Westchester County Executive Rob Astorino’s latest gambit in his defiance of the federal fair-housing consent decree would have the county sue the US Department of Housing and Urban Development over its threat to withhold $7.4 million in federal funding.
Edgemont civic leader Robert Bernstein told Tax Watch on Sunday that Astorino has chosen the wrong venue for his latest legal initiative. He predicted that the federal government may soon lose patience with Astorino’s recalcitrance. An additional $5 million in federal funding is at stake for 2012, and more in 2013.
“The full force of the federal government could come down on him, and squash him like a bug,” said Bernstein, an attorney who practices in federal court.
The case is before US District Judge Denise Cote, in the US District Court for the Southern District of New York.
The county Board of Legislators will meet Monday morning to decide whether the panel will back Astorino’s bid to take legal action against HUD. The federal agency has set an April 25 deadline for the county to save the $7.4 million HUD has threatened to rescind from the county’s 2011 allocation of Community Development Block Grant funding. HUD based its action on the county’s inability to submit an acceptable report, required by the fair-housing settlement agreement, that would provide an analysis of impediments to fair housing, and a county strategy to overcome those impediments. That strategy would include the possibility of taking legal action against municipalities with exclusionary zoning.
Astorino has insisted there is no exclusionary zoning in the 31 predominantly white communities where the county must build 750 units of affordable housing under the settlement.
Last week, Astorino lashed out at HUD, saying that the agency was committing “extortion” by making the federal funding dependent submission of a satisfactory analysis of impediments. He has sought a hearing on the matter before HUD, claiming that was no “due process.”
Astorino spokesman Phil Oliva said HUD has acted outside the boundaries of the landmark fair-housing settlement by withholding the CDBG funds.
“The denial of 2011 Community Planning and Development funds, including Emergency Shelter Grant funds, is not governed by the settlement,” Oliva said in a written statement. “In denying 2011 CPD funds, HUD is bound by federal law and regulations, and cannot deny those funds arbitrarily and capriciously. The county is entitled to utilize the administrative and legal remedies provided by federal law to challenge HUD’s baseless and punitive denial of these funds.”
But Bernstein said Astorino’s in-house legal staff, headed by former Mount Pleasant Town Supervisor Bob Meehan, needs to take another look at paragraphs 43 and 51 in the consent decree, which was signed by Astorino’s predecessor, Andy Spano.
“If Astorino thinks HUD is overreaching, he needs to go before the federal judge,” Bernstein says.
Paragraph 51 of the settlement states that the US District Court for the Southern District of New York was the “exclusive jurisdiction and venue for any dispute arising between and among the parties under this Stipulation and Order.”
Paragraph 43 states that nothing in the settlement precludes HUD from taking enforcement action, based on four federal statutes, including the Fair Housing Act, and Section 109 of the Housing and Community Development Act of 1974.
Said Bernstein: “That means that if HUD limits a future grant award because of alleged noncompliance with the agreement, the exclusive venue for any dispute arising under the agreement is the Southern District Court of New York.”
Astorino’s bid to sue HUD follows an April 5 ruling by the US Court of Appeals for the Second Circuit, which found that the county executive was in violation of his requirement, under the consent decree, to promote “source-of-income” legislation. Such legislation would prohibit landlords from discriminating against tenants who paid their rent with federal housing vouchers.
Astorino, who vetoed the bill, argued that the county had satisfied the consent-decree’s mandate because his predecessor had promoted the measure during his tenure.
Bernstein said Astorino has good reason to seek support for legal action against HUD, instead of bringing the action back to Cote’s court.
“I can’t think of a party that would be coming to federal court with more unclean hands that the county executive,” said Bernstein. “He was already found to be in violation of the agreement, and now he’s complaining about HUD’s overreaching. The county doesn’t want to go before Judge Cote. They know she knows they are not in compliance.”