In face of unrelenting Consent Decree violations, Monitor's latest report still leaves Westchester largely off the hook

The goal of the Decree was to overcome barriers in the jurisdictions below specified levels of minority population, most especially both under the level of 3 percent African-American and under 7 percent Latino.  This was a heavily negotiated item both in respect to the percentages applied and in respect to the requirement that the African-American and Latino populations had to be below the cap to count in “Category A.”  Consent Decree, ¶ 7(a).  The Decree is not neutral on the question of whether Decree housing should be focused in municipalities that are “under 3 and under 7” — that is the category in which at least 630 units (84 percent of the total) have to be built.  By contrast, “Category B” jurisdictions — those with African-American population less than 7 percent African-American and less than 10 percent Latino — could only account for a maximum of 60 units (8 percent of the total).  Consent Decree, ¶ 7(b).  Likewise, “Category C” jurisdictions — those with African-American population under 14 percent and Latino population under 16 percent — could only account for a maximum of 60 units (8 percent of the total).  Consent Decree, ¶ 7(c).

If the purpose of the Consent Decree were to keep the category of a municipality fixed, it could simply have assigned municipalities to the 630-unit tranche or to one of the two 60-unit tranches.  It did not, focusing instead on demographic makeup.

From 2000 to 2010, some jurisdictions moved from category “A” to “B” or “C,” or from “B” to “C” because of increased Latino population.

Neither the Monitor nor the Government has wanted to take account of 2010 data because doing so would: (a) increase the need for the remaining “A” communities to take real steps to eliminate zoning barriers; and (b) because so many units being developed are in what are now “B” or “C” communities where only a maximum of 120 units can be sited (60 in “B” and 60 in “C”).

As such, Westchester has long since exceeded the maximums in current Category B and Category C jurisdictions.

In this report, the Monitor proposes counting units in Hastings for “A” category purposes, even though Hastings is now a “B” community.  12 of the affordable units are located in a mixed income development (excellent) but they are all in one building, segregated from the market-rate units (bad).  Report, 20.

Another two units in Hastings have the same problem of being improperly categorized, but we note that, on the positive side, these units (unlike so many permitted under the Decree) are not separate from but rather integrated into an existing residential neighborhood.  Report, 21.

The same is done with a Croton-on-Hudson unit: counting it as being in a “B” community when Croton-on-Hudson is now in category “C.”  Report, 8.

The new kind of cheating is illustrated by units in Scarsdale and Briarcliff Manor where, because of inclusionary zoning, affordable units were created without County funding.  The Monitor wants to count these units.   Report, 8-10.

Paragraph 7 specifically says that the County’s obligation to ensure the development of the minimum of 750 units involves development “through the use of the funds set forth in paragraphs 2 and 5” (i.e., Consent Decree funds).

The fact that it’s a good thing that inclusionary ordinances have yielded a few affordable units does not mean that the County’s obligation to fund at least 750 units should be reduced.

In other words, the result most consistent with the Consent Decree is to accept (happily) those non-funded inclusionary zoning units that are made available to the public in addition to a minimum of 750 funded units.  In a county of close to one million inhabitants, there is no danger that too many affordable housing units with desegregation potential will be built.

V. Additional observations

The Monitor’s report points out the obvious in connection with Westchester’s paragraph 32 obligation to prepare an Analysis of Impediments satisfactory to HUD: the County has never done so.  Report, 36.  The Decree violation continues to stand unremedied: neither the Government nor the Monitor has ever asked the Court to sanction the County for this years-long violation.

The Monitor concludes that Westchester “has not engaged in affirmative steps to market affordable housing to potential applicants in the [Marketing Area for Affirmative Fair Housing Marketing] outside of Westchester despite its unambiguous obligation under the Settlement [paragraph 33(e)] to do so,” Report, 28, but the Monitor declines at this point to ask the Court to find that the County is not in compliance.

The Monitor was supposed to determine in connection with the biennial report due at the end of 2013 “whether the County has taken all possible actions to meet its obligations under this Stipulation and Order, including, but not limited to, exploring all opportunities to leverage funds for the development of the Affordable AFFH Units, promoting inclusionary and other appropriate zoning by municipalities by offering incentives, and, if necessary, taking legal action.”  Consent Decree, ¶ 15.  He didn’t do so in his biennial report and he doesn’t do so here.

The Monitor fails to report on whether the County is performing under its Consent Decree, ¶ 31(a) obligation to have “the elimination of discrimination, including the present effects of past discrimination, and the elimination of de facto residential segregation” be “official goals of the County’s housing policies and programs.”  (The Government has long treated the obligation as a nullity, preferring the interpretation that as a long as a goal is “official” it doesn’t have to be real.)

The Court granted authority for the Monitor to take depositions of the County Executive and other officials on August 27, 2014.  Report, 31.  None of those depositions has yet been taken.  Report, 32.

VI. Conclusion

There are glimmers in the report of the prospect of Westchester being held partially accountable, but all of the cheating units documented last year continue to be counted, cheating units have been added to the total, and multiple decree requirements remain unenforced or ignored altogether.  In short, there is, unfortunately, no indication that the lost promise of the Decree will be retrieved.