Monday, July 23, 2012
Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues. By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing." The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law. The DOJ intervened and negotiated a settlement on behalf of HUD. The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing. The County also must affirmatively market the housing in surrounding areas with significant non-white populations. The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process).
The County argues that it is complying with the settlement and is ahead of schedule in constructing the units. However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns. The County has responded that the cost and availability of land restrict the options available. The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement. In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.
The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice. HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary. The County's AI concluded that no exclusionary housing existed in its municipalities. Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach.
The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan." It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary. Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement.
HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.