The Most Important State-Federal Dispute You're Not Paying Attention To

The fight between HUD and Westchester County has implications for property owners in the rest of the country.

The Wall Street Journal editorializes today, not for the first time, about the long-running dispute between New York's suburban Westchester County and the U.S. Department of Housing and Urban Development. Even if you're not a former county resident (as I am), it's a dispute worth knowing about, with many implications for property owners in the rest of the country. Excerpt: 

At issue is a 2009 settlement with HUD in which Westchester committed to develop 750 public housing units in mostly white neighborhoods over seven years. County executive Rob Astorino has financing for 305 units (110 of which are already occupied), putting Westchester ahead of schedule. ... [Not satisfied,] the agency is interfering with local zoning in Westchester to force more racial diversity on suburban neighborhoods. Last week, HUD New York's Director of Community Planning and Development Vincent Hom wrote Mr. Astorino and threatened to cancel $7.4 million in unrelated housing and community development funds. To keep the cash, Westchester must produce "a satisfactory zoning analysis and plan to overcome exclusionary zoning practices."

Part of the county's defense is that under New York's system of home rule, towns enjoy legal independence and their surrounding counties cannot simply order them to change their zoning. These town zoning laws assuredly perpetuate economic stratification -- if every home needs to be on an acre or two with well-and-septic, you're likely to draw an affluent average resident -- and libertarians, with some notable exceptions such as Richard Epstein, have often dismissed zoning based on economic-stratification motives as bad policy, improper infringement on property rights, or both. But zoning for economic stratification, when distinct from a racial motivation, has not up to now been thought in itself to violate federal law, and part of the question in the Westchester case is whether HUD will succeed in developing such a norm. (Westchester argues with considerable evidence that affluent, heavily zoned towns like Scarsdale, Chappaqua, and Katonah have a history of being relatively welcoming to minorities, and have long scored well on measures of integration when compared with other similarly affluent communities.)  

joseph a / photo on flickrjoseph a / photo on flickrFor a libertarian, it's easy to click past stories like these on the grounds that 1) this is a complex dispute among levels of government, not directly between the state and the individual citizen; 2) it's about time someone pressed these towns to reconsider economic-stratification zoning, so why shouldn't that someone be the feds? 3) HUD's main leverage is its threat to cut off federal money, and from a limited-government standpoint, the more federal funds that get cut off the better.

But as usual, it's more complicated than that.

To begin with, in this case -- as indeed in most cases of this sort -- the threat of a federal funds cutoff is being deployed with the aim of raising government outlays, not lowering them. HUD is pressing the county to commit to extremely costly plans for subsidized housing, at a price tag estimated to run between $730 million and $1 billion. For more on how the modern arrangements sometimes called "cooperative federalism" operate to push all the participating levels of government into expanding their level of activity, rather than employing the ambition of one level to check another, see Michael Greve's recent work.

Moreover, the question of whether the federal government can ban local government practices for which it cannot show racial motivation, but which have "disparate impact" on one or another protected group, is emerging as one of the hottest issues in housing and local government law. Consider, for example, the situation of a town council that is considering cutting back public bus schedules or recreation programs with more than their share of minority users. Even if motivated by budget concerns or an overall small-government philosophy rather than by a desire to harm or discourage minority patrons, such cutbacks might be arguably illegal if "disparate impact" concepts are to rule the day, as the Obama administration keeps suggesting. 

Not least, the Westchester dispute does relate directly to regulation of private citizens. As part of its pressure on the county, HUD is insisting that it is a violation of fair housing law for the county not to enact an ordinance commanding that private landlords not engage in so-called source-of-income discrimination -- which in practice mostly means banning them from turning away government-aided applicants like those from the Section 8 program. Nationally, landlord participation in the Section 8 program is supposed to be voluntary, and many apartment managers and private renters do not participate, sometimes because of less-than-happy experiences with Section 8 tenants. If HUD prevails, it will be one step closer to its apparent goal of requiring -- federal law or no -- that property owners nationwide consent to become Section 8 landlords, a status that brings them under a variety of additional regulations as well as itself seriously infringing their freedom to run their businesses as they please. 

That's one reason even those who aren't fans of restrictive zoning should hope HUD loses this fight. 

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  • Almanian!||

    Westchester refuses to submit to Central Planning rule - creates disparate impact - minorities, women and chirrenz hurt worst.

  • Hugh Akston||

    I heard that Westchester County is full of muties.

