County Legislators have until September 25, 2009 to decide whether to ratify a proposed landmark settlement between the federal government and the county which has been signed by the county executive. The proposed agreement would settle a three year old lawsuit alleging that the County took tens of millions of dollars in federal housing related grants, including Community Development Block Grant funds, and falsely certified that it was providing affordable housing and not reinforcing racial segregation. The required certification is known as AFFH or “affirmatively furthering fair housing.”
Among other things, the Agreement obligates the County to spend more than $50 million to build or acquire 750 units of affordable housing , the vast number of which (630) will be spread throughout municipalities in the county where the black population is 3% or less and where the Latino population is less than 7%.
According to an article in Builder online , the action against Westchester County is just the beginning of what is expected to be more vigilant enforcement of requirements attached to the provision of federal housing and community development funds to municipalities across the country. HUD is expected to issue guidelines and requirements for municipalities later this month that will specify how such funds may be used and how they must be tracked.
United States of America ex. rel. Anti-Discrimination Center of Metro New York v. Westchester County, New York, No. 06 Civ. 2860 (8/10/2009).
The stipulation and order of settlement and dismissal can be accessed at: http://www.antibiaslaw.com/sites/default/files/files/SettlementFullText.pdf
Read a NY Times article at: http://www.nytimes.com/2009/08/11/nyregion/11settle.html
This lawsuit was brought by the Anti-Discrimination Center of Metro New York three years ago. Under the Bush administration, the Department of Justice refused to become involved. Under the Obama administration, DOJ and HUD did the right thing.
The New York Times article completely missed the point of the lawsuit. Like every recipient of Community Development Block Grant funds, Westchester County pledged to affirmatively further fair housing (AFFH) as a condition of receiving those funds. (Actually a whole slew of federal programs require AFFH — and like CDBG, that pledge is mostly ignored.) And the well-established purpose of the CDBG funds is to end racial and economic segregation and promote racial and economic integration. As you might have guessed, few CDBG recipients use make any effort to achieve racial or economic integration and HUD has rarely done anything to enforce the purpose of the program.
As part of receiving CDBG funds, the county is required to conduct an Analysis of Impediments to Fair Housing Choice (AI) every 4 or 5 years. The county’s AI never dealt with racial segregation. The county tried to use affordable housing as a proxy for integration and income as a proxy for race. But as the evidence showed, that was absurd — and indeed the Westchester County Doctrine emerging from the court’s Feb. 24, 2009 decision is that, as a matter of law, affordable housing is not a proxy for segregation and income is not a proxy for race. As a matter of law, every time the county submitted a voucher for a CDBG payment from HUD, the county was certifying that it was affirmatively fair housing — and this was a false claim.
Since this action was brought under the False Claims Act, the county was subject to $150 million in damages. The settlement cut the financial cost to the county by more than half.
It is safe to say that the vast majority of the 1,000+ CDBG recipients have engaged in practices as egregious as Westchester County. Hopefully HUD will strategically pursue False Claim Act lawsuits against some of them. More hopefully, HUD will cut off funding to those that are failing to affirmatively further fair housing. The vast majority of Analyses of Impediments to Fair Housing Choice have been jokes — not even addressing racial segregation. Far too many appear to be produced by connected consultants who low-ball the AI contracts to produce cut-and-paste AIs that fail to address the causes of racial and economic segregation, much less offer a comprehensive approach to mitigate those causes and help establish racially and economically-integrated communities — the primary purpose of the Housing & Community Development Act of 1974 that created CDBG. It’s small wonder that hypersegregation continues to dominate the American landscape.
By: D on August 17, 2009
at 10:18 am
Thanks for these comments. I think this is a fair warning to municipalities!
By: Patty Salkin on August 17, 2009
at 10:25 am