See also: Underhill Apartments, Section 8 lawsuit/Affordable Housing
Click here for 2-24-2016 Town Board discussion on Affordable Housing Law and Housing Trust Fund CDBG (Community Development Block Grant Program) Town Board, 5-22-2018 In advance of the board’s discussion of this issue (see below), during Courtesy of the Floor, Maura Gregory asked the board to support the resolution. After the resolution was approved and at the second Courtesy of the Floor Jay Kopstein spoke against it on the grounds that because affordable units are assessed at a lower value, the town will lose tax dollars. Mr. Tegeder explained that the proposed resolution was for the town to join the Westchester County Urban Consortium so that Yorktown would be eligible for some of the CDBG funds that the county receives as part of the federal program. (The program was halted five years ago as part of a lawsuit involving the county, although the town was eligible to apply, but didn’t, for CDBG money through the state’s allocation.) He estimated that since Yorktown’s participation in the program beginning sometime in the 1970s, Yorktown has received over $2 million from the program for a variety of infrastructure projects. Funds are typically available on an 80/20 match but in the past the town has paid 30% to 50% of projects which has made Yorktown’s projects more competitive. To be eligible for CDBG funds, the county will want the town to adopt an affordable housing law without any residency requirements and also to give the county the first right of refusal on any in rem properties; Mr. Tegeder wasn’t aware of any instance where the county had acted on the first refusal issue. (Note: Yorktown’s affordable housing law, passed in 2010, was repealed in 2016.) Mr. Tegeder explained that CDBG funds could only be used in census tracts where the income was 80% of the county’s medium income; as income figures are reviewed on an ongoing basis, the town’s eligible census tracts can, and has, varied from year to year. At present, only one census tract qualifies. He added, however, that the town can do its own income survey that could establish eligibility; this was done several years ago in Jefferson Valley and led to CDBG funding for the sidewalks on East Main Street. Supervisor Gilbert explained that joining the Urban Consortium didn’t commit the town to anything; only if and when it applies for funds from the program, would the requirements come into play. Mr. Tegeder explained that as part of the Consortium, the town would be competing for funds with 20-25 other municipalities, while if it applied under the state’s CDBG program, it would be competing with a much larger number of municipalities from all over the state. Councilwoman Roker said she objected when the previous board repealed the town’s affordable housing law. She was concerned, however about the first right of refusal. The board approved the resolution with Councilmen Diana and Lachterman voting no because of what they considered the potential “strings,” i.e., the future requirement about an affordable housing law. Mr. Tegeder said he while he was pro affordable housing, he believed that some of affordable housing programs were not effective and that this needed to be looked at further. He didn’t elaborate on his comments. In response to the board’s request, he will provide board members with copies of the county’s model affordable housing ordinance, which can be tweaked, as well as copies of other municipal affordable housing ordinances.
New Chalet: Sale of O’Dair unit
Click here for 2-24-2016 Town Board discussion on Affordable Housing Law and Housing Trust Fund
CDBG (Community Development Block Grant Program)
Town Board, 5-22-2018
In advance of the board’s discussion of this issue (see below), during Courtesy of the Floor, Maura Gregory asked the board to support the resolution. After the resolution was approved and at the second Courtesy of the Floor Jay Kopstein spoke against it on the grounds that because affordable units are assessed at a lower value, the town will lose tax dollars.
Mr. Tegeder explained that the proposed resolution was for the town to join the Westchester County Urban Consortium so that Yorktown would be eligible for some of the CDBG funds that the county receives as part of the federal program. (The program was halted five years ago as part of a lawsuit involving the county, although the town was eligible to apply, but didn’t, for CDBG money through the state’s allocation.) He estimated that since Yorktown’s participation in the program beginning sometime in the 1970s, Yorktown has received over $2 million from the program for a variety of infrastructure projects. Funds are typically available on an 80/20 match but in the past the town has paid 30% to 50% of projects which has made Yorktown’s projects more competitive.
To be eligible for CDBG funds, the county will want the town to adopt an affordable housing law without any residency requirements and also to give the county the first right of refusal on any in rem properties; Mr. Tegeder wasn’t aware of any instance where the county had acted on the first refusal issue. (Note: Yorktown’s affordable housing law, passed in 2010, was repealed in 2016.)
Mr. Tegeder explained that CDBG funds could only be used in census tracts where the income was 80% of the county’s medium income; as income figures are reviewed on an ongoing basis, the town’s eligible census tracts can, and has, varied from year to year. At present, only one census tract qualifies. He added, however, that the town can do its own income survey that could establish eligibility; this was done several years ago in Jefferson Valley and led to CDBG funding for the sidewalks on East Main Street.
Supervisor Gilbert explained that joining the Urban Consortium didn’t commit the town to anything; only if and when it applies for funds from the program, would the requirements come into play. Mr. Tegeder explained that as part of the Consortium, the town would be competing for funds with 20-25 other municipalities, while if it applied under the state’s CDBG program, it would be competing with a much larger number of municipalities from all over the state.
