Westchester housing deal: What's next, if anything

• Westchester, which had 949,000 residents in the 2010 Census, has a 57.4 percent white population
• Westchester's population in 2010 was 21.8 percent Hispanic and 13.3 percent black.
• Seventeen of the 45 municipalities in Westchester have black populations of 2 percent or smaller
• Thirteen communities have Hispanic populations that make up less than 7 percent of the community

The word desegregation has rarely been used by officials when discussing Westchester County’s broad affordable housing agreement.

The head of the group whose lawsuit sparked the deal, signed in 2009, said enforcement has been a failure because everyone “tiptoed” around that notion.

“The whole point of this thing, the entire point of this – and I think I know this since I brought the case – was to begin the process of desegregating segregated Westchester County,” said Craig Gurian, executive director of the Anti-Discrimination Center of Metro New York.

The county is up against a Dec. 31 deadline to have funding and building permits in place for 750 units of affordable housing in some of its richest and whitest communities. The county says it’s already exceeded the funding mark by 43 units and is expecting to meet the permit mark, only 36 shy of the 750 requirement as of this week.

Ned McCormack, a spokesman for County Executive Rob Astorino, said there's simple proof that county zoning isn't discriminatory.

"We've protected our local communities, and, at the same time, we've met the requirements of the settlement," he said. "The thing that we've always said is if our zoning was exclusionary, we wouldn't have been able to meet the requirements."

The county believes once those building permits are in place the settlement will be materially over, but critics say there are other aspects, including an analysis of zoning barriers, that could extend obligations into 2017. Gurian goes a step further, taking issue with the placement of some of the housing that's already been greenlighted and the fact that the county hasn't taken a more active role in changing local zoning.

How deep the housing dispute goes and for how much longer may depend on whether the incoming administration of President-elect Donald J. Trump means the federal government begins to take a more hands-off approach to housing integration.

Will Trump be a factor?

Astorino, a Republican who came into office in 2010 after the agreement was signed, has clashed with the federal government over terms of the settlement and been an outspoken critic of the U.S. Department of Housing and Urban Development.

Over the years, he’s referred to HUD as social engineers looking to dissolve local zoning and even questioned administrators’ competence during one round of the back-and-forth. The settlement was a campaign point for Astorino during his two runs for county executive, as well as his failed gubernatorial bid in 2014.

In a 2014 commercial aimed at Nassau County residents, the Astorino campaign warned that HUD’s overreach could mean high-rises built on any street. A graphic showed a suburban street with buildings rising above single-family homes.  The blue sky was turned to yellow and black.

After Trump’s victory, Astorino was rumored to be under consideration as the new HUD secretary. Ben Carson was offered that post instead, but that Astorino went from HUD critic to its rumored next leader shows dramatic policy shifts are expected.

“I think the next administration will be far more relationship building with their partners than predatory and in constant attack mode,” Astorino said in a recent interview. “I think that dealing with the Trump administration will be at least fair, as opposed to completely unhinged right now.”

Holly Leicht, the HUD regional director for New York and New Jersey, said an administration change wouldn’t necessarily mean closing the books on the settlement unless Judge Denise Cote, the presiding judge on this issue, agrees the county has followed through on its obligations.

“It’s hard to say,” Leicht, an Obama appointee who leaves her post Jan. 20, said. “Much of the things in this case will be decided in the court. We’re pretty far along for policy shifts to have an impact here and I don’t think we know really yet where policy more generally will go.”

She said regardless of administrations, HUD is going to have responsibility for enforcing the Fair Housing Act, which protects against housing discrimination. Calls to a spokesperson for Carson and the Trump transition team weren't returned.

The U.S. Department of Justice, which is also a party to the settlement, will see a new attorney general in Jeff Sessions under Trump. However, Preet Bharara is staying on as U.S. Attorney for the Southern District of New York. A change in course by Bharara’s office in the housing case seems unlikely with no major change in the district staff.

