Feds want Westchester ordered to provide info but continue to let County skate on its failure to act

July 20, 2012 — Late today, the Government filed a motion seeking to compel Westchester to provide information that the Monitor has asked for and not received — specifically an adequate zoning analysis, including a municipality-by-municipality analysis of the racial and socioeconomic exclusionary impact of several types of zoning barriers, and a statement of the County’s strategy to overcome zoning practices found to be exclusionary. The Monitor’s declaration is here; the Government’s memorandum of law is here.

The Government now acknowledges that, if the County is not compelled by the Court to change course, the goals of the Consent Decree “will continue to be thwarted” and that “as a result of all of the delays [that have already occurred], it is highly unlikely that the County will meet its obligations to affirmatively further fair housing [AFFH] within seven years as required” by the Consent Decree.

While the Monitor’s declaration recites the fact that the Court has already confirmed that the County has obligations pursuant to paragraph 7(j) of the Consent Decree to pursue litigation against municipalities where necessary, the Government’s motion does not seek to have Westchester held in contempt for its three-year, across-the-board failure to take that required action, nor even to order Westchester to begin to take that action now.

The Monitor and the Government have still failed to renounce the view that anti-AFFH housing units (like the City of Rye development on a census block that is 50 percent Latino and African-American) can somehow be “counted” for Consent Decree purposes. In fact, all housing under the Consent Decree was and is supposed to be developed under an Implementation Plan that insures that all such housing meets the Decree’s objective of AFFH. In other words, the question of whether housing is pro-AFFH or anti-AFFH is not separate from a determination as to whether that housing is Decree-compliant; rather, the question is integral to that determination. (See further explanation here.)

Finally, it must be pointed out that the government’s memo unfortunately recites the phrase “fair and affordable housing,” a phrase invented by Westchester’s defense team during Phase I of the litigation in an attempt to confuse and conflate the concepts of “fair housing” and “affordable housing.” The Monitor recognized two years ago that the conflation masked Westchester’s obligations and confused the public as to what those obligations were. He ordered Westchester not to use the phrase thereafter. Westchester ignored the direction, the Monitor has never brought the problem to the Court’s attention, and the Government has now began to use the terminology.