  • ||

    Nah, most of them live on an island or some shit now.

  • Tonio||

    +1 Super Obscure Heinlein ref.

  • Hugh Akston||

    Sorry to disappoint, but I'm not that cool.

  • shut the fuck up mary||

    Swing and a miss, Tonio trying way too hard yet again.

  • Doctor Whom||

    Moreover, the question of whether the federal government can ban local government practices for which it cannot show racial motivation, but which have "disparate impact" on one or another protected group, is emerging as one of the hottest issues in housing and local government law.

    It's a quick stroll to federalizing everything. Then again, that's a feature, not a bug, since the very concept of local government (except for D.C.) infuriates the progs.

  • ||

    One nation, one people, ONE REICH.

  • Tonio||

    No, they're ok with local governments; it's the states they hate. That pesky sovereignity thing.

  • Wizard4169||

    Actually, they're cool with any level of government, as long as it imposes more control over the sheep. It's only when proposals arise to let people do what they want that the libgressives freak out. If you start letting people think they have any degree at all of control over their own lives and property, the gods only know where it will end.

  • ||

    From a different thread:

    Res Publica Americana| 4.4.13 @ 5:12PM |#

    A careful, crafty Ron Paul somehow manages to win the presidency, goes apeshit militant a day after taking office, and starts restoring constitutionalism -- by force, when necessary.

    /Pipe-dream.

    Has anyone come up with a percentage of the things the FedGov does that is egregiously unconstitutional such as the shit in this article? Around 90% or so? I am thinking if RPA's pipe dream comes true there will be a hell of a lot of work to be done.

  • ||

    If you, me, all of Reason's staff, and every other freedom-loving visitor to this site spent a week straight compiling an enormous list, we still won't have anywhere near a comprehensive catalog the of unjustifiable, disgusting tyrannies the government imposes upon the United States.

    I suspect a restoration to constitutional governance would be a generational undertaking.

  • ||

    Probably multi-generational.

  • C. S. P. Schofield||

    Hell, that should be fine; it took us more than a generation to get here. Furthermore, the ides that everything should (or even can) be rectified with a single election needs to be killed, DEAD. I'm not saying that it's hopeless, but anyone who claims he can fix things in hurry should be regarded with deep suspicion. He is claiming the kind pif sweeping powers we are trying to get rid of.

  • np||

    I'm all for restoration back to most of the original founders and framers intentions, if we consider both the Federalist and Anti-Federalist papers, as the bedrock of the Constitution, and IMO it should have been officially part of it.

    But the problem is that most of the unjustifiable shit, if it even gets to the SC, simply gets declared "constitutional" by way of the Commerce Clause, the Necessary and Proper clause, the General Welfare clause, or the 16th Amendment. If the SC judges that there's a "compelling government interest", justified by those aforementioned clauses, then it's constitutional.

    That is even before considering the structure of government that allows fucked up shit to happen and remain perpetually unchallenged in the first place:
    - Congress can pass laws willy-nilly, without any test for constitutional muster (again, only works if we consider original intent)
    - the Supreme Court does not have an obligation to hear any case
    - you need to show sufficient standing to appeal
    - you lose any right to appeal once you plea for criminal cases (which is 90%)

  • Death Rock and Skull||

    "then it's constitutional"

    No it isn't.

  • General Butt Naked||

    Has anyone come up with a percentage of the things the FedGov does that is egregiously unconstitutional such as the shit in this article? Around 90% or so?

    Looks like somebody was never taught about a little thing called the "commerce clause" in school.

  • fish||

    Are you serious....ARE YOU SERIOUS?

  • ||

    "Looks like somebody was never taught about a little thing called the "commerce clause" in school."

    Oh, they tried to teach me, but I was raised on a farm so I know bullshit when I come across it. I took the trouble to actually read the commerce clause. Any ten year old can read it and tell that it doesnt mean anything close to the SC's interpretation.

  • Henry the Twooth||

    Hmm, maybe we should set up a new federal department to calculate all . . . oh, wait.

  • Tonio||

    It's hard to quantify "things", Yankee Lad. Srsly. Is a program which costs billions and affects millions on a par with a program which costs millions and affects a few thousand? What I'm saying is that we prioritize the most expensive and intrusive programs and prioritize those. But those will be hardest to get rid of.

  • SIV||

    Why doesn't Obama send in Federal troops to enforce integration on those Yankee racists?

