Home Sweet Affordable Home?
Over the last nine years, Westchester County has been embroiled in a legal dispute with the federal government over the terms of a fair-housing settlement. As the deadline looms for the county to comply, the battle rages on.
On a warm, sunny day last summer, County Executive Rob Astorino held a press conference in front of the Chappaqua home of Bill and Hillary Clinton. Astorino had chosen the backdrop to criticize United States Attorney Preet Bharara’s threat to have Westchester County held in contempt of court for failing to comply with the terms of a 2009 fair-housing settlement.
With his podium positioned in front of the security gate, Astorino referred to “the federal government’s assault on Westchester,” warning residents that the Obama administration wanted to choose the Clintons’ neighbors—and everyone else’s, too. “Who decides the future of our communities?” he said to the cameras.,“HUD [US Department of Housing and Urban Development], through their bureaucrats, or our citizens, through their local elected officials? The American Dream is in the balance.”
Adding to the indignity, Astorino said, was that he believed the county was in compliance with the settlement, on target to meet the required benchmarks for financing and securing building permits for the mandated housing units. But the county executive left little doubt about his feelings on the legal agreement he inherited when he came into office.
It’s been almost nine years now since Westchester County was sued for housing discrimination, and the ongoing political drama has been punctuated with moments like this. By the end of 2016, Westchester is meant to have fulfilled the terms of the agreement, which requires the construction of 750 affordable units in primarily white areas, along with other measures to address housing discrimination in the county. The road has been a bumpy one, with political grandstanding on all sides, a good deal of “Not In My Backyard”—or NIMBYism—and some unhappy communities, fair-housing advocates and politicians alike in its wake. The deadline is in sight, but the resolution of the conflict is still not clear.
New Chapter, Old Story
While affordable housing has been an issue in Westchester for decades, this particular chapter began in 2007, when the Anti-Discrimination Center, a Manhattan nonprofit group, charged that between 2000 and 2006, Westchester County took more than $50 million in federal aid earmarked for low-income housing but left it up to each community to decide where to build these units. As a result, the suit claimed, many towns and villages remained racially segregated. Filed under the False Claim Act, the suit accused the county of defrauding the government of money earmarked for fair housing.
A spokeswoman for former county executive Andy Spano called the charges “garbage.” But US District Court Judge Denise Cotes disagreed. In February 2009, she ruled that Westchester had misrepresented its efforts to desegregate overwhelmingly white municipalities. The court found that Westchester hadn’t made an effort to study where low-income housing was placed, nor had it financed construction in communities that opposed housing.
Initially, Spano said he’d appeal the ruling, but the county’s lawyers worried about potential liability, which Spano said at the time might be in excess of $180 million for misappropriating fair-housing funds. Casting a shadow over his administration’s deliberations was Yonkers’ epic 27-year desegregation fight, which finally concluded in 2007, nearly bankrupting the city in the process. Spano decided that the county had “no choice” but to settle the lawsuit.
In August 2009, Westchester County entered into an historic desegregation agreement with the US Justice Department and HUD. The settlement required the county to build or acquire 750 homes for moderate-income people in overwhelmingly white communities and to aggressively market them to nonwhites in Westchester and New York City.
Thirty-one communities, including Mamaroneck, Pound Ridge, Lewisboro, and Harrison, were highlighted as “racially segregated”—meaning towns and villages where the African American population was less than 3 percent and the Latino population less than 7 percent. The homes were to be built in seven years, and the county was required to spend $50 million of its own money. Prospective buyers and renters needed to meet a certain percentage of local median income to qualify.
County Executive Rob Astorino spoke out against "HUD's war on Westchester" in front of Bill and Hillary Clinton's Chappaqua home last summer.
The settlement also required Westchester to create an analysis of impediments to fair housing and to implement a plan to remedy the discrimination. Additionally the county was required to take “all available means” against municipalities whose zoning laws were exclusionary; for instance, zoning that doesn’t allow multifamily housing. A federal monitor, James Johnson, was appointed to ensure that Westchester complied with the terms. The county was given 120 days to come up with a plan.
Politics Playing a Starring Role
None of this unfolded in a political vacuum. At the time, Republican Astorino was campaigning for Democrat Spano’s job and the settlement became political fodder, with Astorino warning that it would cost the county “in the hundreds of millions” and lead to overcrowded schools and higher taxes. Astorino defeated Spano and took office in January 2010. But the agreement, legally binding, was in place.
In the last six years, the county has complied with most—though not all—of its terms. At the end of 2015, Astorino announced that financing was secured for 649 units and building permits in place for 580 units, exceeding the agreement’s benchmarks for meeting the requirements. The administration had early on developed a model-zoning ordinance to provide inclusive housing for all of Westchester’s 43 municipalities. It also developed an affirmative marketing plan for the new affordable units, promoting the housing to minorities—via advertisements, meetings, and community outreach—in a nine-county area, including the surrounding counties of Westchester and all of New York City.
But other settlement-related issues have been far more contentious. One disagreement concerned Astorino’s veto of “source of income” legislation, a law prohibiting landlords from discriminating against people using Section 8 vouchers (government rental housing assistance for low-income households) to pay for housing. A federal court ruled that Astorino’s opposition violated the agreement. The Westchester County Board of Legislators eventually passed the law, without a veto, in 2013.
