ADC court filing shows massive exclusionary zoning in Westchester, continued failure by Government and Monitor to focus on or enforce key parts of consent decree

Westchester Case

May 12, 2016 — ADC has filed a letter with the Court presenting the report of a leading national demographic expert on exclusionary zoning, perpetuation of segregation, and disparate impact. Both the letter and the expert report are linked to below.

UPDATE 5/13: Court orders conference on issues raised by ADC; directs Monitor and U.S. Attorney to set forth their positions on remedies proposed by ADC (see Order among the selected documents, below).  UPDATE 5/20: Conference now to be held on July 8th.

The report shows that the Monitor in the case has dramatically understated the number of jurisdictions with exclusionary zoning, with a review of restrictions on as-of-right multi-family housing demonstrating that 19 Westchester municipalities have exclusionary zoning that violates the Fair Housing Act rights of African-Americans (not just the six jurisdictions identified by the Monitor). See Exhibit 9 to the expert report, linked to below, dramatically showing just how little land in principally residential zones permits multi-family as-of-right (principally residential zones that do not permit multi-family housing as-of-right are shown in yellow; principally residential zones that do permit multi-family housing as-of-right are shown in red).

The letter also points out to the Court that the proper response to the County Executive’s efforts to stir racial fear by claiming that the federal government is attempting to dismantle all local zoning is not the Government/Monitor approach of saying that the consent decree does not try to dismantle any zoning. Instead, ADC’s letter shows, the dismantling of all exclusionary zoning is, in fact, at the heart of the consent decree, and that the order was crafted to ensure that Westchester forced its many municipalities with exclusionary zoning to take action.

Finally, the ADC letter identifies major omissions in the Monitor’s biennial report, including his failure to discuss Westchester’s most central obligations: those under Consent Decree ¶ 7(j) to sue those municipalities that continue to have zoning that restricts fair housing choice. The ADC letter reviews the units that have been built and demonstrates that only 45 percent of the units are in municipalities that have African-American and Latino population below the level where the consent decree requires at least 84 percent of the units to be built.

Moreover, the letter shows that hundreds of units should not have been “counted” because they either are on isolated or otherwise undesirable sites; do not affirmatively further fair housing (including those that were able to be built because of a barrier that was removed prior to the entry of the consent decree); or represent “ double-counting,” an accounting technique that, instead of supplementing the supply of affordable housing with desegregation potential, simply recharacterizes (“captures”) housing that had to be built anyway pursuant to obligations independent of the consent decree. See Exhibit 8, linked to below, which identifies all of the fully-funded units through the end of 2015.

In terms of the “Chappaqua Station” project (the one project that the Government and the Monitor are pushing the County on, while turning a blind eye to systemic exclusionary zoning in New Castle and 18 other municipalities), ADC’s letter states:

The irony is almost too painful. Westchester, not surprisingly, is prepared to allow a project to go forward that is located on a brownfield site, sandwiched between the Saw Mill River Parkway and the railroad, and separated from any residential Chappaqua neighborhood both by geography and by designed tenancy (100 percent affordable, no market rate units). It is a project that, whatever else one has to say about it, would not be permitted if, as intended, development under the consent decree had proceeded pursuant to an Implementation Plan (IP) that met the goals of the decree to AFFH. Consent Decree ¶ 18-20. This is the ground where the Government seeks action, all while ignoring the exclusionary zoning of New Castle and numerous other jurisdictions. It is as though a physician were to diagnose both advanced cancer and the existence of a birth mark, and then decide to ignore the cancer and excise the blemish.