In face of unrelenting Consent Decree violations, Monitor's latest report still leaves Westchester largely off the hook

Westchester Case

Note that while the Monitor’s equating Westchester not having objected to his Berenson findings to the County having “adopted” those findings, is not an unreasonable interpretation, this framing is not innocuous for another reason.  On the contrary, it reflects the Monitor’s apparent acceptance of the U.S. Attorney’s erroneous notion that Westchester’s obligations only come into play when the County can be said to have itself agreed that there are impediments.  Taking the authority to determine a violation away from the Court and giving it to the defendant is indefensible.

What is most important of all is that many more municipalities have zoning that continues to create impediments to fair housing choice than the Monitor has acknowledged.

The irony here is the Monitor’s newfound willingness to discuss paragraph (7)(j) (he had not mentioned the obligations once in his 70-page biennial report last year) was triggered by New Castle’s opposition to the Chappaqua Station project.  Specifically in respect to that project, the Monitor points out that Westchester’s failure to act to counteract New Castle’s opposition “may violate” the County’s Consent Decree obligations and “could serve as the basis for a potential contempt action” (pursuant to paragraph (7)(j)).  Report, 18-19.  The Monitor also points out that counting the Chappaqua units “may be inconsistent” with the Decree to “award the County credit” for units where Westchester has failed in its paragraph (7)(j) obligations.  Report, 4, fn. 4.

As it happens, that Chappaqua Station project, whatever its merits as affordable housing, remains improper to count for Consent Decree purposes, isolated from residential Chappaqua as it is (among other reasons).  What is more probative of New Castle’s hindering and undermining of the Decree is the Town’s failure to rezone any portion of an existing residential neighborhood to foster a substitute for what New Castle claims are site-specific objections to the one project.

And what is most important of all is that many more municipalities have zoning that continues to create impediments to fair housing choice than the Monitor has acknowledged.  This is true both in terms of disparate impact and in terms of the New York State obligation that municipalities have a balanced and well-ordered development plan for the community and have zoning that allows it to meet its local need for affordable housing and its share of regional need for such housing.  As such, the “basis for a potential contempt action” is actually Westchester’s failure to counteract the barriers still present in the overwhelming number of Consent Decree municipalities.


II. The Monitor’s undertaking that he will amend his preliminary impact report

Back in September, the Monitor issued a preliminary report on the disparate impact caused by the zoning of Westchester municipalities.  The report was a travesty, a document designed to understate the number of municipalities with unlawful zoning.  As ADC has discussed, the report failed to follow longstanding disparate impact doctrine.  Why?  “Because to follow the law and the facts would lead inescapably to the conclusion that most of the towns and villages to which the consent decree applies — surely more than 20 — perpetuate segregation with their zoning.”

Now, in the wake of criticism from both HUD and the U.S. Attorney, the Monitor says that he will revise his report to try to accommodate the Government’s concerns.  Report, 48.  (The letter from the U.S. Attorney, dated October 24, 2014 and annexed to the Report as Exhibit 50 (Oct. 24 U.S. Attorney Letter, sets forth the Government’s position.)

Some of those concerns represent the Government’s interest in not having a disparate impact based on faulty analysis able to be used as precedent in other cases (it apparently has no interest in having a proper disparate impact analysis of Westchester zoning done).  Oct. 24 U.S. Attorney Letter, 2-3.  Among the most notable of the Government’s (well-taken) concerns.

(1) Perpetuation of segregation against African-Americans and Latinos has to be analyzed separately;
(2) Analysis of  “concentration” of a minority group must be treated separately from the issue of “exclusion” of a minority group;

(3) Statistical factors and standards should be explained;

(4) The extent to which each municipality’s zoning code contributes to patterns of concentration in the County as a whole should be discussed or the failure to do so should be highlighted;

(5) The same improvements need to be made in connection with the question of how each municipality’s zoning contributes to region-wide patterns of exclusion; and

(6) The impact of single-family zoning districts on the availability of affordable housing with desegregation potential needs to be explored (or, pointed out to be outside the scope of the report).

Oct. 24 U.S. Attorney Letter, 3-4.  These would be welcome changes, but much less so if the Monitor takes the Government’s invitation to submit an incomplete analysis (missing, for example, items 4 and 6) and simply notes the omissions.  It is remarkable that the Government would have said, as it did, that that such a report, if accepted by Westchester, would constitute an analysis of impediments acceptable to the Government.  Oct. 24 U.S. Attorney Letter, 1.  An incomplete report cannot serve the purpose of affirmatively furthering fair housing, and the Monitor should avoid the disclaimer route.