Councilwoman Roker said she objected when the previous board repealed the town’s affordable housing law. She was concerned, however about the first right of refusal.
The board approved the resolution with Councilmen Diana and Lachterman voting no because of what they considered the potential “strings,” i.e., the future requirement about an affordable housing law.
Mr. Tegeder said he while he was pro affordable housing, he believed that some of affordable housing programs were not effective and that this needed to be looked at further. He didn’t elaborate on his comments. In response to the board’s request, he will provide board members with copies of the county’s model affordable housing ordinance, which can be tweaked, as well as copies of other municipal affordable housing ordinances.
Town Board, January 10, 2012
Four members of the Community Housing Board addressed the Town Board to discuss the potential sale of the affordable housing unit (a condo) to the owners of New Chalet, a 205 unit rental development.
New Chalet has agreed to give the town $200,000 for waiving its right of first refusal on the sale of the unit, and an additional $300,000 to the current owner, Paul O’Dair to sell the unit to New Chalet. Both offers would facilitate the sale by New Chalet to a new owner.
Mr. O’Dair paid $103,000 for the unit in 1991 and the town’s Housing Trust Fund contributed an additional $37,000 towards the sale.
As explained by the Housing Board, under the terms of the agreement Mr. O’Dair signed, it was up to the Housing Board to set the resale price of the unit. According to their calculations, which were based on the CPI, that should have been $179,881. They did not want to see Mr. O’Dair make a windfall on the sale, especially as they said he had been illegally renting the unit for several years. They said that when Mr. O’Dair first approached the Housing Board about the resale, he was prepared to give the town back the $37,000, although they agreed with Supervisor Grace that under the terms of the agreement he was not required to give back that sum. Ken Belfer, chairman of the Housing Board reminded Mr. Grace that the town was also under no obligation to release the unit from the affordable housing program.
Supervisor Grace said that the initial legislation that set up the affordable program, which he had drafted, was the problem. Calling the law a “morass,” he said he raised issues about the law back them. “The ordinance doesn’t work,” he said and the town has no legal remedy. We should not be punitive. He said the town had no recourse for recovering the $37,000.
John O’Dair, the father of the owner, speaking on his son’s behalf, said that the offer to return $37,000 to the town was made before his son know about the $300,000 offer from New Chalet, a point that was challenged by Mr. Belfer. He said the offer was no longer on the table.
Saying that “It’s water under the bridge,” Mr. Grace advised the board to forget about the problems that the town can’t do anything about and basically accept the $200,000 from New Chalet.
The board voted 5-0 to accept the $200,000 New Chalet and that the money will go to the Housing Trust Fund.
In response to Mr. Grace’s comments about problems with affordable housing laws in general, Mr. Belfer said that many of these types of laws are working and that the Housing Board planned to return to the Town Board for a discussion of changes to the current law. In response, Mr. Grace said, “You’ll have a battle with me.”
Town Board, January 10, 2012
In an item not on the agenda, the board unanimously approved a resolution granting a 33 year revocable lease to the company purchasing the Underhill Apartments that permits the apartment complex to encroach on town parkland. Without any explanation, Supervisor Grace said that the town “will straighten it out.”
Town Board, 6-18-2019
Mel Tanzman asked when the board would move forward on the proposed housing set aside law and told the board that county officials have advised him that the town would not get the $40,000 for a new senior van that it was expecting, or any other CDBG money, until the board adopted the county’s model affordable housing law.
Jay Kopstein reminded the board that he had asked for more information about the number of affordable units already existing and that nothing had been provided. After Councilman Lachterman raised the issue, Planning Director Tegeder explained that the board would have to more accurately define exactly what type of housing units it wanted to count. For example, he said that the county did not consider accessory apartments as part of a count of “affordable units.”
In response to Supervisor Gilbert’s question whether the model ordinance was a set aside law, Ken Belfer, chairman of the Community Housing Board said yes it was and that communities were encouraged to tweak the model before adopting it.
In response to comments about having local preferences in a set aside law, Mr. Belfer said that while they were part of the town’s 1988 affordable housing law, current fair housing laws made local preferences problematical.
Councilman Diana said that he preferred to refuse the $40,000 from the county before having a “knee jerk” reaction to the proposed law, adding that he wanted to see something in writing from the county. Councilwoman Roker said that in her opinion, affordable housing was not “transient” housing.
Mr. Tegeder suggested that the board work with the county on any proposed language and Mr. Belfer said the Housing Board wanted to address the board at a future work session.
Town Board, 2-5-2019
Jay Kopstein asked the board if it had received the answers to many of the questions raised at the previous meeting. He also presented an analysis he had done showing a $400,000 loss in tax revenue over a 15 year period resulting from affordable housing. (It was not clear what housing units were included in his analysis.)
