Statement by County Legislator Tom Abinanti

I have been repeatedly asked about the recent settlement of a very significant federal lawsuit against Westchester County.  I would like to share with you some of its details, my reasoning for voting against it and where we go now.

Contrary to media hype, the lawsuit was not about racism or affordable housing.

This lawsuit was about a monumental mistake by the County Executive branch.  Earlier this year, a US District Court Judge found that the County Executive in applying for federal grants “made a claim, to the United States government, that was false or fraudulent, seeking payment from the Federal treasury.”

The Anti-Discrimination Center of Metro New York (ADC) sued Westchester in 2006 under the 1863 Federal False Claims Act which allows private parties to recover triple damages from anyone who fraudulently takes federal monies.

In a pre-trial ruling, a federal Judge found that the County Executive falsely certified that the County met the preconditions for some $52 million of federal grants – when, in fact, the County had failed to meet an important requirement, that it analyze impediments to fair housing based on race.  The Judge left for the jury to determine whether the certifications were intentionally false.

After the Judge’s decision, the County Executive negotiated a settlement which the Board of Legislators approved.  Five of us – all lawyers – voted no.

The 38-page Settlement Stipulation aims to eliminate “discrimination, including the present effects of past discrimination and…de facto residential segregation …”

A. Implementation Plan
The Stipulation requires the County to create an implementation plan using all means appropriate to accomplish the Stipulation -- including changing County and local government planning, housing and zoning policies and, possibly, legal action against uncooperative municipalities.  The County must prepare an acceptable analysis of impediments to fair housing and take appropriate actions to overcome any impediments identified.

B. 750 Housing Units/ $51.6 million/Targeted Marketing
The County must ensure construction of 750 housing units within 7 years in 31 specified communities (those with minimal African-American and Hispanic populations).

The housing is targeted for those with 50%-80% of median income (singles $36,850-$59,000; families of four $52,650-$84,200) with a maximum 25% reserved for seniors and maximum 25% renovation of existing housing.

The County must set aside $51.6 million to subsidize this construction.

The County and developers must market the housing in Westchester and in “geographic areas with large non-white populations …within close proximity to the County.”  For example, NYC, Rockland and Connecticut.

C. Local compliance
The Stipulation provides that municipal land use policies must consider regional housing needs, be amended to implement the Stipulation and ban all local housing preferences for municipalities to qualify for County funds and resources.  This would include workforce and senior citizen housing.

D. Monitor
The Justice Department appoints (and may remove) a monitor to review all County programs, policies, procedures and relevant documents to insure compliance.

E. Penalties
Failure to achieve 750 units or specified interim benchmarks triggers $60,000-per month penalties for additional affordable units -- with double penalties if failure exceeds 50%.

The County doesn’t build housing. It subsidizes others to bring down construction costs to produce “affordable” prices.  The County’s $51.6 million equals an average $68,000/unit subsidy -- far below the average current $400,000/unit construction cost.  These 750 units will compete against market rate and other non-deed-restricted moderate-priced projects for responsible developers, limited available financing and scarce land.

Already the County cannot meet its first two deadlines: adopt a new housing policy statement (November 5 deadline) and present an implementation plan (December 5 deadline).

3. Founded on wrong priorities
I disagree with the Stipulation’s underlying policies

a. Uses Westchester taxes to meet tri-state needs
Westchester taxpayers should not be forced to subsidize housing for those from outside Westchester, especially when it is needed by so many Westchester municipal workers, seniors, young families, low-income residents and those now in substandard housing.  We pay federal and state taxes to meet tri-state regional needs.

b. Impedes local / workforce-housing 
The income limits for the 750 units are too low for many local municipal workers. The Stipulation bans preferences for local residents or workforce – not just for the 750 units but for all housing.   Regional marketing will further minimize availability to Westchester residents and workers.

c. Unfairly burdens some middle-class and low-income taxpayers 
The income limits are high enough to be unfair to other taxpayers: middle income subsidizing those with similar incomes; low income (some in substandard housing) who are too poor to qualify!

d. Disadvantages non-target communities
The Stipulation impliedly prohibits the County from further assisting affordable housing in the non-target communities (Unincorporated Greenburgh, Yonkers, Mount Vernon, etc.) -- as an impermissible intensification of existing patterns of racial segregation.

Further, legalities aside, it is fiscally impossible to fund the Stipulation and continue financially aiding those communities which we have traditionally helped that need redevelopment.

e. Unfair target-community selection
Target communities were selected without any study of whether additional affordable housing opportunities are needed. Each Greenburgh village is a separate target area even though each has a small population and land area.  Villages should be treated as part of the town like other “neighborhoods” in cities and towns.

4. Federal interference with County and local home rule
The settlement imposes a federal monitor to oversee Westchester.

5. Too costly
Proponents of settling argued strenuously that the risk of loss at trial was too great –$180 million or more.

The County’s liability is not limited but could exceed the feared loss. The Board has already approved $36 million and promised $30 million more. $10.5 million went to ADC and their attorneys, but it is doubtful that $66 million will cover the other costs: the monitor and his staff (an anticipated $1.375 million), an implementation plan, a new analysis of impediments, new long-term planning and housing plans, several new laws, legal defense fees, etc.

And, there are many uncalculated costs to local governments.

6. Lacks clarity on significant points
This Stipulation is so unclear in so many respects that it would be too burdensome to outline them here.

In spite of many concerns, the Settlement Stipulation was approved. We now must make it work as best we can.

I have already met with some of our village officials and will meet with others over the next few weeks. We need to be sure that they have input into the implementation plan and be sure that the implementation plan produces the necessary number of new housing units and does it in a manner that complements our communities.

This County has done a good job in voluntarily placing affordable housing throughout the County. We need to work on the implementation plan to be sure that we will be able to continue those same efforts to promote affordable housing appropriate to the setting and needs of each Westchester community – to be sure that we will not have a one-size-fits all set of rules that tells us what to do and how, taking away the discretion of the County and local governments.

If you have comments or suggestions, please contact me.

I believe that the negatives of the Stipulation outweigh the risks of continuing to defend.

A. Viable alternatives
Legislators who voted “yes” argued that they wanted to avoid losing some $180+ million at trial.  I believe that there are viable alternatives.  We could win at trial…win on appeal … or achieve a better settlement along the way.

B. Unacceptable Settlement terms
Too many Stipulation terms are unacceptable. While the goals are laudable, the “devil is in the details.”

Note that the County Executive negotiated, signed and presented the Stipulation to the Judge without the Charter-required prior Board authorization. The County Executive deprived the Legislators of their Charter-guaranteed opportunity to use their knowledge of local community concerns to shape the priorities in negotiations. 

1. Raises serious environmental and planning concerns
The Stipulation requires amending the County’s planning policies that have long encouraged “downtown” development near transportation.  The Stipulation also ignores carefully-conceived local master plans designed to preserve our environment and prevent overwhelming school districts.

2. Full compliance unlikely – penalties likely
It is likely that the County will not fully/timely comply and will face $60,000 per month penalties and mandated additional units.