How we got here

The Anti-Discrimination Center sued Westchester in 2006 after the county had accepted $52 million in federal development grants on behalf of most of its communities by falsely certifying in the grant paperwork that Westchester had analyzed impediments to fair housing. The cities of Mount Vernon, New Rochelle, White Plains and Yonkers applied for their own grants under the program and weren’t part of the suit.

To avoid a costly loss after trial, Westchester under former County Executive Andy Spano signed a complex 38-page legal settlement, agreeing to build the housing in 31 “eligible communities” where blacks and Hispanics made up less than three percent and seven percent of the overall population, respectively.

It agreed to pay at least $51.6 million to build the housing, as well as $8.4 million to the federal government and $2.5 million to the center. Attorney James E. Johnson became the court-appointed monitor, overseeing implementation of the settlement.

Astorino won election weeks after the county legislature signed off on the deal, then took office in January 2010. Almost from the start, he’s butted heads with the monitor, DOJ and HUD over the terms of the settlement that he inherited without input.

Gurian, though no longer a party to the settlement, has said the county hasn’t complied with its obligations and has faulted the federal government and monitor for not taking a harder enforcement stance.

Even units that were built have perpetuated segregation rather than dismantled it, he maintained. Roundtop Commons in Montrose, the first major development under the settlement, is off busy 9A and near a VA Hospital and train tracks.

A development in Rye he criticized as being isolated from the rest of the city and closer to a Port Chester’s downtown in a racially diverse ethnic block. Gurian maintained that clustering the units had the opposite effect of integration, and remote locations stigmatized the housing while the county has maintained it had to work with what land was available.

Gurian stressed he didn’t think the court order was a failure, but only the lack of enforcement.

“Nobody wanted this thing to be a success more than I did,” he said. “I’m just not going to pretend.”

What’s been done ...

The county is required to have financing and building permits for all 750 units by Dec. 31. Westchester has exceeded its financing mark with 793 units funded as of this week, according to an administration spokesman.

Some 714 units have building permits or certificates of occupancy in place. That’s 36 shy of the end-of-year benchmark, but the administration said it has 75 units with permits or certificates pending.

The county has spent $61.4 million in subsidies, nearly $10 million more than the $51.6 million required in the court order, according to McCormack, the Astorino spokesman

“We’re optimistic but not complacent and we’re working hard every day to make sure we get across,” McCormack said.

The county’s housing counts will have to be approved by the court ultimately. When Westchester counted 28 units from the proposed Chappaqua Station development as having permits, the monitor took issue and recommended they shouldn’t go toward the county’s 2014 benchmarks. There were questions over whether the town of New Castle, which has jurisdiction, would ultimately OK the development.

The development was facing resistance from local elected officials and the community, and advocates argued the county should sue New Castle to ensure construction of the units. The settlement dictates the county should take steps including legal action to get the housing built.

The court eventually ruled those units could be counted, but required periodic updates from the county showing it was working to get the affordable housing built. The developer is now working on getting needed approvals for an easement from the state Department of Transportation for the parcel.

The county promoted a model ordinance to local communities that included provisions such as an affordable housing requirement. But, Yorktown recently rescinded its affordable housing requirement.

… And what hasn’t

Going into 2017, there are still several aspects of the settlement that have to be resolved:

• Will an analysis of impediments be accepted?

An analysis of impediments, or AI, was required to identify barriers to fair housing. It was up to HUD to deem the AI acceptable, the settlement said.

The Astorino administration has conducted eight versions of the AI, each saying there were no systematic barriers. Each AI was promptly rejected by HUD.

Under court order, the county has obtained a consultant and conducted a fresh AI that was distributed this month and will be considered in early January. It is likely that HUD officials can submit their feedback to the court prior to the change in administrations.

• Will a new monitor be appointed?

Johnson resigned as monitor roughly four months ago. Although a replacement monitor has been suggested by the justice department, Westchester said no new monitor is needed.