In response to the board’s earlier question, Mel Tanzman presented the board with a copy of the list of Westchester municipalities showing that 68% have affordable housing laws.
Some residents spoke in support of the proposed set aside; others against. Supervisor Gilbert said that the town was still gathering information for the other questions.
Later in the meeting, the board voted unanimously to refer out the proposed set aside law for comment.
Town Board, 1-22-2019
Ken Belfer, chairman of the Community Housing Board made a presentation of a proposed new law that has been drafted by the Housing Board. He explained that with some tweaks, the draft was based on the 2011 law that was repealed by the prior Town Board. He added that prior to the 2011 law, the town had an affordable housing program from 1988 to the early 1990s that resulted in 13 affordable single family houses being built.
The proposed new law would apply only to new construction for single family and rental units of 10 units or more and would require the developer to set aside an affordable unit for every 10 units. Different income eligibility limits would be set for single family and rental units based on the Westchester area median income statistics prepared on an annual basis. Buyers could remain in their unit even if there income increased over the years, but there would be restrictions on the sale price of the unit if they wanted to sell. Renters would not be able to renew leases if their income exceeded a certain percentage above the area median income. The units would be made available on a lottery basis.
In response to questions from the board about whether the units could be offered only to Yorktown residents, Mr. Belfer explained that while the earlier program did have local preferences, preferences are no longer considered legal and that anything new would have to be affirmatively marketed to a region outside of Yorktown. He added, however, that based on experience, most of the people who apply for affordable units tend to come from the area.
In response to question from the board about how many of Westchester’s 48 municipalities have affordable housing laws, Mr. Belfer said he thought a significant number but would provide the board with more information. Yorktown resident Judith Reardon, a former member of the Planning Board and a current member of the county’s Affordable Housing Board said she would also look into the issue, adding that there were other ways besides set asides, e.g., providing a density bonus, that some municipalities have adopted in an effort to create more affordable units.
Councilman Lachterman had several reservations about the proposed law, including the inability to include local preferences and the restriction on the resale price. He said that the market’s supply and demand was sufficient to create affordably priced housing, adding that the change in The Weyant plan to 23 units from 36 probably will increase the eventual cost of the units.
Councilman Diana expressed concern about the ability of a buyer to remain in an affordable unit once the household income increased. He also asked Mr. Belfer to provide more information on how many subsidized units currently exist in the town.
In response to Supervisor Gilbert’s question what different having the law would make, Mr. Belfer explained the dynamics of the changing economy; while there were no new developments when the 2011 law was passed, right now there are three new pending developments that could generate 15+ units.
Councilwoman Roker said she would defer her comments until a later date. Acknowledging the concerns expressed by some of her colleagues, she said that for now, the draft law should be put out for review and debate and that changes could be made during the process.
The board anticipates referring out the draft law at its next meeting and Supervisor Gilbert said that the public would be given an opportunity to comment on the proposed law at a future date.
Town Board, 4-10-2018
Ken Belfer and Maura Gregory of the Community Housing Board asked the board to reinstate Chapter 102 of the town code that called for developers to set aside affordably priced units in single family or multi family developments based on a sliding scale. He suggested that the requirement begin at 10 units, compared to the 8 unit threshold in the earlier law.
In response to Councilman Lachterman’s challenge of the constitutionality of the set aside requirement, Mr. Belfer cited a U.S. Supreme Court decision that refused to invalidate a set aside law upheld by a lower court. He also noted that 30 other Westchester municipalities had similar laws and that they have not been challenged and that developers accept the requirement as a “cost of doing business.”
Concern was expressed over the fact that that based on current law, the town could not limit the affordable units to town residents or people employed in the town. And Jay Kopstein noted that because the affordable units were assessed at a lower value than regular units because their deeds restricted future resale prices, the town would receive less revenue, resulting in town taxpayers paying more to provide housing to non town residents.
When Mr. Tegeder stated that a set aside law was not a panacea for dealing with the need for more diverse housing and that the issue of affordably was more a question of product than a set aside requirement, Mr. Belfer cited the Weyant proposal where a more expensive 22 unit townhouse development was substituted for a 36 unit apartment project in response to neighborhood opposition.
Councilwoman Roker said she would like to invite Judith Reardon, a lawyer and former member of the Planning Board and a member of the county’s Housing Task Force, to address the board. It was noted that both women opposed the 2016 repeal of Chapter 102.
Councilman Lachterman said he favored a density bonus to a set aside requirement, adding that a set aside requirement could scare potential developers like the Weyant, away. Supervisor Gilbert said that on balance he was in favor of bringing back the set aside law. When Councilman Diana wanted to know if the presence of an affordable unit in an otherwise market priced development would lower the property values of the other houses, Mr. Tegeder responded that it would be difficult to identify the affordable units as the features as the features that lowered the cost of the unit were on the inside of the unit.
