HUD demonstrates anew lack of will to enforce consent decree
March 26, 2013 — HUD caused a stir yesterday by sending a letter to Westchester threatening to permanently reallocate away from the county the fiscal year 2011 funds that the agency had previously frozen because of Westchester’s failure to meet its “affirmatively furthering fair housing” obligations.
But the real story is not that HUD is exercising authority that it is supposed to exercise in respect to any of more than 1,000 jurisdictions that receive federal housing funds, it’s that HUD still is not prepared to act on the fact that Westchester is uniquely situated: the county, unlike those 1,000+ other jurisdictions, has obligations pursuant to a binding federal court order. HUD just won’t act on the fundamental principle that obligations arising from a court order that haven’t been fulfilled need to be vindicated by going back to court and seeking to hold the non-complying party in contempt. This is Law Enforcement 101.
Analysis of impediments
Concerning Westchester’s “Analysis of Impediments” (AI), HUD’s own letter recites the fact that Westchester was obliged by paragraph 32 of the consent decree to produce an AI “acceptable to HUD.” (The original date for compliance was December 2009.) Westchester has never produced an AI acceptable to HUD, yet neither the agency (nor the U.S. Attorney’s office for the Southern District of New York, nor the Court Monitor, James Johnson, who serves at the pleasure of HUD) has moved to hold the county in contempt for this violation.
Source of income
Concerning the requirement, pursuant to paragraph 33(g) of the consent decree, that Westchester’s county executive promote legislation that would ban discrimination on the basis of lawful source of income, the court found that Westchester had violated the obligation, and issued a supplemental order directing compliance. As HUD’s letter points out, the county executive has not complied with the supplemental order despite the fact that the county’s requests for a stay of the order to the district court and the appeals court have been denied. Nevertheless, neither HUD, nor the U.S. Attorney’s office, nor the Monitor has moved to hold the county in contempt for this violation.
Concerning exclusionary zoning, there are only three possibilities: (a) the government believes there is not exclusionary zoning in Westchester’s towns and villages; (b) the government doesn’t know whether there is exclusionary zoning; or (c) the government believes that there is exclusionary zoning.
If the government doesn’t think there is exlusionary zoning, then there would be no reason to disturb Westchester on this point at all. If the government doesn’t know, then it would be guilty of a gross failure in its duty — over a period of more than three years — to discover facts elemental to the ability to enforce the consent decree.
Of course, it is almost certainly the case that the government does believe that there is extensive exclusionary zoning that exists in Westchester County. Indeed, the data that have been readily available to the government and the Monitor for years make unmistakable the fact that exclusionary zoning is rampant.
In the face of exclusionary zoning (one of the main barriers to fair housing choice), paragraph 7(j) of the consent decree placed on Westchester a twin duty to act to challenge towns and villages with such zoning, including bringing litigation against them. (The consent decree forced Westchester to acknowledge its authority and obligation to do so.)
The government cannot be in any doubt about Westchester’s failure to comply: the county executive, year after year, has loudly proclaimed that, on an across-the-board basis, he has not and will not comply with this most central aspect of the consent decree. Yet the government has never moved to hold the Westchester in contempt for its failure to meet its paragraph 7(j) responsibilities to act to redress the continuing barriers left in place by its municipalites.
Postscript regarding the prospect of de-funding:
Note that, even now, HUD is not threatening to permanently reallocate fiscal year 2012 or fiscal year 2013 funds; and that, remarkably, HUD is still promising to restore funding fully if the county belatedly submits a compliant “Analysis of Impediments” to fair housing choice (“AI”) — notwithstanding more than three years of non-compliance, and notwithstanding Westchester’s other, ongoing violations of the consent decree.