In face of unrelenting Consent Decree violations, Monitor's latest report still leaves Westchester largely off the hook
One thing that the Government appears not to have asked the Monitor to recognize is something that is actually clear to all: that Westchester is part of a larger, regional housing market that includes New York City. This failure is especially egregious because the Consent Decree recognizes this fact and insists that affirmative marketing be done outside of Westchester County in, among other places, New York City. Consent Decree, ¶ 33(e).
The Government did correctly point out that impediments to fair housing choice could exist even when all the factors to make out a perpetuation of segregation cause of action may not be present. This observation is important for the Monitor to heed, especially since paragraph (7)(j) of the Decree requires only hindering of units, inaction in relation to promote units, or the existence of one or more barriers to fair housing choice in order for the County’s requirement to act against a municipality to be triggered.
Were a revised report prepared to look squarely at exclusion or disparate impact or both, the number of municipalities found to have barriers that perpetuate segregation will more than triple.
III. The Monitor is still failing to appreciate what Berenson demands and understating the number of municipalities with zoning barriers to fair housing choice
As documented in Cheating On Every Level (pp.23-27), the Monitor artificially (and substantially) suppressed the number of jurisdictions found to be in violation of Berenson. In addition to the six he did find in violation, there were 17 others that did not, according to the Monitor’s own analysis, have a properly balanced and well-ordered plan for the community; there were 11 others that failed to have zoning that could not rebut a finding of failure to meet thier share of regional affordable housing need “because the zoning ordinance, though it may have provisions addressing affordable housing opportunities, is too narrow in scope to provide genuine opportunities sufficient to meet local and regional need.” Cheating On Every Level, 23-26. That is what is called a whitewash.
Now, the Monitor has removed Ossining and Pound Ridge from the list of Berenson-violating jurisdictions because each jurisdiction has, he says, improved its zoning.
Improvement is not the test. For Berenson purposes, for example, one of the tests remains whether a zoning ordinance is too narrow in scope to provide genuine opportunities sufficient to meet local and regional need. A zoning ordinance that goes from being spectacularly narrow to very narrow is still too narrow to provide sufficient genuine opportunities. For Consent Decree purposes, Westchester is required to act whenever zoning continues to operate as a barrier to fair housing choice (or where zoning hinders, or fails to promote, construction of units). A zoning ordinance that goes from having the most extensive barriers conceivable to having very substantial barriers still has barriers that require action.
Ossining, for example, did nothing to allow multi-family housing in single-family zones. Pound Ridge, for example, still requires enormous lots for the construction of multi-family housing and very little land is available for such construction. Oh, and the number of units in a multiple-family dwelling is capped at four. Oh, and the multi-family district is only a district that replaces an existing senior district, one that extends in a quarter-mile radius from the intersection of the Town’s two main thoroughfares. Single-family Pound Ridge — the overwhelming bulk of the Town, remains protected from affordable housing with desegregation potential.
(The infamous “model ordinance” is here, as elsewhere, of little help because it’s paltry 10 percent inclusionary requirement doesn’t kick in where municipalities resist construction altogether.)
Let’s be clear: the deal that the Monitor is offering to towns and villages (without objection from the Government) is a simple one: make only the most modest changes (often focused on non-residential areas) and we’ll let the single-family zones where the overwhelming number of your residents live continue to be left alone in their hyper-segregated state. (It’s for this reason that the Monitor and the Government have to be shaking their heads saying, “Why can’t Westchester accept our repudiation of the Consent Decree and declare victory?”)
IV. Continued cheating in counting units
The Monitor, to his credit, is skeptical about counting the Chappaqua Station units that are the subject of litigation, continued municipal resistance, and only contingent County funding.
But this one battleground should not obscure the fact that the Monitor, as documented in Cheating On Every Level (pp. 8-12), has allowed hundreds of units to be counted that shouldn’t be counted under the terms of the Decree.
This report provides examples of one flavor of already-documented cheating as well as examples of a new form of cheating.
Abusing his discretion, the Monitor continues to ignore 2010 Census data in determining what demographic category into which each municipality properly falls. See Consent Decree, ¶ 15(a)(iii). (The Government has been able to demand that 2010 data be included, Consent Decree, ¶¶ 15(c), (f), but has not done so.