Rose Noonan of the Housing Action Council announced that there are five single famiy houses and one condominium available for sale at below market prices, ranging from $164,000- $285,800, for qualified buyers. For a family of our, the maximum income is $93,680. For more information, call 914-332-4144 or visit the town’s web site, http://www.yorktownny.org/section8/fair-and-affordable-purchase-assistance-properties-yorktown-and-nearby
During Courtesy of the floor, Mel Tanzman and Ken Belfer, chairman of the Community Housing Board spoke about the need for diversity in the town’s housing offerings. Citing several proposed rental developments, they said that now was the time for the board consider reinstituting the type of affordable housing set aside law that was repealed by the former board. Councilwoman Roker said she was against the previous repeal and agreed that the time was right to enact a new law.
Town Board, 11-1-2016
Four hearings were opened and held simultaneously as the issues overlapped.
1. Reconvened the May hearing to abolish Chapter 102, the Affordable Housing Law, that mandated developers to set aside 10% of the units as affordable in developments of more than 7 units.
2. Repeal 300-39 that regulated existing affordable units built more than two decades ago and create a new voluntary density bonus incentive program to create affordable units
3. Create a new Chapter 102 that dealt only with the administration of the affordable units
4. Established membership criteria for and the powers of the Community Housing Board .
After closing the hearings, the board voted 4-1, with Councilman Patel voting no, to repeal the existing Chapter 102 and voted unanimously to adjourn the other three hearings pending some possible revisions. Supervisor Grace said that if the changes were significant, the revised law would be re-advertised for a new public hearing.
Supervisor Grace repeated his belief that the current law that mandates an affordable housing set aside is unconstitutional, a point that several speakers, including a representative from HUD disagreed with. In response to a question from one speaker, the supervisor acknowledged that there have been no legal challenges to similar laws in New York State and that no developer has filed a lawsuit in Yorktown challenging the town or has complained about the law which currently would apply to 3 developments in the pipeline.
Ken Belfer, chairman of the Community Housing Board summarized many of the comments he had previously sent to the board relating to all four issues. In response to his suggested technical changes to the new Chapter 102, Supervisor Grace asked him to work with town staff. Mr. Belfer, as well as other speakers, asked that more standards be included in what development plans would qualify for an added density bonus, including adding a minimum size lot the bonus could be used on as well as a cap on the percentage increase in density. He pointed out that a lot that would, under current zoning, permit one house, could become a 3-lot subdivision under the added density bonus provisions. Cheryl Gajowski called the provisions of the density bonus plan “loosy goosey” noting that they would permit the Town Board to do anything it wanted.
Several speakers said that if the current Chapter 102 wasn’t broken, they saw no need to repeal it. Presenting an opposite view, Jay Kopstein said he supported repealing Chapter 102 because the affordable units couldn’t be restricted to only Yorktown residents. But, he also opposed the density bonus plan because it increased density.
Susan Siegel, the person writing this summary, asked if the density bonus provisions could be applied to properties that had already been given a density bonus as a result of rezoning, like Crompond Terraces and the Lexington Avenue rezoning. She suggested that the town continue the 10% mandate requirement for all developments and apply the density bonus idea to parcels that were rezoned.
When Vincent Scotto asked if the current Chapter 102 would benefit Yorktown seniors, Supervisor Grace said he didn’t see any benefits for any affordable housing law, calling them “utter nonsense” and “feel good ribbon cutting laws.” He said the real issue of affordable housing was the taxes and that was something that was up to the state.
The board reviewed a set of proposed affordable housing laws set for a public hearing on November 1. Mr. Tegeder advised the board that the town attorney had reviewed other density bonus laws before drawing up the present proposed law and that HUD had offered some language. In general, the board had no problem with the density bonus provisions and Mr. Tegeder said he thought the “added bonus” sections might generate more affordable units than the more basic 10% density bonus.
Mr. Kincart had an issue with some of the language in the new Chapter 102 regarding rental rates for new leases. In response to his comment about preferring to offer affordable units to local residents, he was advised that the Fair Housng Law required the affirmative marketing outside the area. Mr. Tegeder added that based on experience, people far away were generally not interested in moving to Yorktown.
The board will send a memo to the Town Board in support of the proposals.
12. Brennan Wetlands Permit, Saw Mill River Road
After a brief discussion, the board concluded that there were no planning issues involved in the application
The board reviewed a proposed new section to the Zoning Code that would establish a density bonus option for creating “below market rate housing units (BMRHUs),” aka affordable housing, in lieu of the current Affordable Housing Law (Chapter 102) that requires affordable units to be built under certain circumstances. In conjunction with the new density bonus provisions, the existing Chapter 102 would be amended to become the administrative end of the density bonus program and a section added to Chapter 10 that would formally create the Community Housing Board that has existed in practice for more than two decades.
