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Court of Appeals Rules Westchester “Engaging in Total Obstruction”

The U.S. Court of Appeals for the Second Circuit rejected on April 28 the consolidated sixth and seventh appeals by Westchester County, NY to a district court’s ongoing efforts to ensure that the County complies with its obligations under a 2009 consent decree to affirmatively further fair housing. “All of these appeals have been rejected,” the court wrote, “and it is apparent that the County is engaging in total obstructionism.”

As previously reported in Memo (see Memo, 5/1), Westchester County appealed the decisions of U.S. District Court Judge Denise Cote on May 24, 2016 and July 18, 2016 that found Westchester in breach of a consent decree it entered into with the U.S. Department of Justice on August 10, 2009. Prior to the consent decree, Judge Cote wrote on February 24, 2009, “The County utterly failed to comply with the regulatory requirement that the County perform and maintain a record of its analysis of impediments to fair housing choice in terms of race.” During oral arguments on April 21, 2017 Judge Guido Calebrisi, one of three judges on the Second Circuit panel stated, “I rarely get angry, but it seems to me that what is going on is consistent evasion, consistent trying each time to find something new why you shouldn’t live up to something that you agreed to [in the consent decree].”

The decisions of the district court and circuit court pertained to paragraphs 32, 7(i), and 7(j) of the consent decree. Paragraph 32 required Westchester to submit an acceptable Assessment of Fair Housing Choice (AI) to HUD. HUD rejected the County’s tenth AI submission on April 10, 2017 (see Memo, 5/1). The circuit court had already held in a September 25, 2015 decision that HUD justifiably rejected previous AI submissions because of Westchester’s failure to adequately analyze the impediments to fair housing choice that municipal zoning laws presented. In its latest decision, the circuit court stated, “The County is not entitled to relitigate the issue now.” The circuit court also rejected Westchester’s argument that HUD’s refusal to accept its AIs was unreasonable, asserting that the federal attorney “convincingly” demonstrated the flaws in previous AI submissions.

Paragraphs 7(i), and 7(j) require Westchester to:

  • “Use all available means appropriate to achieve objectives set forth in this paragraph, including…developing financial or other incentives for other entities to take steps to promote the objectives of this paragraph, and conditioning or withholding the provision of County funds…”
  • “Use all available means as appropriate to address such action or inaction, including…pursuing legal action.”

On May 24, 2016 the district court found that Westchester breached the consent decree by failing to build 28 units at Chappaqua Station in the Town of New Castle and by failing to address the opposition of New Castle. The County’s support for the project had been “inconsistent, slow, and half-hearted,” thus breaching paragraph 7(i). In addition, Westchester failed to comply with paragraph 7(j) because New Castle’s “actions are precisely the type of municipal opposition that the consent decree anticipated may occur and that impose upon the County the affirmative obligation to use ‘all available means as appropriate’ to counteract such hostility.” The second circuit also agreed with the district court’s reference to evidence of New Castle’s intent to delay the Chappaqua Station project, citing the town’s building inspector’s statement that he would move the project’s building permit application “all the way to the bottom of the pile.”

“We note that these consolidated appeals are the sixth and seventh appeals by the County from the district court’s ongoing efforts to ensure the County’s compliance with its obligations under the consent decree,” states the second circuit decision. “All of these appeals have been rejected, and it is apparent that the County is engaging in total obstructionism. The County would be well-advised to stop making excuses, and to complete its obligations under the consent decree with diligence and dispatch.”

The Second Circuit Court Summary Order is at: