Before the ink was even dry on the Settlement Order, Westchester County officials were describing the Order inaccurately, creating the expectation among some municipal officials that core elements of the Order - like the requirement to confront and overcome exclusionary zoning - could safely be ignored.
The problem was compounded by, among other things, the decision of the court-appointed Monitor to assure Legislators repeatedly that he was "safe" and could be relied on to be "cooperative" (instead of the Legislators assuring the Monitor that they could be relied on to be cooperative). Worse still, the Monitor's "consultant" has publicly contradicted central elements of the Settlement Order, including the County's acknowledgment of its authority under existing State law doctrines to overcome municipal resistance to the development of affordable housing.
Now, a delegation from the Westchester County Board of Legislators has met with the Monitor. The Legislators' press release quotes Legislator Peter Harkham as stating:
It was an extremely positive exchange with Mr. Johnson where we had a frank discussion on implementation issues - especially the need for local workforce housing to get buy in from municipalities (emphasis supplied).
Such local workforce preferences are well known to operate as barriers to fair housing choice, and violate the terms of the Settlement Order. The focus of the Anti-Discrimination Center's (ADC's) concern is why would anyone believe that such a course would be acceptable.
A federal court order is not supposed to be some starting point in a continuing negotiation; it is a binding, remedial decree. While "buy in from municipalities" is desirable, the Settlement Order contemplates that the development of the required housing shall proceed with or without such "buy in."
The Monitor could have made this point -- or could have declined to participate in the Legislators' press release. Indeed, back in October, the U.S. Attorney's Office, pressed to make concessions in order to secure legislative approval of the Settlement Order, declined to do so, and instead reiterated that the Settlement Order would be carried out to the letter.
In contrast, the Monitor chose to praise the delegation for what he called their "continued commitment to this process."
Commenting on the development, Craig Gurian, ADC's Executive Director stated: "The Monitor may have been ‘encouraged' by what he calls a ‘continued commitment' to some ‘process,' but the commitment that we have seen is a commitment to try to water down the terms of the Settlement Order. It is no surprise that, when opponents of change are allowed to believe that an Order is open to change, those opponents will be emboldened."
"We are, of course, disappointed in the course that the Monitor has taken thus far," Gurian continued. "We should never have had to see the spectacle of a Monitor's consultant acting more as a collaborator with the County than an agent to oversee the County. We should never have had to see the Monitor himself continuing to bend over backward in public to avoid confronting the realities of what the Settlement Order requires. The public was and is entitled to some straight talk. Not anything elaborate, just a statement recognizing that there are only two choices that the Settlement Order offers to towns and villages: cooperate with implementation, or else see implementation achieved over whatever resistance is interposed. In other words, assistance and enforcement must go forward simultaneously, and no one should be allowed to think that implementation shall proceed otherwise."
"Thankfully, the terms of the Settlement Order are clear, and the entire matter remains under the jurisdiction of Judge Cote. For now, the eyes of the civil rights world are focused squarely on HUD. Regardless of whether the Monitor is prepared to do so, that agency must insist on full compliance with all terms of the Settlement Order."
The full text of the Legislators' press release is available here.