Westchester Scores Victory in Fair Housing Court Case

Real Estate In-Depth | December 2015

Robert Astorino Westchester County Executive

WHITE PLAINS— Westchester County secured a key victory in what has become an acrimonious affordable housing settlement with the federal government recently when the U.S. Magistrate Gabriel W. Gorenstein 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.

“This is another win for our residents,” said Westchester County Executive Robert P. Astorino in response to the Nov. 19th ruling. “From the beginning, the county has worked hard to comply with the terms of the settlement. But we have also stood firm against overreaching by the federal government to force the county to do things that are not in the agreement. The magistrate’s decision clearly shows that the county has met its obligations and that the federal government’s contention of contempt was wrong and without legal merit or justification.”

The latest ruling centers on 28 units of affordable housing being developed in New Castle under the name Chappaqua Station. The units are part of the 2009 affordable housing settlement reached between the federal Department of Housing and Urban Development and the administration of former Westchester County Executive Andrew Spano. Under the terms of the agreement, the county must ensure the development of 750 units of affordable housing in 31 mostly white communities by the end of 2016.

The settlement also calls for the county to meet annual benchmarks. By the end of 2014, the county had to have 450 units with financing in place. In November of 2014, the Westchester County Board of Legislators approved financing for the Chappaqua Station project, putting the county over the benchmark by four units. However, the federal monitor assigned to the case, James Johnson and the Department of Justice claimed the units should not count because the financing was “subject to” the development receiving all the necessary approvals. Not counting the units would have left the county 24 units short, county officials stated in a press announcement.
However, U.S. Magistrate Judge Gorenstein dismissed the federal government’s contention, saying the 28 units “should be counted.” “The record is devoid of evidence that the inclusion of this [‘subject to’] provision makes the financing any less available for the Chappaqua Station development,” wrote Judge Gorenstein.

The magistrate also sided with the county on the contempt issue, stating the federal government had failed to meet the standard for showing such a charge was warranted. The county argued that its behavior had to be measured against what the settlement actually said, not what the Monitor claimed it said in his report. Housing Monitor Johnson had no comment on the latest court ruling.

Astorino said the ruling was critically important for showing the county has been complying with the terms of the settlement. The county executive cited a ruling in September by the U.S. Court of Appeals for the Second Circuit as a “resounding victory” when the court found that “there has been no finding, at any point, that Westchester actually engaged in housing discrimination.” That finding by the U.S. Court of Appeals repudiated the allegation that Westchester’s zoning laws are discriminatory and exclusionary, Astorino charged.

However, that same court ruled that HUD could reallocate approximately $10 million in CDBG housing funds originally granted to Westchester County.

“The federal government has tremendous power and can do tremendous damage to the reputations of people and institutions simply by throwing out charges like contempt even if they are later found to be baseless,” said Astorino. “The U.S. Magistrate’s ruling corrects the false narrative by the federal government that Westchester County has done anything wrong with respect to implementing the housing settlement.”

For 2015, the county has already surpassed its 600-unit benchmark for financing with 635; and has 466 units with building permits, 59 short of the goal with 101 applications pending.

Photo Caption: Westchester County Executive Robert Astorino