HUD Accepts Westchester’s 11th Fair Housing Analysis of Impediments Zoning Supplement

Aug 14, 2017

A one-paragraph letter dated July 14, 2017 announced HUD’s acceptance of the eleventh submission of the Zoning Supplement to Westchester County’s Analysis of Impediments (AI) to fair housing choice. Because Westchester County, NY no longer participates in HUD’s formula programs such as the Community Development Block Grant Program (CDBG), this ends HUD’s role in the affirmatively furthering fair housing (AFFH) saga with Westchester that began in 2006.

The Anti-Discrimination Center of New York sued the County in April, 2006 for falsely certifying that Westchester was complying with the Fair Housing Act of 1968 obligation to affirmatively furthering fair housing. Each year when jurisdictions submit an Annual Action Plan to receive funds from one of HUD’s formula programs, such as CDBG, they must certify that they are affirmatively furthering fair housing. 

On April 28, 2009 HUD rejected the accuracy of Westchester’s certification that it was affirmatively furthering fair housing. HUD’s action followed the February 24, 2009 ruling by the U.S. District Court for the Southern District of New York that Westchester had “utterly failed” to meet its AFFH certification, and that its annual certification and more than 1,000 claims for payments sought from HUD over a six-year period were false. A Consent Decree (Settlement) was reached by all parties on August 10, 2009, which, among other provisions, required Westchester to submit an AI acceptable to HUD.

HUD’s July 14, 2017 letter accepting the latest Zoning Supplement to the AI follows two previous letters. A letter dated April 10, 2017 found Westchester’s March 20, 2017 Zoning Supplement to the AI unacceptable in part because “it continues to lack appropriate analyses of impediments to fair housing choice.” Highlighting several examples, HUD stated, “Yet, the County fails to analyze whether zoning is a factor,” and “These residential segregation patterns require closer analysis to determine the influence of zoning.” HUD focused on Westchester’s declarations such as “There is no correlation between zoning and concentrations of the Hispanic population,” and “There is no correlation between zoning and the concentration of the Black/African American population.” HUD wrote on April 10 that these conclusions were not supported by the data.

A HUD letter dated May 4, 2017, in response to the County’s request for HUD to reconsider, referred back to its April 10 letter stating, “Specifically the County’s conclusions regarding correlations between zoning and Black/African American and Hispanic populations cannot be logically drawn. . . . Although the County consistently finds that there is no correlation between zoning and demographic patterns, upon re-evaluation of the Supplemental Zoning Analysis, HUD identified clear patterns and a degree of correlation between zoning and where Black/African American and Hispanic populations reside based on the data contained in the County’s latest zoning analysis.”

The May 4, 2017 letter concluded: “For HUD to accept the County’s AI, the County must either: 1. Acknowledge where a correlation exists between zoning and where Black/African American and Hispanic populations reside; or 2. At a minimum, remove conclusory statements that find “no correlation” between zoning and Black/African American and Hispanic populations given the facts relating to the demographic patterns and various zoning districts, as already contained in the Supplemental Zoning Analysis.”

Emphasizing option 2 above, HUD sent Westchester a “redline” version of the County’s Zoning Supplement on June 16, 2017, specifically indicating which lines should be removed in order to secure HUD acceptance. Sixteen towns and villages were previously agreed upon as those subject to the Court Settlement. For all but one, HUD suggested one or two lines be struck, such as: “Therefore, there is no zoning-related barrier to minority populations residing in the village of Larchmont.” Westchester’s final, HUD-accepted Zoning Supplement deleted the sentences suggested by HUD.

NLIHC believes HUD should have insisted on option 1, acknowledging where a correlation exists between zoning and where Black/African American and Hispanic populations reside. Allowing option 2, merely excising sentences that claim there are no such correlations, enables Westchester to evade addressing genuine impediments to fair housing choice.

While deleting the lines that asserted there was no correlation between zoning and minority concentrations addressed one aspect of HUD’s May 4 letter, it appears as if HUD stopped pressing on another key component referred to in the May 4 letter and in prior letters – strategies for addressing impediments to fair housing choice. The May 4 letter concludes, “In addition, HUD requests that the County describe how its findings and the possible actions it identifies for expanding affordable housing opportunities will inform strategies developed in the County’s Analysis of Impediments overall.”

A December 29, 2016 HUD letter noted that the County made four Zoning Analysis submissions throughout December, each of which lacked “any commitment on the part of the County to develop and implement strategies to overcome the effects of the exclusionary zoning practices identified in the Court-appointed Monitor’s report.” That letter also stated that the County’s consultant would “have to identify and include strategies to be employed by the County to overcome the effects of the exclusionary zoning.”

The April 10, 2017 HUD letter continued to emphasize the need for the Zoning Analysis to address strategies. The opening paragraph declared that the March 20, 2017 submission was “unacceptable because it continues to lack appropriate analyses of impediments . . . and fails to identify forward-looking strategies to overcome those impediments.” The letter refers to a HUD email dated February 17, 2017 advising the County that the AI Zoning Supplement “must provide strategies that the County may utilize in addressing the [demographic] patterns [that may arise as a result of zoning].” The April 10 letter concludes, “The Settlement dictates that an AI will contain forward-looking actions the County would take to overcome the effects of identified impediments. However it has none. Instead, the AI Supplement discusses actions in Section 5 focusing mainly on education and outreach efforts since 2010. . . . For any AI Supplement the County submits to be acceptable to HUD, consistent with the Fair Housing Planning Guide, both the identified impediments to fair housing choice and the strategies to overcome them must be appropriate and consistent with data and local context. The AI Supplement does neither.”

Between the April 10 letter and the May 4 letter, HUD’s emphasis on strategies was significantly diluted, and between May 4 and July 14, HUD’s concern about strategies for overcoming impediments to fair housing choice was dropped altogether.

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