Excerpts from Decision Granting Center's Partial Summary Judgment Motion

Westchester Case

The headings used herein form no part of the opinion of the Court.  Opinion text is only that which appears within quotation marks.  Material that is bolded represents “emphasis added.”

AFFH = Affirmatively Furthering Fair Housing

AI = Analysis of Impediments to Fair Housing Choice


1. Bottom lines

The Court found as a matter of law that the County “made a claim, to the United States government, that was false or fraudulent, seeking payment from the Federal treasury.”  [Decision, p. 54]

Given the “explicit statutory and regulatory scheme, it is easy to find that federal law conditioned payment of the housing and community development funds on compliance with the duty to AFFH and that each time the County submitted a request for payment of those funds it made an impliedly false certification.” [Decision, p. 43]   Note: over six years, “Approximately 25 payment vouchers per month were approved for payment.” [Decision, p. 26]

No reasonable jury could conclude…that the County appropriately analyzed race in conducting its AIs or that it maintained the required report of that analysis.”  [Decision p. 34]

 ”[T]he County’s AIs during the false claims period utterly failed to comply with the regulatory requirement that the County perform and maintain a record of its analysis of the impediments to fair housing choice in terms of race. This failure is only compounded by the County’s failure to follow the guidance provided by HUD.” [Decision, p. 35]


2. The importance of a grant recipient’s “affirmatively furthering fair housing” certifications

Westchester had argued in its court papers that the AFFH regulations only set forth a “low bar” for compliance.  The Court disagreed: “The AFFH certification was not a mere boilerplate formality, but rather was a substantive requirement, rooted in the history and purpose of the fair housing laws and regulations, requiring the County to conduct an AI, take appropriate actions in response, and to document its analysis and actions. The County’s motion for summary judgment is therefore denied” [Decision, pp. 50-51]


3. Residential segregation in Westchester

“Westchester was aware of the racial makeup of its municipalities (as reflected in the relevant censuses) when it prepared its 2000 and 2004 analyses of impediments to fair housing. According to the 2000 census, over half of the municipalities in the Consortium had African-American populations of 3% or less.” [Decision, p. 24]

“The County’s expert witnesses acknowledge the existence of racial ‘concentration’ in parts of the County. An expert witness for the County testified that racial concentration may decrease if affordable housing opportunities were available in predominantly white areas and African-Americans chose to live or move to those areas.”  [Decision, p. 24]


4. The location of affordable housing is crucial to its fair housing impact

“As a matter of logic, providing more affordable housing for a low income racial minority will improve its housing stock but may do little to change any pattern of discrimination or segregation. Addressing that pattern would at a minimum necessitate an analysis of where the additional housing is placed.“  [Decision, p. 39]

The County admits that it did not undertake an analysis of whether the production of affordable housing between January 1, 1992 and April 1, 2006, had the effect of increasing or decreasing racial diversity in the neighborhood in which the housing was built.”


5. Distinguishing between an “affordable housing” analysis and a “fair housing” analysis

The regulation “requires an analysis of impediments to fair housing choice, not to affordable housing.”  [Decision, p. 21, n.5]  The County knew this: “[T]he County had its own internal documents from before the false claims period relating to its AFFH obligations and the preparation of AIs. One such document, which is an outline of the County’s Fair Housing Plan (“FHP”), sets forth the requirements that the County conduct an AI, set
out actions to be taken, and maintain records. The end of the outline contains the following reminder: ‘Remember: This [the FHP] is not a report on affordable housing, but FAIR HOUSING!!!’”


6. The County’s failure to analyze racial discrimination or racial segregation

“[T]he statutes and regulations require not just any AI, but one that analyzes impediments to fair housing that are related to race.” [Decision, p. 31]

As in the 2000-2004 AI, the 2004-2008 AI “makes no explicit reference to race, or race discrimination or segregation as an impediment to fair housing other than as described above. Race discrimination or segregation are not identified as one of the thirteen obstacles to fair housing.” [Decision, p. 23]

There is no genuine issue of material fact such that a reasonable jury could find that the County analyzed race in conducting its AIs.” [Decision, p. 31]

“A review of the 2000 and 2004 AIs demonstrates that they were conducted through the lens of affordable housing, rather than fair housing and its focus on protected classes such as race. Both AIs are devoted entirely to the lack of affordable housing in the County and related obstacles…Despite the regulatory obligation to maintain records reflecting the AI, there is simply no evidence that either of the County’s AIs during the false claims period analyzed race-based impediments to fair housing within its jurisdiction.” [Decision, pp. 31-32]

“The focus of the AI is to be on ‘actions, omissions or decisions’ which ‘restrict housing choices or the availability of housing choices,’ or which have the effect of doing so, based on ‘race, color, religion, sex, disability, familial status, or national origin,’ including ‘[p]olicies, practices, or procedures that appear neutral on their face,’ and HUD suggests that the AI contain a housing profile describing ‘the degree of segregation and restricted housing by race, ethnicity, disability status, and families with children; [and] how segregation and restricted housing supply occurred. (Emphasis supplied). There is no dispute that the County’s AIs did not contain this analysis of segregation and the housing supply.” [Decision, pp. 34-35].


