County "Analysis of Impediments" Woefully Inadequate

Westchester Case

On July 23, 2010, Westchester submitted to HUD an Analysis of Impediments to Fair Housing Choice (“AI”).  The submission was required by the Consent Decree, and, pursuant to paragraph 32 of the Consent Decree, is not compliant unless it is deemed acceptable by HUD.

It is impossible to imagine HUD deeming the AI acceptable and thereby announcing to jurisdictions participating in CDBG and other federal housing programs that the AI requirement is meaningless.  At its core, Westchester’s AI submission:

  • continues to resist the reality that Westchester is characterized by residential racial segregation, and the reality that the existence of such segregation is itself an impediment to fair housing choice; 

  • reprises the defenses that Westchester interposed during the first phase (pre- Consent Decree) phase of the litigation; 

  • insists ad nauseum that Westchester essentially has no power in relation to exclusionary zoning (contrary to the express language of the Consent Decree setting forth authority and responsibility based on well-established State law, contrary to the provisions of the Fair Housing Act, and contrary to mandatory provisions of the agreements that the County enters into with Consortium Members); 

  • fails to explore the motivations and consequences of municipal resistance to affordable housing development, and the specific fair housing implications of that resistance to fair housing choice in particular jurisdictions;

  • fails in most cases actually to analyze data in any meaningful way, often choosing to present a wide range of results that obscure rather than illuminate the data;

  • refuses to recognize that Westchester’s record (having been found as a matter of law to have “utterly failed” to meet its affirmatively furthering fair housing obligations from 2000-2006) might have some present day impact on fair housing choice;

  • is particularly inadequate in meeting the obligation to set forth a plan of action, preferring instead not to recommend that Westchester require anything of municipalities in relation to affirmatively furthering fair housing (not even proposing reporting requirements on the municipalities, nor reporting by the County on the performance of individual municipalities).  This fundamental deficiency is especially noteworthy in view of the special obligations, imposed by paragraph 32 of the Consent Decree, to identify the actions necessary to fulfill ALL obligations of the Consent Decree (not simply those related to the development of a minimum of 750 Affordable AFFH Units);

  • ignores Westchester’s obligation under the Consent Decree to have as a goal in all its housing programs the elimination of de facto racial segregation throughout the County;

  • makes the conclusory and credibility-destroying observation (in the absence of evidence) that Westchester is “diligently working towards achieving Fair Housing Choice for its residents” (at the same time that the County Executive is still pretending that the County is not even characterized by residential racial segregation);

  • refuses to recognize (contrary to the requirements of the Consent Decree) that the segregation-reducing or segregation-perpetuating potential of a particular affordable housing development depends on where that development is located; 

  • fails to engage in a consideration of regional affordable housing need (i.e., pretends that New York City and its large income-eligible African-Americans and Latino populations do not exist);

  • actually attempts to justify exclusionary zoning; 

  • contains an “economic analysis” that provides no analysis of why the segregation index for high income African-American households is actually even greater than deep level of segregation that exists for lower income African-American households;

  • appears to reflect a belief that “seniors” are a protected class under the Fair Housing Act (see page 82 of the AI).  While “age” ought to be a prohibited category of discrimination under the Fair Housing Act, it is not, and it is odd — to say the least — that Westchester and its consultant did not known that.  ADC considered but rejected the possibility that the County was conscientiously considering protected classes under the New York State Human Rights Law (which does prohibit age discrimination in housing), but clearly Westchester and its consultant were not (else they would have analyzed, inter alia, discrimination on the basis of sexual orientation and marital status — also prohibited under the New York State Human Rights Law); and

  • does not discuss discrimination by landlords and brokers on the basis of lawful source of income, let alone the County’s obligation under the Consent Decree that relates to lawful source of income legislation.

In other words, rather than reflecting a new commitment to meeting the requirements of what an AI should contain, the County’s submission to HUD reflects a determination not to change course but to try harder to be successful in evading its obligations.  The same unwillingness to confront and act to overcome segregation that gave rise to the lawsuit is still present; the same unwillingness to confront and overcome municipal resistance that gave rise to the lawsuit is still present.

Read the document:

Full text of Analysis of Impediments and Attachments