Federal Monitor for Affordable Housing Settlement Calls to Depose Astorino

Federal Monitor James Johnson, the New York attorney charged with overseeing the implementation of the Fair and Affordable Housing settlement in Westchester, is now calling for Westchester County Executive Robert Astorino and his staff to be deposed in court. Stating that Astorino and his team "have made statements that have confused the public, misstated the terms of the Settlement and signaled ongoing defiance of its terms.," Johnson is asking for the deposition to focus on "the County Executive's public statements and the areas of non- or partial compliance."

Johnson's order came as part of his second biennial assessment of the County's compliance to the 2009 decision that prescribed a far-reaching plan to "expand opportunities for African Americans and Hispanics to live in integrated communities in Westchester."

Some of the County Executive's misstatements cited in the report include the following:

• Astorino's assertion that the Monitor was attempting to impose a new requirement of 10,768 rather than 750 units with allocations of hundreds of units to specific communities.
• County Executive's claim that the cost of the settlement could exceed one billiion dollars.
• Statement that HUD intends to build six-story high rises.

The 73-page report analyzes all progress on the settlement and charges Astorino with misrepresenting the terms of the court order and deliberately confusing the public. Though he credits the County with making progress in constructing the required housing units, Johnson says Westchester has failed to meet many of the other stipulations. Johnson charges the County Executive with attempting to reduce the terms of the settlement to the construction of units while ignoring the mandate to educate the public, to conduct an advertising campaign and outreach effort and to produce an acceptable review of local zoning codes that impede fair housing.

The Settlement called for the County to conduct an analysis of certain restrictive zoning practices in the 31eligible communities, to specify a strategy to overcome exclusionary zoning practices and to identify the types of zoning practices that would, if not remedied, require the County to pursue legal action. Though the County submitted multiple analyses, none found evidence of exclusionary zoning. Johnson calls the multiple analyses that were submitted "deficient" and said the County "had failed to fulfill it's duty," as they did not examine the question of race as an obstacle to the development of affordable housing.

After several analyses were rejected by HUD, Johnson retained independent housing consultants to review the data and according to the biennial report in March 2013 the consultants "concluded that seven of the 31 municipalities eligible under the Settlement (Harrison, Lewisboro, Mamaroneck, Ossining, Pelham Manor and Pund Ridge) had zoning ordinances that limited affordable housing or made the development of affordable housing practically infeasible." Astorino responded by holding a press conference in which he claimed that the Monitor was changing the terms of the settlement and could require the County to build 10,678 units rather than the 750 stipulated by the court.

HUD has punished the County by withholding more than $12 million in funds earmarked for Westchester municipalities, and more could withhold another $5.2mm if the impasse continues. In an effort to produce an acceptable analysis (A-1) and secure funds due to the County, the Westchester County Board of Legislators has now stepped in and suggested that the Monitor oversee the analysis.

Astorino has rejected the Board's move to work with the Monitor saying that Johnson is advocating "rewriting the terms of the Settlement," and "giving HUD unprecedented power to dismantle local zoning." He said HUD would strip local governments of Home Rule, and "replace the zoning analysis" done by the County (which after eight reviews found no evidence of exclusionary zoning based on race or ethnicity) with its own reports and conclusions." The County Executive is holding fast to his contention that there is no evidence of exclusionary zoning based on race or ethnicity.

Though Astorino thinks Johnson is over-reaching, the Anti-Discrimination Center that brought the original lawsuit against the County feels that Johnson's report does not go far enough. They call the report a "masterpiece of misdirection" and want the County to be charged with contempt. In an opinion piece on their website they say, "On the basis of evidence clear to all, the Monitor ought to have been asking the Court to hold Westchester in contempt for its brazen and ongoing violations of the Consent Decree."

Now that Astorino is vying to be the Republican candidate for Governor of New York State, the Settlement is bound to become an issue in the race. Though some in Westchester believe the County Executive is defending their right to local zoning control, statewide voters could view his defiance and failure to seek compromise as a problem with his leadership skills. Strapped for funds, neither the County nor the State can afford to turn away federal grants, and voters outside the County may look upon this case as black mark, not as a credit to Astorino's resume. The history of the Settlement is a complex issue that upstate voters may not take the time to thoroughly analyze. Instead they might focus on the bottom line – which is that Westchester County now stands to lose almost $20 million in HUD funds if the issues cannot be resolved.