Three significant developments have taken place related to the ongoing affirmatively furthering fair housing (AFFH) 2009 court settlement involving Westchester Country, NY. HUD informed the County that its “Analysis of Impediments Supplement to Chapter 12 – Zoning Analysis” was unacceptable because it continues to lack appropriate analyses of impediments to fair housing choice and fails to identify forward-looking strategies to overcome those impediments. Separately, Judge Guido Calebresi of the United States Court of Appeals for the Second Circuit accused the County of consistently evading its obligation under the 2009 settlement. And the Court recently appointed former U.S. District Judge Stephen Robinson as a new “monitor” assigned to oversee the settlement.
Background
In April 2006, the New York-based not-for-profit Anti-Discrimination Center (ADC) sued Westchester County under the “False Claims Act,” alleging that County had failed to affirmatively further fair housing and that the County’s certifications to HUD from 2000 to 2006 that it had affirmatively furthered fair housing were false.
On February 24, 2009, the U.S. District Court for the Southern District of New York found that Westchester County had “utterly failed” to meet its AFFH certification and that its annual AFFH certification and more than 1,000 claims for payments sought from HUD over a six-year period were false. The Court wrote, “The County’s AI [Analysis of Impediments to Fair Housing Choice] … 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. This failure is only compounded by the County’s failure to follow the guidance provided by HUD.”
On April 28, 2009, HUD rejected the accuracy of Westchester County’s certification that it affirmatively furthers fair housing. As a result, HUD did not approve the County’s 2009 Consolidated Plan, which in turn delayed the County’s receipt of more than $8 million in Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and Emergency Solutions Grant (ESG) funds until the County provided evidence that it in fact affirmatively furthers fair housing.
On August 10, 2009 HUD announced a settlement with Westchester County. Among other provisions, the settlement required the County to implement strategies for changes to local town-zoning ordinances to affirmatively further fair housing. In addition, a Court-appointed monitor was named to oversee implementation of the settlement’s many provisions.
Because subsequent AI submissions were also found lacking, Westchester has not received CDBG, HOME, or ESG funds since its FY10 block grants (FY09 and FY10 funds were provided based on assurances in the court settlement. Westchester County stopped applying for funds in 2015).
HUD’s Tenth Rejection of Westchester’s AI
Although Westchester County has not been receiving HUD funds since its FY10 block grants, the County is still required to submit an acceptable AI as a remedial measure under the 2009 settlement. HUD found the AI Supplement concerning zoning unacceptable because it failed to:
- Analyze areas of white segregation by focusing on concentrations of minority residents in some communities (examples were provided).
- Fully acknowledge segregation of African American and Hispanic residents, erroneously claiming that there were no concentrations of minority populations in some communities (examples were provided).
- Compare similarly situated communities (examples were provided).
- Offer forward-looking actions the County could take to overcome the effects of identified impediments. Instead the County discussed education and outreach activities such as distributing fair housing posters, attending award ceremonies, and participating on panel discussions.
United States Court of Appeals for the Second Circuit
Westchester County appealed a decision of the District Court concluding the County continued to fail in its obligation to provide an acceptable AI. County Attorney Robert Meehan is heard in a recording of April 21, 2017 oral arguments claiming frequently that HUD employed unreasonable standards in rejecting AIs. This was the fifth time the County came before the Second Circuit but the first time with Judge Guido Calebrisi sitting on the three-judge court.
Approaching the issue with fresh eyes, Judge Calebrisi acknowledged that he was being aggressive with Mr. Meehan. “I rarely get angry,” Judge Calebrisi stated, “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 settlement]. And that is bad when parties do it. It is outrageous when the government does it.”
Judge Calebrisi focused on two paragraphs of the settlement (7i and 7j) referred to by Mr. Meehan. Those paragraphs 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.”
Judge Calebrisi asked whether Westchester used financial incentives when a town did not comply with its AFFH requirements. Mr. Meehan’s response did not satisfy the judge, who stated, “As you’ve just told me, you didn’t to that [offer financial incentives].”
Assistant U.S. Attorney David Kennedy spoke for the federal government. He cited numerous problems with the County’s AI that the federal government presented to the court many times before, such as including a women’s prison when counting the minority population as part of an analysis of whether there was exclusionary zoning, arguing that minimum lot sizes have no disparate impact on minorities, and omitting certain zones from charts to give the impression that there was no disparate impact. Mr. Kennedy also noted that the AIs failed to address why minority populations were so low in many of the towns compared to the minority population of the County as a whole. For example, several towns have a minority population of 1.5% or less, while Westchester County’s African American population alone is 14.6% of the total. The federal attorney pointed out that there is a connection between the likelihood that minority families would need and use multifamily housing, while there is an absence of multifamily housing in many towns. Even when the County’s “cherry-picked” data are considered, minority populations declined as lot sizes grew larger.
New Court-Appointed Monitor
According to the “Tax Watch” column of The Journal News/lohud.com, the court appointed a new monitor to oversee the settlement eight weeks ago. Former U.S. District Judge Stephen Robinson told “Tax Watch” that he is ready to “engage pretty heavily.” The Anti-Discrimination Center had long been dissatisfied with the previous monitor, Jim Johnson.
HUD’s April 10, 2017 letter is at: http://bit.ly/2pAIfMV
Second Circuit audio of oral arguments is at: http://bit.ly/2qf4pkg
The “Tax Watch” article is at: http://lohud.us/2q9iUth
Historical information about the Westchester County case is on the Anti-Discrimination Center website at: http://www.antibiaslaw.com/westchester-case