County cited for two violations, but Gov't, Monitor still don't see big picture

Westchester Case

Nov. 15, 2011 [updated Nov. 17, 2011]— In papers filed on Nov. 14 and amended on Nov. 17, the Monitor correctly found that the County has been violating its obligation to promote legislation to prohibit discrimination based on lawful source of income and correctly noted that the County’s course of conduct “raises the possibility of a contempt citation and the imposition of fines.”

The Monitor also correctly identified a basic feature of the Consent Decree that ADC has long argued the Government should be using: ”Should the Government decide that it would like direction enforceable by contempt citation of the County’s ongoing obligations, paragraph 58 provides that the Government has the right to seek specific performance of the Settlement by court order” (Monitor Report and Recommendation, pp. 10-11).

Unfortunately, neither the Monitor nor the Government have confronted the reality that Westchester’s goals — from the moment it signed the Consent Decree — have been to avoid development of housing units and other actions that would overcome barriers to fair housing choice, to avoid placing new housing on census blocks populated by high percentages of White residents, and, above all, to ignore its Consent Decree obligation to eliminate residential segregation throughout the County.

As a result, both the Government and the Monitor treat more than two years of Westchester’s failing to meet its Consent Decree, ¶¶ 7(i) and 7(j) obligations as water under the bridge: there is no attempt to hold Westchester to account for this fundamental damage to the integrity of the Decree. Both are still proceeding as though Westchester has not made it unmistakably clear that it fundamentally rejects the goals, premises, and chosen tools of the Decree, and that it is determined never to comply.


Obligations violated

The Consent Decree, as the Monitor acknowledges, “explicitly states that the County ‘shall use all available means as appropriate,’ including ‘pursuing legal action, to address a municipality’s failure to act to promote the objectives of paragraph 7 of the Settlement (which lays out the general requirements for the 750 AFFH Units), or actions that hinder those objectives. See paragraph 7(j)” (Monitor Report and Recommendation, p. 17).

In addition, there is a second obligation to paragraph 7(j): “The County shall initiate such legal action as appropriate to accomplish the purpose of this Settlement and Order to AFFH.”

Paragraph 7(i) is also relevant: The County shall use all available means as appropriate to achieve the objectives [of developing affordable housing that affirmatively furthers fair housing], including, but not limited to…conditioning or withholding the provision of County funds on actions that promote the objectives of this paragraph.”

Yet missing from the Government’s submissions and the Monitor’s report are some basic facts:

  • there have been more than two years of municipalities failing to promote the Consent Decree;

  • there have been more than two years of municipalities maintaining precisely the exclusionary zoning barriers that defeat the purpose of the Consent Decree to affirmatively further fair housing;

  • there have been more than two years of Westchester failing to use all available means as appropriate - including initiating legal action - to overcome the barriers created and maintained by such municipalities;

  • not a single step has been taken to lay the groundwork for even a single challenge to a municipality despite the fact that Westchester specifically and explicitly acknowledged its authority and responsibility to do so in a series of provisions at the beginning of the Consent Decree; and

  • not a single municipality that has failed to use its land use regulations to actively further implementation of the Consent Decree has had its funding cut off.


Moreover, as the Monitor further acknowledges, “the County Executive has publicly stated on several occasions that the County will not sue municipal governments over zoning practices” (Monitor’s Report and Recommendation, p. 18).

In short, the County not only has been and is still in contempt, it has announced that it will remain in contempt.


An inadequate response

It is of course true (and the Monitor’s report is consistent with this) that the County had and has an obligation to identify in the Analysis of Impediments (originally due in December 2009) the type of municipal zoning practices would lead the County to pursue legal action against a municipality and to identify what exclusionary zoning practices exist in each municipality.

But Westchester has been engaged in a deliberately contemptuous course of conduct — conduct that, in addition to its unwillingness to address exclusionary zoning, also includes a focus on pursuing the development of units that manifestly do not AFFH; the failure to use the County’s housing policies to end residential segregation in the County; and the failure to submit a compliant Implementation Plan.

This course of conduct cries out to be sanctioned. Despite this, neither the Government nor the Monitor has sought sanctions from the Court; on the contrary, both have opposed ADC’s efforts to get the Decree enforced. Both have continued to pretend that “progress” has been made (though neither can explain, for example, how the development of housing on a block that is 50 percent Latino and African-American possibly affirmatively furthers fair housing).

And there is another elephant in the room: the road map for Westchester to pursue in terms of overcoming municipal resistance ought to have been part of its Implementation Plan. Because it wasn’t, the Monitor had the obligation pursuant to Consent Decree, ¶ 20(d) to require that such a roadmap — and all other elements needed to meet the terms and objectives of the Decree — be incorporated into a genuine IP. The Monitor’s paragraph 20(d) obligation arose in March 2010 when the County submitted its second inadequate IP, but the Monitor still refuses to meet that obligation.

Critically, both the Government and the Monitor studiously ignore the fact that the Consent Decree contemplated that the County needed from the outset to be acquiring interests in property designed to put it in a position to confront and overcome exclusionary zoning (that is why the County was obliged in the Consent Decree to acknowledge its authority and responsibility to use the long established New York State legal doctrines of Berenson and County of Monroe). 

It is 100 percent certain that the County will neither acquire or plan to acquire these interests (unless ordered to do so), and, thus the failure of the Government and the Monitor to deal with this issue means that, months from now, we will be no closer to any particular zoning barrier being effectively challenged.


The real issues

As we pointed out to the Monitor on Aug. 24, 2009, “Appeasement only emboldens resistance.” As we pointed out to him and the Government on Oct. 21, 2011, “[W]hat is at issue is the fundamental rejection of the goals, premises, and chosen tools of the Decree, not some operational hiccup in an otherwise functioning implementation process.”

The Government and the Monitor have thus far failed to recognize this reality; as such, unless and until ADC is permitted to intervene in the case, the promise of the Decree will remain unfulfilled and many of its provisions ignored altogether.