Latest fantasy game in Westchester: pretending only seven municipalities are in play

May 23, 2014 — The Westchester County Board of Legislators is currently engaged in the sideshow of figuring out whether there is a fig leaf sufficient to give HUD cover to release Community Development Block Grants (while the agency, along with the U.S. Attorney and HUD, continues to allow the county to violate multiple consent decree obligations, including those set out in paragraphs 7(j) and 32(b) of the decree).

The false premise of the discussions is that there are only seven municipalities that were required to take action because the Monitor found that only seven definitively had exclusionary zoning under the state law Berenson test (six, actually, because the Monitor has already let one municipality off the hook).

ADC’s Cheating On Every Level report has already demonstrated that the Monitor’s zoning analysis was remarkably incomplete and that it artificially restricted the number of municipalities properly found to be exclusionary under Berenson.

But the Monitor’s zoning analysis itself makes clear that there are far more than seven municipalities that retain barriers to fair housing choice. Another nine municipalities were found to have affordable housing provisions that were “too narrow in scope to provide genuine opportunities to meet local and regional need.” Together with the exclusionary seven, that makes for 16 municipalities with barriers to fair housing choice.

Many other municipalities also have barriers and are in the Monitor’s “warrants improvement” category. In short, even under the Monitor’s easy-grading system, more than 20 municipalities retain barriers to fair housing choice.

That is is significant because every municipality with barriers to fair housing choice is hindering the building of consent decree housing and impeding the AFFH purposes of the decree.  As such, Westchester has been required to act to overcome those barriers (see paragraph 7(j) of the decree).

Note as well that paragraph 32(b) of the decree does not limit its requirements to those municipalities that have given the specific label “exclusionary.” On the contrary the analysis requirement mandates that all impediments to fair housing be identified — including specifically those “based on race or municipal resistance to the development of affordable housing.” Likewise, the requirement to identify (and take) actions refers to all impediments identified, not some subset of them.

Now it’s certainly possible that the Government and Monitor will go along with the fiction and focus only on the seven. It’s also quite possible that, in respect to the seven, the Government and Monitor will be satisifed with window dressing changes focused on business and commercial districts, changes that allow the principal residential zones to continue to exclude multiple dwelling.

Nevertheless, the reality is that the decree, as well as general affirmatively furthering fair housing requirements applicable to all jurisdictions, obligate Westchester to overcome the barriers in all towns and villages.