Monitor’s “2-year review” fails to hold Westchester to account

Jan. 10, 2012 — Two years and five months after the entry of the Consent Decree, and just two days after the Court denied ADC’s motion to intervene, the Monitor released late Friday the first of his biennial assessments of Westchester’s “efforts and progress related to the obligations set forth” in the Decree, assessments required pursuant to paragraph 15 of the Decree. The Decree expects, among other things, that the Monitor will “determine whether the County has taken all possible actions to meet its obligations” under the Decree.

Despite setting forth a more broad-ranging list of concerns than he has in the past, the Monitor still refuses to state plainly what has long been obvious both to the civil rights community and to independent observers: that the County is violating each and all of its principal obligations under the Decree, and that the failures are not merely a matter of “glitches” or temporary setbacks but rather a function of Westchester’s having rejected each and all of the premises and objectives of the Decree.

These failures include the failure to build housing units that affirmatively further fair housing (“AFFH”), the failure to take any steps to overcome the massive municipal resistance to the construction of affordable housing units that AFFH, the failure to prepare for or take the legal action needed to accomplish the overall goal of the Decree to AFFH, the failure to use the County’s housing policies and programs to end segregation in Westchester, the failure to develop and carry out an Analysis of Impediments to Fair Housing Choice that is Decree-compliant, and the failure to develop and carryout a Decree-compliant Implementation Plan. (For more detail, see this document and pages 1-9 of this document).

The Monitor has ignored repeated counsel from the civil rights community, and it appears that there is no level of noncompliance that will bring the Monitor, HUD, or the U.S. Attorney to ask the Court to recognize that the process is completely off the tracks and that Westchester’s thoroughgoing and intentional violations of the Decree can only be described as constituting contempt of and for the order. This means that the tremendous promise of the Decree continues to go unfulfilled, and the chances of structural change over the life of the Decree dwindle still further.

Note: this statement is not intended to be comprehensive; there are, unfortunately, many more problems with the Monitor’s assessment than are detailed herein.

Unit-specific obligations

According to the Monitor, “the County has done well in reaching and surpassing its numerical benchmarks” (Assessment, p. 34); HUD, too, in a Dec. 16 letter, says that the County has made “significant progress” in meeting numerical benchmarks. The U.S. Attorney’s office, in a filing in opposition to ADC’s motion to intervene, left the impression that the County had exceeded interim benchmarks, and stated approvingly (location and other features notwithstanding) that construction for the purpose of AFFH was “proceeding” (Government’s Brief at p. 34).

But, as these illustrations make clear, most every unit under development does not AFFH (the Monitor cites some of their deficiencies in his assessment).

The Rye property, for example, is on a block that is between 50 and 51 percent Latino and African-American. No one could seriously believe that development on that block does anything other than perpetuate patterns of segregation.

ADC’s position has been that approval of these anti-AFFH units is improper under the Decree, and the Monitor himself admits that the purpose of the Consent Decree “is to create opportunity and further the goal, accepted by the County at the time, of racially and ethnically integrated communities.” The Consent Decree, he says, “is not ambiguous on this point.” (Assessment at p. 6).   

Nevertheless, the Monitor, HUD, and the Government apparently think that the Consent Decree — a Decree that requires the County to take all legal and other steps to achieve the AFFH goals of the Decree (including suing municipalities), that requires the Monitor to assess an Implementation Plan to see if it comports with the AFFH goals of the Decree, and requires the Monitor to determine whether the County has taken all actions to achieve the AFFH goals of the Decree — would allow benchmarks to be met with units that do nothing to overcome barriers to fair housing choice.

Implementation Plan

In fact, whatever one thinks about the permissibility of approving anti-AFFH units (the green light given by the Monitor was not for a trivial number of units: the anti-AFFH units approved constitute approximately 40 percent of all the new, not-limited-to-seniors construction required by paragraph 7 of the Decree), some things are certain. The Decree contemplated that an Implementation Plan (IP) would be in place prior to unit approvals (the original due date was in 2009); that the IP would be judged as to whether it met the terms and objectives of the Decree (the latter being AFFH), and the specific illustrations of what the IP must contain (what the Monitor calls “mandatory” items) were not intended to be exclusive.

Incredibly, despite criticism of Westchester’s qualitative efforts from both the Monitor and the Government, the Monitor now proposes to allow the IP to be considered “substantially complete” (Assessment at p. 13) without doing anything to deal with the AFFH heart of the Decree with which the County has refused to comply: nothing about location (either in terms of racial composition, whether there is existing population, or desirability of site), nothing about leveraging funds by creating mixed income developments — indeed, nothing about any of the 18 concrete steps that ADC proposed as relief in its motion to enforce). The absence of locational criteria specified by the Monitor occurs in the face of Westchester’s acknowledgment in the Decree itself that “the location of affordable housing is central to fulfilling the commitment to AFFH because it determines whether such housing will reduce or perpetuate residential segregation” (Decree, ¶ 31(c)).

