Legal Analysis Shows Westchester Zoning is Not Exclusionary
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foxisland1A comprehensive legal analysis conducted by Westchester County and supported by a leading expert and advocate for affordable housing has concluded that local zoning practices in Westchester are not exclusionary.

The findings were submitted last week to the monitor overseeing the county’s 2009 affordable housing settlement with the federal government as well as the U.S Department of Housing and Urban Development (HUD).     

“The monitor and HUD have asked for information and we have complied,” said County Executive Robert P. Astorino. “My hope is that they will accept the objective conclusions we have presented.”

The county’s analysis was supported by Professor John Nolon of the Pace University School of Law Land Use Center, whom the county retained to validate the soundness of its legal reasoning.

As practical proof, Astorino added that the county had already met its 2012 benchmark for having 200 units of affordable housing with financing in place – six months ahead of schedule.

“It is hard to see how our zoning is exclusionary if we are ahead of schedule when it comes to actually building the housing,” Astorino said.

In February, the county released an analysis based on accepted planning principles that covered 853 zoning districts across all 43 Westchester municipalities and examined 31 land-use criteria. After examining more than 5,000 potential outcomes, the report found no evidence of exclusionary impacts.

Today’s submission went a step further, adding a legal analysis to the zoning study.

The legal analysis is rooted in what is known as the “Berenson line of cases,” a series of rulings by the New York State Court of Appeals, the state’s highest court.

In his report, Nolon points out that in New York there is no constitutional or statutory definition of exclusionary zoning and that only towns, villages and cities have zoning power. However, against this backdrop, the Berenson cases have established the parameters of acceptable zoning practices.

Nolon cites the following as key Berenson principles for whether a community’s zoning is constitutional:

  • Zoning should provide for a properly balanced and well ordered plan for the community
  • Regional needs must be considered
  • Zoning ordinances enjoy a presumption of constitutionality
  • The burden of proving zoning is not reasonable is on the challenger
  • Courts look at the zoning pattern for the entire community, not at any particular zoning district or neighborhood
  • Localities have no responsibility to facilitate the development of housing [that is] specifically affordable to lower-income households, but their zoning must accommodate an array of opportunities for housing facilities.

Against this backdrop, the county has found that local communities are in compliance with the principles of Berenson and that additional actions are neither appropriate nor necessary to bring local zoning into legal compliance at this time.

“As the County has not found any unconstitutional exclusionary zoning provision in the municipal ordinances which have been analyzed, it is respectfully submitted that it cannot formulate a strategy to ‘overcome’ such provisions which have not been found to exist,” Deputy County Executive Kevin Plunkett wrote in his July 6 letter to the federal monitor.

Both Nolon and the county agree that there is a role for the county to play going forward. Such actions include continued promotion among municipalities of the county’s model ordinance; maintaining ongoing communications among the county, communities, local officials, HUD, and non profits; and using transit-based advertising to reinforce the message that Westchester provides welcoming communities to those seeking fair and affordable housing.

The 2009 housing settlement with the federal government, entered into by former County Executive Andrew J. Spano and approved by the Board of Legislators, requires Westchester to facilitate the construction of 750 units of fair and affordable housing in 31 so-called eligible or mostly white communities in seven years.

Today’s submission as well as past housing settlement documents are available at www.westchestergov.com/housingsettlement.