Appeals Court Says County Engaging in ‘Total Obstructionism’

John Jordan | May 2017

Westchester County Executive Robert Astorino had hoped for better relations between the county and U.S. Department of Housing and Urban Development since the Trump Administration took office. However, early indications show little change.

NEW YORK—The Second Circuit Court of Appeals in a unanimous ruling found that Westchester County has failed to comply with certain requirements of the 2009 fair housing court settlement.

In a scathing rebuke of the county’s long-held arguments to the contrary, the Second Circuit Court upheld previous federal district court rulings that the county had breached the fair housing settlement by not completing an acceptable analysis of impediments to fair housing choice (AI) as well as failing to use “all available means as appropriate” to address the opposition to the 28-unit Chappaqua Station affordable housing development in the Town of New Castle.

In its April 28th ruling, the Second Circuit ruled, “We note that these consolidated appeals are the sixth and seventh appeals by the county from the district court’s ongoing efforts to ensure the county’s compliance with its obligations under the Consent Decree. All of these appeals have been rejected, and it is apparent the county is engaging in total obstructionism.”

Earlier in the month, HUD rejected for the 10th time the county’s AI submission.

The three-judge appeals panel concluded its ruling by stating, “The county would be well-advised to stop making excuses, and to complete its obligations under the Consent Decree with diligence and dispatch.”

Westchester County released a statement by Ned McCormack, communications director for Westchester County and senior advisor to County Executive Robert Astorino, on the Second Circuit’s ruling. “We are surprised by the court’s comments given the county’s continuing efforts under the direction of Judge Cote to conclude the settlement. In December, the county exceeded the fundamental goal for developing affordable housing units. The settlement required 750 units and the county proudly delivered 790 units within the required time frame and has additional 100 units in the pipeline.”

He added that the county has worked with Judge Cote since her rulings in the summer of 2016 and with the new Housing Monitor Stephen Robinson and consultant VHB to complete its two obligations—the “One Community” educational campaign and the Analysis of Impediments.

“Given that the One Community campaign is already under way and the monitor-approved consultant, VHB, has found no evidence of exclusionary zoning based on race, we are confident the remaining requirements can be met and the settlement concluded in a timely manner,” McCormack stated.

Members of the Democratic caucus of the Westchester County Board of Legislators said it is time to end what they termed as a “wasteful quarrel” with the U.S. Department of Housing and Urban Development, as well as with the federal courts.

The caucus is also calling for an open Committee of the Whole meeting with the Housing Monitor Robinson to discuss what the board can do to move forward with complying with the fair housing case consent decree.

“To save taxpayers from thousands of dollars in fines, we have no choice but to explore all actions we can take due to the County Executive’s total obstructionism—which were the court’s words, not mine,” said County Board of Legislators Majority Leader Catherine Borgia (D-Ossining).

Legislator MaryJane Shimsky (D-Hastings-on-Hudson) added, “It is time for the County Executive to stop using affordable housing as a political football, and get to work on a document that will end the county’s risk of more fines. Sometimes it seems as if the County Executive does not want the lawsuit to end.”

Westchester County Board of Legislators Chairman Michael Kaplowitz (D-Somers) said County Executive Rob Astorino was taking a big gamble in his continued battle with HUD over the settlement terms, according to a report in the Journal News.

He said in the published report, “No one knows in the end whether the court will order huge fines, penalties or the interception of federal aid, or maybe even worse—a new housing settlement, a reopening of existing settlement case and starting the process all over again.”

John Jordan
Editor, Real Estate In-Depth