Politics & Government

Appeals Court Rules Against County on Housing Settlement

Court of Appeals affirms a lower court's finding on source-of-income legislation as part of the 2009 affordable housing agreement.

Westchester County breached its 2009 federal affordable housing settlement because of County Executive Rob Astorino's veto of legislation that bars discrimination by landlords of sources of income, a federal appeals court decided Friday.

In a 22-page decision, the United States Court of Appeals for the Second Circuit affirmed a ruling last year from a federal district court against the county on the issue. The 2009 settlement, which requires the county to support building 750 affordable housing units in primarily white communities by 2016, also requires that the county “promote, through the County Executive, legislation currently before the Board of Legislators to ban ‘source-of-income’ discrimination in housing.”

Source-of-income legislation would prevent landlords from refusing to accept rental payments in the form of public assistance such as Section 8 vouchers or Social Security benefits. Astorino has argued that landlords should not be compelled to deal with the Section 8 program, but rather it should be voluntary.

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“This would take away that right," Astorino said at a Chappaqua forum in January.

Key to the court's ruling is an interpretation of the word "promote," which the court argues means bringing something into being.

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"The plain meaning of the word “promote” naturally remains the same here. Thus, in entering into the consent decree, the County agreed to help bring the source-of-income legislation into being through the County Executive."

The court disagreed with the county's argument that the language was just hortatory, or a general point of encouragement.

The court also argued that Westchester has failed to promote the legislation, citing Astorino's 2010 veto of a measure. It also disagreed with the county in an argument over how the settlement relates to the county's sovereignty, and an argument from the county about the implementation being curbed by the structure of the county government at the time.

The veto was disputed by the U.S. Department of Housing and Urban Development (HUD), as it when rejected a report from the county on its handling of the settlement. The dispute between the federal government and the county over source-of-income legislation was brought before a federal magistrate judge, who sided with the county in early 2012. Later that year, the district took up the dispute and sided with the federal government.

Astorino responded later in the afternoon with a statement, reiterating this thoughts on the issue while stating that "I will comply with the law and continue to take principled stands on behalf of the people of Westchester."

"My objection to source of income legislation has never been about the Section 8 program, which provides vouchers to supplement the rent of low-income residents," Astorino stated. My objection has been turning this worthwhile voluntary program into a mandatory one that would compel every owner of a house or apartment to do business with the federal government – and take on all the rules and regulations that entails – upon a tenant’s presentation of a Section 8 voucher. I also felt that the source of income legislation would be detrimental to the housing settlement because it would act as a disincentive for developers to build affordable housing."

Board Chairman Kenneth Jenkins, who is also running against Astorino for county executive, issued a statement attacking him.

“All along, the Board of Legislators has been urging County Executive Astorino to comply with the law and follow all of the stipulations of the housing settlement, as he promised to do when he first took office. Today’s Court of Appeal’s decision, which centers on the County Executive’s stubborn refusal to promote Source of Income legislation, puts the County at significant financial risk, through its non-compliance, and threatens to upend the settlement."

Jenkins and Astorino, in their statements, essentially argued that each other's branch of county government needs to make the next move for source-of-income legislation.

“The County Board voted to direct the County Executive to submit his version of Source of Income legislation," Jenkins stated. "Today’s decision should provide the necessary impetus for County Executive Astorino to introduce new Source of Income legislation for the Board’s consideration and resolve this major issue, before Westchester suffers further consequences from the County Executive’s non-compliance with the law.” 

Astorino noted that the matter was directed to the board last August after the district court's ruling.

"The county is already in compliance with the ruling because the Second Circuit in taking on the appeal never granted the county a “stay” from the lower court ruling, which it has now affirmed. As part of that compliance with the lower court order of Judge Denise Cote, I asked the county Board of Legislators back on August 31, 2012 to reintroduce the source of income legislation that had previously been before it. The matter is now in the hands of the Board of Legislators."

A copy of the court's decision is attached to this story as a PDF file.


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