ADC status report - November 1, 2010

Westchester Case

Just how bad is Westchester’s non-compliance?

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.

At the heart of the Consent Decree is the requirement that Westchester cause municipalities - through legal compulsion where necessary - to permit and encourage the development of affordable housing units that have maximum desegregation potential. Those are units to be built on the Census Blocks with the lowest concentrations of African-Americans and Latinos. Westchester was forced to acknowledge in the Consent Decree its legal authority to overcome to municipal resistance to affordable housing development, and to acknowledge that it is appropriate and necessary to use that authority.

Yet the current County Executive has made clear since early in 2010 that he has no intention of forcing municipalities to do anything. Just recently, a local newspaper described the report of a Westchester Mayor who had attended a gathering with county officials and representatives of the federal monitor: “It was continuously reiterated that the county doesn’t intend to sue communities over their zoning codes.”

There is still no plan for the County to acquire interests in parcels of land the development of which have maximum desegregation potential, and Westchester won’t even acknowledge that it is characterized by residential racial segregation, let alone move to cause building on ultra-white census blocks.

The challenge Westchester poses is of national significance. If the principles of federal supremacy and obedience to federal court orders were forfeited, the glue that holds our country together would come undone. Were that to happen, Westchester residents would find that some of the federal protections being chucked overboard by others might well be protections they themselves hold dear. The urge to ignore the law when it is convenient to do so rises powerfully from many quarters, and it cannot be countenanced anywhere at any time.


“Appeasement only emboldens resistance”

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?

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.


What kind of a model is the “Model Ordinance” just approved by the Monitor?

A model of how to avoid making structural change. And the Monitor’s rationale for accepting Westchester’s proposal reveals a series of premises utterly at odds with that of the Consent Decree.

Imagine a map of every parcel of land in Westchester. Now imagine that every parcel where it is currently permissible to build a multiple dwelling is marked in orange (Halloween theming). Now imagine that every single municipality were to adopt the model ordinance. How many additional parcels would get to be marked in orange? ZERO. The model ordinance does not increase the parcels where multiple dwellings are permitted one iota.

And the Monitor’s justification? A model ordinance is only helpful if municipalities adopt it.

That reasoning maximizes the power of those who would maintain the status quo, and throws the language, logic, and intent of the Consent Decree down the toilet.

The integrity of the Consent Decree depended on the creation of an environment where municipalities knew that maintenance of the status quo was no longer an option.

ADC laid this out for the Monitor well over a year ago:

We need not speculate about the efficacy of an approach that tries to work within the constraints of existing zoning. That has been Westchester’s policy, the County’s AFFH obligations notwithstanding. The policy has been an abysmal failure. The Settlement Order recognizes that a different path is required. That is, one must take the objectives of the agreement as the starting point (not existing zoning), and then determine the steps that are necessary to achieve the Settlement Order’s objectives. It is this reorientation - acknowledging the primacy of the broad public interest in AFFH and no longer subordinating that interest to an exclusionary status quo - that must drive implementation planning.

Carrots often fail to provide the intended incentive to act because the person or entity sought to be influenced retains an assumption that the “noncooperation” option will remain a viable option. Change the viability of the non-cooperation option, and you change the calculus of the person or entity deciding on a course of conduct.

No carrot will work unless all municipalities see that a non-cooperation posture means losing the opportunity to influence the County as the County decides the location, manner, scope, and timing of affordable AFFH development in particular jurisdictions. If that stick is in place, then influencing the County on these issues itself becomes a carrot. It is a carrot that should be offered selectively, with preference given to the first five or 10 municipalities that step forward and enact comprehensive inclusionary zoning. Because of the vast amount of land that is available for affordable AFFH development, because comprehensive rezoning will ultimately yield more units that the unit-specific provisions of the Settlement Order possibly could, and because the County and its municipalities will continue to have AFFH obligations independent of the Settlement Order, it is sensible to weight the placement of Settlement Order units towards those jurisdictions that fail to cooperate promptly.

Yet, even now, the Monitor failed to evaluate what was “achievable” from a Model Ordinance in the context of the Consent Decree’s objectives and requirements.  He ignored the fact that the County must withhold funds from towns and villages that do not cooperate.  He ignored the fact that the County must acquire interests in those parcels of land the development of which would have maximum desegregation potential - regardless of whether a town or village is cooperating.  And he ignored the fact that the County is obligated to use its acknowledged legal authority over municipalities to overcomate such local resistance  as arises.


