Case 1:06-cv-02860-DLC Document 299 Filed 04/24/2009 Page 1 of 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------- X

:

UNITED STATES OF AMERICA ex rel. ANTI- :

DISCRIMINATION CENTER OF METRO NEW

:

YORK, INC.,

:

Plaintiff,

:

:

-v-

:

:

WESTCHESTER COUNTY, NEW YORK,

:

Defendant.

:

:

----------------------------------------X

Appearances:

For Plaintiff/Relator: Michael Allen Stephen M. Dane John P. Relman Relman & Dane, PLLC 1225 19th Street, N.W., Suite 600 Washington, DC 20036-2456

For Defendant: Stuart M. Gerson Michael A. Kalish Carrie Corcoran Epstein Becker & Green, P.C. 250 Park Avenue New York, NY 10177-1211

06 Civ. 2860 (DLC) OPINION & ORDER

DENISE COTE, District Judge: Plaintiff has filed a motion in limine to exclude the issue
of damages from decision by the jury in this False Claims Act (“FCA”) litigation. The plaintiff’s motion is granted to the extent that the defendant will be precluded from arguing to the jury that its damages should be reduced by the “benefit” HUD

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received from the County’s administration of its housing and community development funds.
The plaintiff Anti-Discrimination Center of Metro New York, Inc. (“ADC”) was granted partial summary judgment on February 24, 2009, in an opinion which held that the defendant Westchester County, New York (“Westchester” or “the County”) made false statements to the Secretary of Housing and Urban Development (“HUD”) between April 2000 and April 2006 (“the false claims period”) to obtain over $52 million in federal funding for housing and community development. United States ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, No. 06 Civ. 2860 (DLC), 2009 WL 455269, at *16 (S.D.N.Y. Feb. 24, 2009) (“February Opinion”).1 Briefly stated, the February Opinion found that under the statutory and regulatory scheme, the County was required to certify that it would AFFH in order to receive certain federal housing and community development funding. Id. at *2, *17. To AFFH, Westchester was required to conduct an analysis of impediments or “AI” to fair housing choice, including those impediments imposed by racial discrimination and segregation, to take appropriate actions to overcome the effects of any identified impediments, and to maintain records reflecting the analysis and actions. Id. at *2. The February Opinion found that 1 Familiarity with the February Opinion is assumed.
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Westchester’s certifications that it would AFFH were false because, among other things, Westchester did not analyze race in conducting its AIs. Id. at *13-16.
The parties on the instant motion are in agreement on several aspects of the issue of damages. Both agree that ADC has the burden of proof on the issue (although they disagree as to what that burden is), and ADC agrees with the County that as a general matter, the issue of the amount of damages under the FCA is for the jury. In addition, both sides agree on the general definition of damages in the FCA context: damages are “the amount that [the Government] paid out by reason of the false statements over and above what it would have paid if the claims had been truthful.” United States v. Woodbury, 359 F.2d 370, 379 (9th Cir. 1966). See also 31 U.S.C. § 3729(a) (damages for FCA violator are “3 times the amount of damages which the Government sustains because of the act of that person”). The County’s proffered formulation of the definition of damages is that they are “the amount [HUD] paid to the County because of the inaccurate certification, over and above what it would have paid if it had known of the inaccuracy.”
Where the parties principally diverge is over ADC’s contention that given the circumstances in this case, plaintiff’s damages under this standard are established by undisputed fact, and there is no need for this issue to be
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submitted to the jury. ADC contends that the damages in this case are simply the sum of the knowingly false claims for payment for housing and community development that were paid out to Westchester during the false claims period, and that the amounts paid are reflected in a document that lists the County’s drawdown vouchers that were submitted to HUD for housing and community development funding from April 2000 to April 2006 (the “drawdown report”). Westchester contends, however, that the correct measure of damages is not the entire amount of grant money paid to the County during that period for knowingly false claims, but rather that the benefit that HUD received from those grants must be subtracted from that amount (the “benefit of the bargain” theory).
Benefit of the Bargain Theory Several courts have discussed FCA damages and the contexts
in which the “benefit of the bargain” theory is appropriate as a measure of damages. In United States v. Rogan, 517 F.3d 449 (7th Cir. 2008), the defendant violated the FCA by submitting bills to the United States under Medicare and Medicaid and concealing the fact that many patients came to his medical center only because of compensated referrals that violated certain anti-kickback statutes and for which reimbursement was prohibited. Id. at 451-42. The court found that the full
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amount the government paid out in reimbursements on the false
claims was the proper measure of damages, and it rejected
defendant’s argument that the amount should be reduced because
the patients may have actually received the care described in
the claim forms:
Nor do we think it important that most of the patients for which claims were submitted received some medical care -- perhaps all the care reflected in the claim forms. . . . Edgewater [defendant’s medical center] did not furnish any medical service to the United States. The government offers a subsidy (from the patients’ perspective, a form of insurance), with conditions. When the conditions are not satisfied, nothing is due. Thus the entire amount that Edgewater received on these 1,812 claims must be paid back. Now it may be that, if the patients had gone elsewhere, the United States would have paid for their care. Or perhaps the patients, or a private insurer, would have paid for care at Edgewater had it refrained from billing the United States. But neither possibility allows [defendant] to keep money obtained from the Treasury by false pretenses, or avoid the penalty for deceit.
Id. at 453 (emphasis supplied).
In United States v. Mackby, 339 F.3d 1013, 1014-15 (9th
Cir. 2003), the Ninth Circuit was confronted with an FCA
violation where the defendant falsely used his father’s code to
circumvent Medicare’s cap on the number of physical therapy
visits that were covered. The court rejected the argument that
because the patients had actually received the medical care for
which bills were submitted, the federal government had
essentially received the benefit of its bargain and had not
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sustained damages: “The fact that Mackby’s clinic actually performed the physical therapy for which he claimed reimbursement does not eliminate the government’s injury.” Id. at 1018. Rather, “[i]n the legislative history to the FCA, Congress specifically rejected a ‘no harm, no foul’ argument: ‘A false claim for reimbursement under the Medicare, Medicaid or similar program is actionable under the act, . . . and such claim[ ] may be false even though the services are provided as claimed if, for example, the claimant is ineligible to participate in the program . . . .” Id. at 1019 (quoting S. Rep. No. 99-345, at 9, reprinted in 1986 U.S.C.C.A.N. 5266, 5275).
In the context of a defendant that was a federal government contractor charged with developing a facility for the United States to store certain radioactive waste, however, the Fourth Circuit has applied a measure of damages akin to the benefit-ofthe-bargain. United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 911 (4th Cir. 2003). In Harrison, the defendant contractor had falsely certified that there were no conflicts in relation to a particular subcontract, and the court found that the plaintiff could not recover damages in the entire amount of the money paid out by the federal government on that subcontract because plaintiff had not shown that the subcontractor “failed to perform the work that it was
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required to perform under the subcontract or that the government did not receive the benefit of the work performed.” Id. at 923.
In United States v. TDC Management Corp., Inc., 288 F.3d 421 (D.C. Cir. 2002), the District of Columbia Circuit explained that the benefit-of-the-bargain measure of damages is most appropriately used in circumstances where the arrangement at issue is one that calls for the defendant “to produce a tangible structure or asset of ascertainable value” for the federal government. Id. at 428. See also United States v. Bornstein, 423 U.S. 303, 307, 316 n.13 (defendant was subcontractor who sent falsely marked tubes to general contractor who was providing federal government with radio kits; citing, inter alia, United States v. Foster Wheeler Corp., 447 F.2d 100, 102 (2d Cir. 1971), the Court found that federal government’s damages were “equal to the difference between the market value of the tubes it received and retained and the market value that the tubes would have had if they had been of the specified quality”). Where, however, the defendant’s role in relation to a Department of Transportation program designed to assist minority enterprises in bidding on large transportation projects was to serve as an ombudsman and identify private investors willing to provide the minority enterprises with assistance, TDC, 288 F.3d at 422-23, the benefit-of-the-bargain model of damages was inapplicable. Rather, “[o]nce [the defendant]
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deviated from its contracted role as impartial ombudsman . . ., the district court then could properly find that the Program no longer had any value to the government.” Id. at 428.
Applying these principles, defendant’s contention that the benefit-of-the-bargain theory of damages should be applied to reduce the federal government’s damages in this case is rejected. Westchester has identified no tangible asset or structure it provided to the United States such that this theory would be applicable; it did not have a contract with the government to build any sort of facility for the government’s use or to provide it with goods. Rather, it simply alleges that it “provided services to the United States by allocating funds [on the United States’] behalf to deserving housing and community development projects that meet the regulatory criteria.” Westchester’s “service[],” however, was merely to take the United States’ grant money, and as such, Westchester is much more akin to the defendants in Rogan and Mackby who made false claims in order to receive what was essentially a “subsidy” from the federal government. Rogan, 517 F.3d at 453. Furthermore, despite Westchester’s reference to “deserving” projects, like in TDC, 288 F.3d at 427, should the jury find that Westchester knowingly submitted false certifications of compliance with its duty to AFFH, then the United States did not “g[e]t what it paid for.” Id. As discussed above and more
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fully in the February Opinion, the grants at issue in this case were expressly conditioned on the requirement to AFFH, and therefore Westchester’s false AFFH certifications deprived the grant programs of their value to the government. Accepting Westchester’s proffered argument that because the grants may have been administered in accordance with other program requirements, the damages to the government are mitigated, would essentially write the requirement to AFFH out of the statutes and regulations. Thus, in the circumstances of this case, Westchester’s damages cannot be reduced by reference to the alleged “benefit” it provided to HUD by administering the grant funds at issue.
CONCLUSION Plaintiff’s April 10, 2009 motion [Docket No. 184]
excluding the issue of damages from decision by the jury is granted to the extent that the defendant will be precluded from arguing to the jury that its damages should be reduced by the “benefit” HUD received from the County’s administration of its
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Case 1:06-cv-02860-DLC Document 299 Filed 04/24/2009 Page 10 of 10

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------- X

:

UNITED STATES OF AMERICA ex rel. ANTI- :

DISCRIMINATION CENTER OF METRO NEW

:

YORK, INC.,

:

Plaintiff,

:

:

-v-

:

:

WESTCHESTER COUNTY, NEW YORK,

:

Defendant.

