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).

Note that while the Monitor's equating Westchester not having objected to his Berenson findings to the County having "adopted" those findings, is not an unreasonable interpretation, this framing is not innocuous for another reason.  On the contrary, it reflects the Monitor's apparent acceptance of the U.S. Attorney’s erroneous notion that Westchester’s obligations only come into play when the County can be said to have itself agreed that there are impediments.  Taking the authority to determine a violation away from the Court and giving it to the defendant is indefensible.

The irony here is the Monitor’s newfound willingness to discuss paragraph (7)(j) (he had not mentioned the obligations once in his 70-page biennial report last year) was triggered by New Castle’s opposition to the Chappaqua Station project.  Specifically in respect to that project, the Monitor points out that Westchester’s failure to act to counteract New Castle’s opposition “may violate” the County’s Consent Decree obligations and “could serve as the basis for a potential contempt action” (pursuant to paragraph (7)(j)).  Report, 18-19.  The Monitor also points out that counting the Chappaqua units “may be inconsistent” with the Decree to “award the County credit” for units where Westchester has failed in its paragraph (7)(j) obligations.  Report, 4, fn. 4.

As it happens, that Chappaqua Station project, whatever its merits as affordable housing, remains improper to count for Consent Decree purposes, isolated from residential Chappaqua as it is (among other reasons).  What is more probative of New Castle’s hindering and undermining of the Decree is the Town’s failure to rezone any portion of an existing residential neighborhood to foster a substitute for what New Castle claims are site-specific objections to the one project.

And what is most important of all is that many more municipalities have zoning that continues to create impediments to fair housing choice than the Monitor has acknowledged.  This is true both in terms of disparate impact and in terms of the New York State obligation that municipalities have a balanced and well-ordered development plan for the community and have zoning that allows it to meet its local need for affordable housing and its share of regional need for such housing.  As such, the “basis for a potential contempt action” is actually Westchester’s failure to counteract the barriers still present in the overwhelming number of Consent Decree municipalities.

II. The Monitor’s undertaking that he will amend his preliminary impact report

Back in September, the Monitor issued a preliminary report on the disparate impact caused by the zoning of Westchester municipalities.  The report was a travesty, a document designed to understate the number of municipalities with unlawful zoning.  As ADC has discussed, the report failed to follow longstanding disparate impact doctrine.  Why?  “Because to follow the law and the facts would lead inescapably to the conclusion that most of the towns and villages to which the consent decree applies -- surely more than 20 -- perpetuate segregation with their zoning.”

Now, in the wake of criticism from both HUD and the U.S. Attorney, the Monitor says that he will revise his report to try to accommodate the Government’s concerns.  Report, 48.  (The letter from the U.S. Attorney, dated October 24, 2014 and annexed to the Report as Exhibit 50 (Oct. 24 U.S. Attorney Letter, sets forth the Government’s position.)

Some of those concerns represent the Government’s interest in not having a disparate impact based on faulty analysis able to be used as precedent in other cases (it apparently has no interest in having a proper disparate impact analysis of Westchester zoning done).  Oct. 24 U.S. Attorney Letter, 2-3.  Among the most notable of the Government's (well-taken) concerns.

(1) Perpetuation of segregation against African-Americans and Latinos has to be analyzed separately;
     
(2) Analysis of  “concentration” of a minority group must be treated separately from the issue of “exclusion” of a minority group;

(3) Statistical factors and standards should be explained;

(4) The extent to which each municipality’s zoning code contributes to patterns of concentration in the County as a whole should be discussed or the failure to do so should be highlighted;

(5) The same improvements need to be made in connection with the question of how each municipality’s zoning contributes to region-wide patterns of exclusion; and

(6) The impact of single-family zoning districts on the availability of affordable housing with desegregation potential needs to be explored (or, pointed out to be outside the scope of the report).

Oct. 24 U.S. Attorney Letter, 3-4.  These would be welcome changes, but much less so if the Monitor takes the Government’s invitation to submit an incomplete analysis (missing, for example, items 4 and 6) and simply notes the omissions.  It is remarkable that the Government would have said, as it did, that that such a report, if accepted by Westchester, would constitute an analysis of impediments acceptable to the Government.  Oct. 24 U.S. Attorney Letter, 1.  An incomplete report cannot serve the purpose of affirmatively furthering fair housing, and the Monitor should avoid the disclaimer route.

One thing that the Government appears not to have asked the Monitor to recognize is something that is actually clear to all: that Westchester is part of a larger, regional housing market that includes New York City.  This failure is especially egregious because the Consent Decree recognizes this fact and insists that affirmative marketing be done outside of Westchester County in, among other places, New York City.  Consent Decree, ¶ 33(e).

