affordable housing

By Andrew Vitelli

“It’s really mind-boggling, if you think about it,” New Castle Supervisor Rob Greenstein says. Sitting just a stone’s throw from the site of the controversial Chappaqua Station housing project, Greenstein is referring to criticism of the town coming from the U.S. Department of Housing and Urban Development and from a monitor appointed following a 2009 settlement between HUD and Westchester County. “I think they should be singing our praises and holding us up as an example of doing more than our share. And instead, we’re criticized.”

In purely numerical terms, New Castle has more than carried its weight; even without Chappaqua Station, which Greenstein opposes, more than 30 units are in the pipeline. But the fight over Chappaqua Station, built on Hunts Lane between the railroad tracks and a Saw Mill Parkway exit ramp, has dragged on for years and put the town in the middle of a bitter fight between HUD and county leadership.

On Old Route 22 in Armonk, meanwhile, a row of freshly-built multifamily homes has sprung up, construction equipment sitting outside. In July, North Castle was removed from a list of municipalities facing legal action over their zoning laws and the concentration of multi-family housing within the municipality. The town’s presence on the list, the town’s supervisor says, had more to do with the lack of infrastructure throughout much of the town–along with the flooding of Kensico village a century ago–than any discriminatory intent on the town’s part, and in the end the HUD-appointed housing monitor agreed. “I’ve found them to be very receptive to our communications,” Supervisor Michael Schiliro says.

These towns are just two of more than 30 towns and villages impacted by the settlement, but their stories give a closer look at how the settlement has played out in many of these communities.

The Settlement

The housing settlement, which has cast a shadow over Westchester politics for nearly a decade and brought the county to the center of a battle over federalism, government overreach, and allegations of modern-day segregation, was signed in August 2009 by then-County Executive Andrew Spano. In 2007, the Anti-Discrimination Center, a Manhattan based non-profit which fights housing discrimination, sued the county over accusations that the county had been collecting federal funds earmarked for low-income housing without meeting the requirements necessary to receive these funds. In February 2009, U.S. District Court Judge Denise Cote ruled that the county had failed to conduct an analysis of impediments to address claims of housing discrimination. Facing the possibility of liabilities of more than $150 million, Spano had no choice but to agree to the settlement, under which Westchester admitted no wrongdoing but agreed to commit $51.6 million to building 750 affordable housing units, mostly in municipalities, including New Castle and North Castle, with few black or Latino residents.

That November, Rob Astorino, a Republican and an opponent of the settlement, unseated Spano to become county executive. While Astorino vowed to comply with the settlement, the last six and a half years have been marked by recurring conflict between HUD and the county. There have been spats over which projects should be counted towards the settlement, over legislation banning landlords from rejecting people with government housing vouchers, and over the county’s effort to press towns and villages to adopt a model zoning ordinance.

A continuing source of strife has been the county’s obligation to conduct an analysis of impediments, including those based on race or resistance to affordable housing, to identify exclusionary zoning. The county has submitted eight analyses to HUD, finding no exclusionary zoning regulations. HUD has rejected every submission. This dispute has cost the county more than $20 million in grant money from HUD.

For both sides, though, the principles in play go beyond the sum of the projects and the dollars involved. Astorino has called HUD’s actions “Washington-driven social engineering,” a sentiment echoed by, among many others, the Wall Street Journal’s editorial board. On the other side have been allegations of thinly-veiled racism, with The New York Times editorial board accusing the county of “keeping Jim Crow’s spirit alive.”

The Challenge in Chappaqua

New Castle is not only one of the richest communities in the country, but home to both the Clintons and Governor Cuomo. Add to that the town’s role on the wrong side of a watershed 1977 zoning ruling, Berenson v. New Castle, and it’s understandable that Chappaqua would end up in the spotlight, Greenstein says.

“The truth is, it makes it a perfect little town to make an example of, and I think that’s part of the problem,” says the town supervisor. “Because of those three reasons, I think that there are some people biting at the bit to make an example of us, and we have definitely felt that pressure.”

New Castle, which adopted the model zoning ordinance in 2011, has one major affordable housing project that has sailed through with little opposition: a 28-unit affordable housing project called Chappaqua Crossing at the site of what was once the Reader’s Digest building on Roaring Brook Road. Conifer Realty purchased the Chappaqua Station site in September 2010. Conifer’s plans for the site (originally 36 units) were at the time backed by Barbara Gerrard, then the town’s supervisor, as well as the town board. One of the proposal’s early critics, as Greenstein now points out, was James Johnson, the HUD-appointed monitor overseeing Westchester’s compliance with the settlement, who in an April 2012 letter to the board suggested that the site was isolated and stigmatizing.

