Less than meets the eye
In almost identical letters of Feb. 10, 2021 and Jul. 8, 2021, the U.S. Attorney brags of the following enforcement actions.
- Getting a replacement monitor appointed and removing a fee cap for monitor services. The original monitor resigned in mid-2016. That the U.S. Attorney would include this routine matter in its list is telling.
- Responding to some of County Executive Astorino’s misleading statements. In 2016, because of statements by the county executive that intentionally generated fear of neighborhood change, the Government supported the Monitor’s request to…have Westchester enhance its public relations outreach under the decree. The following year there was a “One Community Campaign” to which HUD did not object! This is hardly a remedy to meet the violation. Completely ignored, for example, was the audiotape of the county executive saying that he wasn’t “yielding an inch” on zoning(contrary to the central requirement of the decree).
- Fighting Westchester’s deficient analyses of impediments to fair housing choice (AI). The U.S. Attorney fails to note that: (a) the litigation that took place over HUD’s reallocation of funding from Westchester was initiated by Westchester, not the Government; and that further litigation over the unsatisfactory AI resulted from a Monitor recommendation that was not made until 2016, six years after the AI was due. Even more fundamentally, the Government did not move to hold Westchester in contempt for its failure in respect to the AI, as it could have done as early as 2010. And completely ignored by the U.S. Attorney is the fact that the issue could have been resolved much more easily had the original Monitor fulfilled his mandatory duty to impose an Implementation Plan (IP) when the County did not produce an acceptable one in 2010. If the Monitor had fulfilled that duty, Westchester would have been obligated to include the provisions of such an IP in its AI.
- The “source-of-income” provision. A collateral obligation of the decree was requiring Westchester to promote the passage of (weak) legislation with a sunset provision prohibiting housing discrimination based on lawful source of income. Westchester refused to do this, and the Monitor determined that this was a violation of the decree. The Government properly supported the Monitor’s position.
- Dealing with exclusionary zoning. The U.S. Attorney points to one and only one circumstance where it took action: the Chappaqua Station project, a singularly unsuitable development site cut off from the residential portion of Chappaqua that abutted a Saw Mill River Parkway ramp. It was a site that Westchester actually wanted to use to count towards its consent decree obligations.
What stands out about the U.S. Attorney’s posture is that it never dealt with the fact that Westchester had an undisguised, across-the-board, regardless of circumstance defiance of its obligation to litigate against those of its municipalities (many of them) who retained exclusionary zoning barriers. The Government failed to do so even though other Westchester violations evinced a broad pattern of contempt.
In other words, there is nothing in Government enforcement over the course of 12 years that changed the facts on the segregated ground in any material respect, although that’s what the consent decree intended (including, of course, the opening recitations about affirmatively furthering fair housing and overcoming local barriers; paragraphs 7(i) and 7(j); and paragraph 31 of the decree).