Politics & Policy

The Chappaqua Case: The Feds Muscle In on Local Zoning Laws

(Photo Illustration: NRO; Clinton: Ethan Miller/Getty)
HUD has rewritten the definition of “fair housing.”

Here’s a question for Hillary Clinton: Should a U.S. attorney threaten a county with more than $1 million in fines if it refuses to pressure local officials to approve a housing development?

The issue is not at all hypothetical. It’s front and center right now in Westchester County, N.Y. – and the housing development in question would be built in Chappaqua, the hamlet where Hillary and Bill Clinton live. And it’s of much more than local interest. The action threatened against Westchester officials may presage a similar approach by HUD against the 1,200-plus governments across the country that accept federal community-development funds. Indeed, HUD has announced that it plans to adopt its new interpretation of “fair housing” nationwide.

Westchester County should be seen as the test bed for the HUD approach. The background is this: The Justice Department (specifically, the office of the nation’s currently most prominent U.S. attorney, Preet Bharara of New York’s Southern District) last week threatened to fine the county $60,000 a month and to force it to put more than $1 million in escrow against potential future fines. It’s all the result of a lawsuit filed in 2006 by a New York City–based nonprofit called the Anti-Discrimination Center. The suit argued that when Westchester County applied for federal community-development block-grant funds for, among other things, affordable housing, it failed to identify possible racial as well as income-related barriers faced by poorer residents seeking better housing, and failed to take steps to counter those barriers. Note that the county was never found guilty of actual discrimination of any kind. Nonetheless, a federal judge agreed with the plaintiffs that the county had misrepresented its fair-housing enforcement efforts.

The settlement was far more than a technical one. To resolve the suit, Westchester pledged to use $50 million of its own funds, along with HUD money it receives, to build some 750 units of new subsidized housing — including 630 units in some of its wealthiest enclaves, where less than 3 percent of the population is black and less than 7 percent Hispanic — and to market them especially to those groups. HUD joined the suit to monitor enforcement of the settlement.

“This is historic,” said then–deputy secretary of HUD Ron Sims, who appeared personally at the announcement of the settlement in 2009, “because we are going to hold people’s feet to the fire.” And HUD now is doing just that.

But it’s not as if Westchester County officials have been standing in the schoolhouse door, as it were, like latter-day George Wallaces. The county has already set in motion construction or financing for some 454 affordable-housing units — and it seemed to be on target to meet an interim goal of 450 units by the end of last year.

But here’s the rub. Twenty-eight of those units are in a proposed development near the commuter rail station in the Clintons’ hamlet of Chappaqua — which (in the complex system of local governance used in New York State) is part of the Town of New Castle (also home to New York governor and former HUD secretary Andrew Cuomo). The Chappaqua Station project has already been promised funding by Westchester County — but, under pressure from Chappaqua residents, New Castle has not approved the required zoning variances. Ironically, there appears to be little overt local opposition to the idea of a subsidized housing project in a town where median income is $180,000 a year. Instead, what many local residents appear to be concerned about is the quality of the new housing from the point of view of its intended residents. That is, they fear that the site would be just a new version of the other side of the tracks — a less than desirable place to live to which the poor are shunted. In other words, opposition comes in part from liberals and involves the very local question of the best location for the new development.

None of that cuts any ice with HUD — or with the Justice Department, acting on HUD’s concerns. Instead, the federal government is taking the view that Westchester County should be sanctioned if it does not put pressure on New Castle to move the project along — by posting a letter of support for Chappaqua Station on the county website, publishing it in the major regional newspaper, inquiring regularly as to where the project’s approval process stands, and sending representatives to voice their support at public hearings. This is Washington not only telling Westchester what to do, but telling its elected officials what to say. This in a county which, in fact, has significant African-American (131,000) and Hispanic (144,000) populations and in which members of these groups reside in even the wealthiest enclaves, roughly in keeping with what would be expected on the basis of income.

This is a long way from the American federalist tradition, in which local residents, as Woodrow Wilson put it, ‘govern themselves.’

In other words, HUD has a novel idea about fair housing and is using the courts and a federal grant to force Westchester County to accept and, indeed, promote it. This is a long way from the American federalist tradition, in which local residents, as Woodrow Wilson put it, “govern themselves.” Nor is it self-evident that HUD’s race-conscious approach — which inevitably devalues the gains of those minority families who can afford to buy a house in Chappaqua — is even the best way to assist minorities in achieving upward mobility.

County Executive Rob Astorino — a past and likely future election opponent of Governor Cuomo — put it well, in a bit of justified grandstanding outside the gated entrance to the Clintons’ Chappaqua home this past Friday. “Anyone,” he said, “can live anywhere they choose as long as they can afford it.” Nor was an Astorino spokesman wrong to say that the HUD/Justice “behavior appears to be a harbinger of what the rest of the nation can expect.” The reference is to the new HUD interpretation of the 1968 federal Fair Housing Act, in which the agency claims its duty is to “affirmatively further fair housing goals.” That is, the question is no longer one of actual discrimination, but rather one of “disparate impact” — an inference of discrimination on the basis of who lives where, not an assertion that someone was overtly denied a house or apartment because of race. Thus, the sheer number of minority residents in specific jurisdictions is effectively the measure of discrimination. Housing policy is fair, per HUD, only when it is “reducing disparities by race, color, religion, sex, familial status, national origin, or disability.”

One can expect — absent congressional action or an election-induced change at HUD — Westchester-type interventions in local housing decisions to be the price of receiving federal aid throughout the country. The HUD view was, in fact, endorsed by the Supreme Court in June, in a case brought against the Texas Department of Housing and Community Affairs. The Court agreed with the argument advanced by a group called the Inclusive Communities Project that the state had reinforced “segregated housing patterns by allocating too many tax credits to housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods.” This is not just a different interpretation of the Fair Housing Act — it’s a radically novel view of how American residential life should be organized.

Local housing law is far from perfect in the United States. Too many communities fail to realize that it can be in their enlightened self-interest to authorize a range of housing types — from the two-family house to the mansion, the garden apartment complex to the luxury high-rise. Diverse housing allows teachers and firefighters to live in the communities they serve — and allows younger families to gain a foothold in a place where they want to live. HUD may even have a legitimate role in suggesting zoning changes toward such ends. But bludgeoning local government to achieve them is a recipe for controversy, lawsuits, and racial tension, not tolerance. The question of what the federal role should be is one about which Hillary Clinton must be asked in the course of her campaign.

— Howard Husock, vice president for research and publications at the Manhattan Institute, is the author of America’s Trillion-Dollar Housing Mistake (Ivan R. Dee, 2003).

Howard Husock is the vice president of research and publications at the Manhattan Institute. He won the 1979 Robert F. Kennedy Journalism Award for his public broadcasting series Community Disorder: Racial Violence in Boston.

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