The density bonus, would be optional for the developer, and would have to be approved by the Town Board. It would grant at least a 10% density bonus (Example: If the parcel was entitled to 20 units, there could be 2 BMRHUs for a total of 22 units) but the Town Board could approve higher bonuses that would allow the developer 1.5 additional market rate units for each BMRHU rounded up to the nearest whole number. The subdivision or site plan for multi family housing would be processed under either the town’s cluster or flexibility provisions.
The town attorney will provide a clean version of the new laws at the next board meeting at which time the board will refer out the draft and advertise a public hearing for Nov. 1
The board met with two representatives of HUD and two members of the Community Housing Board to discuss the proposed repeal of the current ordinance. The discussion, which was a follow up to a two hour meeting the representatives had with Supervisor Grace about 2-3 weeks ago in his office, lasted over an hour and touched on many different aspects of the law and affordable housing in general. By the end of the meeting, there was no agreement on anything and the HUD representatives said they would send the town a revised model ordinance that might address some of the town’s concerns. Supervisor Grace said he would have town staff take a look at it and seek comments.
The summary below is organized by subject. (Note: The Affordable Housing Law applies only developments that are privately funded. It does not apply to developments like the proposed Kear Street project that are financed using a combination of government housing programs.)
Yorktown’s history providing affordable housing.
Supervisor Grace said he was proud of the town’s history providing affordable housing. He referred to two 1988 initiatives that were discontinued in 1994.
Density bonus. A voluntary program enacted into law that gave developers additional units if they provided one or more affordable units. It was considered unpopular and was discontinued.
SEQRA impact fee. As part of the Planning Board’s environmental review process, developers had an option to provide one or more affordable units or pay $3,000 per lot into an Affordable Housing Trust fund.
When Supervisor Grace said the town hadn’t gotten any units under the Density Bonus Law, Ken Belfer, chairman of Housing Board, reminded him that the Courtyard development in Shrub Oak was built under the density bonus plan. Then, when Supervisor Grace brought up the fact that the town had to subsidize the resale of some of the Courtyard units as an example of why the town shouldn’t get involved in resale deed restrictions (see below), Ms. Gregory, a long time member of the Housing Board reminded him that the Housing Board had recommended against the town subsidizing the resale at the time and Mr. Belfer, also a long time member, added that the resales occurred in 1992 when the condo market experienced a nose dive.
When Councilman Bernard cited the recent Lexington Avenue rezoning as another example of the current board providing affordable housing (under the existing Affordable Housing Law, one of the eight townhouse units will have to be affordable) and would rent at $1,200-$1,400 a month, Mr. Belfer noted that there were no restrictions on the rental rates as part of the rezoning; Mr. Bernard responded that the neighborhood would dictate what the rents would be. Supervisor Grace also cited the Crompond Terraces rezoning that will generate some affordable units.
Mr. Belfer noted that while many years ago Yorktown provided affordable “starter homes,” that was no longer happening.
The goal of affordable housing
While portions of the discussion dealt with legal issues, there was a more philosophical discussion of whether providing affordable housing, aka, a diversity of housing, should be a town goal. Citing the American dream of homeownership, Councilman Bernard asked if it was or should be government’s role to provide a house for everyone. Which led Supervisor Grace to ask: who should bear the burden and pay for fulfilling this goal?
The supervisor’s primary objection to the current law was that the burden of providing affordable housing was on the developer who lost value when he had to provide an affordable unit that benefited only one person. He said that if a burden had to be placed on a developer he would rather it be a burden that went towards infrastructure improvements that would benefit all residents. When the supervisor continued to imply that an affordable unit would cost taxpayers $10,000, both the HUD representatives and members of the Housing Board responded that no taxpayer dollars were involved; the “cost” of providing the affordable unit was borne only by the developer.
While Supervisor Grace preferred to leave it up to market to provide affordable housing, possibly through rezoning, the HUD representatives, citing a U.S. Supreme Court decision, spoke in general terms about the value that affordable housing adds to a community and that a set aside law similar to Yorktown’s current law was one tool a municipality had to achieve that goal. The issue, she said, was whether Yorktown wanted to make it a priority to provide affordable housing and whether the town wanted to provide a framework for future generations.
The HUD representatives made it clear that the choice of what happens next was up to the town: it could partner with HUD to tweak the current law in order to address its concerns or it could have no affordable housing law, in which case, the issue might end up in court. Supervisor Grace disagreed with the last comment about a repeal ending up in court.
Supervisor Grace also noted that it was Yorktown taxes that contributed to making housing unaffordable.
“As of right” developments vs rezoning
Supervisor Grace appeared to have no objection to an affordable housing requirement that was tied to a rezoning because the rezoning already increased the property’s value. His main objection was to requiring an affordable unit as part of an “as of right” development where the developer was only allowed to build the number of units based on the site’s zoning and environmental conditions. Councilman Bernard cited the proposed Orchard View subdivision as an example of an “as of right development” that will be required to set aside one house at an affordable price. (See also Fieldstone Manor.)
