Monitor files annual report to court for 2012

Feb. 27, 2013 — The Monitor filed his annual report for 2012 earlier this week. The report and the exhibits to the report can be found at the bottom of this page. Detailed observations from ADC regarding information that the Monitor presented to the court in a misleading fashion or withheld from the court altogether will be forthcoming in the weeks to come.

In the interim, know the following:

The Monitor, HUD, and the U.S. Attorney for the Southern District continue to treat Westchester’s violations of the Consent Decree (that is, a lawful and binding federal court order) as though the Consent Decree were nothing more than an exhortatory document. Despite years of brazen and continuing violations of the Decree, neither the Monitor nor the Government has yet moved to hold the County in contempt. Everything else is window-dressing intended to disguise the fact that the “process” is entirely off the tracks.

Both the Monitor and HUD gave away the game in interviews given to ProPublica last year. The Monitor explained that he didn’t want to hold Westchester to development sites that properly affirmatively furthered fair housing because such an approach would have been what he called risky. “I can’t predict what the County’s behavior would be in that circumstance,” the article quoted him as saying. Similarly, a former HUD official was quoted as saying that, in the agency’s view, “the key was not to make mistakes,” citing a concern that if “HUD loses this case, we’re back to a loss of confidence and people would say we’re worthless.”  Both the Monitor and the Government “feared the [Consent Decree] could fall apart if they pushed too hard.”

It may be news to some, but ADC won the case, and the fruit of that victory was a Consent Decree that had as its key focus the dismantling of municipal barriers to affordable housing with maximum desegregation potential. Having a court order meant (and means) that the Monitor and the Government have the maximum possible leverage to enforce the agreed-upon terms. Yet both are unwilling to actually take the direct steps necessary to enforce compliance in court. Instead of action, we see only diversionary plans and discussion.

In its 2012 4th Quarter report, filed with the Monitor earlier this month but not discussed by the Monitor in his annual report, Westchester again made plain its intention to remain in violation of its two distinct obligations under paragraph 7(j) of the Consent Decree.

The first is the obligation to litigate against municipalities that fail to take actions needed to promote the development of a minimum of 750 units of affordable housing with maximum desegregation potential, and to litigate against municipalities who engage in actions that hinder that objective (the failure to elminate exlusionary zoning is the obvious example requiring County legal action).

The second obligation — independent of the 750 units but also set forth in paragraph 7(j) — is the obligation to take legal action, including legal action against municipalities, appropriate to achieve the broader purpose of the Consent Decree to affirmatively further fair housing (contesting exclusionary zoning is the obvious example here as well).

Why won’t the Monitor or the Government ask or answer the question, “Has Westchester violated its obligation to litigate against municipalities whose zoning creates or maintains barriers to constructing affordable housing with maximum desegregation potential?” 

Neither the Government nor the Monitor has ever discussed the significance of the inclusion in the Consent Decree of Westchester’s acknowledgment of its authority to sue municipalities with zoning barriers under the Berenson and County of Monroe doctrines. The County’s acknowlegment of that authority — and of the appropriateness of its using that authority — was required by ADC to be included in the Decree precisely because we knew that Westchester, like many civil rights defendants, would otherwise try to continue the charade of saying it was powerless to act.

Those doctrines, of course, can only be used when the County, as contemplated by the Decree, has acquired appropriate direct or indirect interests in property that could be used for the development of affordable housing with maximum desegregation potential if zoning barriers were removed. Westchester has never done so, and neither the Monitor nor the Government has ever pushed it to do so. 

Why do the Monitor and the Government ignore this part of the Decree? 

Westchester remains well behind its “benchmarks” when considering those units with financing or with building permits that actually affirmatively further fair housing that are entitled to be “counted” pursuant to the Consent Decree.

Though the Monitor did not make this clear in his report, a quick comparison of claimed units with 2010 Census data shows that the County is violating the intended municipal-level distribution of housing units.

A key similarly between and among most of the housing units that are (improperly) being counted is that they are being constructed where white people are not living (exactly the goal of the County from the beginning). Note: most often when the County will describe a Census block as having the lowest concentration of African-Americans and Latinos, it is describing a vacant block (when the Consent Decree requirement used the term “concentration” as meaning a low concentration of African-Americans and Latinos in relation to a higher concentration of whites — not a circumstance where the percentage of all groups is “zero”).

 Because Westchester has always had as its goal the maintaining of the status quo, and because the Monitor and the Government have been unwilling to enforce the Decree, the vast already-populated areas of the County where affordable housing could be developed with more flexible zoning have not been explored, though this question could have been (and should have been) tackled years ago.