Neither the Monitor, HUD, nor the U.S. Attorney has explained how, under their view of the Decree, Westchester can or will be prevented from continuing to promote the development of anti-AFFH units in the future.

Ignoring obligations

The Monitor resolutely ignores the fact that the Decree required the County to commit to have all its housing policies and programs incorporate the goal of ending segregation in Westchester County (Decree, ¶ 31).

How has Westchester performed in connection with this commitment? The Monitor makes no assessment whatsoever. (Not surprisingly, the County has done nothing.)

And the Monitor likewise ignores the second obligation of Decree, ¶ 7(j): the critical obligation by which Westchester must take all legal action to accomplish the purpose of the Decree to AFFH (an obligation separate from and in addition to the paragraph 7(j) obligation of taking legal action against municipalities that fail to promote the unit-specific objectives of the Decree).  Note: it should be said that, in the ably-written opposition brief to Westchester’s objections to the Monitor’s November findings, the U.S. Attorney does allude briefly — at page 19 — to the second paragraph 7(j) requirement, although this crucial provision is entirely absent from HUD’s Dec. 16 letter.

Exclusionary zoning: fundamentally letting Westchester off the hook

The Monitor agrees with the Government’s demand that Westchester develop a legal strategy to deal with municipalities that maintain exclusionary zoning.

But is that a remedy sufficient to deal with the underlying violation? It is not, and, sadly, neither the Monitor, nor HUD, nor the U.S. Attorney will even name the underlying violation.

As civil rights groups like the National Fair Housing Alliance and the Lawyers’ Committee for Civil Rights Under Law have pointed out, Westchester has already ignored its obligation to challenge exclusionary zoning for more than two years.

In assessment terms: Westchester had the obligation from Day 1 to take the requisite steps pursuant to the various requirements of Decree, ¶¶ 7(i) and (j).  It didn’t do so, and has refused to do so. Its conduct in this respect is a clear violation of the Decree, yet neither the Monitor nor the Government seek to have the Court impose sanctions for this behavior (indeed, the Monitor in his assessment was only prepared to characterize a “clear violation” of the Decree the County Executive’s spurning of his obligation to promote source-of-income legislation).

It is certainly appropriate to require Westchester to do a municipality-by-municipality analysis of exclusionary zoning, although it would be a remarkable failure of oversight if, after 29 months, the Monitor, HUD and the U.S. Attorney didn’t already know what the status of zoning is in each of the municipalities.

It seems more logical to assume that the trio couldn’t help but know, particularly since data collected by Westchester itself make the point that exclusionary zoning is widespread.  See Parcel-Based Land Use Map (showing overwhelming predominance of single-family zoning in the eligible municipalities); see also Land Use Report (confirming the predominance of single-family zoning; showing, for example, that Pound Ridge has zero acres zoned for multiple family use; and showing that residential density per acre is only 0.27 in Pound Ridge, 0.32 in North Salem, 0.41 in Bedford, 0.48 in Lewisboro, 0.57 in North Castle, and 0.70 in New Castle).

In any event, it is nothing more than a pipe dream to believe that Westchester’s municipality-by-municipality analysis will bring us any closer to compliance. As the County made clear in a Jan. 6, 2012 filing, its review will be a charade (that is, one designed to evade dealing with the problem, see pages 9 and 10 of the filing). We fear that the Government will take that opportunity to pretend that the review, whatever its substance, represents more “progress.”

One of the surest signs of the unwillingness of the Monitor and the Government to take seriously the Consent Decree’s goal of making structural change is their unwillingness to insist that Westchester acquire interests in appropriate properties so that the County would be in a position to vindicate its rights — pursuant to the Berenson, County of Monroe, and Huntington doctrines.  This is something that ADC argued was essential back in Aug. 2009, and other civil rights groups have been asking for since February 2010, and the undertakings set forth in the first two pages of the Decree would be non sequiturs if the County’s acquiring of interests in property (direct or indirect) under those doctrines had not been contemplated.

Another sign — confirmed in the Monitor’s report — is that for all of HUD’s show about cutting off funding from the County, the agency collaborated with Westchester to keep the funding pipeline open at least through the end of 2011.

That the Government and Monitor still want to placate Westchester and its municipalities was also made clear in an article about a December forum on the meaning and consequences of the Consent Decree, both the Monitor and the Senior Advisor to HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, “said they were eager to refute the fear that HUD was moving or pressuring the county to sue municipalities.”

