Two important developments occurred over the course of eight days regarding Westchester County’s refusal to affirmatively further fair housing choice.
First, the Anti-Discrimination Center (ADC) sent a letter on April 17 to U.S District Judge Denise Cote of the U.S. District Court for the Southern District of New York urging her to “exercise your independent, juridical interest to see that the consent decree is enforced.” According to the letter, Westchester County NY “continues to defy its obligations pursuant to Your Honor’s order of August 10, 2009, and neither the [federal] Government nor its Monitor has been prepared to keep the court properly informed about the defendant’s misconduct.”
ADC sued the county under the False Claims Act in April 2006, alleging that the county failed to affirmatively further fair housing (AFFH), and that the county’s certifications from 2000 to 2006 that it affirmatively furthered fair housing were false. On February 24, 2009, Judge Cote found that Westchester County had “utterly failed” to meet its AFFH certification, and that its annual certification and more than 1,000 claims for payments sought from HUD over a six-year period were false (see Memo, 6/5/09). On August 10, 2009 HUD announced a settlement with Westchester County, and the court appointed a monitor to oversee compliance with the settlement (see Memo, 8/21/09).
ADC’s letter to Judge Cote details its charges in a 36-page report, Cheating on Every Level, attached to the letter. The report’s findings include:
- Westchester County never developed a consent order Implementation Plan that complies with the terms of the decree.
- Westchester County never submitted an analysis of impediments (AI) to fair housing choice satisfactory to HUD.
- Most sites where housing has been developed in response to the decree are in isolated or otherwise undesirable areas, or are in areas near to or that have concentrations of minorities exceeding the consent decree’s thresholds.
- The county is more than 200 housing units short of the decree’s 2013 requirement.
- Ending de facto segregation, as called for in the decree, is still not a stated goal of the county’s housing policies and programs.
- Westchester County refuses to meet its obligation to “take all possible actions to meet its obligations,” including taking legal action, to overturn restrictive zoning in recalcitrant municipalities.
- The County Executive has openly resisted taking actions to require municipalities to eliminate exclusionary zoning, and his re-election campaign material is designed to foment opposition to the court order.
In part, the 2009 settlement requires the county to spend $51.6 million of non-federal, non-state funds to “ensure the development of” at least 750 new units of affordable housing over the next seven years. At least 630 of these homes must be in municipalities with an African American population of less than 3% and a Latino population of less than 7%; and, within such municipalities the homes cannot be developed in census blocks that have more than 10% African American or Latino populations. No more than 25% of all homes can be exclusively for senior citizens (see Memo, 8/21/09).
Cheating on Every Level explains that the county has only produced 70 units of affordable housing toward its 2013 consent decree obligation of 300 units. While the county claims financing was in place for 399 units by the end of 2013, the report whittles the total down, pointing out that most of the claimed units do not affirmatively further fair housing. For example, many units are in developments isolated from the larger community by railroad tracks and interstate highways; or are either located adjacent to municipalities that have high concentrations of African Americans or Latinos, or are in areas exceeding the consent decree’s demographic thresholds for African Americans (3% of the area population) or Latinos (7% of the area population).
Another key component of the settlement is the county’s obligation to litigate against municipalities that continue to maintain barriers to fair housing choice, such as exclusionary zoning that prevents development of multifamily housing (see Memo, 1/7/11). Cheating on Every Level cites the monitor’s assessment that seven municipalities have exclusionary zoning and another 20 municipalities exhibit evidence of exclusionary zoning. The report charges that Westchester County has flatly refused to litigate against municipalities that continue to maintain barriers to fair housing choice, and that the federal government and the court-appointed monitor have never called the county to account for its failure to act.
Cheating on Every Level concludes, “Westchester’s violations of the consent decree have continued unabated. The Government and the Monitor are unwilling to enforce the consent decree as written. It falls to the Court, exercising its power to vindicate its own juridical interest in the enforcement of its order, to step in and independently examine the facts; to direct Westchester to show cause why it should not be held in contempt and why remedial obligations should not be put in place; to order Westchester to comply with its existing obligations; to create a process of effective oversight and direction for the County; to extend the term of the decree to defeat Westchester’s run-out-the-clock strategy; and to direct such other relief as is necessary to vindicate the decree.”
On April 24, ADC announced that in response to its letter to Judge Cote, the court scheduled a conference for May 2 at which ADC, the federal government, and Westchester County are required to appear.
The second development took place on April 23, when HUD sent a letter to the Executive Director of Westchester County, giving the county until May 7, 2014 to meet four “special assurances” or forfeit $5,228,327 in FY12 funds. The funds at risk of reallocation to other New York jurisdictions are $3.92 million of Community Development Block Grant (CDBG), $ 0.85 million of HOME Investment Partnerships (HOME), and $0.47 million of Emergency Solutions Grant (ESG). Because the county refused to comply with the court settlement it had already foregone $7.4 in FY11 funds.
In a letter dated August 9, 2013, HUD provided the county with four steps that Westchester could take to come into compliance with its AFFH certification. The county rejected HUD’s four steps in a letter dated August 15, 2013. The HUD letter dated April 24 concludes, “The County has steadfastly refused to revise its Analysis of Impediments to Fair Housing Choice (“AI”) to include an adequate analysis of restrictive zoning practices and a strategy to overcome exclusionary zoning.” HUD “renews its offer to the County to come into compliance” and be able to receive its FY12 allocations by signing and submitting by May 7 four “Required Special Assurances.”
The four Required Special Assurances are:
- The county acknowledges that it has an ongoing duty to affirmatively further fair housing that includes compliance with the 2009 settlement.
- The county adopts and incorporates by reference in its AI the findings of the court monitor’s report and will comply with the monitor’s recommendations and information requests.
- The county will submit by July 31, 2014, a final zoning submission for all 31 municipalities that have low populations of African Americans and Latinos, addressing the impact that restrictive zoning practices have by limiting the availability of affordable multifamily housing. The county will incorporate its final zoning analysis in its updated AI.
- The county adopts, incorporates by reference in its AI, and commits to implementation of a HUD-prescribed strategy to overcome exclusionary zoning practices. One of the elements of the HUD-prescribed strategy requires the county to engage in enforcement activities with municipalities that continue to have restrictive zoning practices. Two enforcement activities listed are initiating litigation and referral for enforcement to the U.S. Department of Justice.
View the Anti-Discrimination Center letter to Judge Cote and Cheating on Every Level at: http://www.antibiaslaw.com/node/1406
View the April 23, 2014 HUD letter at: http://bit.ly/1jXSHAV
View the August 9, 2013 HUD letter at: http://bit.ly/PAqE0X