ADC Statement on Monitor's July 2010 Rejection of County Implementation Submission

July 8, 2010 

The Monitor, as was his obligation, has now rejected Westchester’s second attempt at an implementation plan.  As we had said in respect to Westchester’s first try, the second March submission constituted neither planning nor implementation. 

ADC believes that the Monitor’s report to the Court contains many productive ingredients.  We are particularly pleased that the Monitor saw fit to highlight a fundamental aspect of the consent decree that Westchester has continually tried to ignore: the fact that the consent decree is designed to begin the process of desegregating a County that continues to be characterized by residential racial segregation.  The Monitor made clear that not all affordable housing affirmatively furthers fair housing: location matters, and, contrary to the requirements of the consent decree, the County has failed to establish a strategy for locating housing on the Census Blocks with the lowest percentages of African-Americans and Latinos.

We are disappointed, however, that the Monitor did not with this Court submission develop additional benchmarks for County performance, and that some of the obligations that were set forth were not put forward with sufficient specificity.  After all, the consent decree set up a “two-strike” rule: that is, after two failures on the part of the County, the Monitor had (and has) full authority to set forth any and all revisions and additions that he believes are necessary.  While he has provided substantially more direction to Westchester than he did after Westchester’s first failed submission, we regret to say that the Monitor will find that leaving it to the County to try again (with a deadline of August 9th) will not yield a satisfactory implementation plan.

In short, the County has made it abundantly clear that it has no intention of complying with this binding federal court order. 

For example, the consent decree specifically recognized that Westchester – contrary to widespread myth – does have authority to overcome municipal resistance to the development of affordable housing that affirmatively furthers fair housing. The consent decree went on to require that Westchester use that authority to litigate wherever necessary.  Everyone knows that the only chance for meaningful and widespread municipal cooperation is if municipalities come to understand that the housing is going to be developed with or without municipal cooperation.  As such, it is essential that Westchester acquire interests in land for the development of Affordable AFFH Units so that it is in a position to facilitate development with desegregation potential, making clear that its interests will be vindicated – through cooperation if possible, through litigation if necessary.

While the Monitor commendably found that Westchester’s submission was deficient in its failure to engage in “any meaningful exploration of what shape such legal action might take,” and the report of the Monitor’s Housing Advisor properly noted that the County “should be far more aggressive and imaginative in how to compel municipal cooperation,” the failure on both the Monitor’s part and on the part of the Housing Advisor to be more specific and explicit about the critical role to be played by the County acquiring interests in land (and subsequently forcing zoning changes through litigation in resistant municipalities) gives comfort to a rejectionist County Executive who has said flat out that he will not litigate against municipalities.

Similarly, there are over 130,000 acres of land in Westchester comprised of Census Blocks with African-American populations of less than three percent and Latino populations of less than seven percent.  Failing to specify demographic requirements at the Census Block level now means that the Monitor will be obliged to do so after Westchester inevitably fails to do so on its own (for a third time). 

Finally, the Monitor is entirely correct to say that full compliance with the consent decree not only requires the development of 750 Affordable AFFH Units, but also requires attention to all of other aspects of the consent decree.   Perhaps the most overarching of those other aspects is the County’s obligation to have as a goal of all of its housing policies the end of de facto residential segregation in Westchester County.  Neither of the County’s Quarterly Reports even mention this obligation, and the Monitor’s submission to the Court does not mention the County’s glaring failure in this respect (although the Monitor does promise that, in view of how essential the “tone at the top” is to compliance, future reports to the Court will examine what steps County leaders have and have not taken in support of the consent decree). 

In the end, the likelihood is extremely high that judicial intervention will be necessary to get this process back on track.