“‘That would be the last thing we would want to do, said [the HUD advisor]….’Litigation is just one arrow in the quiver,’ said the Monitor. ‘While I wouldn’t foreclose use of that arrow, I definitely have no intention of using it first, that would be my last option.’”

Never seeking the assistance of the Court

Pursuant to Decree, ¶ 58, the Court retains jurisdiction to entertain any application to enforce the provisions of the Decree.  Despite Westchester’s systematic violations of the Decree, neither the Monitor nor the U.S. Attorney have ever employed the provision, and the Monitor’s current assessment is no exception to this passivity. Indeed, to ADC’s knowledge, neither the Monitor nor the U.S. Attorney have ever even asked the Court to hold even an informal conference to discuss the County’s non-compliance.

Excusing the most direct and egregious evidence of contempt

The Monitor describes for the Court some of the statements of the County Executive in which Mr. Astorino promises that he will not fulfill one of the central commands of the Decree (suing municipalities that do not remove barriers to the construction of affordable housing with desegregation potential) and then says that, “Considered individually or as a whole, they are not evidence of a program of support for the Settlement, or fair housing, or integration” (Assessment at p. 39).

But then there is no follow through: the only concern that the Monitor expresses is how the statements conflict with the public education section of the Decree (Decree, ¶ 33(c)).

Take a moment to think about this. As the Monitor pointed out, the County Executive’s said on a national television program that he was facing an effort to make him and the County “dismantle local zoning, sue our municipalities and bankrupt our taxpayers. I will not allow that to happen” (emphasis added).

This is just one illustration (ADC’s court filings have provided others) where the County Executive has said straight out that he will not comply with any of the requirements of Decree, ¶ 7(j). As was the case before and during Phase I of the False Claims Act litigation, Westchester’s refusal is across-the-board and regardless-of-circumstances. There couldn’t be more clear evidence of contempt.

The answer is not to suggest to the County Executive that he “tone down” unhelpful rhetoric; it is to take this unmistakable evidence of contempt for what it is and ask the Court to punish it.

Affirmative Marketing

The Monitor reports that approximately 445 people from New York City signed up to be kept up-to-date about potential homes. (It does not appear that information was provided as to the racial composition of applicants on a county-by-county basis.)  As ADC pointed out in a Nov. 23, 2011 submission to the Monitor, a conservative estimate shows that more than 215,000 African-American and Latino households in New York City are income-eligible for Decree-generated housing (even excluding everyone with household income of less than 50 percent of Westchester “AMI”).

Even if everyone signing up from New York City were African-American and Latino (which, of course, was not the case), this reflects miserably poor outreach in relation to the potential universe of minority applicants.

Unfortunately, the Affirmative Marketing Plan that the Monitor has directed be approved does not take seriously either the need, as sought by the Decree, to open Westchester’s doors to those in New York City (this in the face of results thus far showing that only about 90 people of all races and ethnicities from Manhattan have registered, and only about 30 from Brooklyn).

Indeed, a County press release issued yesterday (in which Westchester takes the opening offered by the Monitor, HUD, and the U.S. Attorney to describe itself as being ahead of schedule) makes clear a more general failure of marketing thus far. For the 18 Rye units, for example only 61 applications were received, according to the County.

A series of other issues raised by ADC’s Nov. 23 letter have also been ignored, including, most fundamentally, the need to identify the inhibitions experienced by traditionally excluded groups in considering Westchester as a home and to develop concrete and effective means by which to overcome those inhibitions.

Ignoring 2010 data

In evaluating proposed developments, it appears that the Monitor has not used Census 2010 data on either the municipal or block level. Thus, he refers to the Cortlandt development as a paragraph 7(b) development when, in fact, Cortlandt is now a paragraph 7(c) municipality (that is, were the Cortlandt units to be counted, there are more paragraph 7(c) units than are permitted throughout the course of the development).

Moving forward

We hope that the Monitor, HUD, and the U.S. Attorney come to acknowledge straightforwardly that development thus far has not affirmatively furthered fair housing. As such, regardless of whatever else happens, they should take advantage of Decree, ¶¶ 15(a)(iii), (c) and (f) in order to:

(1) Tighten the locational criteria of paragraph 7(a) to prevent Westchester from continuing the various problems of concentration and geographic distribution (among other things, Westchester’s practice of keeping development away from desirable, already-residential, highly white areas) that has characterized the process to date (for example, incorporating the elements of relief sought by ADC in its motion to enforce); and

(2) Redesignate municipalities to paragraph 7(a), (b), or (c) based on Census 2010 data (placing any municipalities that had been eligible at the time of the entry of the Consent Decree but that now have a demographic profile that is at least 14 percent non-Latino African American or at least 16 Latino as paragraph 7(c)).