The monitor signed off, however, after the developer made changes to the site’s design to help integrate the project into the community aesthetically, created public space within the building, and addressed traffic concerns. One change was to downsize the complex from 36 to 28 units.

“Some would say he flip-flopped on the issue,” Greenstein says of the monitor, who recently resigned from the case. “I haven’t changed my opinion. I think that site is isolating and stigmatizing.” The town board granted Conifer a special permit in September 2013, contingent on Conifer obtaining the necessary variances and permits. By then, however, public opposition to the project had begun to take hold. In the 2013 town board elections, Greenstein ran on the Team New Castle ticket along with town board candidates Lisa Katz and Adam Brodsky. Opposition to Chappaqua Station was a significant factor in Team New Castle’s election to all three positions. With the supervisor and a majority of the town board opposed to the project at its current location, along with concerns voiced by Building Inspector Bill Maskiell, progress on the development has slowed in the last two and a half years.

The root of the resistance to Chappaqua Station–whether born from flaws in the project or a wider resistance to public housing–is much contended. In February 2014, Conifer filed a Housing Discrimination Complaint with HUD, stating that during public debate opponents of the project claimed that “the project would be a stigmatized ghetto, that the children who lived there would be ostracized by children who live in the Village, and that the project would be where the ‘blacks and Hispanics’ live.”

Holly Leicht, HUD’s regional administrator for New York and New Jersey, says it’s hard to answer with any certainty whether opposition is due to the project itself or reflects a fear of any affordable housing. “There are probably people on both ends of the spectrum,” Leicht explains. “There usually are in these situations, where there’s a controversial project.”

But Greenstein points out that the town’s other major affordable housing project under the settlement, Chappaqua Crossing, has received little pushback from the community.

“When you look at that building, you’re not going to say, ‘That’s affordable housing.’ You’re going to say, ‘That’s housing,’” Greenstein says, referring to Chappaqua Crossing. Turning his attention to Chappaqua Station, he remarks, “Now compare that to this project over here. That’s on a third of an acre, from lot line to lot line there’s not a blade of grass.”

“There’s no question that people are opposed to this particular location,” Greenstein adds. “I want to make it clear that people are not opposed to affordable housing.”

The battle over the project has also ensnared the county. In December of 2013, the county’s Board of Legislators voted to withhold funding for the project; a year later, the board approved funding, on the condition that the project must receive all the necessary variances. The monitor faulted the county for counting the units towards the settlement agreement (it needed financing in place for 450 units by the end of 2014) but also blamed the county for failing to push New Castle to end the impasse. This May, Judge Cote said the units could count towards the settlement but also said the county had breached its obligation by not weighing in on behalf of the developer against local opposition.

Mike Kaplowitz, the chairman of the Board of Legislators, says the project has been problematic from the get-go.

“Pretty much, nobody is happy,” Kaplowitz says. “That project is so messy. I don’t meet many people in New Castle who are happy on either side of that issue.”

Leicht acknowledges that the town has some legitimate concerns over the project, but says HUD is worried that the town is dragging its feet.

“I think that a legitimate back and forth, and focusing on the health and safety issues, is fine. The sense was that this is being protracted for a very long time,” she says. “I think part of the frustration is that things keep coming up sequentially rather than part of one process that is condensed.”

A Solution in North Castle

Around a century ago, the Village of Kensico was flooded due to the creation of the Kensico dam, leading many of the village’s residents to move south to what is now the Hamlet of North White Plains. Supervisor Schiliro believes this piece of history along with the hamlet’s proximity to White Plains has led to a higher population density, and a concentration of the town’s minority population, in North White Plains that exists to this day.

Today, one zoning district in downtown North White Plains has three-and-a-half times the rate of minority households as the town as a whole. Additionally, large parts of the town are zoned for single-family housing, with these districts primarily white.

For the housing monitor, this itself amounted to prima facie (legal language meaning presumed until proven otherwise) evidence of clustering under what’s known as the Huntington test (named for the 1988 watershed case Town of Huntington v. NAACP).

“Do I disagree with their findings? No. They’re mathematical. We technically fail the Huntington test,” Schiliro admits. “But part of it is something that happened 100 something years ago, which developed a denser zoning or development here.”

