What kind of a model is the "Model Ordinance" just approved by the Monitor?

Westchester Case

What kind of a model is the “Model Ordinance” just approved by the Monitor?

A model of how to avoid making structural change. And the Monitor’s rationale for accepting Westchester’s proposal reveals a series of premises utterly at odds with that of the Consent Decree.

Imagine a map of every parcel of land in Westchester. Now imagine that every parcel where it is currently permissible to build a multiple dwelling is marked in orange (Halloween theming). Now imagine that every single municipality were to adopt the model ordinance. How many additional parcels would get to be marked in orange? ZERO. The model ordinance does not increase the parcels where multiple dwellings are permitted one iota.

And the Monitor’s justification? A model ordinance is only helpful if municipalities adopt it.

That reasoning maximizes the power of those who would maintain the status quo, and throws the language, logic, and intent of the Consent Decree down the toilet.

The integrity of the Consent Decree depended on the creation of an environment where municipalities knew that maintenance of the status quo was no longer an option.

ADC laid this out for the Monitor well over a year ago:

We need not speculate about the efficacy of an approach that tries to work within the constraints of existing zoning. That has been Westchester’s policy, the County’s AFFH obligations notwithstanding. The policy has been an abysmal failure. The Settlement Order recognizes that a different path is required. That is, one must take the objectives of the agreement as the starting point (not existing zoning), and then determine the steps that are necessary to achieve the Settlement Order’s objectives. It is this reorientation - acknowledging the primacy of the broad public interest in AFFH and no longer subordinating that interest to an exclusionary status quo - that must drive implementation planning.

Carrots often fail to provide the intended incentive to act because the person or entity sought to be influenced retains an assumption that the “noncooperation” option will remain a viable option. Change the viability of the non-cooperation option, and you change the calculus of the person or entity deciding on a course of conduct.

No carrot will work unless all municipalities see that a non-cooperation posture means losing the opportunity to influence the County as the County decides the location, manner, scope, and timing of affordable AFFH development in particular jurisdictions. If that stick is in place, then influencing the County on these issues itself becomes a carrot. It is a carrot that should be offered selectively, with preference given to the first five or 10 municipalities that step forward and enact comprehensive inclusionary zoning. Because of the vast amount of land that is available for affordable AFFH development, because comprehensive rezoning will ultimately yield more units that the unit-specific provisions of the Settlement Order possibly could, and because the County and its municipalities will continue to have AFFH obligations independent of the Settlement Order, it is sensible to weight the placement of Settlement Order units towards those jurisdictions that fail to cooperate promptly.

Yet, even now, the Monitor failed to evaluate what was “achievable” from a Model Ordinance in the context of the Consent Decree’s objectives and requirements.  He ignored the fact that the County must withhold funds from towns and villages that do not cooperate.  He ignored the fact that the County must acquire interests in those parcels of land the development of which would have maximum desegregation potential - regardless of whether a town or village is cooperating.  And he ignored the fact that the County is obligated to use its acknowledged legal authority over municipalities to overcomate such local resistance  as arises.