:

:

----------------------------------------X

Appearances:

For Plaintiff/Relator: Michael Allen Stephen M. Dane John P. Relman Relman & Dane, PLLC 1225 19th Street, N.W., Suite 600 Washington, DC 20036-2456

For Defendant: Stuart M. Gerson Michael A. Kalish Carrie Corcoran Epstein Becker & Green, P.C. 250 Park Avenue New York, NY 10177-1211

06 Civ. 2860 (DLC)
MEMORANDUM OPINION & ORDER

DENISE COTE, District Judge: On February 24, 2009, the plaintiff’s motion for partial
summary judgment was granted in part and denied in part, and the defendant’s motion for summary judgment was denied. United States ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, No. 06 Civ. 2860 (DLC),

2009 WL 455269 (S.D.N.Y. Feb. 24, 2009) (the “February 24 Opinion”).1 On March 10, the defendant moved to certify an
appeal, pursuant to 28 U.S.C. § 1292(b), from that portion of
the February 24 Opinion which articulated the standard for
materiality under the False Claims Act (“FCA”) that would be
applied to the plaintiff’s claims at trial. The motion is
denied.
As discussed in United States ex rel. Anti-Discrimination
Center of Metro New York, Inc. v. Westchester County, New York,
No. 06 Civ. 2860 (DLC), 2007 WL 2402997, at *1 (S.D.N.Y. Aug.
22, 2007) (denying defendant’s motion to certify an appeal from
that portion of this Court’s Opinion denying defendant’s motion
to dismiss that found subject matter jurisdiction over this
action), the standard for certification is well established.
Section 1292(b) provides in relevant part that
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . . .
1 Familiarity with the February 24 Opinion is assumed.
2

28 U.S.C. § 1292(b) (emphasis supplied); City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 391 (2d Cir. 2008). This statute is to be strictly construed, as the power to grant an interlocutory appeal “must be strictly limited to the precise conditions stated in the law,” Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (citation omitted), which is why “it continues to be true that only ‘exceptional circumstances’” warrant certification, id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)).
The controlling issue of law identified by the defendant appears to be whether materiality is an element of an FCA violation and what the proper standard is for assessing materiality under the FCA. While it is true that there is a circuit split on the proper standard for assessing materiality under the FCA and that the Second Circuit has yet to weigh in (and has yet to decide whether materiality is an element of an FCA claim), see Westchester, 2009 WL 455269, at *20, this alone is not sufficient to justify certification of the issue for appeal; “[r]ather, it is the duty of the district judge to analyze the strength of the arguments in opposition to the challenged ruling when deciding whether the issue for appeal is truly one on which there is a substantial ground for dispute.” In re Flor, 79 F.3d 281, 284 (2d Cir. 1996) (citation omitted).
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The Court has already considered and rejected defendant’s arguments on the issue of the proper standard for assessing materiality. As the Court found in the February 24 Opinion, the natural tendency test for assessing materiality, with its focus on the natural effect of the statements when made, best accords with the legislative history and purpose of the FCA. Westchester, 2009 WL 455269, at *20; see United States ex rel. A+ Homecare, Inc. v. Medshares Management Group, Inc., 400 F.3d 428, 446 (6th Cir. 2005) (“evaluating materiality based on the potential effect rather than actual result is more consistent” with “FCA’s principal goal of ensuring the integrity of the Government’s dealings, which is embodied in the maxim that men must turn square corners when they deal with the Government” (citation omitted)). This conclusion is especially true in the factual context of this case, where the information underlying the false statements was not even required to be presented to the relevant government officials. See Westchester, 2009 WL 455269, at *4.
Even assuming, however, that the defendant has established that there exists a controlling question of law and a substantial ground for difference of opinion, it has not shown that an immediate appeal would materially advance the termination of the litigation or that an immediate appeal at this stage of the case is appropriate. Significantly, while the
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February 24 Opinion granted partial summary judgment to plaintiff on several elements of FCA liability, it did not grant summary judgment to plaintiff on the issue of materiality, but simply denied defendant’s motion for summary judgment on that issue and set forth the legal standard for assessing materiality that the Court would apply to plaintiff’s claims at trial, see Westchester, 2009 WL 455269, at *20-21 -- a trial which has long been set to begin on May 4, 2009.2 As such, neither the Court nor a jury has had the opportunity to apply the materiality standard to the full record in this case. Given this posture, the certification order would be asking the Court of Appeals to rule on a question -- the proper test for materiality under the FCA in the context of this case -- without a fully developed factual record, which is something the Court of Appeals is reluctant to do. See Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 866 (2d Cir. 1996) (Second Circuit was “reluctant to rely on what may turn out to be an incomplete record to clarify legal doctrine for the district court’s guidance” where “question of law . . . turn[ed] on a thorough examination of the facts”); Oneida Indian Nation of New York State v. Oneida County, 622 2 The defendant’s opening brief on the instant motion argued that the materiality issue would be submitted to the jury. While the Court announced its inclination to submit the issue to the jury at a March 30, 2009 conference with the parties, it should be noted that defendant’s brief in support of its motion for summary judgment contended that materiality is a question for the Court to decide.
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F.2d 624, 628 (2d Cir. 1980) (“Inherent in the requirements of section 1292(b) is that the issue certified be ripe for judicial determination. . . . [T]he purpose of section 1292(b) is not to offer advisory opinions rendered on hypotheses which [evaporate] in the light of full factual development.” (citation omitted)).
In addition, there are several scenarios in which the course of the trial and a fully developed record could moot the issue which defendant seeks to certify for appeal. For example, if the jury finds that the defendant did not have the requisite knowledge to support FCA liability, the defendant is not liable under the FCA regardless of what standard is applied for assessing materiality. Furthermore, the Court of Appeals may decide that the test for materiality is academic where the government funding is expressly conditioned on the requirement, as it is here, that the certification of compliance with the duty to affirmatively further fair housing be filed with the government. See United States ex rel. Hendow v. University of Phoenix, 461 F.3d 1166, 1177 (9th Cir. 2006). Perhaps in recognition of this statutory mandate, this is a case where the defendant formally admitted that its certifications were a material condition of its receipt of funding when it filed its answer.
Finally, the defendant presents a parade of horribles that it contends will follow from this Court’s February 24
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Opinion and that present the exceptional circumstances that justify certification in this case. Notably, however, the dire consequences alluded to have little to do with the materiality issue the defendant is seeking certification to appeal; rather, defendant’s briefing makes clear that its real motivation in seeking certification of the materiality issue is to obtain review over the entire February 24 Opinion, and particularly that Opinion’s conclusion that the defendant made false statements. See, e.g., Defendant’s Brief in Support of Certification at 9 (arguing that if other jurisdictions do not comport with the February 24 Opinion’s conclusions on the falsity issue, then “the floodgates will open on communities struggling to cope with an affordable housing crisis brought on by the bursting of the real estate bubble”); Defendant’s Reply Brief in Support of Certification at 1 (arguing that the February 24 Opinion’s conclusions on the falsity issued “elevat[ed] . . . mere guidance into statutory equivalence”).
Defendant has not attempted to argue that the falsity issue satisfies the statutory criteria for certification.3 To the
3 In an excess of advocacy, the defendant has also repeatedly mischaracterized the February 24 Opinion. For example, the opinion did not imbue the guidance HUD provided in its Fair Housing Planning Guide with the authority of a statute. To the contrary, the opinion found that the defendant’s documents “utterly failed to comply with the regulatory requirement” and that that failure was only compounded by the County not
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extent that the defendant simply seeks immediate appeal of this
Court’s determination on the question of falsity in the February
24 Opinion because of its belief that the conclusion was in
error, such an argument presents no basis for certification.
See Weber v. United States, 484 F.3d 154, 159 n.3 (2d Cir. 2007)
(“Congress did not intend 28 U.S.C. § 1292(b) to serve an errorcorrection function.”).4 In addition, defendant’s prediction of
a stream of similar follow-on lawsuits that will occur if the
falsity issue is insulated from appellate review by the
favorable verdict it expects at trial is speculative. The
prediction requires at least the following to occur: 1)
defendant and other jurisdictions not taking their requirements
to affirmatively further fair housing seriously and being
unwilling to reform their practices, 2) the federal government
choosing not to come into this or any similar lawsuit as
plaintiff to promote a resolution of the action, and 3) the
following the guidance HUD had provided to it. Westchester, 2009 WL 455269, at *14. 4 Defendant cites to Weber for the proposition that one of the purposes of § 1292(b) is to allow the Court of Appeals to “rule on . . . ephemeral questions of law that might disappear in the light of a complete and final record,” 484 F.3d at 159 (citation omitted), in order to argue that certification is warranted to allow for immediate review of the February 24 Opinion’s determination of the falsity issue; however, as discussed above, defendant has not even attempted to show how that issue satisfies the statutory criteria for certification, and the power to grant an interlocutory appeal “must be strictly limited to the precise conditions stated in the law.” Klinghoffer, 921 F.2d 21, 25 (2d Cir. 1990) (citation omitted).
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 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------- X

:

UNITED STATES OF AMERICAN ex rel. ANTI- :

DISCRIMINATION CENTER OF METRO NEW

:

YORK, INC.,

:

Plaintiff,

:

:

-v-

:

:

WESTCHESTER COUNTY, NEW YORK,

:

Defendant.

:

:

----------------------------------------X

Appearances:

For Plaintiff/Relator: Michael Allen Stephen M. Dane John P. Relman Relman & Dane, PLLC 1225 19th Street, N.W., Suite 600 Washington, DC 20036-2456

For Defendant: Stuart M. Gerson Michael A. Kalish Carrie Corcoran Epstein Becker & Green, P.C. 250 Park Avenue New York, NY 10177-1211

06 Civ. 2860 (DLC) OPINION & ORDER

DENISE COTE, District Judge: This Opinion holds that a local government entity that
certifies to the federal government that it will affirmatively further fair housing as a condition to its receipt of federal funds must consider the existence and impact of race discrimination on housing opportunities and choice in its