Why is everyone playing the “counting” game?

Because, that way, the heart of the Consent Decree is lost.  Let’s cut to the chase.

A minimum of 630 units are supposed to be developed in the whitest municipalities.  And the housing is supposed to be developed on the census blocks with the lowest percentages of African-Americans and Latinos.  Not blocks where no one is living, or at least no one outside of those in a psychiatric and substance abuse facility.  ADC certainly doesn’t think a “we’ll build it as long as we don’t bother any white people” approach is Consent Decree compliant.

 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.


So does Westchester take any command from the Monitor seriously?

Not even the most basic command, as demonstrated over the last few months.

In his July, 2010 report, the Monitor wrote that:

“The County uses the term ‘fair and affordable’ throughout its submissions to the Monitor, as well as on its website.  Although this term at first may appear to address the County’s AFFH obligations under the [consent decree], the County also uses the label on its website to describe housing developments that completely lack an AFFH component…The term ‘fair and affordable’ conflates fair housing with affordable housing and obscures the County’s obligations to AFFH.  Going forward, the County should use the precise language of the [consent decree] — ‘Affordable AFFH Units’ — when referring to the housing it is required to develop under the Stipulation. The distinction is not merely semantic. Clarity is vital to the public’s understanding of, and confidence in, the County’s efforts to meet its obligations under the [consent decree]” (p. 23-24).

The very next day, and continuing to the present, Westchester ignored the Monitor’s command.  The County still uses the conflating and obscuring term “fair and affordable” housing, and the Monitor does nothing about it.  That is part of the cost of allowing wishful thinking to substitute for an actual analysis of facts on the ground.


Has HUD fulfilled its obligations?

Absolutely not.

For all its initial bravado about holding Westchester’s “feet to the fire,” HUD has been uncooperative, ineffective, and unwilling to try - directly or through the Monitor - to pursue the crucial principles of the Consent Decree.

  • in more than 14 months, HUD has not made a single application to the Court to enforce the Consent Decree.

  • HUD hasn’t even yet rejected the appalling “analysis of impediments to fair housing choice,” submitted by Westchester this summer, the inadequacies of which were quickly summarized by ADC.

  • Pursuant to the terms of the Consent Decree, the Monitor serves at the pleasure of HUD, yet HUD hasn’t even pressured the Monitor to vindicate the most crucial elements of the Consent Decree: the need to prepare for and use its legal authority to cause new housing development on the census blocks with the lowest concentrations of African-Americans and Latinos.

  • HUD has resolutely not cooperated with ADC.

It matters not that HUD has been talking about (and will presumably unveil soon) “enhanced” regulations relating to the obligations to affirmatively further fair housing.  HUD’s fecklessness in allowing the Westchester Consent Decree to be violated means that jurisdictions around the country understand that the regulations will be for show, not for insisting on real change. 


And the Civil Rights Division of the Justice Department?

The nation’s premier institutional vindicator of civil rights - despite ADC’s pleas - has been missing in action.

Over many months, ADC has pointed out to the Civil Rights Division the obvious national implications of Westchester’s brazen defiance of federal authority.

The County Executive may not literally be blocking the school house door a la “states rights advocates of the past, but he is just as surely acting to prevent a desegregation remedy from being enforced.

As ADC wrote in a Westchester Journal News op-ed piece this summer:

If the principles of federal supremacy and obedience to federal court orders were forfeited, the glue that holds our country together would come undone. Were that to happen, Westchester residents would find that some of the federal protections being chucked overboard by others might well be protections they themselves hold dear. The urge to ignore the law when it is convenient to do so rises powerfully from many quarters, and it cannot be countenanced anywhere at any time.

More than a thousand jurisdictions from across the country that receive federal housing money and that have “affirmatively furthering fair housing obligation”  are looking to see how the Westchester case plays out. 

They know that Westchester is the circumstance where a binding, remedial federal court order gives the federal government maximum authority and maximum leverage to pursue real change and real enforcement.  

The Civil Rights Division’s lack of action is delivering a powerful message that these jurisdictions need not change their ways.


The National Fair Housing Alliance stands firm in defense of real civil rights enforcement

Here is the letter from NFHA - the nation’s leading fair housing organization - that the Monitor chose to ignore:

Click here for full document