AFFH as HUD’s weapon in zoning disputes
Introduction by Frank Francone: The Relman law firm (the firm that sued Westchester County) pops up again. This time, they represented a developer (PathStone) in a zoning dispute with the township. The Developer wanted to do a high density development and wanted one parking place per unit. The township said two.
Whitehall Township, NY, had made the mistake of accepting $400,00 in CDBG HUD grants. So the Relman Firm filed a complaint against the Township alleging that the township did not affirmatively further fair housing. The article below is an early news article on the subject before the settlement.
In 2016, the township caved and altered their zoning laws to meet HUD’s demands and agreed to sign a “Voluntary Compliance Agreement” allowing the project to advance. And, the Township had to pay $375,000 to the developer, effectively as damages for inconveniencing the developer!
The point here is that there are law firms that specializes in aggressive AFFH lawsuits and developers will use AFFH as a club against town, city, and counties in zoning disputes. If the community doesn’t take HUD grants, then developers and law firms like the Relman firm have no leverage against the county.
The Morning Call – HUD investigates allegations of housing discrimination in Whitehall Township
A federal agency is looking into whether Whitehall Township officials acted with discrimination when they denied an affordable housing apartment project on Quarry Street last year.
Variances necessary to turn the former Fuller Sportswear Co. garment mill, 215 Quarry St., into apartments that would house families at or below 60 percent of the area’s median income were denied unanimously in May 2014 after two hearings that saw stiff neighborhood opposition.
Michael Allen, attorney for Washington, D.C.-based Relman, Dane & Colfax, which is representing PathStone, said the initial reception for The Lofts at Fullerton Mill was positive. But when residents had the chance to speak up about the proposal at a township Zoning Hearing Board meeting in spring 2014, something changed.
“When [the board] saw the reaction of community to the proposal, the tone of the conversation seemed to change,” Allen said. “I believe that it is the age and likely racial and ethnic composition … of these units that lead to the denial.”
A spokeswoman for the U.S. Department of Housing and Urban Development confirmed that the agency’s Fair Housing and Equal Opportunity was reviewing PathStone’s complaint filed in February and revised in April.
If a mediated resolution fails to come together, an administrative law judge with HUD could penalize the township with monetary damages or ensure that certain federal funds are out of reach. Among those funds are the Community Development Block Grant Program monies of which Whitehall Township has used $395,744 since 2008, according to county receipts.
Attorneys for the Zoning Hearing Board and the township did not return messages seeking comment. Mayor Ed Hozza Jr. also declined to comment.
PathStone, a national nonprofit with subsidiaries that operate in seven states, works to find affordable housing for disadvantaged populations and believed it found a promising project at the former clothing factory on Quarry Street, according to Allen.
The organization arranged to purchase the property from owner Fuller Sportswear Co. on the condition that it receive zoning relief to move forward.
PathStone needed a special exception to replace one nonconforming structure with another, as well as variances pertaining to side-, rear- and front-yard setbacks, density requirements and distances between buildings.
The board indicated its denial centered on parking concerns. This despite the board’s 2006 approval of near identical zoning waivers for Whitehall Manor Retirement Condos Inc. to convert the mill into 43 market-rate condos for seniors. That project failed to move forward.
The difference being, Allen said, those projects did not include affordable housing options.
“It is the bane of most nonprofit housing developers around the country — this kind of community resistance which sometimes manifests as municipal resistance,” said Allen, whose law firm specializes in civil rights law. “It gets in the way of the need for affordable community housing all over the country.”
The project reduced its original plan for 52 units to 49 and made a case that many of the occupants wouldn’t need the required two parking spaces per unit. An engineer testified that nearby on-street parking would also help reduce the burden. Still, the township board denied the variance requests.
The complaint also draws attention to a 2013 independent study prepared for the Lehigh Valley Economic Development Corp. that noted Whitehall Township’s zoning ordinance “has the greatest potential to result in housing discrimination.”
Objectors to The Lofts at Fullerton Mill allegedly made comments that “having HUD in your backyard” would depress property values, according to the complaint. “Whatever kind of housing goes in there is going to drastically change that entire neighborhood,” another objector allegedly said during one of the project’s hearings. These comments appeared to have influenced the board’s decision, according to Allen.
Fighting the denial through HUD is an alternative to appealing the board’s decision through the court system and means the case can be remediated without a judge’s intervention, Allen said.
Ultimately, the attorney said, he’s hopeful the township and the developer can find common ground that wouldn’t lead to such penalties.
“We are optimistic that we can get to the right outcome here,” he said. “The right outcome would be if PathStone could develop the project, that it then becomes a community asset and the residents who live there are then part of a higher-opportunity community. This would benefit the people moving there and the people living there.”