jurisdiction. Plaintiff Anti-Discrimination Center of Metro New York, Inc. (the “Center”) brings this qui tam action on behalf of the United States against Westchester County, New York (“Westchester”) pursuant to the False Claims Act, 31 U.S.C. § 3729 et seq. (“FCA”). The Center claims that Westchester falsely certified that it was in compliance with its obligation to conduct an analysis of impediments to fair housing choice and affirmatively to further fair housing, which it was required to do by statute to receive Community Development Block Grant (“CDBG”) and other federal funds. Westchester has filed a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P.; for lack of subject matter jurisdiction under Rule 12(b)(1); and for failure to plead fraud with particularity under Rule 9(b). For the following reasons, the motion to dismiss is denied.
Background The following facts are undisputed or taken from the complaint, unless otherwise noted. The United States provides housing-related funding to a variety of state and local governmental entities. Recipients of the grants are required to make certifications to the Secretary of Housing and Urban Development (“HUD”), including certifications that “the grant will be conducted and administered in conformity with the Civil
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Rights Act of 1964 [42 U.S.C.A. § 2000a et seq.] and the Fair Housing Act [42 U.S.C.A. § 3601 et seq.], and the grantee will affirmatively further fair housing,” and that “the projected use of funds has been developed so as to give maximum feasible priority to activities which will benefit low- and moderateincome families or aid in the prevention or elimination of slums or blight.” 42 U.S.C. § 5304(b)(2), (3).
Westchester includes forty-five municipal entities. With the exception of Mount Pleasant, Mount Vernon, New Rochelle, White Plains, and Yonkers, the entities are part of the Westchester Urban County Consortium (“Consortium”). During the period from April 1, 2000 to the present (the “false claims period”), Westchester applied each year for federal funds, including the CDBG, on behalf of itself and participating municipalities.1 As a requirement of eligibility for those funds, Westchester made multiple certifications under the relevant statutes and regulations. Specifically, it certified that “it will affirmatively further fair housing, which means that it will conduct an analysis to identify impediments to fair housing choice within the area, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and
1 The complaint does not identify the participating municipalities.
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actions in this regard.” 24 C.F.R. § 91.425(a)(1)(i); see also id. § 570.601(a)(2).
The Center claims that the certifications Westchester made were knowingly false. According to the complaint, Westchester, through its employees, acknowledged to the Center that its demographic analysis for the purpose of identifying impediments to fair housing did not encompass race, but only examined housing needs based on income.2 Westchester explained that it sees discrimination as a problem of income discrimination, not racial discrimination, and does not treat as an impediment anything that is not brought to its attention by a Consortium member or other local government entity. According to the complaint, Westchester “did not engage in any independent analysis or exploration of impediments,” and “refused to identify or analyze [community resistance to integration on the basis of race and national origin] as an impediment.” Instead, it evaluated the needs of categories such as handicapped persons and extended families. Westchester admitted to the Center that the reason its analysis of impediments did not study housing
2 The Center explains in its opposition to the motion to dismiss, that the occasion on which Westchester acknowledged such information was in a meeting between the Center’s Executive Director and Westchester’s Deputy Commissioner for Planning, Norma Drummond (“Drummond”).
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discrimination based on race was because the Consortium did not include Yonkers.3
Not only did Westchester fail to conduct an appropriate
analysis of impediments, as a matter of policy it also refused
to monitor the efforts of participating municipalities to
further fair housing and did not inform them that Westchester
might withhold federal funds if the municipality did not take
steps to further fair housing. Westchester admitted to the
Center that it permits participating municipalities to look only
to the housing needs of existing residents, and not the housing
needs of persons living outside the municipality. Throughout
the false claims period, Westchester never required a
participating municipality to take any steps to increase the
availability of affordable housing or otherwise affirmatively
further fair housing.
In sum, the Center claims that Westchester acted with
knowledge that the certifications and the basis for receipt of
the federal funds it submitted were false, and has improperly
3 The complaint does not explain the relationship between Westchester’s refusal to analyze impediments considering race and its admission that the reason was because Yonkers is not part of the Consortium. The complaint does, however, indicate that according to the 2000 Census Bureau data, most of the municipalities in Westchester had low percentages of AfricanAmericans. The complaint identifies only one Consortium member -- Peekskill -- and three of the five non-Consortium communities -- Mt. Vernon, New Rochelle, and Yonkers -- as having a significant minority population.
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received more than $45 million in federal funds. On April 12, 2006, the Center filed the complaint in this qui tam action under seal, as required by 31 U.S.C. § 3730(b)(2). The Government had the option, under 31 U.S.C. § 3730(b)(4)(A), of conducting the action. After several extensions, the United States notified the Court on December 14, 2006, that it was declining to intervene pursuant to 31 U.S.C. § 3730(b)(4)(B). The Center then served the complaint on Westchester on January 8, 2007, and Westchester filed its motion to dismiss on April 17. That motion was fully submitted on June 15.4
Discussion Westchester’s argument that the complaint should be dismissed for lack of subject matter jurisdiction is considered first: Where, as here, the defendant moves for dismissal under Rule 12(b)(1), Fed. R. Civ. P., as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined. United States ex rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993) (citation omitted).
4 The Center also filed a surreply on June 22, and Westchester sought to strike the surreply by letter of June 27.
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I. Subject Matter Jurisdiction On a motion to dismiss for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P., “[t]he plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir. 2005). A court must “accept as true all material factual allegations in the complaint,” Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), but refrain from “drawing from the pleadings inferences favorable to the party asserting [jurisdiction],” APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (citation omitted). In resolving factual challenges to subject matter jurisdiction, the court may consider evidence outside of the pleadings. United States v. Space Hunters, Inc., 429 F.3d 416, 425-26 (2d Cir. 2005). “[A] district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.” Aurecchione, 426 F.3d at 638 (citation omitted). The inquiry is distinct from whether the plaintiff can state a claim for relief. Carlson v. Principal Fin. Group, 320 F.3d 301, 305-06 (2d Cir. 2003).
“Congress enacted the [FCA] in 1863 ‘with the principal goal of stopping the massive frauds perpetrated by large private
7

contractors during the Civil War.’” United States ex rel. Lissack v. Sakura Global Capital Mkts., Inc., 377 F.3d 145, 151 (2d Cir. 2004) (citing Vt. Agency of Natural Res. V. United States ex rel. Stevens, 529 U.S. 765, 781 (2000)). The FCA imposes liability on any person who “knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a)(1). The terms “knowing” or “knowingly” mean that a person “(1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.” Id. § 3729(b)(1).
Under the qui tam provision of the FCA, “[a] person may bring a civil action for a violation of [the FCA] for the person and for the United States Government. The action shall be brought in the name of the Government.” Id. § 3730(b)(1). “[T]he government may either intervene and prosecute the action, § 3730(b)(2), or allow the original plaintiff -- the qui tam relator -- to proceed with the suit under § 3730(b)(4)(B).” Kreindler & Kreindler, 985 F.2d at 1153. Either way, “the relator is entitled to a portion of the proceeds if the prosecution is successful.” Id.; see also 31 U.S.C. § 3730(d).
8

Subject matter jurisdiction for qui tam actions under the
FCA is limited by statute:
(e) Certain actions barred. . . . .
(4)(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government [sic] Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
(B) For purposes of this paragraph, “original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.
31 U.S.C. § 3730(e)(4) (emphasis supplied); see also Rockwell
Int’l Corp. v. United States, 127 S. Ct. 1397, 1405-06 (2007)
(noting the jurisdictional nature of Section 3730(e)(4)). This
provision was part of the 1986 amendments to the FCA, and was an
“attempt to strike a balance between encouraging private
citizens to expose fraud and avoiding parasitic actions by
opportunists who attempt to capitalize on public information
without seriously contributing to the disclosure of the fraud.”
United States ex rel. Doe v. John Doe Corp., 960 F.2d 318, 321
(2d Cir. 1992). The 1986 amendments included several revisions
to the FCA, including provisions to raise the penalties for
violations, to define various terms, and to increase the
9

incentives for qui tam actions. See S. Rep. No. 99-345, at *2 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5267.
To determine whether the statutory bar to jurisdiction applies, a court must examine, among other issues, whether there was a “public disclosure” of the wrongdoing, and whether that disclosure occurred in one of the ways listed in the statute. Doe, 960 F.2d at 323. “[A]llegations of fraud are publicly disclosed when they are placed in the ‘public domain.’” Id. at 322 (citation omitted). This requirement precludes “qui tam suits based on information that would have been equally available to strangers to the fraud transaction had they chosen to look for it as it was to the relator.” Kreindler & Kreindler, 985 F.2d at 1158 (citing United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1155-56 (3d Cir. 1991)).
Insofar as the manner of public disclosure is concerned, the modes include state and federal hearings and trials, and federal government reports, hearings, audits, and investigations. See, e.g., Kreindler & Kreindler, 985 F.2d at 1158 (civil lawsuit filed in federal court); Doe, 960 F.2d at 323 (federal government agency investigation). The Second Circuit has not yet addressed whether state government reports, hearings, audits, and investigations are also encompassed by the jurisdictional bar, and other circuits are divided on the issue.
10

Compare United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (3d Cir. 1997) (“Congress was not referring to administrative reports produced by non-federal government sources.”), with United States ex rel. Bly-Magee v. Premo, 470 F.3d 914, 918 (9th Cir. 2006) (agreeing with the Eighth Circuit in Hays v. Hoffman, 325 F.3d 982, 988 (8th Cir. 2003), that audit reports prepared by a state agency may be public disclosures).
The parties dispute whether information provided in response to a request under New York’s Freedom of Information Law (“FOIL”) is publicly disclosed and whether material obtained through use of a state’s information disclosure law is a mode of public disclosure covered by the jurisdictional bar. If so, then it must be determined whether the Center is an “original source.” Westchester argues that the Center’s FCA claim is based on publicly disclosed information, because the Center relies upon Westchester’s responses to the Center’s FOIL requests. The responses consisted in part of state and local administrative reports produced following an administrative investigation. The Center counters that responses to FOIL requests should not be considered public disclosures, and in addition, that the state and local administrative reports provided to them are not a mode of public disclosure covered by the jurisdictional bar. Even if there was a public disclosure
11

under the jurisdictional bar, the Center argues that it was an original source, a contention which Westchester disputes.
The information obtained by the plaintiff through its FOIL request is publicly disclosed information since it was as “equally available” to others as it was to the Center had others “chosen to look for it.” Kreindler & Kreindler, 985 F.2d at 1158 (citation omitted). In Kreindler & Kreindler, the Second Circuit found that documents produced in discovery during a lawsuit and filed with the district court were publicly disclosed. Id. at 1157-58. In a decision even more on point, the Third Circuit has found that documents produced pursuant to a Freedom of Information Act (“FOIA”) request are publicly disclosed. United States ex rel. Mistick PBT v. Housing Auth. of Pittsburgh, 186 F.3d 376, 383 (3d Cir. 1999). In reaching this conclusion, the circuit court noted that the “central purpose” of FOIA is to open government to public scrutiny. Id. (citation omitted).
Even if the disclosure of information made possible by a statute granting citizens access to government records is a “public” disclosure, the FCA jurisdictional bar will only apply if the mode of disclosure is through one of those enumerated in the statute. This requires construction of the phrase “congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation.” 31 U.S.C. §
12

3730(e)(4). Westchester contends that an “administrative . . . report” includes a response from a state agency to a request for documents made pursuant to a state sunshine law like New York’s FOIL statute.
Statutory interpretation must “begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (citation omitted). Where, as here, “the terms of a statute are ambiguous, we resort to the canons of statutory construction” to resolve the ambiguity. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 368 (2d Cir. 2006) (citation omitted). “[W]hen a statute creates jurisdiction in a federal court, courts must construe the statute ‘with precision and with fidelity to the terms by which Congress has expressed its wishes.’” The Cananda Life Assurance Co. v. Converium Rückversicherung (Deutschland) AG, 335 F.3d 52, 57 (2d Cir. 2003) (citing Bread Political Action Comm. v. Fed. Election Comm’n, 455 U.S. 577, 580 (1982)).
There is a canon of statutory construction that is of particular assistance here. The Third Circuit applied “the doctrine of noscitur a sociis, which permits [the court] to treat [a] word as one which gathers its meaning from the words around it,” to define the term “administrative.” Dunleavy, 123
13