The Government did correctly point out that impediments to fair housing choice could exist even when all the factors to make out a perpetuation of segregation cause of action may not be present.  This observation is important for the Monitor to heed, especially since paragraph (7)(j) of the Decree requires only hindering of units, inaction in relation to promote units, or the existence of one or more barriers to fair housing choice in order for the County’s requirement to act against a municipality to be triggered.

Were a revised report prepared to look squarely at exclusion or disparate impact or both, the number of municipalities found to have barriers that perpetuate segregation will more than triple.

III. The Monitor is still failing to appreciate what Berenson demands and understating the number of municipalities with zoning barriers to fair housing choice

As documented in Cheating On Every Level (pp.23-27), the Monitor artificially (and substantially) suppressed the number of jurisdictions found to be in violation of Berenson.  In addition to the six he did find in violation, there were 17 others that did not, according to the Monitor’s own analysis, have a properly balanced and well-ordered plan for the community; there were 11 others that failed to have zoning that could not rebut a finding of failure to meet thier share of regional affordable housing need “because the zoning ordinance, though it may have provisions addressing affordable housing opportunities, is too narrow in scope to provide genuine opportunities sufficient to meet local and regional need.”  Cheating On Every Level, 23-26.  That is what is called a whitewash.

Now, the Monitor has removed Ossining and Pound Ridge from the list of Berenson­-violating jurisdictions because each jurisdiction has, he says, improved its zoning.

Improvement is not the test.  For Berenson purposes, for example, one of the tests remains whether a zoning ordinance is too narrow in scope to provide genuine opportunities sufficient to meet local and regional need.  A zoning ordinance that goes from being spectacularly narrow to very narrow is still too narrow to provide sufficient genuine opportunities.  For Consent Decree purposes, Westchester is required to act whenever zoning continues to operate as a barrier to fair housing choice (or where zoning hinders, or fails to promote, construction of units).  A zoning ordinance that goes from having the most extensive barriers conceivable to having very substantial barriers still has barriers that require action.

Ossining, for example, did nothing to allow multi-family housing in single-family zones.  Pound Ridge, for example, still requires enormous lots for the construction of multi-family housing and very little land is available for such construction.  Oh, and the number of units in a multiple-family dwelling is capped at four.  Oh, and the multi-family district is only a district that replaces an existing senior district, one that extends in a quarter-mile radius from the intersection of the Town’s two main thoroughfares.  Single-family Pound Ridge -- the overwhelming bulk of the Town, remains protected from affordable housing with desegregation potential.

(The infamous “model ordinance” is here, as elsewhere, of little help because it’s paltry 10 percent inclusionary requirement doesn’t kick in where municipalities resist construction altogether.)

Let’s be clear: the deal that the Monitor is offering to towns and villages (without objection from the Government) is a simple one: make only the most modest changes (often focused on non-residential areas) and we’ll let the single-family zones where the overwhelming number of your residents live continue to be left alone in their hyper-segregated state.  (It’s for this reason that the Monitor and the Government have to be shaking their heads saying, “Why can’t Westchester accept our repudiation of the Consent Decree and declare victory?”)

IV. Continued cheating in counting units

The Monitor, to his credit, is skeptical about counting the Chappaqua Station units that are the subject of litigation, continued municipal resistance, and only contingent County funding.

But this one battleground should not obscure the fact that the Monitor, as documented in Cheating On Every Level (pp. 8-12), has allowed hundreds of units to be counted that shouldn’t be counted under the terms of the Decree.

This report provides examples of one flavor of already-documented cheating as well as examples of a new form of cheating.

Abusing his discretion, the Monitor continues to ignore 2010 Census data in determining what demographic category into which each municipality properly falls.  See Consent Decree, ¶ 15(a)(iii).  (The Government has been able to demand that 2010 data be included, Consent Decree, ¶¶ 15(c), (f), but has not done so. 

The goal of the Decree was to overcome barriers in the jurisdictions below specified levels of minority population, most especially both under the level of 3 percent African-American and under 7 percent Latino.  This was a heavily negotiated item both in respect to the percentages applied and in respect to the requirement that the African-American and Latino populations had to be below the cap to count in “Category A.”  Consent Decree, ¶ 7(a).  The Decree is not neutral on the question of whether Decree housing should be focused in municipalities that are “under 3 and under 7” -- that is the category in which at least 630 units (84 percent of the total) have to be built.  By contrast, “Category B” jurisdictions -- those with African-American population less than 7 percent African-American and less than 10 percent Latino -- could only account for a maximum of 60 units (8 percent of the total).  Consent Decree, ¶ 7(b).  Likewise, “Category C” jurisdictions -- those with African-American population under 14 percent and Latino population under 16 percent -- could only account for a maximum of 60 units (8 percent of the total).  Consent Decree, ¶ 7(c).

