Enough! Start consent decree compliance

Westchester Case

The following commentary from ADC’s executive director was published in the Westchester Journal News on November 29, 2015. It responded to an editorial that had appeared in the Journal News a couple of weeks earlier.

Re: Enough! Finish housing settlement,” Nov. 14 editorial:

More than six years after Westchester was forced to enter into a federal court consent decree requiring the dismantling of zoning barriers to affordable housing, very little is understood about the actual requirements of that decree. The confusion is evident in a recent editorial. Featuring a call to “finish housing settlement,” the Editorial Board is apparently not aware that compliance with the consent decree has barely begun.

In some ways, this misperception is understandable: neither the U.S. Department of Housing and Urban Development, the U.S. Attorney (HUD’s lawyer), nor the court-appointed monitor has delineated the far-reaching actions steps that the consent decree requires of the county. In complete derogation of their responsibilities, they have replaced the firm, enforcement-based policy commanded by the consent decree with a softer approach more to their liking. Shortly after the consent decree was entered, for example, the monitor admitted that he was looking for “low hanging fruit” to try to get some “easy” units. That’s not what the decree contemplated: the point was that the consent decree had to tackle the tough problems so that developers would subsequently have an easier time of it. But the monitor thought (correctly as it turned out) that he could get away with displacing the consent decree instead of enforcing it.

This softer approach is also why you hear Holly Leicht, the HUD regional administrator, saying things like litigation is a difficult way to change hearts and minds. I can assure you that the litigation was not intended to change hearts and minds, but was in a long tradition that recognizes the need to change conduct; to let people know that, regardless of where their hearts are, the status quo is no longer an available alternative.

Leicht says that the “last thing” HUD wants is a standoff. But the standoff over Westchester’s Analysis of Impediments exists because HUD has still never gone to court to hold the county in contempt for violating the consent decree analysis obligation. When the one who is minding the store does not understand that violation of a court order must be punished (or is too squeamish to do so), there is a profound problem.

Ad hoc development

The affordable housing that Westchester was supposed to generate (a minimum of 750 units) was intended to begin the work of ending the intense residential segregation that characterizes the county (25 towns and villages still have African-American population of less than 3 percent; in 19 of these municipalities, the figure is less than 2 percent). Each unit created under the decree was supposed to “affirmatively further fair housing” — that is, overcome a barrier to fair housing choice — and was supposed to be built pursuant to an “implementation plan” that met the AFFH terms and objectives of the decree.  Westchester never put forward an appropriate implementation plan, and Monitor Jim Johnson failed to provide one, which was his obligation in the wake of Westchester’s failure. So development has proceeded ad hoc, in a manner designed to minimize change and thus undermine the decree.

The claim that Westchester is “on track” in connection with its unit-specific requirements does not hold up. Westchester claims 612 units (556 through the period ending Sept. 30, and another 56 units thereafter).

But HUD, the U.S. Attorney, and the monitor have winked at a variety of Westchester’s stratagems in order to inflate the number of units to be “counted,” as we detailed in our 2014 Cheating On Every Level report. For example, Westchester has been allowed to count more than 300 units where barriers to construction had already been removed prior to the settlement or where an existing agreement had already required them to be built anyway.

The consent decree made Westchester acknowledge that “the location of affordable housing is central to fulfilling the commitment to AFFH because it determines whether such housing will reduce or perpetuate residential segregation,” and specified that at least 84 percent of the units (630 of the minimum of 750) had to be built in municipalities where the African-American population was under 3 percent and the Latino population was under 7 percent. But the government is still insisting on looking at 2000 Census numbers, rather than available 2010 Census figures. Newer Census data would have required most of the housing to be built in a smaller number of ultra-white municipalities, making it more likely that zoning barriers would have to be confronted — precisely what the government and monitor wanted to avoid.

Westchester must act

At the heart of the consent decree – far more important than any analysis requirement – are Westchester’s obligations to act against municipalities that continue to maintain barriers to affordable housing with desegregation potential.

Westchester, in signing the decree, acknowledged that affirmatively furthering fair housing “significantly advances the public interest of the County and the municipalities therein,” that it had the authority and responsibility to fight back against recalcitrant towns and villages, and that “it is appropriate for the County to take legal action to compel compliance if municipalities hinder or impede the County” in the performance of duties like the “broad and equitable jurisdiction of affordable housing” and the “furtherance of the terms” of the consent decree.

The consent decree also requires Westchester to take legal action against its municipalities in three sets of circumstances: where a municipality has acted to hinder the construction of units; where a municipality has failed to take needed action to promote the construction of units; and, beyond the question of specific units, where legal action against a municipality (for, say, excessively restrictive zoning) would help accomplish the purpose of the decree to affirmatively further fair housing.

Westchester County Executive Rob Astorino, of course, has left no doubt that his commitment is to continuing to disobey this central set of decree requirements.  Unfortunately, neither HUD nor the U.S. Attorney nor the court monitor has been willing to hold the defendant (that’s what Westchester is) to these court-required obligations. While the monitor and the U.S. Attorney have criticized Westchester for failing to push for the approval of a single Chappaqua project that is literally wedged between the railroad tracks and the Saw Mill River Parkway (and is thus isolated from existing, white residential neighborhoods), neither has sought to have the Court hold Westchester in contempt for its failure to take on the overall pattern of restrictive zoning in even a single municipality.

The editorial states that some municipalities have “rejiggered” their zoning. But that so-called rejiggering has yielded no material change.

The bargain that the monitor has effectively made is this: show me some window dressing (allow a few affordable apartments in commercial or office zones) and you can keep your residential neighborhoods segregated.  HUD and the U.S. Attorney — understanding the resistance generated by real zoning change and willing to ignore their responsibilities — have gone along with this strategy.

Failure to even try

The decree, entered after decades of a failed “pretty please” approach, commands Westchester to get compliance from towns and villages. The responsibility of the U.S. Attorney and the monitor is to bring Westchester’s failure to do so to the court’s attention, have the County held in contempt, and, when it becomes apparent that the County intends to continue its lawlessness, to seek to have a Special Master appointed who would stand in the place of the county to litigate the required claims in the name of the county.

We know that genuine enforcement of the decree is unlikely. The Court itself has thus far indulged the fiction that the U.S. Attorney and the monitor are doing their jobs. And pressure is certainly not going to come from Democratic politicians — like Westchester residents Andrew Cuomo and former Secretary of State and presidential candidate Hillary Clinton — who, we would assert, could find that the consent decree is too close to home to insist on the rule of law.

But the integrity of the decree does need to be defended. It had the potential to begin to repair the wounds caused by decades of the intentional discrimination that put segregated housing patterns in place. Everyone should at least understand that the squandering of that promise is not the failure of an enforcement approach but the fact that an enforcement approach has not been tried.