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WHEN WILL THE GOVERNMENT ACTUALLY FIGHT "THE BATTLE OFWHEN WILL THE GOVERNMENT ACTUALLY FIGHT "THE BATTLE OFWESTCHESTER"?WESTCHESTER"?

May 15, 2012 ⎯ The Anti-Discrimination Center welcomes Judge Denise Cote's recent decision finding that Westchester has breached the consent decree by failing to promote legislation to bar discrimination based on lawful source of income. We are also pleased that HUD has rejected Westchester's phony zoning analysis, a document that had brazenly declared that there was no exclusionary zoning in Westchester, despite massive evidence to the contrary.

Sadly, however, the federal government is still failing to treat the consent decree as the binding federal court order that it is, and has yet to hold Westchester to account for its continuing violations of each and all of its consent decree obligations.

In a statement last week, the U.S. Attorney for the Southern District said, "We expect the County to comply fully with all of its obligation under the consent decree, and we stand ready to act as appropriate to enforce the County's obligations if necessary."

These are fine sounding words, just like the promise by HUD's Deputy Secretary to hold Westchester's "feet to the fire" were fine words when uttered on the day the decree was entered. But the reality is that we have now gone through two years and nine of Westchester's spurning of its obligations. How is it that the Government still does not see that a motion to hold Westchester in contempt became necessary long ago?

Ignoring the obligation to act

The first problem is the Government's failure to acknowledge that the consent decree was designed to force Westchester to act against municipalities who left barriers to fair housing choice like exclusionary zoning in place. As though Westchester were a jurisdiction not under a consent decree, the Government has done no more than seek to have Westchester analyze or engage in planning to respond to obstacles.

But paragraph 7(j) of the consent decree is clear. It states that Westchester's obligation to act arises in two circumstances.

In the first circumstance, a municipality has either failed to act to promote the objective of constructing affordable housing with maximum desegregation potential or has acted to hinder the accomplishment of such units. Where this has occurred, the County shall use "all available means to address such action or inaction, including, but not limited to, pursuing legal action.

In the second, County action is required to "initiate such legal action as appropriate" to accomplish the purpose of the consent decree "to AFFH (affirmatively further fair housing).

These obligations did not come with any "deferral" period: they were binding on Westchester as of the entry of the decree in August 2009.

By now, the Government and the Monitor have known for two years and nine months that:

(a) Exclusionary zoning is pervasive across Westchester County;

(b) Municipalities have left those restrictions in place;

(c) In so doing, the municipalities are failing to act to promote AFFH housing, hinder the construction of such housing, and standing in the way of the consent decree's broad objective of AFFH;

(d) Westchester has been obliged pursuant to the twin obligations of paragraph 7(j) to take legal action against such municipalities;

(e) Westchester has not taken any action against any municipality; and,

(f) Westchester's County Executive has repeatedly vowed that he would not comply with paragraph 7(j).

Nevertheless, neither the Government nor its Monitor have ever sought to hold Westchester in contempt for its failure to act against municipalities, nor otherwise made application to Judge Cote to sanction Westchester for this violation of a core decree requirement.

Ignoring broad elements of Westchester's obligations

Second, the Government and its Monitor have been unwilling to recognized the full breadth of Westchester's obligations, ignoring, for example, its paragraph 31(a) obligation to use all of its housing policies and programs to end residential segregation throughout the County - an obligation neither limited by time or number of units.

Ignoring the requirement that development under the consent decree must AFFH

Third, a central premise of the consent decree was that development would proceed in conformance with an "implementation plan" that met the decree's terms and objectives; that is, development that affirmatively furthered fair housing (AFFH). Instead, the Monitor never met his obligation under paragraph 20(d) of the decree to formulate a genuine implementation plan designed to AFFH in the face of Westchester's failure to produce such a plan, and the Government, at whose pleasure the Monitor serves, went along.

The sites chosen to date do nothing to AFFH (that is, nothing to overcome barriers to fair housing choice), and, in some cases, are actively anti-AFFH sites (like the one on a census block that is 50 percent Latino and African-American).

In truth, Westchester's conduct can only be understood as a plan to try to minimize the extent to which new housing would change existing patterns of exclusion - let alone ruffle the feathers of those currently living in highly white residential neighborhoods. This is exactly the opposite of the intent of the consent decree, yet the Government and the Monitor have gone along.

The myth of "buy-in"; the failure to enforce

Instead of defending the integrity of all elements of the consent decree and defending lawful federal authority against a civil rights defendant that openly refuses to obey a binding court order, the Government and its Monitor have chosen to indulge in a costly game of make-believe. Wishing and hoping for "progress" or "cooperation" or "buy-in" doesn't make any of those things happen. Improperly approving units to give the appearance that the consent decree is still somehow on track doesn't change the reality that compliance with the decree is and has been completely off the rails.

From long historical experience, it was easy to see that "appeasement only emboldens resistance," and ADC first reminded the monitor of that back in August of 2009, only two weeks after the entry of the decree. Yet the Government and the Monitor insisted on pursuing a policy of appeasement, and on collaborating with an effort to create an illusion of progress.

Now, as before, fig leaf enforcement (e.g., now we'll give you until July to come up with another zoning assessment and plan) doesn't work. Westchester has a documented record of persistent and pervasive violation of its consent decree obligations, and it is past time for the Government to ask Judge Cote to hold the County in contempt.