The town’s zoning is based more on the limits of its infrastructure than anything else. In the rural northern parts of the city, sewer and water is sparse outside downtown Armonk. This prohibits the kind of housing density seen in North White Plains. Schiliro, a Democrat elected in 2013, met with officials from the monitor’s office his first year in office, giving them a tour of the town to show them the restrictions preventing multi-family housing throughout most of North Castle.

In May of this year, however, the housing monitor released a report placing North Castle on a list of seven municipalities whose zoning could result in liability under the Huntington test or the related Berenson test (named after the 1977 ruling involving New Castle). “In the absence of remediation,” the report stated, “the Department of Justice is encouraged to give serious consideration to bringing legal action against one or more of these municipalities.”

“I was disappointed because genuinely I felt that we had made a lot of progress,” Schiliro says, looking back at the May report. “So our reaction was, let’s sit down with the monitor and the monitor’s office again. It wasn’t any animosity, any anger. It was just, let’s communicate.”

Schiliro again met with officials from the monitor’s office in June following the report’s release and pressed the town’s case. A month later, the monitor withdrew his recommendation of legal action, noting progress made by the town and also acknowledging environmental and infrastructural constraints.

While the issue was ultimately resolved, the monitor’s decision to place North Castle on such a list in the first place was viewed by some of HUD’s critics, particularly the Astorino administration, as an example of “breathtaking” government overreach. A spokesman for Astorino said the county executive was puzzled by the monitor’s initial decision, as was Westchester Legislator Margaret Cunzio, who represents North Castle.

“I think it was unfair because since day one they had been compliant and they had been working with both the monitor and the HUD office,” says Cunzio, a Conservative. “The town has done nothing since day one but try to fulfill their requirements.”

Schiliro carefully avoids any criticism of HUD or the monitor.

“It must be a challenge for them,” he says. “It’s a lot of work to really understand all the towns in the county, and each town is very different.”

Schiliro also notes that the town has made progress since the monitor’s 2014 visit. North Castle adopted the model zoning ordinance in 2014, and 25 affordable housing units are in development throughout Armonk.

“The town has always had affordable type housing for decades,” Schiliro notes. “We listened to what the latest communications were from the monitor and we made some adjustments to our code like creating the model ordinance so the future units would conform with what the parameters of the lawsuit were.”

Light at the End of the Tunnel?

At the end of the year, the county is obligated to have financing in place for the 750 units required under the settlement. But the county’s need for affordable housing has no end date.

“If we get to the end of the settlement and 750 units have been built but everyone is saying, ‘I never want to have to deal with the federal government, or the federal government’s money, or affordable housing, again,’” Leicht explained to legislators at a June meeting, “then we have not really met our goal here.”

Speaking to the Inside Press, Leicht circles back to this idea when asked whether New Castle, with 60 affordable housing units in the works including Chappaqua Station, has in fact done more than its share.

“These projects are happening, and I am optimistic that the 750 units will be met, but I don’t really think anybody would say that’s the entire affordable housing need in the county,” Leicht comments. “I haven’t had anybody, no matter where they stand on this settlement, not acknowledge that Westchester really has affordable housing needs.”

When people move into that housing [in Chappaqua], we will do everything in our power to make them feel welcome and part of the community.” –Robert Greenstein

Even some of Chappaqua Station’s opponents now seem resigned to the likelihood that it will be built.

“I’d like this project not to go forward because it’s a terrible site,” Kaplowitz says. “But unfortunately the wheels are in motion and there’s nothing we can do to stop it.”

Greenstein notes that there’s no guarantee the project will meet the conditions required for the building permit, but acknowledges the futility of risking litigation to try to stop it from moving forward.

With the housing monitor absolving North Castle of its Huntington test failure, this reporter asks the town’s supervisor, is the town in the clear regarding settlement compliance? “I would think we should be,” Schiliro replies diplomatically. “We will just continue on this path,” he continues. “As new developments come about, the model ordinance is in place; we’ll continue to further affordable housing like we’ve been doing for decades.”

At year’s end, the county is set to have the 750 units in the works, theoretically winding down its obligations under the settlement. But if the past is a guide, nothing is that simple.

In his letter of resignation Johnson, the housing monitor, wrote that his successor should be prepared to deal with the case for some time to come.

Andrew Vitelli, a Westchester native, is the editor of Inside Armonk Magazine.