7. The County’s failure to take appropriate steps to overcome impediments to fair housing choice

“Without a targeted analysis of race as a potential impediment to fair housing, the County was unprepared to grapple with the second component of its AFFH duty to take appropriate action to overcome the effects of any racial discrimination or segregation it might identify as an impediment.” [Decision, pp. 32-33]


8. The County’s various excuses during the litigation

“On July 13, 2007, this Court denied the County’s motion to dismiss, rejecting its contention that it had no legal obligation to consider race when it analyzed impediments to fair housing in connection with its certifications.”  [Decision, p. 2] 

“While the County argues that the actions it took to address the barriers to affordable housing should be considered actions promoting fair housing and specifically redressing racial discrimination in housing, for the reasons already described, the County cannot defeat this summary judgment motion with this post-hoc analysis. It was required to maintain records reflecting that analysis and those actions and it did not.” [Decision, p. 39, n.9]

“The County weakly asserts that the AIs were not devoid of any analysis of race because the references in the 2000 and 2004 AIs to an obstacle described as ‘local opposition’ or ‘NIMBY’ should be understood to include local opposition to new affordable housing on several bases, including on the basis of race. ADC disputes that the County used the term NIMBY to refer to a municipality’s opposition to integration or to anything other than an individual homeowner’s opposition to low-income housing being built in her neighborhood. Even assuming the County’s contention to be true, however, such a veiled reference, buried within a finding that local opposition was an obstacle to affordable’ housing, does not reflect any analysis of how race-based opposition impeded fair housing, as distinct from other forms of local opposition. Nor does this reference reflect an analysis of how race-based local opposition might be an impediment to fair, and not just affordable, housing.” [Decision, p. 32]

The County’s argument that it did not have to conclude after an analysis of data that there were race-based impediments to fair housing “might carry more weight if it took the position that neither discrimination nor segregation nor any other race-based factor was an impediment to fair housing during the false claims period. Tellingly, it does not assert that. Instead, its brief in opposition to the ADC’s motion for summary judgment asserts that the information it received ‘did not reflect that racial discrimination constituted a significant barrier to fair housing and that it did not find that ‘any race-based impediments wereamong the most challenging barriers to fair housing.’ (Emphasis supplied.) Moreover, even if grant recipients were excused from the obligation to take actions to overcome the effects of minor impediments to fair housing, the County was still obligated to record its analysis of race-based impediments and it has been unable to point to any record of a contemporaneous analysis, much less one that embodies the conclusions recited in its summary judgment memorandum. Without such a contemporaneous analysis and record, the certification that one existed was false. (Decision, pp. 33-34, n. 8]


9. Westchester bowed to the will of municipalities resistant to affordable housing

“When the County considers where to acquire land for affordable housing, it seeks the concurrence of the municipality where the land is situated, and
during the false claims period the County would not acquire any such land without the municipality’s agreement. The County produced no documentation showing that during the false claims period it funded or assisted the production of affordable housing in any municipality where the municipality opposed such production.” [Decision, pp. 25-26]


10. Many municipalities failed to produce any affordable housing

“The County set a goal in a 1993 Affordable Housing Allocation Plan to create 5000 affordable housing units; however, as of July 2005, at least 16 municipal units in the County had not created a single affordable housing unit.” [Decision, p. 26]


11. Westchester was prohibited from funding municipalities that failed to AFFH, but failed to restrict funding to any

“Westchester entered into Cooperation Agreements with municipalities participating in the Consortium. The agreements pertained to, inter alia, CDBG grants, and provided that the County is prohibited from expending community development block grant funds for activities in or in support of any local government that does not affirmatively further fair housing within its jurisdiction or that impedes the County’s action to comply with its fair housing certifications.” [Decision, p. 6]  Nevertheless, “the County has not withheld any funds or imposed any sanctions on any participating municipalities for failure to AFFH.” [Decision, p. 25]


12. Alleged HUD inaction cannot insulate the County from responsibility for its conduct

The False Claims Act “is intended to police the integrity of those claims submitted to the government for payment, and the materiality of statements made in those claims is tested as of the time of submission to the government and in the context of the regulatory requirements. Thus, the assertion that certain HUD bureaucrats reviewed the County’s submissions and continued to grant the County funding cannot somehow make the false AFFH certifications immaterial, where the funding was explicitly conditioned on the certifications.” [Decision, p. 53]


13. Examine Westchester’s post-decision claim that “it has for many years considered the impact of race on affordable housing”

The claim was made in a Westchester County statement reported by The New York Times on February 27, 2009.  Compare what that Court found three days earlier: “[The County’s Deputy Planning Commissioner testified that she told the ADC that the County ‘sees discrimination in terms of income, rather than in terms of race.’ She also testified that she informed the ADC that the County’s AI ‘is seen through the lens of income and
affordability, as opposed to race discrimination and segregation by race.’” [Decision, p. 25]