F.3d at 745 (citation omitted); see also Green v. City of New York, 465 F.3d 65, 78-79 (2d Cir. 2006) (applying noscitur a sociis to construe the term “instrumentality” in the Americans with Disabilities Act, 42 U.S.C. § 12131(1)(B)). Under this analysis, the words “congressional” and “Government Accounting Office” bracket the term “administrative” and suggest that “administrative” should be read to include only the federal government, and therefore that “the word ‘report’ refers only to those administrative reports that originate with the federal government.” Dunleavy, 123 F.3d at 745.
The Dunleavy analysis has not been followed by two other circuits. In Hays, the Eight Circuit rejected the “textual approach” used in Dunleavy and held that state reports authorized to administer a “cooperative federal/state program,” in that case Medicaid, qualified as “administrative” reports under Section 3730(e)(4)(A) so long as “they are prepared by or at the behest of the relevant federal agency, or by or at the behest of a state agency that administers the federal grant program under significant Federal regulation and involvement.” Hays, 325 F.3d at 988-89 (citation omitted). Agreeing with Hays, the Ninth Circuit recently held that state and local reports were “administrative” reports for purposes of Section 3730(e)(4)(A) where the “likelihood that the information will be brought to the federal government’s attention [was] heightened”
14

because the state report is “connected significantly to federal regulations and funds.” Bly-Magee, 470 F.3d at 918-19.
The Dunleavy analysis is more faithful to the language that Congress chose to express the scope of the jurisdictional bar and will be followed here. While observing that it did not disagree with the Dunleavy decision, Hays, 325 F.3d at 989, the Eighth Circuit noted that it had already construed the term “administrative” broadly to include audits prepared by private contractors for the federal government. Id. at 988-89. There is no necessary tension, however, between finding that an independent contractor working on an audit at the behest of the federal government should be considered a federal “administrative” source of information for purposes of construing the FCA jurisdictional bar, while also finding that a state report is not a federal “administrative” source.
The other principal reason given by the Hays court for its construction of the statute was the fact that the FCA was amended in 1986 to include requests for money made to grantees of the federal government, where the grantees are “State, local, or private programs funded in part by the United States where there is significant Federal regulation and involvement.” Id. at 988 (citing S. Rep. No. 99-345, at *22). It found a tension between such an amendment -- which permits those who make fraudulent claims to state grantees to be sued under the FCA --
15

and the fact that the Dunleavy analysis would find that a state grantee’s audit of its use of federal funds was not an “administrative” audit. Id. There is, however, no necessary tension between these two amendments. To the contrary, if Congress intended, at the same time it was extending the FCA against those who made false claims to recipients of federal funds, to bar federal FCA lawsuits against those grantees themselves that were generated by access to information in local government files, one would certainly have expected that it would have done so explicitly.
The Ninth Circuit’s construction is even less persuasive. It interprets the conjunction “or” so that each of “congressional, administrative, or Government Accounting Office” separately modifies the nouns that follow.5 Bly-Magee, 470 F.3d at 918. That construction is certainly correct, and no one has suggested otherwise. The more relevant inquiry, however, is whether one can appropriately look to the terms which surround the word “administrative” to clarify its meaning. It is appropriate and helpful to do so here. The Dunleavy construction -- that “administrative” only includes federal
5 The Bly-Magee court cites Flora v. United States, 362 U.S. 145, 150 (1960), for the proposition that “grammar can be relevant to statutory interpretation.” Bly-Magee, 470 F.3d at 918. Although the proposition is uncontroversial, its application in this case is not revealing. Even in Flora, the Court derived meaning for the disputed term by looking at the meaning of the other terms. Flora, 362 U.S. at 149-50.
16

sources -- is firmly rooted in the text. The term is grouped with the adjectives “congressional” and “Government Accounting Office,” each of which is unquestionably a federal entity.
The legislative history for the 1986 amendments does not contain any description of Congress’s precise intent in including “administrative . . . reports,” but supports a finding that “administrative” includes only federal sources. The previous version of the statute, amended in 1943, barred jurisdiction where the federal government had the information. It provided that “[t]he court shall have no jurisdiction to proceed . . . whenever it shall be made to appear that such suit was based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, at the time such suit was brought.” Act of Dec. 23, 1943, § 3491(C), Pub. L. No. 78-213, 57 Stat. 609 (emphasis supplied); see also S. Rep. No. 99-345, at *12 (noting that the earlier jurisdictional bar precluded qui tam suits “based on information in the Government’s possession, despit[e] the source”).
The House Report for the False Claims Amendments Act of 1986, H.R. 4827, 99th Cong., does not discuss this provision at all. H. Rep. No. 99-660 (1986). The provision was included in the Senate bill, which was accompanied by Senate Report No. 99345, at *30, and revised the jurisdictional bar to include information from any hearing, the news media, or “a
17

congressional or Government Accounting Office report.” It proposed amending the 1943 version to read
In no event may a person bring an action under this section based upon allegations or transactions which are the subject of a civil suit in which the Government is already a party, or within six months of the disclosure of specific information relating to such allegations or transactions in a criminal, civil, or administrative hearing, a congressional or Government Accounting Office report or hearing, or from the news media. S. 1562, § 3730(e)(4), 99th Cong. (July 28, 1986) (emphasis supplied). The language “congressional, administrative, or Government Accounting Office report, hearing, audit or investigation,” was added shortly thereafter as part of “technical and clarifying amendments,” without further elaboration. 132 Cong. Rec. S11238-04 (Aug. 11, 1986) (adding Amendment No. 2701); see also 132 Cong. Rec. S9805-01 (July 29, 1986). This legislative history contains no hint of any intention to sweep local government sources of information into the jurisdictional bar through the addition of the word “administrative.” Finally, Dunleavy’s textual analysis is fully supported by a rational basis for Congress’s line drawing. If the information is derived from a federal government report, then the federal government has the information and can act appropriately, and barring FCA actions in such situations serves the legislative purpose of the 1986 amendments to “avoid[]
18

parasitic actions by opportunists who attempt to capitalize on public information without seriously contributing to the disclosure of the fraud.” Doe, 960 F.2d at 321. If the information is gleaned from state files, however, then there is value in having citizens bring this information to the federal government’s attention, serving the legislative purpose of “encouraging private citizens to expose fraud.” Id. The reasoning is particularly persuasive where, as here, the local government’s report was “the only source from which the public could have learned of the County’s misrepresentations to the federal government.” Dunleavy, 123 F.3d at 745.
In sum, although the Center’s claim is based on publicly disclosed information obtained through a FOIL request, the information was not obtained from a source enumerated in the Section 3730(e)(4)(A) jurisdictional bar. Therefore, the Center’s FCA action is not jurisdictionally barred, and Westchester’s motion to dismiss for lack of subject matter jurisdiction is denied.
II. Failure to State a Claim Under Rule 12(b)(6) Westchester argues that the Center has failed to state a
claim under the FCA because the Fair Housing Act does not impose upon it any obligation to identify racial discrimination and segregation as impediments to “fair housing” when it certifies
19

as a condition for receipt of federal funds that it will affirmatively further fair housing. Because the Fair Housing Act and its implementing regulations do require a grantee to identify impediments to nondiscriminatory housing choice within its jurisdiction and to take appropriate steps to overcome any such identified effects, the complaint does state a claim for a violation of the FCA.
When considering a motion to dismiss under Rule 12(b)(6), a trial court must “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted). At the same time, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss.” Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citation omitted). A court must apply a “flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, --- F.3d ---, 2007 WL 1717803, at *11 (2d Cir. 2007). Although the focus should be on the pleadings, a court may also consider any written instrument attached to the complaint as an exhibit, “or any statements or documents incorporated in it by reference.” Rothman v. Gregor,
20

220 F.3d 81, 88 (2d Cir. 2000) (citation omitted); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991).
To impose liability under the FCA, the Center must show that Westchester “(1) made a claim, (2) to the United States government, (3) that is false or fraudulent, (4) knowing of its falsity, and (5) seeking payment from the federal treasury.” Mikes v. Straus, 274 F.3d 687, 695 (2d Cir. 2001). The Center’s claim relies on the “legally false” certification theory, which is “predicated upon a false representation of compliance with a federal statute or regulation or a prescribed contractual term.” Id. at 696. In order to state a claim premised on a “legally false” certification theory, the defendant must have certified compliance with a statute or regulation “as a condition to governmental payment.” Id. at 697.
Westchester receives its grant, the CDBG, from the Secretary of HUD (“Secretary”) pursuant to a certification. Westchester certifies that “the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 [42 U.S.C.A. § 2000a et seq.] and the Fair Housing Act [42 U.S.C.A. § 3601 et seq.], and the grantee will affirmatively further fair housing.” Id. § 5304(b)(2).
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The first statute to which the certification refers, Title II of the Civil Rights Act of 1964, promotes equal access in public accommodation. The statute provides that
[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. 42 U.S.C. § 2000a(a). “[T]he overriding purpose of Title II [was] ‘to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.’” Daniel v. Paul, 395 U.S. 298, 307-08 (1969) (citing H.R. Rep. No. 88-914). In submitting this provision to Congress, President Kennedy emphasized that “no action is more contrary to the spirit of our democracy and Constitution -- or more rightfully resented by a Negro citizen who seeks only equal treatment -- than the barring of that citizen from restaurants, hotels, theatres, recreational areas and other public accommodations and facilities.” Id. at 306 (citation omitted). The second statute to which the certification refers is the Fair Housing Act, which was passed in 1968 with the declaration that it is the “policy of the United States” to provide “for fair housing” within the limits imposed by the Constitution. 42 U.S.C. § 3601. It was enacted pursuant to “Congress’ thirteenth
22

amendment powers.” United States v. Starrett City Assocs., 840 F.2d 1096, 1100 (2d Cir. 1988). The statute bans discrimination because of “race, color, religion, sex, familial status, or national origin” in connection with the sale and rental of housing and other private real estate transactions, subject to limitations imposed by the statute.6 42 U.S.C. §§ 3604, 3605. Under the Fair Housing Act, the Secretary is required to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of” the statute. Id. § 3608(e)(5) (emphasis supplied). The Secretary must study the nature and extent of “discriminatory housing practices,” id. § 3608(e)(1), and report annually to Congress “data on the race, color, religion, sex, national origin, age, handicap and family characteristics” of persons who participate in, benefit from, or who may benefit from HUD programs, id. § 3608(e)(6). The Secretary must also confer with State and local officials on “the extent, if any, to which housing discrimination exists” in states and localities and how “State or local enforcement programs might be utilized to combat such discrimination.” Id. § 3609.
6 The original Fair Housing Act, enacted as Title VIII of the Civil Rights Act of 1968, prohibited discrimination based on “race, color, religion, or national origin” only. Pub. L. No. 90-284, § 804, 82 Stat. 83 (1968). The 1974 amendments added sex, Pub. L. No. 93-383, § 808(b)(1), 88 Stat. 729 (1974), and the 1988 amendments added familial status, Pub. L. No. 100-430, § 6(b)(2), 102 Stat. 1622 (1988).
23

While the Fair Housing Act was “designed primarily to prohibit discrimination in the sale, rental, financing, or brokerage of private housing and to provide federal enforcement procedures for remedying such discrimination so that members of minority races would not be condemned to remain in urban ghettos,” the Act also requires the Secretary to consider “the impact of proposed public housing programs on the racial concentration” in the area in which the public housing will be built. Otero v. N.Y. City Housing Auth., 484 F.2d 1122, 1133-34 (2d Cir. 1973) (emphasis supplied). It bans practices that are motivated by a racially discriminatory purpose as well as those that “disproportionately affect minorities.” Starrett City, 840 F.2d at 1100. Considered as a whole, the statute is designed to fulfill “the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups.” Otero, 484 F.2d at 1134.
Given this broad goal, HUD must use its grant programs “to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases.” N.A.A.C.P. v. Sec. of HUD, 817 F.2d 149, 155 (1st Cir. 1987) (Breyer, J.). HUD must “consider the effect of a HUD grant on the racial and socio-economic composition of the surrounding area.” Id. at 156; see also Darst-Webbe Tenant Assoc. Bd. v. St. Louis Housing Auth., 339 F.3d 702, 713 (8th Cir. 2003); M&T
24

