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Westchester County Wins Court Appeal In Affordable Housing Case

Federal Housing Monitor Jim Johnson (far end of table) at a meeting with Westchester County legislators.
Federal Housing Monitor Jim Johnson (far end of table) at a meeting with Westchester County legislators. Photo Credit: Brian Donnelly

WESTCHESTER COUNTY, N.Y. -- The United States Court of Appeals for the Second Circuit said in a ruling issued Friday that “there has been no finding, at any point, that Westchester actually engaged in housing discrimination.”

The ruling was celebrated by County Executive Rob Astorino and also comes as welcome news for county municipalities that believe they are in compliance with federal regulations on building affordable housing.

“This is a big victory for Westchester County,” Astorino said. “This vindicates our fight to protect home rule and local zoning. The issue with HUD and the monitor has never been about race or access to housing.

"There is no place for discrimination in Westchester or any place else. But by the same token, there needs to be checks on the federal government’s ability to use its power and money to reshape our communities.”

The latest ruling stems from the county’s battle to reclaim funds withheld by the Department of Housing and Urban Development in connection with the 2009 settlement reached by former County Executive Andrew Spano and the federal government to build 750 units of affordable housing in 31 mostly white communities by the end of 2016.

To date the county has met its benchmarks for developing the housing and more than 300 of the units are already occupied.

As part of the settlement, the county is also required to file an “analysis of impediments,” which HUD finds “acceptable.”

Westchester has filed eight AIs with HUD, which look at possible challenges to building affordable housing. Despite the fact that the county’s AIs include more than a thousand pages of data and make up the most comprehensive submission ever received by HUD, the agency has repeatedly refused to accept them because it would not accept the county’s conclusion that local zoning laws were not exclusionary.

In 2011, as a way to try to get the county to change its conclusion, HUD began withholding Community Development Block Grants from Westchester. The county went to court claiming HUD did not have the right to withhold the money.

The Second Circuit agreed with the county that “HUD may not … condition funding on changes to local policies, including zoning laws.” However, stressing the narrow nature of its decision, the court said HUD could withhold the money because it did have the right to ask the county to analyze zoning and the analysis was still incomplete.

“It bears emphasizing that this decision does not mean that any of Westchester County’s municipalities violated the Fair Housing Act or engaged in discrimination on the basis of race,” the judges wrote, adding, “In short, there has been no finding, at any point, that Westchester actually engaged in housing discrimination.”

The decision allows HUD to reallocate approximately $5 million, which had been allocated for Westchester in 2013. Astorino has proposed a local program to replace money withheld by HUD. The county is no longer seeking additional federal funds to avoid further pressure from HUD to dismantle local zoning.

Because the county is no longer seeking additional funds, the court left open the question of how HUD “can enforce the consent decree against the County” and what steps the county can take to “end further supervision over its housing policies.” In making this point, the appeals court 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.”

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