Deed restrictions on resale of ownership affordable units
Supervisor Grace and Councilman Bernard repeated their objections to the restrictions in the law that limited the resale price of the units for a 50 year period. (See Town Board 5-3-2016.)
In support of his argument that the restrictions prevented owners from building up equity, Supervisor Grace noted a review he had done of resale prices over the past 10 years. In response, Ms. Gregory noted that renters didn’t build up any equity. And a HUD representative noted that how much equity a house generated over time was based on market conditions. In response to Councilman Bernard’s comment that when owners remain in the unit over a long period of time, even when their incomes have increased, they are denying affordable units to others, the HUD representative noted that the other way to look at the issue was that maintaining the stability of the town’s population was also a benefit for the community.
Both the HUD representatives and Mr. Belfer agreed that there are issues involving the ownership deed restrictions and that this was one area of the current law that could be looked at for revision. Mr. Belfer suggested that one modification might be that if resale restrictions were eased, the town might get a portion of any “windfall” generated by a changing housing market over time.
Restrictions on rental rates
The HUD representatives explained that the permitted rental rates can be increased over time to make sure that the property is properly maintained. The rates are tied to Westchester’s Average Median Income, a figure that is modified every year. There did not seem to be any concerns about this part of the existing law.
Legality of the Law
Although at the May 3, 2016 public hearing Supervisor Grace said that the current law was illegal, the discussion only briefly touched on the legality of the law. When Supervisor Grace said that the current law was “fraught with legal problems” and called the set aside an illegal exactment, the HUD representative said it wasn’t. She offered to write a brief that disputed his legal arguments, adding, “We agree to disagree.” (Note: on the supervisor’s Grace Notes TV program taped June 8, 2016, Supervisor Grace states that the two HUD representatives who met with him agreed with him that the current law was illegal. After explaining to the women why a set aside law can’t work in New York, Mr. Grace says: “At the end of the day you’ll find out you can’t legally do it. They agreed. Remarkably (remarkedly ??) they actually agreed.”)
Supervisor Grace raised the issue of the provision in the current law that requires the affordable units to be marketed in accordance with the county’s Fair and Affordable Housing Affirmative Marketing Plan and whether units built under the law could be limited to Yorktown residents. In response, the HUD representatives said the town didn’t have to follow the county plan. This led to a brief but contentious exchange over whether the town was engaging in social engineering and whether a broader marketing plan was needed to overcome what Ms. Gregory noted was the town’s “primarily white” population. After the HUD representative made a reference to the racial/ethnic statistics 2010 census, Supervisor Grace said the program should be color blind. (Note: While preferences for local residents or employees was permitted in earlier affordable housing programs, the courts have since ruled them discriminatory. In 2011, the town’s long established Section 8 Housing Assistance Program was sued over its local preferences. In the settlement, the town had to eliminate the local preference.)
There was a brief discussion of the mechanics of monitoring the affordable units, whether owned or rented. The HUD representatives noted that because there weren’t likely to be too many units built under the law, the Housing Board could do the job.
Public hearing: Repeal of the Affordable Housing Law (Chapter 102 of Town Code)
Before a standing room crowd, the hearing lasted for three hours. Of the 21 speakers, 18 opposed to the repeal, two supported the repeal and one person was undecided. The hearing was adjourned with Supervisor Grace saying he was willing to discuss modifications in the law (see below).
A video of the hearing is available at http://www.yorktownny.org/townboard/meeting-videos .
Supervisor Grace opened the hearing by explaining why the Town Board was proposing to repeal the law, enacted in 2011, that requires developers of more than seven units of market rate housing (as distinct from subsidized housing such as Crompond Crossing and the proposed Kear Street project) to set aside, on a sliding scale, 10% of the units for sale or rent at an affordable price. (Prior to the start of the hearing, the supervisor’s assistant distributed copies of the board’s rationale for repealing the law as well as an exchange of correspondence between the supervisor and James Johnson, the monitor overseeing the county’s housing settlement.)
Throughout the hearing, Supervisor Grace repeated his position that he was not against affordable housing but was against the method used in Chapter 102 to provide affordable housing. Repeatedly calling the law “fundamentally flawed” because it imposed an illegal tax on developers, he said the issue boiled down to one point: if there was going to be affordable housing, who was going to subsidize the units: developers or someone else. And, while he said he was open to meeting with the Community Housing Board, the housing monitor and HUD to discuss possible changes in the law, by the end of the hearing, he held firm to his position that the law was inherently illegal.
On the legality of the law: Several speakers (some of whom were lawyers) challenged the supervisor’s contention that the law was illegal. They pointed out that no court has decided that set aside requirements are illegal and that the U.S. Supreme Court has let stand a similar set aside law in California. They dismissed the relevance of the two court cases Supervisor Grace cited in support of his position as being “not on point.” It was noted that set aside provisions are common in many other municipalities throughout the state, including 19 in Westchester. When it was stated that the municipal attorneys in the 10 Westchester communities that have approved developments with set asides had no problem with the law, the supervisor called them lemmings who were jumping off the cliff.