Mortgage Corp. v. White, No.04CV4775NGGVVP, 2006 WL 47467, at *8 (E.D.N.Y. Jan. 9, 2006). Overall, “Congress saw the antidiscrimination policy [embodied in the Fair Housing Act] as the means to effect the antisegregation-integration policy.” Starrett City, 840 F.2d at 1100.
The CDBG funds Westchester receives7 are allocated under 42 U.S.C. § 5306. “The primary objective of this chapter and of the community development program of each grantee under this chapter is the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income.” Id. § 5301(c). The obligations of grantees are set out in Section 5304, including their duty to certify to the Secretary that, among other things, “the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 [42 U.S.C.A. § 2000a et seq.] and the Fair Housing Act [42 U.S.C.A. § 3601 et seq.], and the grantee will affirmatively further fair housing.” Id. § 5304(b)(2); see also Comer v. Cisneros, 37 F.3d 775, 792 (2d Cir. 1994) (finding that under Section 5304, a CDBG grantee must “handle CDBG funds in conformance with the Constitution and applicable civil rights laws”).
7 Both parties briefly refer to other federal grants that Westchester receives as well, but it is the CDBG and its requirements on which both parties focus.
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The regulations governing the CDBG are found in 24 C.F.R. pt. 570, and identify a grantee’s responsibilities as including the duties to identify impediments to fair housing choice, to take action to overcome those impediments, and to maintain records of its analysis and actions. Specifically, the regulations
require the grantee to assume the responsibility of fair housing planning by conducting an analysis to identify impediments to fair housing choice within its jurisdiction, taking appropriate actions to overcome the effects of any impediments identified through that analysis, and maintaining records reflecting the analysis and actions in this regard. 24 C.F.R. § 570.601(a)(2) (emphasis supplied); see also id. § 91.425 (setting similar requirements for certification under the consolidated plan, which includes the CDBG). The same regulation also provides that President Kennedy’s Executive Order 11,063 applies as well to CDBG funds. Id. § 570.601(b). Executive Order 11,063 states that “the granting of Federal assistance for . . . housing and related facilities from which Americans are excluded because of their race, color, creed, or national origin is unfair, unjust, and inconsistent with the public policy of the United States as manifested in its Constitution and laws,” and expresses concern that “discriminatory policies and practices based upon race, color, creed, or national origin now operate to deny many Americans the benefits of housing financed through Federal assistance.” Exec.
26

Order No. 11,063, 27 Fed. Reg. 11,527 (1962). The Executive
Order thus requires HUD
to take all action necessary and appropriate to prevent discrimination because of race, color, creed, or national origin (a) in the sale, leasing, rental, or other disposition of residential property and related facilities [], or in the use or occupancy thereof, if such property and related facilities are . . . (ii) provided in whole or in part with the aid of loans, advances, grants, or contributions hereafter agreed to be made by the Federal Government. Id.8
HUD publishes the Fair Housing Planning Guide to assist
grantees to fulfill the “fair housing requirements” of grants
including the CDBG. U.S. Dept. of HUD, Fair Housing Planning
Guide at iii (1996) (“HUD Guide”). “Interpretations such as
those in opinion letters -- like interpretations contained in
policy statements, agency manuals, and enforcement guidelines,
all of which lack the force of law -- do not warrant Chevron-
style deference.” Christensen v. Harris County, 529 U.S. 576,
587 (2000) (emphasis supplied). “Instead, interpretations
contained in formats such as opinion letters are ‘entitled to
respect’ . . . but only to the extent that those interpretations
have the ‘power to persuade.’” Id. (citation omitted). The HUD
Guide is firmly rooted in the statutory and regulatory framework
8 Executive Order 11,063 was amended in 1980, but the only relevant change to the above-quoted sections was the addition of “sex” as a nondiscrimination category. Exec. Order No. 12,259, 46 Fed. Reg. 1253 (1980).
27

and consistent with the case law, and it is persuasive on the issue addressed in this Opinion.
The HUD Guide provides that HUD interprets the objective affirmatively to further fair housing to mean, among other things, to “[p]rovide opportunities for inclusive patterns of housing occupancy regardless of race, color, religion, sex, familial status, disability and national origin.” HUD Guide at 1-3. An analysis of impediments under this duty involves an “assessment of conditions, both public and private, affecting fair housing choice for all protected classes.” Id. at 2-7. Such impediments are “actions, omissions or decisions” which “restrict housing choices or the availability of housing choices,” or which have the effect of doing so, based on “race, color, religion, sex, disability, familial status, or national origin,” id. at 2-8, including “[p]olicies, practices, or procedures that appear neutral on their face,” id. at 2-17. HUD’s suggested analysis-of-impediments format includes a housing profile describing “the degree of segregation and restricted housing by race, ethnicity, disability status, and families with children; [and] how segregation and restricted housing supply occurred.” Id. at 2-28.
Given this statutory and regulatory framework, Westchester’s argument that it had no duty to consider race or race discrimination when identifying impediments to fair housing
28

choice must fail. At a minimum, when a grantee certifies that the grant will be “conducted and administered” in conformity with the Civil Rights Act of 1964 and the Fair Housing Act, and certifies that it “will affirmatively further fair housing,” the grantee must consider the existence and impact of race discrimination on housing opportunities and choice in its jurisdiction. In identifying impediments to fair housing choice, it must consider impediments erected by race discrimination, and if such impediments exist, it must take appropriate action to overcome the effects of those impediments.
The complaint alleges that Westchester violated the FCA when it submitted a false certification to obtain federal funds. It alleges that Westchester did not consider the existence and impact of race discrimination on housing opportunities and choice but nonetheless certified that it would administer its grant in conformity with the two governing statutes and would affirmatively further fair housing. This is sufficient to state a claim.
Westchester argues that nowhere in the statute itself or in the implementing regulations is race mentioned specifically as an impediment to fair housing that grantees were required to consider.9 In the face of the clear legislative purpose of the
9 The Center attempted to point out a provision in 24 C.F.R. § 570.904(c)(1) as requiring specific consideration of race, but
29

Fair Housing Act, enacted pursuant to Congress’s power under the
Thirteenth Amendment as Title VIII of the Civil Rights Act of
1968, to combat racial segregation and discrimination in
housing, an interpretation of “affirmatively further fair
housing” that excludes consideration of race would be an absurd
result. “Because we must interpret the statute to avoid [] an
absurd result,” Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 160
as Westchester responded, the provision was deleted after a 1995 amendment to the regulation. The significance of such an amendment, however, is unclear, and neither party’s suggestions are persuasive. Section 570.904 sets out the performance review criteria for CDBG grantees, with subsection (c)(1) specifically setting forth the fair housing review criteria. The current version of that subsection, enacted in 1995, simply states, “See the requirements in the Fair Housing Act [], as well as § 570.601(a), which sets forth the grantee’s responsibility to certify that it will affirmatively further fair housing.” 24 C.F.R. § 570.904(c)(1). The 1988 version, however, further elaborates the criteria, including the review criteria that
The recipient has conducted an analysis to determine the impediments to fair housing choice in its housing and community development program and activities. The term “fair housing choice” means the ability of persons, regardless of race, color, religion, sex, or national origin, of similar income levels to have available to them the same housing choices.
24 C.F.R. § 570.904(c)(1) (1988). Westchester points to a passage which it argues shows that the same final rule specifically declined to address the racial impact issue, but the language to which Westchester points was addressed to a different regulation, 24 C.F.R. § 91.205, which considers “Housing and homeless needs assessment,” not analysis of impediments to or the duty affirmatively to further fair housing. 60 Fed. Reg. 1878-01, 1890 (Jan. 5, 1995). Furthermore, as noted above, the HUD Guide includes race as a consideration in analysis of impediments, and overall the amendment of the regulatory section is not significant here.
30

(2d Cir. 2007), an analysis of impediments that purposefully and explicitly, “as a matter of policy,” avoids consideration of race in analyzing fair housing needs fails to satisfy the duty affirmatively to further fair housing.
Westchester portrays the Center’s arguments as a matter of policy difference as to how the analysis of impediments should be conducted. It points out that the statute and regulations do not specify what needs to be considered in the analysis, and in fact HUD has recognized that the regulations do not provide clear guidance. Therefore, Westchester’s failure to analyze race should be attributed to “imprecise statements or differences in interpretation growing out of a disputed legal question [that] are . . . not false under the FCA.” United States ex rel. Lamers v. Green Bay, 168 F.3d 1013, 1018 (7th Cir. 1999). Westchester’s argument, however, misrepresents the Center’s claim that Westchester made knowing false representations and concealed its failure to comply with its certifications. The complaint is not asserting a policy preference; it is accusing Westchester of falsely representing that it will comply with a statutory mandate. According to the complaint, Westchester excluded consideration of impediments to fair housing based on race when it was required by statute to consider them. At this stage of the litigation, the Center has
31

sufficiently pled under the FCA that Westchester made false claims “knowing of [their] falsity.” Mikes, 274 F.3d at 695.
In further support of its argument that the HUD regulations do not provide clear guidance, Westchester describes a failed rulemaking in 1998 which sought to “provide specific standards and the bases upon which these requirements [affirmatively to further fair housing] would be measured.” 63 Fed. Reg. 5788201, 57883 (Oct. 28, 2998). “Failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute,” Lockhart v. United States, 546 U.S. 142, 126 S. Ct. 699, 702 (2005) (citation omitted), however, and the principle applies equally to failed regulations. Westchester has pointed to nothing from the abortive 1998 rulemaking effort that suggests that race discrimination -- the core concern behind passage of the Fair Housing Act -- need no longer be evaluated as an impediment to fair housing.
Finally, Westchester states that “income is arguably a better proxy for determining need than race when distributing housing funds,”10 and points out that emphasis on income is
10 Westchester further cites authorities from the affirmative action context and the Fair Housing Act case Starrett City, which stated that “[w]hile quotas promote Title VIII’s [Fair Housing Act] integration policy, they contravene its antidiscrimination policy, bringing the dual goals of the Act into conflict.” 840 F.2d at 1101. To the extent that Westchester is seeking to make a policy argument on the use of race, it is not relevant to this motion to dismiss, where the
32

required under HUD’s regulations in 24 C.F.R. §§ 91.225(b)(4) & 570.208. Reliance on income data, however, is not at issue here; the only issue is whether Westchester considered race. Westchester may be able to show that it really did consider race after all and properly used income disparity as a proxy for race, or as it also suggests in a footnote, that it determined that race was “not among the most challenging impediments” to fair housing, or any number of defenses that could be raised against the Center’s argument that it was not properly considering impediments to fair housing while falsely certifying to the United States that it was doing so. By showing that it did consider race in some appropriate way, Westchester may ultimately prevail on the merits. Such disputes, however, cannot be resolved at this stage of the litigation, and the Center has sufficiently pled a cause of action to survive Westchester’s Rule 12(b)(6) challenge.
III. Failure to Plead Fraud with Particularity Under Rule 9(b) Under Rule 9(b), “in all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R. Civ. P. 9(b). The Rule requires that a complaint “(1) specify the statements that the plaintiff
claim is that Westchester did not consider race at all, when it was required to analyze impediments to fair housing.
33

contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006). Under Rule 9(b) “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed. R. Civ. P. 9(b). Nonetheless, “plaintiffs must allege facts that give rise to a strong inference of fraudulent intent.” Lerner, 459 F.3d at 290 (citation omitted). The inference “may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Id. at 290-91 (citation omitted).
The Center’s complaint satisfies the heightened pleading requirement of Rule 9(b). The complaint points out that the certifications Westchester made to the Secretary of HUD in receiving the CDBG money were false, that the statements were made by Westchester itself in its certifications, that they were made between April 1, 2000 to the present in each certification required under the statute, and that the statements were false because Westchester’s activities as a matter of policy contradicted its certification affirmatively to further fair housing. Since receipt of the CDBG funds was tied to its certifications, there is strong inference of fraudulent intent.
34

The admissions from Drummond recited in the complaint are further strong evidence of a knowing violation. Overall, the Center has sufficiently pled fraud with particularity as required under Rule 9(b).

