In a letter dated April 23, 2014, addressed to Westchester County Executive Rob Astorino, Deputy Assistant Secretary for Special Need Mark Johnston of the Office of the Assistant Secretary for Community Planning and Development, gave notice of his office’s Intent to Reallocate FY2012 Westchester County Formula Funds. Mr Johnston noted that, “On August 16, 2013, I provided you with notice regarding Westchester County’s FY2011 HUD Formula grant funds, which have since been reallocated or expired. In that letter, I also notified you that HUD would contact you concerning the County’s intention on the FY2012 formula funds. HUD previously rejected the County’s certification that it will affirmatively further fair housing (“AFFH”) and disapproved its action plan for FY2012 by letter dated April 27, 2012. Since that date, the County has failed to provide the assurance requested to come into compliance with the AFFH certification, so as to allow HUD to approve the FY2012 annual action plan.”
“Because of the County’s failure to undertake remedial action to date, HUD hereby provides notice of its intent to proceed with the reallocation of the County’s FY2012 formula funds in the following amounts:
“By letter of August 9, 2013, HUD provided the County notice of its continuing noncompliance, and informed the County of the steps that it could take to avoid reallocation of FY2011 formula funds. Given the County’s inaction and refusal to design its own solution, HUD provided the County with a roadmap to coming into compliance with the Settlement and its AFFH obligation. Specifically, the Department notified you that the County could receive the formula grants through the following steps: (1) acknowledge its legal duty to AFFH, (2) adopt the findings and recommendations in the Monitor’s Report on Westchester County’s Analysis of Municipal Zoning, (3) amend its zoning submission for the 31 municipalities with low populations of Black and Hispanic households to address the impact that restrictive zoning practices may have on those populations by limiting the availability of affordable and multifamily housing, to the extent that those populations throughout the County have greater affordable and multifamilty housing needs, consistent with the criteria set forth in HUD’s letter, and (4) implement a strategy to overcome exclusionary zoning practices. Westchester, by letter dated August 15, 2013, rejected HUD’s request for assurances that it would follow the roadmap provided a productive alternative way to come into compliance with the Settlement Agreement and its AFFH obligations. Instead, the County has steadfastly refused to revised to revise its Analysis of impediments to Fair Housing Choice (“AI”) to include an adequate analysis of restrictive zoning practices and a strategy to overcome exclusionary zoning.
“As confirmed by United States District Court for the Southern District of New York, Section 104 of the Housing and Community Development Act of 1974 expressly commits certification decisions to HUD’s discretion. County of Westchester v. HUD, 13 Civ. 2741, slip op., at 9 (S.D.N.Y, August 14, 2013). And the August 10, 2009, Stipulation and Order of Settlement between the United States and the County, at paragraph 32, expressly requires the County to submit an AI deemed acceptable by HUD.
“In view of the above, HUD intends to reallocate the FY2012 formula funds for the same reasons outlined in the August 9, 2013, letter. Before it takes this action, however, HUD hereby renews its offer for the County to come into compliance. The attached special assurances are substantially identical to those presented to the County last year, and allow additional time for the completion of the amended zoning submission to be incorporated in the AI.
“To avoid reallocation of the FY2012 formula funds, the County must sign and submit the attached special assurances by 5 p.m. on Wednesday, May 7, 2014. If the assurances are provided, HUD will approve the County’s FY2012 and FY2013 annual action plans and award the covered formula funds to the County upon timely satisfaction of all submission requirements.
“Please contact me if you have any questions.
Signed, “Sincerely, Mark Johnston, Deputy Assistant Secretary for Special Needs”