The biggest ongoing and unresolved issue is the county’s required analysis of impediments to fair housing. To date, the administration has submitted eight versions of the analysis—all of which maintain that there is no evidence of exclusionary zoning in Westchester. HUD has rejected each of them. Astorino maintains that because of state law, the county does not—and should not—have land-use control over localities. He has referred to “HUD’s warped war on Westchester” and railed against federal interference in local matters. As a result of the impasse, Westchester has lost roughly $22 million in grant money from HUD over the last five years. Called Community Development Block Grants, the funds help municipalities and nonprofits to assist low-income communities. The county sued to recover some of the money, but a federal appeals court ruled last fall in favor of HUD.
Now the legal situation has become even more complicated. Back in 1974, Westchester’s smaller villages and towns joined forces to form the Urban County Consortium, allowing these municipalities to undertake housing development and receive HUD funding. By virtue of accepting HUD’s community block grants, the consortium agreed to affirmatively further fair housing, and that included a submission of an analysis of impediments.
But this year, the county dissolved the consortium. Whether that means Westchester doesn’t need to comply with the original terms of the housing settlement requiring an analysis of impediments is a matter of legal debate. The county argues that the analysis is now a moot point—the settlement will be complete when the housing is built, and Westchester will no longer apply for HUD funding related to the settlement.
“Our position is that we’ve been in compliance from the beginning,” says county spokesman Ned McCormack. “The county will meet its obligations. But HUD was trying to use the [grant] money to force us to dismantle local zoning. The county was not going to do things that were not in the settlement.”
It remains to be seen if HUD and the US Justice Department will accept this interpretation. A spokesman for HUD said the agency could not comment, because of ongoing litigation on the matter.
Progress on Projects
Meanwhile, project by project, hundreds of new units are being reviewed, developed, and completed in the targeted municipalities. Most of the new housing has been developed quietly, with little community outcry. Others have been more controversial. A 28-unit project in Chappaqua, for instance, has dragged on for six years, battling opposition from the community and town government. Opponents have charged that the site is unsafe and would “stigmatize” future residents. Advocates counter that the project has cleared state safety boards and would bring much needed housing diversity to the town. The Chappaqua project has also been an unwelcome source of contention for the county: a dispute over whether or not the town had “financing in place” for the 28 units when it counted them among the 750 required by the settlement resulted in a contempt-of-court complaint from the US attorney. (The complaint was dismissed; the DOJ is appealing the ruling.) The town of New Castle has also approved an additional 28 units of affordable housing at the former Reader’s Digest site, as part of a bigger housing and retail development called Chappaqua Crossing. In Scarsdale, four units have been approved, with one more in the pipeline. Pound Ridge, one of the targeted communities, has yet to build any affordable housing.
Demand for affordable units throughout the county remains strong. On a chilly February evening at the Greenburgh Library, a standing-room-only crowd attended an informational workshop on 25 units of available settlement housing. Rose Noonan, the executive director of the Housing Action Council, which is marketing the units, displayed photos of condos and one- and two-family homes for sale in 14 different communities, including Armonk, Bedford, Lewisboro, North Salem, Pleasantville, Harrison, Rye Brook, and Cortlandt.
Noonan reviewed eligibility requirements and distributed applications. The audience poured over the papers and peppered her with questions about closing costs, income restrictions, credit ratings, mortgage insurance, and deed restrictions. Noonan cautioned that for every 15 applications, only one qualifies and results in a purchase.
Ultimately, the prospective tenants and owners of these affordable units are looking for the same thing as everyone else in Westchester: good schools and a safe place to live.
Not surprisingly, a recent study by MarketWatch ranked Westchester in the top-10 priciest places to raise a family in the US. Whatever happens with the settlement, finding an affordable home here has become increasingly difficult.
“We’re going to reach the 750 [units of fair housing],” Noonan says. “But it’s going to be a drop in the bucket compared to the need.”
Defining the Need
Just what constitutes fair and affordable housing anyway? Hint: It’s very complicated.
The US Department of Housing and Urban Development (HUD) considers housing to be “affordable” if a family spends no more than 30 percent of its gross income to live there. The standard is based on a formula using the area median income (AMI) of a household, within a metropolitan statistical area.
Of the 750 units mandated in Westchester’s settlement with HUD, at least 50 percent must be rental (and up to 50 percent ownership), and at least 20 percent of those are reserved for families at or below 50 percent of the median income, which for a household of four in Westchester is $52,850. Others are reserved for 60 percent of AMI ($63,420 for household of four in Westchester), and the remainder for at or below 80 percent ($84,550 for household of four).
And while the terms “affordable housing” and “fair housing” are often used together, fair housing has nothing to do with income, but rather with discrimination. Under The Fair Housing Act, it’s illegal to refuse to rent, sell, or negotiate with a person in a protected class, i.e., based on color, national origin, religion, disability, sex, or the presence of children.
In addition, affordable housing is not the same as public housing. In fact, many households have been unable to rent or purchase the affordable housing built for the settlement, because they have insufficient income.
Kate Lombardi is a journalist and author. She is working on a book that follows five families in their search for affordable housing.