ADC STATUS REPORT - NOVEMBER 1,2010
- Just how bad is Westchester's non-compliance?
- "Appeasement only emboldens resistance"
- The Monitor himself is violating the Consent Decree?
- What kind of a model is the "Model Ordinance" just approved by the Monitor?
- Why is everyone playing the "counting" game?
- So does Westchester take any command from the Monitor seriously?
- Has HUD fulfilled its obligations?
- And the Civil Rights Division of the Justice Department?
- The National Fair Housing Alliance stands firm in defense of real civil rights enforcement
Fundamental, ongoing, and strikingly violative of its Consent Decree obligations. A brazen challenge to the legitimacy of federal authority not unlike "states rights" battles of the past.
"Appeasement only emboldens resistance" back to top
Early on, ADC highlighted this historical reality, and added:
"There will undoubtedly be some who entertain the fantasy that a "patient" and "compromising" approach holds the promise of change without acrimony. There is no surer path to failed implementation."
All this language was part of a letter that ADC sent to the Monitor on August 24, 2009, two weeks after the Consent Decree was entered. Those fundamental truths have been ignored.
Other excerpts from the letter:
"The Settlement Order is a remedial order and must be enforced as such. Whatever the Department of Housing and Urban Development ('HUD') comes to decide on a go-forward basis with respect to affirmatively furthering fair housing ('AFFH') obligations of federal grantees generally, this settlement springs from a particular history and a particular context. Westchester not only remains remarkably segregated - a dozen of its municipalities have African-American populations under one percent - its longstanding wrongdoing is clear. When the presiding judge, the Hon. Denise Cote, examined the record in the light most favorable to Westchester, she still found as a matter of law that Westchester had "utterly failed" to meet its AFFH obligations. She also found as a matter of law that every single representation of compliance in the period 2000-2006 was 'false or fraudulent.'"
"A remedial order is not intended as a balancing act; rather, it is intended as a counter-balance to the consequences of past wrongdoing. As such, we respectfully submit that the task is not monitoring whether Westchester is doing 'just enough' to stay within the letter of the agreement, but rather monitoring and insuring that Westchester is doing the maximum to undo the residential racial segregation that is has helped to perpetuate.
"The lessons of history tell us unmistakably that resistance can be given no quarter...[From Reconstruction through battles in the North in the 1950s and thereafter], the failure to meet resistance with overwhelming force did not engender hoped-for 'reconciliation' or a 'spirit of cooperation.' On the contrary, the forces of resistance, alert to any sign of weakness, were only emboldened by the failure of the relevant government bodies to act promptly to squelch all such resistance."
The Monitor himself is violating the Consent Decree? back to top
Since March. Just take a look at paragraph 20(d) of the Consent Decree.
At the very core of Westchester's obligations was the obligation to develop an "Implementation Plan." That was because it was understood that permitting a haphazard approach was be inefficient at best and a cover for evasion and non-compliance at worst. So Westchester was required to provide a plan "setting forth with specificity the manner in which the county plans to implement" the provisions of the Consent Decree.
Westchester understood the key role of the implementation plan. Not only would an implementation plan lay bare whether or not the County was proceeding in a serious and good-faith fashion to comply, any representation in the plan that was concrete (any "Westchester shall..." in other words) could be deemed by the Monitor to be a part of the Consent Decree enforceable just like any other aspect of the Consent Decree.
The implementation plan was originally due in early December of 2009, but the deadline was extended to the end of January 2010. That first plan ("IP1") was simply a retread of the arguments that Westchester had unsuccessfully made during the ADC litigation. Its relentless attempts at evasion and non-compliance were documented in ADC's Prescription for Failure report.
Paragraph 20 of the Consent Decree required the Monitor to "accept or reject" the proposed plan, but the Monitor refused to say simply and directly that he was "rejecting" the plan, instead choosing a dodge to help the County save face: he was just not accepting the plan yet.
The Consent Decree was very specific: it had a two-strike rule. After the first strike (IP1 submitted at the end of January), the Monitor had to consult with Westchester about the deficiencies in IP1, and Westchester thereafter had 10 business days to submit a revised IP (Consent Decree ¶ 20(c)). Notably, the Consent Decree again stated that IP2 would be submitted for the Monitor's review and "acceptance or rejection."
IP2 was submitted in mid-March 2010, and it was a retread of IP1. ADC took the opportunity to submit a draft off a real implementation plan.
The Monitor took almost four months before he acted on IP2.
Pursuant to paragraph 20(d) of the Consent Decree, the Monitor was (and is) under a mandatory obligation when an inadequate follow-up IP was submitted to "specify revisions or additional items that the County shall incorporate." The Consent Decree could have made this an optional, or permissive item. Indeed, there are a number of items in the Consent Decree where decisions are left up to the discretion of the Monitor.
But here, the Consent Decree stated unequivocally that the Monitor "shall" specify revisions or additional items - in essence, the authority and obligation to set forth his own plan that would be sufficient to "accomplish the objectives and terms set forth" in the Consent Decree.
IP2 was not satisfactory to the Monitor, but he still refused to say straight out that he "rejected" it, and he ignored his obligation to specify revisions and additional items per Consent Decree ¶ 20(d).
Instead, the Monitor gave Westchester another do-over, this one due on August 9th. IP3 wound up containing the same fundamental failings as its predecessors, as set forth in this ADC summary.
The Monitor let more than another two months elapse before issuing his October 25th report. By his own language, the Monitor believed that more work needed to be done on areas of the IP (although he was excruciatingly vague as to which). Nevertheless, he continues to violate the paragraph 20(d) obligation that, as noted above, arose back in March.
Could a Consent Decree have been framed to permit the Monitor to dither in this fashion and give aid and comfort to a unrepentant and non-compliant Westchester? It would have been stupid to do so, but it could have been done.
Of course, that is not what was done, so we have the spectacle of the language of a federal court order being ignored not only by the defendant, but by the person selected to monitor compliance.
Why is everyone playing the "counting" game? back to top
And conversion of existing non-affordable units to long-term affordable status is supposed to be the exception to the rule of new construction. Just like housing for seniors is supposed to be an exception to the rule.
So how far has the County gotten with the development of units that represent:
- new construction
- of individual apartments or homes (not SROs)
- for families;
- not originally designed for seniors only;
- in the whitest municipalities; and
- on the least African-American and Latino populated census blocks.
ADC estimate: pretty darn close to zero.
Monitor estimate? Unknown, because his report doesn't bother to inform the Court of this number and its significance in terms of the County's clear effort to minimize structural (zoning) changes that would leverage the impact of each new unit.