The Court of Appeals for the Second Circuit held that Westchester County, New York violated one of the terms of a consent decree from August 2009 regarding the county’s failure to affirmatively further fair housing choice (see Memo, 3/29). The county appealed a May 2012 judgment by the U.S. District Court for the Southern District of New York, which found that Westchester violated its duty to promote source-of-income legislation. In general, source-of-income legislation prohibits discriminating against someone based upon type of income, such as a Housing Choice Voucher, Social Security benefit, child support, or alimony.
The three-judge Court of Appeals concluded that “no affirmative steps had been taken to promote [source-of-income] legislation” since the previous county executive sent a letter to the county Board of Supervisors in October 2009 encouraging that body to enact legislation already under consideration. That county executive also sent identical letters to five community organizations that were already supportive of the legislation, an act the Court of Appeals characterized as “preaching to the choir.” On June 25, 2010, a new county executive vetoed the source-of-income legislation passed by the Board of Supervisors. Since that time, no other actions were taken to promote source-of-income legislation, causing the Court of Appeals to “hold that the County breached its duty to promote under the consent decree.”
The Anti-Discrimination Center (ADC), which initiated legal proceedings in 2006 based on the False Claims Act, welcomed this latest decision. However, ADC stressed that the primary issue has been and remains the exclusionary zoning practices of municipalities in the county and the county’s ongoing refusal to challenge those municipalities (see Memo, 7/27/12). This element of the consent decree was not at issue in the appeal made by the county.
ADC also asserts that the county is not fully complying with another component of the consent decree, the obligation to develop 630 affordable homes in areas with few racial or ethnic minorities between 2010 and 2016. According to ADC, more than 147 homes have been counted toward that obligation but do not meet the terms of the consent decree, such as a development in a Census block which is already 50% Latino. The consent decree has a benchmark goal of approximately 200 homes the end of 2012.
ADC continues to assert that HUD and the Department of Justice are failing to enforce the consent decree by not taking legal action to hold Westchester in contempt. In a recent report, the National Fair Housing Alliance (NFHA) also complains that “HUD has not held Westchester in contempt for violating the consent decree and court orders…. HUD must take permanent, non-negotiable action against Westchester County” (see article elsewhere in Memo). A previous report from the Lawyers’ Committee for Civil Rights Under Law, the Policy & Research Action Council, and NFHA asserted that HUD has “never moved to hold the County in formal contempt for any of its violations of the court order,” and criticized HUD for accepting housing developments that do not affirmatively further fair housing as meeting the terms of the court settlement (see Memo, 3/8).
The Court of Appeals decision is attached.