  • ||

    The North shall rise again!

  • The Late P Brooks||

    This would not be a problem if HUD owned all the apartment buildings in America, you know.

  • ||

    Winchestertonfieldville should be able to choose its own zoning. Why does it have to be forced integration with suburban neighborhoods? Can they not doze down some projects and build some nice houses to integrate racial diversity in the city?

  • Tonio||

    C+ Better answer: why should there even be zoning?

  • ||

    The irony in my post was muddled?

  • Tonio||

    Or I'm drunk?

  • Death Rock and Skull||

    I have no idea what the issue is yet. But before I read the article, allow me to say fuck subsidized housing and rent control.

  • Ted S.||

    Build subsidized housing in the Hamptaons and on Martha's Vineyard.

  • Death Rock and Skull||

    Ooh, as I begin to read the article, fuck "affordable housing" development requirements and property tax games such as TIF shit.

  • Tonio||

    Beavis, the most egregious thing about this is that HUD is telling the municipal government it must pass certain laws. Imposing those laws by decrees from Washington is pretty heinous in itself, but forcing the local governments to do HUD's bidding is a higher order of worse.

  • Death Rock and Skull||

    Towns asked for it by thinking getting federal programs involved in their utopian planning schemes and development markets was a sweet deal.

  • entropy||

    threatened to cancel $7.4 million in unrelated housing and community development funds.

    Got a point there. They don't have to take the money.

  • Jayburd||

    We (our grandchildren) don't have to give them the money to bribe or blackmail Local or State government in the first place. Maybe instead of 'limited government' we should refer to it as 'skinny government' so people will realize that the solution is a diet....starvation?

  • The Late P Brooks||

    Some bureaucrat with a degree in urban planning wants to turn real cities filled with real people into his ant farm experiment.

    What could possibly go wrong?

  • gaoxiaen||

    Cool. Maybe I'm in the wrong line of work. It's good to be God.

  • gaoxiaen||

    Cool. Maybe I'm in the wrong line of work. It's good to be God.

  • grey||

    Anyone recall the name of the sci fi novel where a computerized city programmed to kick out undesirables, comences to kick out all the humans?

  • gaoxiaen||

    Damn double post hex again.

  • chalmers65||

    upto I saw the check 4 $7309, I didn't believe that my best friend was trully erning money in their spare time at there labtop.. there great aunt haz done this for less than seventeen months and resently cleard the mortgage on their villa and bought a gorgeous Lexus LS400. read more at, http://www.wow92.com

  • buybuydandavis||

    "For more on how the modern arrangements sometimes called "cooperative federalism" "

    Cooperation. That's why we need all them guns.

    Ha ha ha.

  • Spoonman.||

    Meanwhile, Houston is among the less segregated cities in the US...

  • megamucho||

    You're right - everyone there loves mechanical bulls.

  • MacKlingon||

    HUD is one of the fed programs that should never have existed.

  • lenaheadey572||

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  • Divana||

    God, I love this site.

  • Cloudbuster||

    Speaking as a landlord with both section 8 and non-section 8 tenants, not becoming a section 8 property is simple -- all you have to do is fail the section 8 inspection. You can accomplish that very easily by leaving a couple inexpensive and easily-rectified items broken when the inspector comes. However, we've never been *forced* to rent section 8. It's been mutually-agreed-upon by us and the prospective tenant, so we've never tried to fail an inspection.

    Just saying it wouldn't be hard to do: we had a particularly annoying inspector who once failed us because one burner on the gas stove lit too slowly (needed a quick cleaning) and there were a couple grains of sugar down in a crack in one of the cupboards. We rented to a non-section 8 tenant instead. The only person who was hurt was the prospective tenant, who really wanted the place, but was denied because we failed the inspection twice (both times for minor things like I describe).

    The day the government forces me to comply, well, that's not going to end well for anyone.

  • SQRLSY One||

    Cloudbuster, way to go!!! Thwart the bah-stahds, I say! Just a wee tad of creative thinking is all it takes... This could even be done with the FDA and it's over-regulation, in the name of religious freedom, for example; see www.churchofSQRLS.com ...

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  • mayajan67||

    up to I saw the paycheck four $9190, I have faith that my father in law realy erning money in there spare time from there new laptop.. there uncles cousin has done this for less than 13 months and by now cleard the debts on their mini mansion and purchased a gorgeous opel. this is where I went,
    HTTP://BIG76.COM

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