Have you ever been asked to take a test where the grader knew your test score before you even started? If not, meet the US Department of Housing and Urban Development.
Regarding the ever torturous Affordable Housing Settlement agreed to by prior County Executive Andrew Spano, there were many who hypothesized the severe consequences to allowing the federal government to circumvent local home rule regarding zoning. In just this past week, the worst of those prognosticator’s fears have been realized.
To quickly bring you up to speed if you've not been following this issue closely, the federal government, through the US Department of Housing and Urban Development (USHUD), entered into an agreement with Westchester County in lieu of threatened lawsuits in excess of hundreds of millions of dollars, to build 750 affordable housing units in seven years at a cost of approximately $51 million. In addition, freely elected local representatives were mandated to vote to pass legislation to require all landlords to accept any tenant without their personal ability to pay the rent. Finally, the third component of the agreement was that the county was to undertake what is called an “Analysis of Impediments.” The self-study is intended to identify any laws or practices in 31 targeted Westchester communities, that in the singular opinion of USHUD, seemed to limit by design, housing that is affordable to those whose earnings are significantly less than the average Westchester taxpayers.
The federal government's premise is that if any particular community does not have enough racial diversity according to the USHUD defined standards, then it must be because the zoning in that particular community is overly restrictive and therefore discriminatory. For example, any zoning that does not permit high-rise multi-dwelling residences could be deemed to be discriminatory. So this poorly named Affordable Housing Settlement is more appropriately named alternatively as a racial diversification settlement. In Washington, D.C., USHUD analysts sitting in cubicles have prepared statistical analysis that look at subdivisions of municipalities in Westchester County to determine that if racial diversity does not cross some Washington, D.C. defined statistical threshold, then it must be that minority groups are being discriminated against. The inconvenient truth in reality is the fact that many of us cannot personally afford a $10 million home in Westchester County and that has nothing to do with zoning.
Despite the wide spread of opinion across political spectrums in Westchester County, I am near certain that virtually most will agree that there is a need for more affordable housing in Westchester County. Almost as many will agree that there's a role for government to play in promoting affordable housing. As I've stated in the past however, is that the greatest impediment to affordable housing in Westchester right now is the Affordable Housing Settlement itself.
The settlement named a monitor to act as the intermediary between USHUD and Westchester County. In particular, this individual, James Johnson, has certainly worked hard to accomplish his role in a judicious manner albeit I believe that he tends to lean towards USHUD in his positions. That being said, this week, USHUD issued a 10 page document castigating monitor Johnson for not coming up with the answer to the test that they were seeking. Monitor Johnson identified six communities out of the 31 targeted communities as having potential issues with what was called the statistically based Huntington analysis. Huntington, Long Island is a community with over 200,000 residents or in other words approximately 1/5 the size of the Westchester in its entirety. Based upon a court decision in 1988, it was deemed that Huntington, which was 98% white, was discriminatory against minorities. Conversely, in the entirety of Westchester County’s 43 municipalities, the highest percentages of white populations were 90% in only two municipalities. Only 14 other Westchester municipalities have a white population percentage of over 80%.
North Castle, one of the six communities identified by monitor Johnson as having potential problems with the statistical Huntington analysis, in actuality has one of the highest growth percentages of minorities in all of Westchester County over the past 10 year census period. USHUD in their rebuke to monitor Johnson said that demographic changes in the last measured census period have no relevance and should be removed from any analysis. So even to the extent that North Castle has had very significant minority population growth in their community, the fact that the federal government did not like where minorities specifically in North Castle, a community with only 11,800 residents, moved is a most important consideration in their eyes.
USHUD, in writing, now has evidenced the fact that they are dissatisfied that the historical and ongoing assertions made by County Executive Rob Astorino and the minority of the county legislators who voted against the settlement are correct that there is indeed a no discrimination based on zoning in Westchester County. The county has produced eight separate analyses of impediments and monitor Johnson has produced one also, and even through the proscribed statistical analysis, less than one third of the 31 targeted communities by USHUD, evidence that minorities are being prevented from moving into the communities. This completely undermines the premise and assertions that USHUD and current governor Andrew Cuomo believe that Westchester County is indeed racist.
Fortunately, this past week the US Supreme Court announced that they will hear arguments in a case based in Texas that takes up the concept of “disparate impact” that is at the root of what USHUD is applying versus Westchester County. Based on the current makeup of the US Supreme Court, it is not unreasonable to think that they will find the application of disparate impact unconstitutional thereby freeing Westchester County from this terrible intrusion upon our local home rule and our basic rights.
This could easily turn out to be the case where we are glad to hear people say “I told you so!”