In response to several comments about the risk of Yorktown being sued if it repealed the law, Supervisor Grace said the town was at risk of being sued either way; by developers or a pro affordable housing group.
Many speakers, acknowledging that the current law may not be perfect, questioned why the board had acted so hastily to repeal the law without taking the time to consider ways to analyze the situation and consider how the law could be improved or modified. Ken Belfer, chairman of the Community Housing Board, noted that contrary to the town’s usual procedures, the draft law had not been referred out to town advisory groups, including the Housing Board, for comment prior to being set up for a public hearing. He also raised the issue of whether the town had followed the required SEQRA process.
Need for affordable housing: Many speakers spoke in general terms about the need for affordable housing. Yorktown resident Mel Tanzman summed up these comments when he said: “This is about people, not abstract legal arguments.”
But resident Jay Miller, speaking in support of the repeal, said that it wasn’t the responsibility of town or its taxpayers to provide affordable housing to people; if our children or senior citizens can’t afford to live in Yorktown, then they should move elsewhere. And Jay Kopstein said he supported the repeal because the current law isn’t limited to providing affordable housing to Yorktown residents. (Note: the Fair Housing Law prohibits the concept of allowing local preferences.)
And speaking on behalf of the town’s clergy, Rev. Claire Woodley of St. Mary’s Episcopal Church said simply, “Don’t do it… Don’t put yourself in a place of shame… Be a hero.”
Other comments: Three speakers who have been involved in the housing issue for many years in Yorktown, challenged some of the supervisor’s statements about how the town’s 1988 affordable housing law had functioned.
Former Town Clerk Alice Roker, recalled a conversation she had had with Supervisor Grace about the 1988 law when he was town attorney. At the time, when developers had a choice of providing affordable units in their developments or paying $3,000/lot into a Housing Trust Fund, you called the payment a “contribution” and had no problem with it, she said. She went on to say that today, developers basically consider a set aside requirement as a “cost of doing business,” much like the town’s other land use regulations they have to comply with.
Susan Siegel (the person writing this summary) noted that three developments in various stages of approval had or were likely to be approved for higher densities than would have been permitted based on current zoning. If Chapter 102 was repealed, she said, the developers would continue to get the higher density (and a larger profit) but they wouldn’t be required to provide any affordable housing units.
Resale restrictions: Both Supervisor Grace and Councilman Bernard had issues with the law’s requirement that limited the resale price of the “for sale” affordable units. Designed to keep the units affordable over time, they said that the resale restrictions “trapped” the home buyers. And Councilman Bernard said that if the buyer stayed in the house for 20 or so years, even if their incomes increased, then the lack of turn over wasn’t helping other families in need of affordable housing. Both board members took exception to any inference that their support for repealing the law had any racial overtones.
In response to Ed Ciffone’s comments that if the town repeals its affordable housing law after the May 3 public hearing, it could be sued by either HUD or James Johnson, the person monitoring enforcement of the 2009 Westchester County/HUD Housing Settlement, Supervisor Grace said he had already received a letter from Mr. Johnson. He added that while HUD could tell the county what to do because of the settlement, it couldn’t tell Yorktown what to do and he reiterated his position that the existing affordable housing law was illegal. (Note: When Susan Siegel, the person writing this summary, attempted to respond to the supervisor’s comments, the meeting was adjourned.)
Supervisor Grace asked the attorney to look into the legality of the law’s required set aside for affordable housing units. Stating that Westchester County municipalities are the only locations with such laws, he said the federal government cannot tell us what to do. He called the set aside an unconstitutional impact fee. In lieu of the set aside, he said the town might consider a density bonus which would not be a tax but which would be given in consideration.
In a related discussion, the supervisor asked the attorney to research whether $400,000 in an Affordable Housing Trust Fund (funded years ago based on a local law no longer in effect) and which hasn’t been used in years could be transferred to the General Fund.
Town Board, 4-5-2016
Section 8 administrator Karren Perez explained that the changes to the plan were mostly regulatory and that the only discretionary change was changing the age of children of different sexes who could share a room.
Karren Perez, Section 8 coordinator, advised that board that with only 13 names left on the closed waiting list, she was requesting permission to open the list and allow online sign ups. Her plan is to advertise the fact that the list will be open for one week, beginning May 6. Names will be pulled from those who sign up on a random basis. She explained that based on past experience, many people who put their names on a waiting list do not respond when contacted, or end up not qualifying for the program. The board voted later in the evening to advertise the opening of the list.
Ms. Perez also advised the board that she plans to make some minor changes to the program’s Administrative Plan. A public hearing on the changes will be held sometime in April.
