County, Feds at Odds Over Housing Monitor

John Jordan | February 2017

Robert Astorino Westchester County Executive

WHITE PLAINS—While Westchester County Executive Robert Astorino has been hopeful that with the change in administration in Washington, DC, would perhaps foster better relations between the county, the U.S. Justice Department and the U.S. Department of Housing and Urban Development, initial indications reveal the relationship between at least some the parties remains frosty.

Astorino has been saying of late that with the Trump Administration taking office and Dr. Ben Carson being nominated to serve as HUD Secretary, the federal government might change its stance and seek to end the protracted court battle with Westchester County over terms of the $51.6-million 2009 fair housing settlement case. Since the settlement was reached in 2009, Westchester County and HUD have been at odds over a number of issues including marketing of the fair housing units and the county’s role in eliminating cases of what HUD had determined as exclusionary zoning. In addition to HUD, the county has also had its run-ins with court-appointed Housing Monitor James Johnson, who resigned from the post in August when he announced he was running for the Democratic nomination for Governor of New Jersey.

However, as court filings earlier this month prove, the county and at least the Justice Department remain at odds over issues surrounding the settlement. At present, the county and the U.S. Attorney for the Southern District Preet Bharara are arguing over whether the federal court should hire former federal judge Stephen C. Robinson as the replacement to Johnson as Housing Monitor. There is also a proposal to lift the $175,000 annual cap on fees that could be charged by the monitor. Robinson, an attorney with New York City-based law firm Skadden, Arps, Slate, Meagher & Flom, has stated according to published reports, that he would not accept the Housing Monitor appointment unless the fee cap were lifted. The county has argued against the lifting of the Housing Monitor’s fee cap and has also requested the court eliminate the position entirely.

Assistant U.S. Attorney for the Southern District David Kennedy in a 15-page memorandum to the court filed on Feb. 3 charged that the county remains in non-compliance with certain terms of the fair housing settlement, particularly concerning the creation of public education programs and the completion of an acceptable Analysis of Impediments.

Kennedy stated that the county “now doubles down on its bad faith efforts to frustrate this court’s orders, first by opposing the government’s effort to appoint a replacement monitor; and second, by advancing the frivolous position that the monitoring provisions of the Consent Decree should be dissolved entirely.”

He continued in his 15-page filing, “Because the record demonstrates, abundantly, that the county has no sincere commitment to complying with this court’s orders absent close oversight, Judge Robinson should be appointed monitor and the county’s application denied in its entirety.”

Ned McCormack, a spokesman for County Executive Astorino, said that the county’s position on the need for the Housing Monitor and the fee cap has not changed. “There is no longer any need for a monitor and no justification to increase the monitor’s pay, especially when doing so would alter the agreed upon terms of the settlement,” he said.

Westchester County Attorney Robert Meehan countered the government’s memorandum in a Feb. 10th filing. He stated that there is no need for a monitor to perform duties the county and the government are already doing. He charged that the elimination of the Housing Monitor “would expedite resolution of any further disputes regarding the settlement… and would result in a faster, more efficient, resolution of the remaining obligations, while saving time and taxpayer funds.”

 

John Jordan
Editor, Real Estate In-Depth