Monitor's zoning analysis profoundly understates exclusionary zoning

July 31, 2013 — Four years after the entry of the Consent Decree that the Monitor is supposed to have been overseeing, four years after Westchester had the mandatory obligation imposed upon it to take legal action against municipalities that did not get rid of barriers to fair housing choice, the Monitor has issued a zoning report that ignores exclusionary practices staring him in the face (including those recited by his consultants) and that ignores the law of disparate impact.

The bottom line: the analysis would not pass the laugh test of any experienced civil rights attorney or advocate.

The Monitor concludes that only seven municipalities have exclusionary zoning and that 24 municipalities have zoning regulations that “are not exclusionary” What is he talking about in terms of the 24?

Well, he acknowledges that 20 of them “do not necessarily meet either prong” of the requirements of New York State’s Berenson analysis (these are his “Category 2” municipalities). Indeed, the findings of his consultants make clear the wide range of exclusionary practices that exist.

A few examples (ADC emphasis added in all cases):

Ardsley:

The Village of Ardsley’s zoning ordinance provides some opportunities for additional affordable housing development, though seemingly not in numbers that would meaningfully allow the Village to meet the most recent and best available estimate of its share of regional affordable housing need.1 The opportunities for affordable housing are diminished, at least in part, by the limited acreage zoned for as-of-right multifamily housing development. Multifamily housing is allowed only in one zoning district mapped over less than six acres, and available sites in that district can accommodate only an estimated 19 housing units. Ex. E, Village of Ardsley Methodology II-C and II-D Map August 2012 (submitted Sep. 6, 2012). Other restrictive practices, such as prohibiting accessory housing units and limiting the number of bedrooms in townhouses, limit alternative sources of affordable housing as well…

Only 1.0 percent of the land area currently in residential use is occupied by multifamily housing (defined for this purpose as apartments, townhouses and quadraplexes).

Larchmont:

The Village of Larchmont’s zoning ordinance provides some opportunities for affordable housing development, although seemingly not in numbers that would meaningfully allow the Village to meet the most recent and best available estimate of its share of regional affordable housing need.1 There is reason to be concerned that after the financial and political incentives provided by the Settlement are removed, the Village’s zoning ordinance will not accommodate new affordable housing opportunities. The limited opportunities are due, at least in part, to restrictive practices on multifamily housing present in the Village’s zoning code. The zoning code allows multifamily apartment buildings and townhouses in some areas but with limitations that constrain their development as a practical matter.

 Mount Pleasant:

The Town of Mount Pleasant’s zoning ordinance provides some opportunities for affordable housing development, although seemingly not in numbers that would meaningfully allow the Town to meet the most recent and best available estimate of its share of regional affordable housing need.1 Multifamily housing is allowed as-of-right in parts of the Town, but these areas are largely built out; the County has been able to identify locations for only five new housing units in these districts…

To date, there is little or no evidence that the Town has taken steps to reform its zoning code or otherwise develop affordable housing.

Restrictive Practices

Accessory apartments are not permitted anywhere in the Town, either as-of-right or by special permit, unless they are for the exclusive use of domestic servants employed by the principal residents. Schedules of Regulations, TOWN OF MOUNT PLEASANT CODE § 218 Attachments 1-17.

Transitional districts (six of which permit multifamily housing) restrict the number of bedrooms per unit in a development to an average of two, with no more than three and no less than one bedroom. TOWN OF MOUNT PLEASANT CODE § 218- 76.F. See also Schedules of Regulations, TOWN OF MOUNT PLEASANT CODE § 218 Attachments 1-17. 

Scarsdale:

The Village of Scarsdale’s zoning ordinance provides some opportunities for affordable housing development, although seemingly not in numbers that would meaningfully allow the Village to meet the most recent and best available estimate of its share of regional affordable housing need.1 The opportunities for affordable housing are diminished, at least in part, by the limited acreage zoned for as-of-right multifamily housing development…

The districts that allow multifamily housing as-of-right approximately cover less than one-half of one percent of the Village’s land area…These areas are fully built out, with no available development sites…Only 0.26 percent of the Village’s land area in residential use is currently occupied by multifamily development (defined for this purpose as apartments, townhouses and quadraplexes). No two- and three-family housing currently exists in the Village.

Remember: these are among the municipalities that the Monitor says do not have exclusionary zoning.

Disparate impact

And then there is the peculiar way that the Monitor addresses disparate impact. What he fails to do, believe it or not, is to look at the demographic composition of the households in the region that would be eligible for affordable housing and compare that to the demographic composition of each municipality. In other words, he avoided engaging in a clearly relevant disparate impact analysis.

If he had done that analysis, he couldn’t have come to the conclusions he did.

According to 2010 Census data, there are still 25 municipalities in Westchester where the non-Latino, African-American population is under 3 percent (19 of those municipalities have non-Latino, African-American populations of under 2 percent). 

Prior to the Monitor’s having issued his report, ADC wrote to him explaining that, for illustrative purposes, we took a look at only those households in Westchester and in New York City where household income was at least $75,000 per year and asked, “What percentage of those households are non-Latino, African-American?”

The results:

In Westchester, 9.11 percent of households with income of at least $75,000 per year are African-American. This is much higher than the 19 under-2-percent municipalites (specifically from 479 percent to 1,301 percent greater).

In New York City (part of the same housing region), 17.7 percent of households with income of at least $75,000 per year are African-American. This is much higher than the 19 under-2-percent municipalites (specifically from 932 percent to 2,529 percent greater).

In Westchester and New York City combined, 16.4 percent of households with income of at least $75,000 per year are African-American (specifically, from 863 percent to 2,342 percent greater).

Limits on affordable housing in these municipalities perpetuate segregated housing patterns. Period.

Still failing to call for Westchester to be held accountable for its Consent Decree violations

Even the Monitor acknowledges seven Westchester municipalities as having exclusionary zoning. Since August 2009, Westchester has been under a mandatory obligation to take such legal action as appropriate to accomplish the affirmatively furthering fair housing purpose of the Consent Decree. See Consent Decree ¶ 7(j). Likewise, when a municipality has failed to take action needed to promote the objectives of getting affordable housing with maximum desegration potential built, the County shall use all available means as appropriate, including legal action. Legal action, in other words, is not, as the Monitor puts it in his report, something that the County may do when appropriate, but rather something the County has been obliged to do.

The County, of course, has been very clear that it will not do this. Rather than asking the Court to hold Westchester in contempt for its across-the-board rejection of its paragraph 7(j) obligations, the Monitor calls for yet another report.

The key question now is whether HUD and the U.S. Attorney will be as willing to continue to let Westchester violate a federal civil rights court order. Past practice points to the overwhelmingly likelihood that they will.