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

April 3, 2015 — The Monitor in the Westchester case issued a status report on April 1, a report that finally begins to cite a subset of the County’s non-compliance with its consent decree obligations but which also continues the long-established pattern of undermining the implementation of the consent decree as written that ADC has documented in Cheating On Every Level.

I. The belated (albeit partial) recognition of Paragraph (7)(j) violations.

The most important set of obligations in the Consent Decree is set forth in paragraph (7)(j) of that court order.  When ADC brought the litigation that led to the execution of the Decree, we understood that municipal resistance to the development of affordable housing with desegregation potential was at the heart of the continuing residential segregation that plagues Westchester County.  The litigation confirmed the centrality of municipal resistance.  When we participated in negotiating the terms of the Decree, it was essential to us that Westchester be obligated to take action, including legal action, to overcome municipalities who were keeping impediments to fair housing choice in place (most notably, zoning barriers). 

This is why the Decree forced Westchester to acknowledge explicitly its authority to take on such municipalities and to acknowledge explicitly that it was appropriate to do so.

Paragraph (7)(j) of the Decree identified three circumstances where the County would need to take all appropriate actions, including legal action, against municipalities:

(1) Where a municipality has taken actions that hinder the unit-building objectives of the Decree;

(2) Where a municipality has failed to take action that is needed to promote the unit-building objectives of the Decree; and

(3) Independent of the building of the minimum of 750 units under the Decree, where legal action is appropriate to accomplish the affirmatively furthering fair housing (AFFH) obligations of the Decree.

None of these obligations have been enforced.  There is no justifiable excuse, only a lack of backbone.  Last year, the Assistant U.S. Attorney, defending against ADC’s accusation that the Government had stood by for years while Westchester violated these obligations, offered only the preposterous excuse that the obligations didn’t mean what they say.  Rather than the obligations being triggered by circumstances that objectively exist or do not exist (a factual question that could ultimately be determined by the Court), his view was that remedial action against Westchester could only be taken after Westchester itself (the defendant under the Decree obligation) subjectively determined that the conditions that would trigger the County’s obligation existed (and then failed to act).  In other words, he effectively added the phrase “Where Westchester in its sole and unreviewable discretion believes” to each of the obligations where that phrase doesn’t exist.

Now, nearly six years after the entry of the Decree, the Monitor has finally begun to address paragraph (7)(j), but only in part:

The county undertook no direct activities to address zoning impediments in 2014.  This inaction, in light of the Monitor’s 2013 findings…may support a finding that the County is in breach of certain duties under the Settlement, including its duty under Paragraph (7)(j) to “use all available means” to address “actions that hinder” the settlement’s affordable housing objectives.

Report, 32-33.  Similarly, the Monitor wrote that, since no party objected to his 2013 Berenson report, “these findings may clearly be used in assessing whether the county is addressing ‘actions that hinder’ the settlement’s fair housing goals.”  Report, 34-35.

It is certainly a step forward to state that the County “may” have violated one of its three paragraph (7)(j) obligations in 2014.  But there is no reason to fail to report unequivocally that the obligation was violated.  And the Monitor still refuses to say what any fair observer would have to conclude: that the County also violated each and all of its paragraph (7)(j) obligations in 2014…and in 2013, 2012, 2011, and 2010.

This should not be difficult to figure out.  At the beginning of his tenure, the current County Executive took off the table any legal action against any municipality — that is, rejected compliance with paragraph (7)(j) in advance and across-the-board.

All the U.S. Attorney, representing HUD, had to do was: (1) to point out to the court that the conditions requiring County action existed (something that is obviously the case in an overwhelming percentage of towns and villages subject to the Decree); and (2) that the County, as a matter of pre-determined policy, was refusing to fulfill its paragraph (7)(j) obligations.  (Indeed, the a priori rejection of legal action is itself altogether inconsistent with the obligation to consider what is appropriate on a case-by-case basis, even in the absence of specific findings of impediments.)

But the U.S. Attorney has done neither.  Ostensibly, the U.S. Attorney has never even bothered to assess what impediments continue to exist or what actions are appropriate to accomplish the AFFH obligations of the Decree.  HUD, in fact, continues to boast that it has not made any determinations as to what impediments to fair housing choice exist in Westchester municipalities.  A more fundamental breach of the duty the Government has to enforce the Decree — not bothering to determine the relevant facts — could not be imagined (alternatively, the Government knows very well that substantial impediments exist in a substantial number of municipalities but, for political reasons, chooses not to enforce).