If the purpose of the Consent Decree were to keep the category of a municipality fixed, it could simply have assigned municipalities to the 630-unit tranche or to one of the two 60-unit tranches.  It did not, focusing instead on demographic makeup.

From 2000 to 2010, some jurisdictions moved from category “A” to “B” or “C,” or from “B” to “C” because of increased Latino population.

Neither the Monitor nor the Government has wanted to take account of 2010 data because doing so would: (a) increase the need for the remaining “A” communities to take real steps to eliminate zoning barriers; and (b) because so many units being developed are in what are now “B” or “C” communities where only a maximum of 120 units can be sited (60 in “B” and 60 in “C”).

As such, Westchester has long since exceeded the maximums in current Category B and Category C jurisdictions.

In this report, the Monitor proposes counting units in Hastings for “A” category purposes, even though Hastings is now a “B” community.  12 of the affordable units are located in a mixed income development (excellent) but they are all in one building, segregated from the market-rate units (bad).  Report, 20.

Another two units in Hastings have the same problem of being improperly categorized, but we note that, on the positive side, these units (unlike so many permitted under the Decree) are not separate from but rather integrated into an existing residential neighborhood.  Report, 21.

The same is done with a Croton-on-Hudson unit: counting it as being in a “B” community when Croton-on-Hudson is now in category “C.”  Report, 8.

The new kind of cheating is illustrated by units in Scarsdale and Briarcliff Manor where, because of inclusionary zoning, affordable units were created without County funding.  The Monitor wants to count these units.   Report, 8-10.

Paragraph 7 specifically says that the County’s obligation to ensure the development of the minimum of 750 units involves development “through the use of the funds set forth in paragraphs 2 and 5” (i.e., Consent Decree funds).

The fact that it’s a good thing that inclusionary ordinances have yielded a few affordable units does not mean that the County’s obligation to fund at least 750 units should be reduced.

In other words, the result most consistent with the Consent Decree is to accept (happily) those non-funded inclusionary zoning units that are made available to the public in addition to a minimum of 750 funded units.  In a county of close to one million inhabitants, there is no danger that too many affordable housing units with desegregation potential will be built.

V. Additional observations

The Monitor’s report points out the obvious in connection with Westchester’s paragraph 32 obligation to prepare an Analysis of Impediments satisfactory to HUD: the County has never done so.  Report, 36.  The Decree violation continues to stand unremedied: neither the Government nor the Monitor has ever asked the Court to sanction the County for this years-long violation.

The Monitor concludes that Westchester “has not engaged in affirmative steps to market affordable housing to potential applicants in the [Marketing Area for Affirmative Fair Housing Marketing] outside of Westchester despite its unambiguous obligation under the Settlement [paragraph 33(e)] to do so,” Report, 28, but the Monitor declines at this point to ask the Court to find that the County is not in compliance.

The Monitor was supposed to determine in connection with the biennial report due at the end of 2013 “whether the County has taken all possible actions to meet its obligations under this Stipulation and Order, including, but not limited to, exploring all opportunities to leverage funds for the development of the Affordable AFFH Units, promoting inclusionary and other appropriate zoning by municipalities by offering incentives, and, if necessary, taking legal action.”  Consent Decree, ¶ 15.  He didn’t do so in his biennial report and he doesn’t do so here.

The Monitor fails to report on whether the County is performing under its Consent Decree, ¶ 31(a) obligation to have “the elimination of discrimination, including the present effects of past discrimination, and the elimination of de facto residential segregation” be “official goals of the County’s housing policies and programs.”  (The Government has long treated the obligation as a nullity, preferring the interpretation that as a long as a goal is “official” it doesn’t have to be real.)

The Court granted authority for the Monitor to take depositions of the County Executive and other officials on August 27, 2014.  Report, 31.  None of those depositions has yet been taken.  Report, 32.

VI. Conclusion

There are glimmers in the report of the prospect of Westchester being held partially accountable, but all of the cheating units documented last year continue to be counted, cheating units have been added to the total, and multiple decree requirements remain unenforced or ignored altogether.  In short, there is, unfortunately, no indication that the lost promise of the Decree will be retrieved.