Conclusion

The defendant's April 17, 2007 motion to dismiss is denied.

SO ORDERED:

Dated:

New York, New York July 13, 2007

United

Judge

35

 
 Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 1 of 40

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

UNITED STATES OF AMERICA ex rel. :

ANTI-DISCRIMINATION CENTER OF :

METRO NEW YORK, INC.,

:

:

Plaintiff/Relator, :

:

-v-

:

:

WESTCHESTER COUNTY, NEW YORK, :

:

Defendant.

:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

CORRECTED
ECF CASE 06 CV 2860 (DLC)

PLAINTIFF/RELATOR ANTI-DISCRIMINATION CENTER OF METRO NEW YORK, INC.’s MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 2 of 40
TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................iii-iv I. INTRODUCTION.........................................................................................................1 II. PROCEDURAL BACKGROUND ...............................................................................5 III. AFFIRMATIVELY FURTHERING: STATUTES, REGULATIONS, GUIDANCE..5 IV. STATEMENT OF FACTS ...........................................................................................8
A. Public Posture Before ADC Intervention ........................................................8 B. The Information Gained By ADC Was The Catalyst For Exposing
Westchester’s Fraud........................................................................................10 C. The Absence of Documents Confirms Westchester’s Failure to Analyze or
to Take Actions...............................................................................................11 D. Racial Segregation in Westchester County.....................................................12 E. Municipal Resistance And Its Consequences .................................................14 F. The Significance of Location of Affordable Housing Units...........................15 G. Other Impediments To Fair Housing .............................................................15 H. Westchester’s Authority To Overcome Local Zoning…................................17 I. Westchester’s Knowledge of its AFFH Obligations.......................................18 J. Westchester’s Failure to Meet its AFFH Obligation to Analyze Impediments
to Fair Housing ...............................................................................................20 K. Westchester’s Failure to Take Appropriate Action to Overcome Impediments
to Fair Housing ...............................................................................................21 L. Westchester’s Failures to AFFH Were Driven By its a priori Policy
Determinations ...............................................................................................23 V. ARGUMENT ..............................................................................................................24
I. THE LEGAL FRAMEWORK FOR ASSESSING FALSE CLAIMS ACT LIABILITY………………………………………………………………….24 A. The FCA’s Definition of “Falsity”………………………………….25
i

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 3 of 40
B. The FCA’s “Knowing” Prong Imposes No Requirement That A Defendant Have Had “Specific Intent” To Defraud the Government 26
II. WESTCHESTER SUBMITTED EXPRESS AND IMPLIED AFFH CERTIFICATIONS IN RECKLESS DISREGARD OF THEIR TRUTH OR FALSITY ...........................................................................................................27 A. Express Certifications .......................................................................28 B. Implied Certifications.........................................................................29 C. Westchester’s Failure to Take Appropriate Actions Was Foreordained ......................................................................................31 D. Westchester Effectively Hindered Fair Housing Choice ...................32
III. WESTCHESTER’S POST-HOC RATIONALIZATIONS FOR ITS ACTIONS AND FAILURES TO ACT ARE NOT PROBATIVE OF THE EXISTENCE OF “JUSTIFIABLE” OR “INNOCENT” MOTIVATIONS DURING THE FALSE CLAIMS PERIOD, BUT THE FALSITY OF THOSE RATIONALIZATIONS PROVIDES POWERFUL AFFIRMATIVE EVIDENCE OF GUILT..........................................................33 CONCLUSION...............................................................................................35
ii

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 4 of 40
TABLE OF AUTHORITIES CASES
Ab-Tech Constr., Inc. v. United States, 31 Fed.Cl. 429 (Fed.Cl.1994) .............................25, 26 Berenson v. Town of New Castle, 38 N.Y.2d 102 (N.Y. 1975) .................................................2 Huntington Branch, NAACP v. The Town of Huntington, 844 F.2d 926 (2nd Cir. 1988).........................................................................................................2, 16, 18, 33 In re County of Monroe, 72 N.Y.2d 338 (N.Y. 1988) .........................................................2, 32 Langlois v. Abington Housing Authority, 234 F. Supp. 2d 33 (D.Mass. 2002).......................30 Mikes v. Straus, 274 F.3d 687 (2nd Cir. 2001)..............................................................3, 24, 25 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 S.Ct. 2097 (U.S. 2000)............35 United States v. Inc. Village of Island Park, 888 F. Supp. 419 (E.D.N.Y. 1995) .10, 25, 26, 27 United States v. O’Connell, 890 F.2d 563 (1st Cir. 1989).......................................................10 United States v. Raymond & Whitcomb Co., 53 F. Supp. 2d 436 (S.D.N.Y. 1999) ..........26, 27 Westhab, et al. v. Village of Elmsford, 151 Misc.2d 1071, N.Y.S.2d 888 (N.Y. Supreme Court, Westchester Co., July 23, 1991) ......................................................................17, 18, 32 United States ex rel. Anti-Discrimination Center v. Westchester County, 495 F. Supp. 2d 375 (S.D.N.Y. 2007) ............................................................................5, 6, 33 United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148 (2nd Cir. 1993).........................................................................................................................26 United States ex rel. Willard v. Humana Health Plan of Texas, Inc., 336 F.3d 375 (5th Cir. 2003)…………………………………………………………………………………………26
iii

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 5 of 40
RULES AND STATUTES 24 C.F.R. §§91.225...........................................................................................................passim 24 C.F.R. §§91.425....................................................................................................................7 24 C.F.R. §§91.520(a) ...............................................................................................................9 24 C.F.R. §§570.307............................................................................................................7, 29 24 C.F.R. §§570.501......................................................................................................8, 29, 32 24 C.F.R. §§570.503................................................................................................8, 29, 30, 32 24 C.F.R. §§570.506......................................................................................................8, 12, 29 24 C.F.R. §§570.601.........................................................................................................passim 24 C.F.R. §§570.602..................................................................................................................5 24 C.F.R. §§570.904................................................................................................................18 24 C.F.R. §§570.906............................................................................................................8, 32 31 U.S.C. §3729.................................................................................................................24, 25 42 U.S.C. §§3608.................................................................................................................5, 24 42 U.S.C. §5304.......................................................................................................5, 24, 28, 29 Final Rule, 53 Fed. Reg. 34116 (Sept. 6, 1988) ........................................................................6 Westchester County Code §700.01....................................................................................15, 22
iv

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 6 of 40

INTRODUCTION

CORRECTED

This lawsuit, brought under the Federal False Claims Act (“FCA”), alleges that Defendant

Westchester County (“Westchester” or the “County”), a racially segregated county bordering New

York City, knowingly made a series of false claims and certifications to the U.S. Department of

Housing and Urban Development (“HUD”) between April 2000 and April 2006 (the “false claims period”) in order to secure more than $52 million in federal housing and community development

(“HCD”) funds for the Westchester Urban County Consortium (“Consortium”). The false

certifications concerned its compliance with the obligation imposed upon it by federal law to “affirmatively further fair housing” (“AFFH”) as a precondition for receiving HCD funds.

Congress made compliance with AFFH obligations a precondition for eligibility for CDBG

and other HCD funds in several laws, including the Fair Housing Act, 42 U.S.C. §§3608, and the Housing and Community Development Act of 1974, 42 U.S.C. §5304(b)(2). The fundamental

components of every AFFH program are clearly set forth in implementing regulations. They

include: (1) conducting an analysis to identify impediments to fair housing choice (an “analysis of impediments” or “AI”); (2) taking appropriate actions to overcome any impediments identified; and

(3) maintaining records reflecting the analysis and actions taken. 24 C.F.R. §§ 91.225; 570.601.

During the false claims period, Westchester repeatedly assured the federal government that it would meet and that it had met these regulatory AFFH obligations. These certifications were

false, and the key facts establishing this falsity were revealed to the Relator, Anti-Discrimination

Center (“ADC”) by Deputy Planning Commissioner Norma Drummond in a meeting on July 7, 2005, and in subsequent follow-up disclosures to ADC, and then confirmed in discovery herein.

Westchester failed to carry out its AFFH obligations, even though:

• Westchester had data and maps clearly demonstrating that the County is residentially

1

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 7 of 40

racially segregated (a fact starkly depicted in the map that appears at page 4).1

CORRECTED

• Westchester knew through HUD’s Fair Housing Planning Guide, correspondence

and training workshops that it had to comprehensively analyze all impediments to fair housing,

including all public and private policies and practices having a race-based impact on fair housing

choice, and knew that it had to take effective, measurable actions to overcome impediments.

• Westchester knew that the geographic location of affordable housing crucially

influences whether that housing perpetuates or reduces segregation, and that simply providing affordable housing without considering fair housing principles would not satisfy those obligations.2

• Westchester was aware that municipal resistance was a critical impediment to the

construction of affordable housing, and knew that it had the legal authority to overcome such resistance and other local restrictions on the building of affordable housing.3

• Westchester knew—from the HUD-required Cooperation Agreements that it had

entered into with 40 towns, villages and cities in Westchester (“Consortium Municipalities” or

“CMs”)—that it was forbidden from disbursing HCD funds to any CM that failed to AFFH or that

interfered with Westchester’s own efforts to do so.

