The Roberts Report: Lessons of the Consent Decree

By Alexander Roberts

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With the resignation of the federal monitor overseeing the housing discrimination settlement order between HUD and Westchester County after seven years in that position, it’s time to take stock.

In 2009, the county signed on to a far-reaching settlement with HUD with the intent of overcoming “exclusionary” zoning. Zoning in 31 overwhelmingly white municipalities, out of 43 municipalities in the county, had systematically restricted new construction mostly to single-family houses, creating a “disparate impact” on minorities. The federal court order, called the consent decree, also mandated construction of 750 “fair and affordable” units in the so-called “eligible” communities.

Unfortunately, with little pressure from HUD and the U.S. Attorney, the monitor blinked from the start. Instead of holding the county to its obligation to do a proper analysis of zoning barriers in each community and a plan to overcome them, he failed to enforce that key provision until a month ago.

And instead of encouraging affordable housing and diversity, required by the consent decree with a $400,000 public education campaign, County Executive Rob Astorino took to Fox News and The Wall Street Journal railing against a “federal takeover” of local zoning. Astorino succeeded in controlling the narrative that 107 fair and affordable units per year for seven years would destroy home rule, when more such units than the required number were built each year for the previous decade.

Market forces, however, and one politician have done far more than the consent decree to promote multifamily housing.

The first market force was the growing attraction of cities to the nation’s largest demographic—millennials, born between 1981 and 1997. Unlike their auto-obsessed parents, they want to walk to work, use mass transit and enjoy a vibrant night life. Cities like New Rochelle, White Plains and Yonkers not subject to the consent decree have enjoyed a renaissance with thousands of new apartments, often reserving a percentage for affordable units.

The second market force, reflecting more people working remotely, lifted office space vacancy to 23 percent in Westchester, driving some municipalities to near bankruptcy. That’s the term courageously used by Harrison Planning Board Chairman Tom Heaslip at a recent business forum, as Harrison saw its corporate share of property taxes decline to just 18 percent from a high of 60 percent in 1984. Formerly the poster child for exclusionary zoning for a quarter century, Harrison now embraces development with more than 600 units in the pipeline.

And then there’s the politician.

Disguised as a way to address uncontrolled property tax increases, Gov. Andrew Cuomo’s property tax cap actually made growth inevitable. With increases limited to a maximum of the inflation rate or 2 percent, this law required towns and villages to make drastic cuts to balance their budgets. This year, the cap mirrored inflation with a rate of only .73 percent — far below cost increases needed for salaries, pensions, health care and services. Port Chester had to eliminate its paid firemen.

Thanks to Cuomo, Westchester towns may no longer maintain the exclusionary zoning style to which their residents had become accustomed. Unable to raise taxes and with cuts eating into quality of life, municipalities found that the only way to pay for municipal services was to add multifamily housing.

Ironically, the tax cap may be Cuomo’s revenge on Harrison, which overturned approval of its last affordable housing project in 1991. Cuomo, as executive director of the nonprofit housing organization HELP, sponsored that development.

Alexander Roberts is executive director of the fair housing group Community Housing Innovations Inc., headquartered in White Plains. Contact him at aroberts@chigrants.org or 914-683-1010.

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