County Exec mischaracterizes Magistrate's ruling, but is still getting last laugh

Mar. 18, 2012 — Despite Westchester’s failure to meet a host of core Consent Decree obligations ever since the Decree was entered in Aug. 2010, the Government and the Monitor have been reluctant to enforce the Decree. Finally, last summer, it was Westchester that took the initiative to try to resolve a dispute that had emerged. In response, the Government belatedly brought forward for resolution a small subset of Westchester’s violations.

The Government chose not to take advantage of its ability to go directly to the presiding District Judge to remedy Westchester’s contempt of its obligations, instead opting for what has been an agonizingly slow process that began by going to the Monitor.

The Monitor issued a ruling in November. Then the matter went to the Magistrate Judge, who just issued a ruling this past Friday (March 16th).

The Magistrate’s ruling makes all too clear the fact that the Government and the Monitor hadn’t even demanded that Westchester be made to do very much at all, and certainly have not sought to hold Westchester to account for its pervasive and ongoing violation of every material requirement of the Consent Decree. Westchester itself, not surprisingly, has offered a deeply misleading spin on the decision

Some facts Westchester conveniently fails to mention

Westchester talks about the decision representing a great victory (at least the County Executive does; the Chair of the Board of Legislators has taken a much more realistic view). But the County Executive omits to mention the following:

(1) Westchester had objected to being required “to specify a strategy to overcome exclusionary zoning practices.” The decision dismissed the County’s objection.

(2) Westchester had objected to being required to “identify the types of [municipal] zoning practices that would, if not remedied by the municipality, require the County to pursue legal action.” The decision dismissed the County’s objection.

(3) The Magistrate Judge did sustain Westchester’s objection that vetoing legislation to prohibit discrimination based on lawful source of income somehow did not violate the County’s obligation to “promote” source of income legislation (in other words, you can apparently be fulfilling an obligation to “promote” something even as you take to undercut any promotion you have done or may be doing), but specifically ruled that “the Monitor is free to reexamine the question of whether the County breached the duty [to promote source-of-income legislation] in other ways and what measures, if any, should be taken by the County to remedy any breach that may be found.”

(4) Either party may appeal any part of the decision to the District Judge who is in charge of the case; hence, such victories as may exist are not final (unless the opposing party agrees to let them be).

Ignoring the full scope of Westchester’s violations

The Government and the Monitor could have identified the County Executive’s complete failure to do anything to promote source-of-income legislation during his tenure (never urging legislators to pass it, for example) as one illustration of the County’s violations of the Decree. But they didn’t. That strategy, after all, would have put the Government and the Monitor on the path to seeking to hold the County in contempt, something both the Government and the Monitor have been and continue to be loathe to do (contrary to the posture normally taken in circumstances when there is seriousness about punishing, eliminating, and rectifying ongoing violations of a civil rights consent decree).

A strategy of seeking to hold Westchester in contempt for failing to meet its obligation to promote source-of-income-legislation would also have led to an obvious question: what about all the other ways that the County has been in contempt of the Decree? That question, along with genuine enforcement of each and all of the obligations of the Decree, are things that that the Government and Monitor have sadly been anxious to avoid.

The Government and Monitor fail to demand action

A good example is in the area of exclusionary zoning.

Westchester has taken (just as it did before and during the first phase of the litigation) the position that it will not litigate against municipalities, even though dozens of municipalities have exclusionary zoning regulations that constitute barriers to fair housing choice (in other words, zoning that impedes the Decree’s goal of maximizing desegregation potential in a County that remains characterized by deep residential segregation).

The Government and Monitor could have and should have identified back in 2010 the specific zoning barriers with which Westchester was not dealing and sought to hold have Westchester held in contempt for its brazen violation of its twin obligations to take legal against recalcitrant municipalities under Consent Decree ¶ 7(j) (and for other violations).

Instead, the Government and Monitor decided to let Westchester have a free pass for its first two-and-a-half years of contempt of a federal civil rights Consent Decree. As the Magistrate Judge pointed out: “the Court does not understand the Monitor to be requiring the County at this time to take any particular step to overcome exclusionary zoning laws.”

Another Westchester whitewash

Finally, in terms of Westchester’s claim that it has provided an analysis of zoning regulations, it has indeed provided information that proves what was already known: the amount of exclusionary zoning in Westchester is massive. Its “analysis,” like the window-dressing efforts it has made with its “Analysis of Impediments” or “AI” is simply a whitewash: it does not, for example, analyze what a small percentage of a municipality’s acreage is available for multiple dwelling construction as-of-right, and simples recites a boilerplate conclusion:

It is to be expected that every municipal zoning ordinance will permit certain uses in some districts and not in other districts as the regulation of land uses is the basic function of zoning. The key observation to be made is whether a zoning ordinance permits a wide range of uses that would reasonably be expected to locate in the specific geographic area. This ordinance meets that test.

So, great news! In the fantasy version of Westchester that the County hopes that the Government and Monitor will accept, there is no exclusionary zoning in Westchester.

Let’s see if, once again, the Government and Monitor will go along with the charade.