Waived the $10,580 in fees the town charged the program for rent, utilities and the services of the town attorney. In voting for the resolution, Councilman Bianco noted that 60% of the people served by the program are Yorktown residents. He said that in future years, the funds should possibly come from the Affordable Housing Trust Fund and that the home communities of the remaining 40% of program’s beneficiaries should be asked to pay a portion of the cost of administering the program.
As part of a review of next week’s agenda, Supervisor Grace said he would add a resolution that would call for a revote on the issue of waiving the fees the town charges the Section 8 program for rent and utilities at the YCCC and the services of the town attorney. At the May 7 meeting, the Board voted 2-3 not to waive the fees, with Supervisor Grace and Councilmen Murphy and Bianco voting no. Councilman Murphy said he didn’t understand what the May 7 vote was about and Supervisor Grace said there had been a “miscommunication.” Supervisor Grace said that if necessary, the funds could be taken from the Affordable Housing Trust Fund.
In a 2-3 vote, with Councilmen Patel and Paganelli voting yes, the Board declined to waive the fees the Town charges the Section 8 program for rent, utilities and the services of the town attorney. Commenting on the vote during the second Courtesy of the Floor, Karren Perez, the Section 8 Program Director, expressed disappointment at the vote, noting that Boards in 2005 and 2007 had suspended the fee but that the fee had been instituted in 2012. She said that 65% of the program’s recipients lived in Yorktown and that 50% of them were elderly or disabled. She also noted that the Board had waived rental fees for other groups meeting in the YCCC. Councilman Bianco agreed with her about the importance of the program but said that Town taxpayers should not have to make up for the federal funding cuts resulting from sequestration.
Karren Perez, Section 8 administrator, advised the Board that the federal government has cut back on support for the program. As a result, once existing housing vouchers become available (the program is now providing rent subsidies to 148 households), she will not be able to sign up new people. By drawing down on the program’s reserves, she believes she can get by with this year’s administrative budget but advised the Board that next year, it might have to rethink the $11,000 the program is being charged in 2013 for rent at the YCCC and the services of the town attorney. This charge had been waived by previous boards.
The board opened and closed a public hearing on amendments to section 300-39 of the zoning code that governs 11 affordable housing units that were built many years ago. Ken Belfer and Maura Gregory of the Community Housing Board explained that the amendment that deleted local preferences for the 11 units was mandated by the consent decree that resolved a lawsuit involving the Town’s Section 8 program. The other amendments updated the law to conform to current guidelines and to conform to the Affordable Housing Law passed in 2011 that governs any new units.The law was passed 5-0.
Kaaren Perez, the director of the Town’s Section 8 program explained that this was the first phase in revising and updating the Administrative Plan that governs the Town’s Section 8 rent subsidy program. The revised plan includes changes in local policies, eliminates local preferences, explains waiting list procedures, and explains the Town’s anti discrimination policies. The changes are being made pursuant to a settlement of a lawsuit.
There were no additional comments. The board closed the hearing and approved the revised plan.
The board voted to set a public hearing on a revised Section 8 Administrative Plan. The hearing date was not made public.
Town Board, 4/3/2012
During Courtesy of the Floor: Saying that the recent settlement of the Section 8 lawsuit with the Fair Housing Justice Center cost the Town $165,000, Ed Ciffone said that the Town should do away with the program. (Editor’s note: the Town was only responsible for the first $75,000; the Town’s insurance company paid the remaining amount.)
Board members were given forms to sign indicating that they had read the Housing Non-Discrimination Policy adopted by the Town Board. Some members questioned why they had to sign the policy as the Planning Board had nothing to do with the Section 8 program and that they were volunteers. It was explained, however, that the requirement was part of a settlement agreement that resolved a lawsuit suit involving the Section 8 program but which also included some references to affordable housing. Mr. Kincart noted that as a realtor he had to sign such a policy.
The board discussed two changes in the existing law that governs affordable housing units built under the provisions of prior laws that are no longer in effect. Both changes are required in order to comply with the terms of the settlement the town signed that ended the Section 8 lawsuit.
a. Preferences. The town will eliminate the local preferences in the current code. While the town attorney had drafted a short version of the changes that only dealt with the preferences, the board agreed to proceed with a longer version of the changes prepared by the Housing Board that updated other provisions of the code that were now out of date.According to Housing Board chairman Ken Belfer, as long as the town needed to make one change in the law, it made sense to look at the other issues at the same time. Most of the additional changes would substitute old indices used to calculate affordability with the newer county standards that the town incorporated into its new affordable housing law.
Supervisor Grace said he had no problem with the proposed changes but that when the issue arose to apply the new affordable housing law, he would move to repeal the law which he said was unconstitutional and illegal.
Because the settlement agreement set up a timetable for the town adopting the preferences change, the board unanimously approved a resolution to refer out the draft language for review in order to expedite the process.
b. Housing discrimination. Without discussion, the board unanimously voted to adopt a housing non-discrimination statement and policy.
The board approved a settlement with Fair Housing Justice Center dealing with litigation involving the town’s Section 8 program. No details were provided.