Despite all this, Westchester did nothing to analyze race-based impediments to fair housing

choice. Neither its 2000 “AI” nor its 2004 “AI” ever mentioned race, racial discrimination, or racial

segregation, neither was even approached with those considerations in mind, and neither was even

1 The Planning Department prepared a similar map, but neither included it in nor referred to it in any of
Westchester’s AIs. See Initial Report of Professor Andrew Beveridge (“Beveridge Report”) [Appendix II, Tab 21] pp. 5-6 and Exhibit B. 2 In a June 1996 memo, for example, Westchester’s own Planning Department had reminded itself about
what was expected in an AI: “Remember: This is not a report on affordable housing, but FAIR HOUSING!!!” (emphasis in original). See Drummond deposition Vol. II [App. III, Tab 28] Exhibit 18. Hereafter, references to deposition transcripts will appear in the format (Drummond __ - __). 3 Berenson v. Town of New Castle, 38 N.Y.2d 102, 378 N.Y.S.2d 672 (N.Y. 1975); In re County of Monroe,
72 N.Y.2d 338, 533 N.Y.S.2d 702 (N.Y. 1988). See also Huntington Branch, NAACP v. The Town of Huntington, 844 F.2d 926 (2nd Cir. 1988).

2

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 8 of 40
CORRECTED
characterized as an analysis of impediments to fair housing. Westchester never performed a review of local laws, policies and practices to assess their impact on fair housing choice, and the County avoided any mention of municipal resistance to the building of affordable housing or to AFFH.
Westchester was just as cavalier in respect to the “action” part of its AFFH obligations. Throughout the false claims period, it refused to ameliorate the extensive racial segregation that existed in Westchester, and that continues to the present day. As Drummond revealed to ADC, Westchester closed its eyes to municipal resistance and refused to enforce AFFH or affordable housing obligations on the CMs because Westchester would not “interfere in local municipalities’ [zoning and land use decisions].” (Drummond,311:5-11). Westchester would not even monitor the planning, analysis, and performance of CMs, nor take any action specifically directed at AFFH.
The County pretended to be in compliance—by signing AFFH certifications and entering into Cooperation Agreements with CMs—and represented to HUD that it was in full compliance with its AFFH obligations. In fact, though, the County had made a decision ahead of time not to address issues like race-based impediments to fair housing or municipal resistance to affordable housing because identifying such impediments or taking effective actions to counter them might be politically difficult. Westchester’s representations to HUD were material, and they were false. At best, they were made in reckless disregard of their truth or falsity. As County Executive Spano admitted at his deposition: “I signed whatever I have to in order to get the money from HUD” (Spano 41:4-5). Such representations constitute false claims.
The County’s failures to comply with the AFFH and other civil rights obligations, while certifying to HUD that it was in compliance, violate the FCA because the County “made [claims] to the United States government that [were] false or fraudulent, knowing of [their] falsity, and seeking payment from the federal treasury.” Mikes v. Straus, 274 F.3d 687, 695 (2nd Cir. 2001).
3

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 9 of 40
Exhibit J -- % Non-Hispanic Black by Census Block and Municipal Boundaries, 2000

Peekskill

Buchanan

Cortlandt Part

Yorktown

Somers

North Salem Lewisboro

Croton-on-Hudson
Ossining Part Ossining

Mount Kisco New Castle

Bedford

Briarcliff Manor

Pleasantville

Sleepy Hollow

Mount Pleasant Part

North Castle

Tarrytown

Elmsford

Irvington

Greenburgh Part

Dobbs Ferry Ardsley

White Plains

Harrison

Rye Brook

Port Chester

Hastings-on-Hudson

Scarsdale

Yonkers

Eastchester Part Tuckahoe

Mamaroneck Part Mamaroneck

Bronxville

New Rochelle Larchmont

Mount VernonPelham

Pelham Manor

Rye City

Pound Ridge
KEY
Villages Towns and Cities
% Non-Hispanic Black
0 to 5 % 5 to 10 % 10 to 30 % 30 to 50 % 50 to 100 % No Population 0246
Miles

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 10 of 40

II. PROCEDURAL BACKGROUND

CORRECTED

Relator filed this action on April 12, 2006. The complaint was unsealed on December 18,

2006, and was served on the County on January 8, 2007. The Court denied the County’s motion to

dismiss on July 13, 2007, United States ex rel. Anti-Discrimination Center v. Westchester County,

495 F.Supp.2d 375 (S.D.N.Y. 2007), rejecting the County’s primary defense—that the HUD

regulations did not require it to consider race—and holding that “an analysis of impediments that

purposefully and explicitly, ‘as a matter of policy,’ avoids consideration of race in analyzing fair

housing needs fails to satisfy the duty affirmatively to further fair housing.” Id. at 388.

The Court having established that “the only issue is whether Westchester considered race,”

id. at 399, the central question on summary judgment is whether there is any evidence the County

did so. After taking ten fact depositions of County officials and three expert depositions, and after

an exhaustive review of nearly 500,000 pages produced in discovery, Relator can detect no genuine

issue of material fact concerning the County’s noncompliance with its AFFH obligations, or with

respect to its knowing false claims made to HUD that it was complying.

III. AFFIRMATIVELY FURTHERING: STATUTES, REGULATIONS, GUIDANCE

The County could not receive HCD funds unless it made its AFFH certifications.4 The AFFH

certification is the County’s promise that it will do three things: (1) “conduct an analysis to identify

impediments to fair housing choice within the area”; (2) “take appropriate actions to overcome the

4 See 42 U.S.C. §§3608(d) and 3608(e)(5)(requiring that HUD administer funding programs in a manner “affirmatively to further” the policies of the Fair Housing Act). The CDBG authorizing statute expressly conditions CDBG grants: “Any grant … shall be made only if the grantee certifies to the satisfaction of the Secretary that— (2) the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 [42 U.S.C. 2000a et seq.] and the Fair Housing Act [42 U.S.C. 3601 et seq.], and the grantee will affirmatively further fair housing…” 42 U.S.C. §5304(b)(2). 24 C.F.R. §§91.225 (Consortium certifications); 570.601 (incorporating the requirements of Title VI of the Civil Rights Act of 1964 and the Fair Housing Act); 570.602 (incorporating non-discrimination requirements of the Housing and Community Development Act of 1974, as amended); 24 C.F.R. §570.601(a)(2)(“In accordance with the Fair Housing Act, the Secretary requires that grantees administer all programs and activities related to housing and community development in a manner to affirmatively further the policies of the Fair Housing Act.
5

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 11 of 40
CORRECTED
effects of any impediments identified through that analysis”; and (3) “maintain records reflecting the analysis and actions in this regard.” 24 C.F.R. §§ 91.225; 570.601.
As early as 1988, HUD’s CDBG regulations defined these terms as follows: “Fair housing choice” means the ability of persons regardless of race, color, religion, sex or national origin of similar income levels to have available to them the same housing choices. “Impediments to such housing choices” are any actions, omissions or decisions taken because of race, color, religion, sex or national origin which restrict housing choices or the availability of housing choices. Final Rule, 53 Fed. Reg. 34416, 34468 (Sept. 6, 1988)(promulgating 24 C.F.R. §570.904 (c)(1)). In HUD’s 1996 Planning Guide, a document this Court has already found to be “persuasive,” Anti-Discrimination Center, 495 F.Supp.2d at 387, the agency reminded Westchester that “the scope of the AI is broad. It covers the full array of public and private policies, practices, and procedures affecting housing choice.” Planning Guide, at 2-8 (emphasis supplied).5 The AI should describe: “the degree of segregation and restricted housing by race, ethnicity, disability status, and families with children; how segregation and restricted housing occurred; and relate this information by neighborhood and cost of housing.” Id. at 2-28 (emphasis supplied). The Planning Guide explains what is required in an AI:
• A comprehensive review of a State or Entitlement jurisdiction’s laws, regulations, and administrative policies, procedures, and practices
• An assessment of how those laws, etc. affect the location, availability, and accessibility of housing
• An assessment of conditions, both public and private, affecting fair housing choice for all protected classes.6
5 See The Fair Housing Planning Guide (“Planning Guide”) [Appendix I, Tab 2]. 6 The term “protected classes” references Fair Housing Act (“FHA”) prohibition of discrimination on the basis of race, color, religion, sex, national origin, familial status and disability.
6

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 12 of 40
CORRECTED
Id. at 2-7 (emphasis supplied). To do its job, a jurisdiction “must become fully aware of the existence, nature, extent and causes of all fair housing problems and the resources available to solve them.” Id. at 2-8 (emphasis supplied).
As defined by HUD, “impediments to fair housing choice” are not limited to a subset of fair housing problems, are not limited to intentional discrimination, and, indeed, are not limited to actions. On the contrary, HUD defines “impediments to fair housing choice” as broadly as can be:
• Any actions, omissions, or decisions taken because of race, color, religion, sex, disability, familial status, or national origin which restrict housing choices or the availability of housing choices
• Any actions, omissions, or decisions which have the effect of restricting housing choices or the availability of housing choices on the basis of race, color, religion, sex, disability, familial status, or national origin.
Id. (emphasis supplied). Federal regulations also require a grantee to “take appropriate actions to overcome the
effects of any impediments…” 24 C.F.R. §§ 91.425, 570.601. The purpose of the requirement is to have actions tailored to the particular problems that exist in each community. Planning Guide, supra, at 2-22. The need for constant evaluation and reevaluation is made clear by the importance that HUD attaches to each fair housing plan having a “self-assessment program” that monitors progress and evaluates the effectiveness of the fair housing plan. Id. at 2-23.
A grantee must also monitor the planning, analysis and performance of municipalities in its funding consortium. 24 C.F.R. §570.307. A grantee that knows of municipalities that have erected substantial impediments to fair housing choice, and have repeatedly failed or refused to take appropriate steps to overcome these impediments, must consider a range of actions suitable to the circumstances, including a decision to withhold funds to induce AFFH compliance. 24 C.F.R. §§570.501, 570.503. The County is held “accountable for the actions or failures to act” of those municipalities. 24 C.F.R. §570.906.
7

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 13 of 40
CORRECTED
Finally, the County, throughout the false claims period, was under an obligation to
“establish and maintain sufficient records to enable the [HUD] Secretary to determine whether the
recipient has met the [regulatory] requirements,” including, “at a minimum,” “fair housing and
equal opportunity records” containing:
Documentation of the analysis of impediments and the actions the recipient has carried out with its [HCD] and other resources to remedy or ameliorate any impediments to fair housing choice in the recipient's community.

24 C.F.R. §570.506(g)(1) (emphasis supplied). In other words, the County must document the

planning and execution of its AI, and the actions taken to overcome impediments, in a manner

sufficiently robust to permit a determination of whether “the recipient has met the requirements…”

Id. HUD’s regulation forecloses the argument that a jurisdiction can limit its analysis and actions to

“significant” or “challenging” fair housing problems, or to problems experienced by only one or

two of the protected classes. IV.

STATEMENT OF FACTS7

A. Public Posture Before ADC Intervention

During each year of the false claims period, Westchester applied for HCD funds on behalf of

itself and the CMs. Answer ¶10. Each of the applications contained a certification by the County Executive that the County “will comply with the attached assurances if the assistance is awarded.” 8

In each such application, Westchester certified that it would affirmatively further fair housing by

conducting an AI, taking appropriate actions to overcome the effects of any fair housing

impediments, and maintaining records reflecting that analysis and those actions, Answer ¶22, ¶24.

