August 2010 Implementation Plan: Still Just Window-Dressing

On August 9, 2010, Westchester submitted yet another version of an “Implementation Plan” (“IP3”). As ADC has noted previously, the document represents neither planning nor a desire to implement.  Some of the document consists of arguments of why Westchester purportedly can’t act; much more of the document consists of a status report.  Very little of the report — VERY little — represents concrete plans, and the County studiously avoids creating any benchmarks that it would need to meet.

Here are some highlights of this latest effort to ignore and evade the obligations of the Consent Decree:

• IP3 continues to ignore the fact that Westchester is characterized by residential racial segregation, a position consistent with the County Executive’s public denial of the existence of segregation (and the position taken by the County during Phase I of the litigation) but utterly inconsistent both with demographic reality and the acknowledgment of that reality in the Consent Decree.

• IP3 continues to pretend that municipal resistance to affordable housing development that maximizes the potential for desegregation is not a central problem (as it did during Phase I of the litigation), and continues to fail to plan to respond to that resistance.

• As was the case prior to and during Phase I of the litigation, IP3 continues to ignore the substantial legal authority it has in relation to municipalities, makes no commitment to use that authority, does nothing to take the steps prerequisite to asserting that authority (a deficiency most notable in the failure to plan to acquire interests in land on locations that have particular desegregation potential), and does not even describe the types of action or inaction that the County would consider non-cooperative with or hindering of the County’s Consent Decree obligations.  This is hardly surprising: the County Executive has stated flatly — in brazen defiance of the Consent Decree — that he would not cause municipalities to be sued.

• The authority not cited includes, of course, disparate impact actions under the Fair Housing Act.  This authority to which the County continues to close its eyes also includes two long-established state law doctrines that are explicitly referenced at page 2 of the Consent Decree.  Those doctrines are the Berenson and County of Monroe doctrines. 

  • Under the Berenson doctrine, any party that owns or controls land may challenge a municipality’s restrictive zoning on the grounds that such zoning does not take sufficient account of regional housing needs for multi-family housing.  Under the County of Monroe doctrine, a County may challenge a municipality’s restrictive zoning on the grounds that the County’s public interests in proceeding with development outweigh the municipality’s interests in restricting such development.  

  • The Consent Decree does not leave open the question of whether legal action against municipalities is appropriate.  The Consent Decree (again at page 2) states definitely that legal action against municipalities IS appropriate where those municipalities have hindered or interfered with the County’s performance of its duties, including the duty to develop affordable housing in locations that maximize desegregation potential.

• One particular beneficiary of the County’s decision not to plan for any legal action is Mount Pleasant, a highly segregated municipality.  It is notable that the only specific legal action that IP3 even mentioned was one that hinged on a municipality being a member of the Urban County Consortium.  Mount Pleasant is not a member of the Consortium. Both the County Executive and the County Attorney hail from Mount Pleasant.

• IP3 is particularly disingenuous in connection with the obligation to site Affordable AFFH Units on the Census Blocks with the lowest concentrations of African-Americans and Latinos.

  • The County narrowly defines “lowest concentrations” as blocks with zero African-Americans and zero Latinos.  There are, of course, many such blocks, but the County’s goal here is to “hold harmless” from scrutiny and planning more than 100,000 acres made up of Census Blocks where the African-American or Latino population is greater than zero but less than 3% in the case of African-Americans and less than 7% in the case of Latinos.  It is a not very subtle way to make the universe of buildable Census Blocks with the lowest concentrations of African-Americans and Latino substantially less robust at the very same time the County openly announces that it is seeking to revisit developments previously excluded and explore housing on blocks with higher than permitted concentrations of African-Americans.

  • There is no planning set forth as to how the County would “pursue eligible parcels in these areas” (i.e., no discussion of “means” especially relevant to parcels in the most-White areas) and, crucially, no Block-level demographic benchmarks set.  In other words, IP3 does not commit the County to developing a single unit on a Census Block that has the lowest concentrations of African-Americans and Latinos.

  • The giveaway to the County’s bad faith intentions as reflected in IP3 is contained in the one specific illustration that Westchester chooses to provide in what can only be described as a gloating and sophomoric way.  The County triumphantly announces that the Monitor approved for development a project on a Census Block that had zero African-Americans and Latinos (when persons in group quarters were eliminated)…because other than those in group quarters, the Block and Tract (in Cortlandt) had NO POPULATION!  Again, the County’s modus is clear: if one needs to find locations with low concentrations of African-Americans and Latinos, USE LOCATIONS WITH NO WHITE PEOPLE!  [Not surprisingly, the block is one that houses a Veteran Administration geropsychiatric and substance abuse treatment facility.]

  • The County makes the point that Census Blocks with zero African-Americans and zero Latinos exist throughout Westchester, but ignores the issue fundamental to implementation planning: those blocks are not randomly distributed, but rather exist in greater or lesser concentrations depending on municipality.

• In complete defiance of the Monitor’s direction to stop using the misleading and obfuscating term “fair and affordable housing,” the County continues to do so, persisting in IP3 with the dodge that was initially invented during Phase I of the litigation.

• The “model ordinance” that Westchester proposes in IP3 still fails to provide for any up-zoning whatsoever — it literally adds not an inch to the land that is available for the construction of multiple dwelling housing.

• Contrary to the specifications of the Consent Decree, IP3 still seeks to dilute the effectiveness of affirmative marketing by casting a marketing net over areas (both inside and outside of Westchester) that do not contain “large non-White populations” (indeed, some of the areas outside Westchester — other than the feared centers of eligible households in Manhattan, Brooklyn, and Queens — have African-American populations distinctly lower than Westchester’s).

• Overall, IP3 makes clear that Westchester will seek to minimize the development of any housing that causes structural change or open opportunities beyond the unit-specific.  For example, it has already decided to “max out” on senior units and on units not in the whitest group of municipalities; the County Executive wants permission to reduce substantially the number of units to be built by increasing substantially the number of units permitted to “count” by acquiring existing housing units; only a very small percentage of units are intended to be created through a hyper-narrow definition of inclusionary zoning (one that does not expand the land area on which multiple dwellings can be built).