“I think it’s in the interest of all parties to finish this, and to put a bow on it, and everyone can take credit and we move on,” Astorino said.

Johnson has announced he’ll seek the Democratic nomination to run for New Jersey governor next year. He didn’t return an email seeking comment.

• What will happen with the county’s marketing campaign?

Under the terms of the settlement, Westchester was required to market the units outside of the county. The county has marketed through its One Community campaign, but the level of the county’s effort to market the units, particularly outside of Westchester, will be reviewed by the court.

A look at demographics

Westchester, which had 949,000 residents as of the 2010 Census, has a 57.4 percent white population, 21.8 percent Hispanic population and 13.3 percent black population. But, the demographics of its individual communities don’t reflect that overall profile.

Seventeen of the 45 municipalities in Westchester have black populations of 2 percent or smaller, as of the most recent census. Thirteen communities have Hispanic populations that make up less than 7 percent of the overall community. Only nine communities have black population percentages in the double digits, and four of them are the cities not involved in the settlement.

In the county’s quarterly housing report, it noted the demographics of the first 384 initial units built and occupied. Fifty-four percent heads of household of those units identified as white, 25 percent identified as black or African-American and 5 percent as multi-racial (8 percent didn’t indicate a race).

About 25 percent identified ethnicity as Hispanic, with 17 percent of households not indicating any ethnicity. Some 260 occupants already lived in Westchester (36 from Yonkers and 28 from Peekskill). Thirteen of 265 originally from Westchester came from municipalities that weren’t eligible under the settlement.

Sixty-five occupants came from New York City, with the most of any borough, 47, coming from the Bronx. The average subsidy per unit through the end of September was $74,467, according to the report: $68,529 for rental and $90,476 for homeowner.

Two of the 31 eligible communities have no units to be counted for the settlement in the pipeline: Bronxville and the town of Mamaroneck, according to the report.

McCormack, Astorino’s spokesman wouldn’t credit the housing for diversifying the county and said demographics were shifting due to natural market forces.

“People come here because they want to come here,” he said. “Before and after, Westchester has been a welcoming community.”

Twitter: @marklungariello

Who are the players

Rob Astorino

He’s up for re-election in 2017 and has said he will seek a third term in a county where Republicans are outnumbered by both Democrats and by independent voters. He’s expected to be a contender to run for governor again in 2017.

James E. Johnson

After resigning his post with the New York City lawfirm Debevoise and Plimpton, he threw his hat in the ring to net the Democratic nomination to run for New Jersey governor in 2017. Incumbent Gov. Chris Christie is no friend of Astorino, after Christie didn’t back Astorino’s run against New York Gov. Andrew Cuomo in 2014.

Craig Gurian

An attorney and professor, Gurian’s ADC is no longer party to the settlement. Last year, his group sued New York City over a lottery for affordable housing that favors city residents who already live in a specific district.

Holly M. Leicht

The regional director of HUD for New York and New Jersey, an Obama appointee, will leave her post on Jan. 20 when President-elect Donald J. Trump takes office. She’s likely to stay active in the suit, including commenting on the county’s latest analysis of impediments, until she moves on.

Preet Bharara

The U.S. attorney for the Southern District of New York is staying on when Trump takes office and new Attorney General Jeff Sessions takes over the Department of Justice. Bharara is known as being tough on government corruption, but his staying on under the new administration may mean the DOJ doesn’t ease up on Westchester fulfilling its requirements.

By the numbers

793

Units with financing in place. A court order requires Westchester to have 750 units with financing in place by Dec. 31.

714

Units that have building permits or certificates of occupancy. That’s 36 shy of the required 750 by year’s end.

8

Versions of the analysis of impediments to fair housing conducted by County Executive Rob Astorino. None have been deemed acceptable by HUD.

2

Bronxville and Mamaroneck Town are the only “eligible communities” out of 31 with no units counted toward the settlement.

$61.4M

County subsidies for the building of the units. Under the settlement, it was required to spend at least $51.6 million.