A key feature of all or essentially all of the housing that is being “counted” is that it has been financed in the most fiscally imprudent manner possible. The developments have been built with 100 percent of the units being subsidized instead of as a mix of affordable and market-rate. This means that the developments don’t enjoy the leveraging effect of the cross-subsidy created by market-rate units (which is the highest in the highest-cost communities). The result is that the cost per affordable unit is the highest possible (to make it maximally difficult to develop the minimum number of required units), and, from an affirmatively furthering fair housing point of view, the developments are seen as being separate and distinct from the communities in which they are sited (as opposed to being more integrated into them from a socioeconomic perspective).

The “concerns” expressed in the report about concentration of units (and placement of units) starkly ignore both the fact that every single unit developed was supposed to be developed pursuant to a Decree-compliant Implementation Plan(something that still doesn’t exist more than three years after the deadline), and ignores the mechanism that the Monitor was obliged to use, pursuant to paragraph 20(d) of the Consent Decree, to propound an Implementation Plan that accomplished the objectives and terms of the Decree in the face of Westchester’s failure to do so. This part of the Consent Decree has to be ignored because the Monitor, without lawful authority, has chosen to ignore that mandatory obligation.

Indeed, the Monitor has just recently reiterated in correspondence with the County the “carrot” of deeming the Implementation Plan substantially complete once additional information on financing plans is submitted.  

Why would the Monitor continue to ignore his obligations under paragraph 20(d) of the Consent Decree and bless an Implementation Plan that does nothing to deal with issues as basic as where units should be located or how the County must counter municipal resistance? 

In July 2010, the Monitor commanded the County to stop using the phrase “fair and affordable housing,” pointing out that the phrase was misleading and confusing as to Westchester’s obligation under the Consent Decree to develop housing that would affirmatively further fair housing, that is, overcome the barriers that have kept Westchester residentially segregated. Westchester has just ignored that command, and continues to this day to use the term, including as the title of its quarterly reports. The Monitor has taken no action.

An upcoming area of cheating relates to a scheme by which Westchester would get a “bonus” — counting units that were developed without County funding. If the scheme goes through, it will be a continuation of the pattern of approving things that should not be approved (like the first three develoments which account for approximately half of all of the units Westchester claims) for the purpose of giving the false impression of “progress.” In fact, at least 750 units are supposed to be developed through the use of the funds paid by the County pursuant to the terms of the Consent Decree (see paragraph 7 of the Consent Decree).

Part of the problem has been and continues to be an unwilling to recognize that the purposes of the Consent Decree are not furthered by the editorial act of labelling all development as “Consent Decree development.” Genuine Consent Decree units — all of which were supposed to act as catalysts that knocked down barriers that still existed at the time the Consent Decree was executed — are intended to supplement the supply of affordable housing with maximum desegregation development, and non- Consent Decree units are likewise intended to supplement the unit-specific requirements of the Consent Decree (another part of the problem is that the Monitor and the Government are reluctant to acknowledge the scope of Consent Decree requirements that are not unit-specific).

In any event, if there are units that are developed without the spending of Consent Decree funds, those units will not go to waste. Though the Monitor and the U.S. Attorney’s Office choose to ignore paragraph 31(a) of the Decree, the provision obligates Westchester to have as a goal in all its housing policies and programs (not just policies and programs in relation to the minimum number of units) the elimination of de facto residential segregation throughout the County. Were municipalities to open the door to housing with desegregation potential through Westchester’s efforts (and neither the efforts nor the openings have occurred to date), then the units created would begin to fill the vast undersupply of affordable housing with maximum desegregation potential.

In reference to paragraph 31(a), why won’t the Monitor or the Government call Westchester to account for its failure to carry out the substance of the requirement?

In connection with the County’s violation of its obligation to promote legislation prohibiting discrimination on the basis of lawful source of income, a critical part of the Court’s May 2012 order was the requirement that the County Executive sign such legislation when passed (or, more accurately, re-passed) by the County Legislature. The Court, in a subsequent order, directed the County to set forth in writing how it planned to comply with the order. The Government at the time demanded assurance that the County Executive would indeed sign the legislation.

Instead, the County Executive engaged in a transparent dodge of the requirement in a letter of August 23, 2012: “As it is hypothetical at this point as to whether or what provisions may be adopted, or not, by the legislative board, as to the third part of the Court’s order [relating to signing of legislation], I cannot at this time make any specific declaration, except that I will continue to abide by all lawful orders of the Court in effect at any given time” (emphases added). [In fact, the County Executive, if he had intended to comply with the Court’s order, could easily have written, “If the legislation I have reluctantly asked to be reintroduced is adopted by the County Legislature, I will sign it.”]

It is now six months later, and, despite having stays of the Court’s order denied by the Court and by the Second Circuit Court of Appeals, this element of the order remains unsatisifed.

Why have the Monitor and the U.S. Attorney failed to act? 

Unfortunately, when Judge Cote reads the Monitor’s annual report, she will not learn about any of the 13 items set forth above.