Monitor identifies Westchester violation of consent decree

Westchester Case

May 11, 2015 — On May 8th, Jim Johnson, the HUD-nominated and Court-appointed Monitor in the Westchester housing desegregation case, issued a supplemental status report in connection with one prospective housing development that has been stymied by New Castle, the town in which the development would be located.  The development is called “Chappaqua Station.”

As ADC has previously documented, Westchester has for years — with the collaboration of the Monitor, the U.S. Attorney, and HUD — included in its count of units developed under the court order many units of housing that either don’t affirmatively further fair housing (AFFH), or else are actually anti-AFFH units.

With Chappaqua Station, Westchester thought it could get away with counting units as having financing in place when that financing remains contingent on the housing getting built over the objection of the town in which it is located. 

Happily, the Monitor has rejected that particular kind of cheating in this instance.  Paragraph 38 of the court order, provides for $30,000 in fines for the first month, and $60,000 in fines for each additional month of non-compliance.  The same paragraph also calls for the Monitor to impose additional unit obligations on the County; the Monitor has asked for submissions from the parties on how to determine the extent of those additional obligations.

The Monitor also found that the County violated its obligation under paragraph 7(j) of the court order to take all steps (including litigation) necessary to counter actions of a municipality that hinder the unit-building goals of the court order or fail to promote the unit-building goals of the court order. It was correct for the Monitor to have done so.

It is, however, critically important to have perspective on what this development in the case does and does not do.

(1) It would appear that that the Monitor (and, to judge from correspondence included as an exhibit to the report, the Government as well), have moved away from the bizarre theory they peddled to Judge Cote last May in order to undercut ADC’s attempt to see Westchester held to account: that Westchester’s obligations under paragraph 7(j) aren’t triggered until Westchester subjectively believes that there is a problem with a particular town or village.  Obviously, the job of the Monitor and the U.S. Attorney in connection with the court order is to make their own evaluations of whether the conditions giving rise to Westchester’s obligations to act have occurred, and, if so, to urge the Court to sanction Westchester if the County hasn’t responded as required.  Westchester is free to contest their assessment, but the ultimate decision as to whether the court order has been violated must remain with the Court, not handed off to a defendant like Westchester to enable it to flout its obligation with a see-no-evil posture.  This change in position from the Monitor and the U.S. Attorney is long past due.

(2) Unfortunately, neither the Monitor nor the U.S. Attorney is so far willing to act to sanction Westchester’s broader (7)(j) violations.  It is not just a particular development that can be “hindered” or “not promoted.”  The court order is aimed at the fact that existing zoning barriers “hinder” development more generally, and the fact that the failure to remove those barriers constitutes a failure to “promote” the unit-building goals of the court order.   To be clear, there is no one on the planet who doesn’t understand that restrictive zoning in many Westchester towns and villages constitutes barriers to unit-development, just as there is no one on the planet who doesn’t understand that Westchester, as an across-the-board policy, won’t take action against municipalities (hard to miss when the county executive has been defiantly proclaiming his “local control now, local control forever” stance loudly and clearly for years).  It is true that the Monitor has substantially understated the extent and legal consequence of the restrictiveness, but even his experts have reported that they are extensive. 

In the Monitor’s April 1st report, he concluded that that the County “undertook no direct activities to address zoning impediments in 2014. This inaction, in light of the Monitor’s 2013 findings [regarding zoning restrictions], may support a finding that the County is in breach of certain duties under the [consent decree], including its duty under Paragraph 7(j) to ‘use all available means’ to address ‘actions that hinder’ the [consent decree’s] affordable housing objectives” (emphasis added).  The statement that there “may” be support for a finding of a broad (7)(j) violation evades the Monitor’s duty to report the obvious: that there have been broad (7)(j) violations.  Unfortunately, he did not do that in the April 1st report, and the supplemental report says nothing further about that issue.

(3) Before considering other (7)(j) obligations, it needs to be noted that the Monitor has the obligation under paragraph 39(d) of the court order to include in each report “recommended steps or activities to improve the County’s performance.”  A recommendation to have the court hold the County in contempt is certainly one such recommendation.  The Monitor ought to have done so, but instead “referred” the matter to the Department of Justice to “determine whether a contempt motion should be filed.”

(4) In complete defiance of the court order, the Monitor and the U.S. Attorney continue to ignore a separate (7)(j) requirement: “The County shall initiate such legal action as appropriate to accomplish the purpose of this [consent decree] to AFFH.”  This sentence cannot properly be treated as a nullity.  Unlike the other (7)(j) requirements, this one is not tied to the development of any particular number of units.  It was triggered as soon as the court order was entered by the existence of impediments to fair housing choice more generally (zoning barriers, of course, trigger all (7)(j) obligations). The County, as noted, has an across-the-board policy, not tied to particular circumstances, that it won’t take any such action.  If the Monitor and the U.S. Attorney were prepared to enforce the court order in a way that, as intended, would result in structural change, they would be bringing the other violation to the attention of the Court.

(5) Returning to Chappaqua Station, observers should be aware that the development, if built, should not in any event properly be “counted” for the purpose of the minimum number of units to be built under the court order.  The development is isolated from residential (White) Chappaqua both physically (it is literally squeezed between railroad tracks and a major highway) and in terms of its composition (strikingly, there are zero market-rate units, another factor that will allow the development to be seen as one for “those people” instead of “us”). 

[Why is it that implementation of the unit-building obligations under the court order would be dealt with in such an ad hoc manner?  Because the Monitor, in direct violation of his paragraph 20(d) mandatory obligation, failed to develop an implementation plan that would further the AFFH goals of the court order.  He was required to do so in 2010, when Westchester itself failed to produce an adequate implementation plan, but he decided that his personal policy preferences should override the terms of the court order.]

(6) In terms of the question of New Castle hindering development, the key point is that New Castle’s zoning, as a general matter, is highly restrictive.  This is an issue that the Monitor unfortunately does not take up in the supplemental report.   Connected to this is the fact that New Castle has never come up with a plan to allow multiple dwelling housing (including some version of the units that would otherwise be built at Chappaqua Station) in an existing residential neighborhood.  That fact supports the inference that the town’s opposition to Chappaqua Station is pretextual (note that it is possible for something that is not appropriate to be counted for court order purposes to nevertheless be appropriate to build).

Why don’t the Monitor’s reports sweep more broadly?

(a) The Monitor’s goal is to get the Chappaqua Station project built and the units counted, even though those units shouldn’t be counted (the Monitor, the U.S. Attorney, and HUD have long wanted to maintain the illusion that “progress” is being made).

(b) Because neither the Monitor nor the U.S. Attorney has any interest in disrupting in any material way Westchester’s restrictively zoned and segregated status quo.  On the contrary, the Monitor has been offering municipalities a terrific deal, one altogether contrary to the requirements of the consent decree: You can keep your residential neighborhoods restrictive (and, hence, keep them segregated); all I need you to do is to make some minimal changes to non-residential or marginally residential areas (like allowing housing on top of pizza parlors or where giant office buildings currently are) and I’ll sell it as sufficient progress.

Casual observers may retort, “Be reasonable, he’s getting something.”  Well, if the Monitor were permitted to be operating freelance, perhaps that would be true, albeit to a very limited extent.  But the whole point is that the key proposition enshrined in a binding federal court civil rights order is that residential segregation has to end in Westchester and that the County has the authority and responsibility to force that to happen (“enshrined” means contained in the actual text of the court order).  And it is that court order from which the Monitor and the U.S. Attorney are supposed to be taking their marching orders.