Unfortunately, some of the statements that have been made about the unit-specific requirements of the Settlement Order both on and after the announcement of the Settlement Order on August 10th represent wishful thinking, not reality. Herewith some facts.
Paragraph 7 of that Settlement Order provides that the County shall ensure the development of at least 750 new affordable AFFH units.
It is true that there are extraordinarily limited circumstances under which that number may be modified. Those circumstances are set forth in paragraph 15(a)(vi) of the Settlement Order. That paragraph permits the modification of the number of units only where:
(A) such modification or refinement occurs no earlier than four years following the entry of the Stipulation and Order, and no earlier than two years after the Monitor has first modified or refined the final time frames in which the Affordable AFFH Units must be developed; and (B) the County has provided compelling evidence and the Monitor finds that the County has taken all appropriate actions to meet the obligations set forth in paragraph 7, further extension of the time frames will not be sufficient to permit the possible satisfaction of the County’s obligations, and specific factors beyond the County’s influence or control exist that preclude the County’s satisfaction of its obligations...
In other words, this paragraph is utterly inconsistent with the idea that the County can make a pro forma submission that, "We've made best efforts; now leave us alone to maintain the status quo." The Settlement Order contemplates results.
It is particularly important to note in this connection the County specifically recognizes that local zoning is something over which it has influence or control (see the first recitation on page 2 of the Settlement Order), and that "all appropriate actions" are defined by paragraph 7(j) of the Settlement Order to include the County's responding to municipal resistance with legal action.
What does this mean?
It means that the County knows that context-sensitive affordable housing development is financially feasible. The County's funds will be supplemented by non-County sources (as is routinely done in affordable housing development across the country). Additional cross-subsidy will come from combining affordable units with market-rate units. Each subsidy will go further by creating a revolving fund so that a portion of the monies expended in the early part of the process can be recovered to help develop units later in the process.
- It means that the County knows that a central problem is artificially restrictive zoning. The Settlement Order contemplates that exclusionary zoning will be confronted and overcome, not with towers in the sky, but with modest density units that are site appropriate -- units that both for-profit and not-for-profit developers would be eager to build in the absence of barriers created by towns and villages.
- It means that towns and villages that adopt a cooperative approach with the County will have significant input to the plan and execution of the implementation process. Conversely, it means that towns and villages that try to frustrate the purpose of the Settlement Order will find that resistance will be met by firm resolve to have the terms of the Settlement Order enforced.
For further information on the case, including the fact that a highly-regarded federal judge has already found as a matter of law that, over a six-year period, Westchester "utterly failed" to meet its affirmatively furthering fair housing responsibilities, and that all of the County's representations that it had done so were "false or fraudulent," go here.