The County was also required to submit a Consolidated Annual Performance Report (“CAPER”) to

7 Relator incorporates by reference each and all of the undisputed facts in its FRCP 56.1 statement, and each and all of the opinions of its experts, the reports and rebuttal reports of whom are contained in App. II, Tabs 21 - 27. 8 See Application for Federal Assistance, a representative sample of which appears at App. I, Tab. 5. Such applications are incorporated into each of the County’s Annual Action Plans for FY 2000 through FY 2006, at App. I, Tab 9.
8

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 14 of 40
CORRECTED
HUD which included “a description of the …actions taken to affirmatively further fair housing.” 24 CFR §91.520(a).
Throughout the false claims period, Westchester repeatedly sought and received payments from HUD premised upon the notion that it had fulfilled its obligations to the federal government, ultimately receiving more than $52 million.9 Westchester entered into Cooperation Agreements10 with each CM that contained HUD-prescribed language reaffirming that Westchester understood and took seriously its AFFH responsibilities:
The County and Cooperating Municipality will take all required action to comply with the provisions of Title VI of the Civil Rights Act of 1964, the Fair Housing Act of 1968 and the Americans with Disabilities Act of 1990 to assure compliance with the certification required by Section 104(b) and 109 of Title I of the Housing and Community Development Act of 1974 as amended, and other applicable laws….Further, the County is prohibited from expending Urban County funding for activities in or in support of any local government that does not affirmatively further fair housing within its own jurisdiction or that impedes the County’s action to comply with its fair housing certifications. Sample Cooperation Agreement, excerpts from paragraph 6(a) (emphasis supplied). The County Executive and the Planning Department were responsible for administration of the CDBG program and compliance with the AFFH certifications, but the Board of Legislators (“the County Legislature”) was a full partner with the executive branch, passing legislation authorizing the submission of every application for HCD funds, every related HUD report, and every Cooperation Agreement entered into with the 40 CMs. (Drummond 191:21-24; 57:18-22).
9 HUD Funding Approval/Agreement forms, FY 2001-2006 [App. I, Tab 6]. 10Sample cooperation agreements are appended to Drummond deposition [App. III, Tab 31] Ex. 12, ¶6(a).
9

Case 1:06-cv-02860-DLC Document 90 Filed 10/17/2008 Page 15 of 40
CORRECTED
B. The Information Gained by ADC Was the Catalyst For Exposing Westchester’s Fraud
From 1994 to the present, including the entire false claims period, Norma Drummond has
had program responsibility in the Planning Department for administration of the CDBG program
and the County’s AFFH certifications. (Drummond 44:15 - 56:8). Planning Commissioner Gerald
Mulligan confirmed that Drummond carries out the policies that he asked her to carry out and that
she would not take action that he advised her not to take (Mulligan Deposition [App. III, Tab 30]
29:23-25 and 29:20-22). It would be entirely uncharacteristic of Drummond to act without
authority (Mulligan 29:16-19). The County Executive confirmed in his deposition that Drummond
is responsible for making sure that Westchester’s AFFH obligations are carried out (Spano 24:720). 11
Drummond invited Craig Gurian, ADC’s Executive Director, to a meeting in her office on
July 7, 2005 (Drummond 305:24 – 305:5). ADC had previously submitted a Freedom of
Information Law (“FOIL”) request to Westchester that raised a variety of issues in connection with the County’s AFFH obligations.12 After the meeting, Gurian promptly memorialized the meeting (“Contemporaneous Memo”).13 The Contemporaneous Memo’s accuracy in identifying admissions
made by Drummond has been confirmed in deposition by Gurian and his ADC colleague Richard Bellman,14 who attended the meeting; and has been independently confirmed through the
11 Spano and Mulligan both ratified Drummond’s actions with respect to the AFFH certifications (Spano 27:8-20; 117:6-14; Mulligan 29:11-25). Spano himself signed those certifications and, with the concurrence of the County Legislature, authorized the Planning Department to enter into contracts with CMs, to disburse funds and to submit requests for payment to HUD. Even without such ratification, the County is bound by Drummond’s actions and admissions. See United States v. Incorporated Village of Island Park, 888 F.Supp. 419, 438 (E.D.N.Y. 1995)(“Respondeat superior applies to violations of the False Claims Act committed by an employee of a corporation who is acting within the scope of his authority and, at least in part, for the employer’s benefit.”). A corporation is also liable for violations of the False Claims Act committed by an employee who acted with apparent authority, even if the acts do not benefit the corporation at all. United States v. O’Connell, 890 F.2d 563, 567-68 (1st Cir.1989). 12 The FOIL request is an exhibit to the Gurian deposition [App. III, Tab 40] Ex. E.
13 “Contemporaneous Memo” Gurian deposition [App. III, Tab 40] Ex. D.
14 See, generally, Gurian Deposition [App. III, Tab 40] and Bellman Deposition [App. III, Tab 41].
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depositions of Westchester officials, or by admissions by Westchester in response to requests for admissions, or by documentary proof of the limits of Westchester’s analysis and actions.15
During that meeting, Drummond revealed that Westchester did not analyze impediments to fair housing from the point of view of race (either in terms of demographics or in terms of discrimination), and that Westchester did not treat as an impediment anything that was not brought to the County’s attention by a CM or other non-County entity. As a matter of policy, Westchester would not monitor a CM’s efforts to AFFH because that would be seen as “interference” with the municipalities, and the County’s policy “has never been to chastise municipalities,” either with respect to their performance or lack of performance concerning either affordable housing or AFFH. Drummond revealed that the County would not, as a matter of policy, withhold or threaten to withhold HCD funds from a CM in the face of a failure to AFFH: “[W]e wouldn’t tell a municipality what to do.” 16 Among other things, Westchester did not require CMs to document that they had affirmatively furthered fair housing, did not require CMs to take specific steps to AFFH as a condition of receiving federal funding; and did not require CMs to identify land suitable for affordable housing development. Westchester’s message to those municipalities was: “You know your municipalities best, look to the needs of your residents.”17 C. The Absence of Documents Confirms Westchester’s Failure to Analyze or to Take Actions
Drummond’s statements to ADC were confirmed by the fact that there were no documents produced pursuant to ADC’s FOIL request (other than a sample Cooperation Agreement) that evidenced any requirement imposed by Westchester on a municipality, any corrective action taken
15 See generally, Drummond Deposition [App. III, Tab 31]; Defendant’s Responses & Objections to Plaintiff/Relator’s First Requests for Admission (“Responses to First Requests for Admission”) [App. I, Tab 1]; Defendant’s Responses & Objections to Plaintiff/Relator’s Revised Second Requests for Admission.(“Response to Second Requests for Admission”) [App. I, Tab 3]. 16 See Contemporaneous Memo for each of the admissions referenced in this paragraph. 17 See Contemporaneous Memo for each of the admissions referenced in this paragraph.
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or threatened to be taken by Westchester, any AFFH monitoring or analysis by Westchester, or any records concerning any consideration of housing discrimination or housing segregation as an impediment to fair housing. If Westchester had conducted an actual AI or had taken appropriate actions to overcome impediments to fair housing, there would be documents to prove it.18
The absence of documents was confirmed in the course of discovery in this action. Outside of the bounds of the purported “AIs” themselves (which have no mention of race whatsoever),19 and outside the bounds of Westchester’s Annual Action Plans (which, throughout the false claims period never identify actions targeted to overcome impediments to fair housing),20 there are simply no documents – zero out of more than 500,000 pieces of paper turned over– that reflect any analysis or action by Westchester in any of the areas that ADC initially identified. D. Racial Segregation in Westchester County
Westchester knew that it was residentially segregated on the basis of race, and has admitted that it was aware of the racial composition of each of its municipalities during the preparation of the 2000 and 2004 purported “AIs.”21 It knew that more than three-quarters of Westchester’s municipalities had very large or very small African-American populations,22 and has now conceded that more than half of CMs had African-American populations of 3% or less, and that 15 CMs had a Black population of 1% or less.23 Despite Westchester’s extensive efforts to claim that these data
18 See 24 CFR §570.506(g)(1). 19 See 1996, 2000, and 2004 Analyses of Impediments (“AIs”) [App. I, Tabs 7, 8], and [App. III, Tab 28], respectively. The similarity of the documents is consistent only with “cutting-and-pasting,” not analysis. 20 Westchester County’s 2000-2006 Annual Action Plans [App. I, Tab 9]. 21 See Responses to Second Request for Admissions [App. I, Tab 3] Nos. 30 and 31. 22 See Response to Second Request for Admissions [App. I, Tab 3] No. 29. 23 See Response to First Request for Admissions [App. I, Tab 1] Nos. 9, 10, and 13.
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do not reflect racial segregation, Westchester officials, when unguarded, have admitted the existence of racial segregation.24
Professor Andrew Beveridge confirms that the fact of segregation in Westchester is
unmistakable if one simply takes a moment to look at any demographic map, including the map prepared by Westchester’s Planning Department (but never referenced in the “AIs”).25 He also
confirmed that the Planning Department had ready access to the data and methodologies necessary
to assess whether the County is segregated. Beveridge found that a high level of segregation for
African-Americans existed and had existed over time in Westchester, whether measured by the dissimilarity index or by the isolation index.26 Indeed, the increase in the isolation index for
African-Americans, measured from 1950 to 2000, “represents more than a doubling of the concentration experienced in the tract where the average black lived.”27 The “data person” of the
Westchester Planning Department during the false claims period, Michael Lipkin, admits both
having access to and to utilizing 2000 Census Data (Lipkin Deposition [App. III, Tab 33] 31:16 –
22 and 68:3 – 71:11); indeed, at his deposition, Lipkin was easily able to identify areas of African-
American concentration “off the top of his head” because “this was my job, this what I did every day.” (Lipkin 71:6-17). Westchester’s experts agreed that the County was segregated.28
24 Dolores Braithwaite, the Executive Director of Westchester’s Human Rights Commission, someone whose views were not solicited in connection with the preparation of the 2004 “AI,” testified that “there are quite a few segregated areas in Westchester” (Braithwaite Deposition [App. III, Tab 32] 71:18-19). Norma Drummond admitted that, “Whether [communities] are in fact segregated, I agree is based on data” (Drummond 84:20-21). She testified that between 24 and 50 Westchester Census tracts were “hypersegregated,” indicating that they were above 40% minority population. (Drummond 231:17 - 232:24). 25 Initial expert report of Andrew Beveridge, Ph. D (“Beveridge Report”) [App. II, Tab 21] pp. 5-7. 26 Id. at pp. 7-10. 27 Id. at p. 9. 28 Westchester’s purported expert, Gary Lacefield, agreed: “[A]bsolutely there are segregated communities in Westchester” (Lacefield Deposition [App.III, Tab 34] 117:14 – 118:4) Westchester’s other experts agree. Dr. Finis Welch testified, “[O]f course there are ‘racial clusters’ in Westchester: I’ve seen these [segregation] indices and they do show differential patterns” (Welch Deposition [App. III, Tab 35] 81:11-18). And Professor William Clark: “No one denies the fact that there is racial concentration in Westchester County” (Clark Deposition [App. III, Tab 36] 102:2-5).
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Faced with the plain facts about racial segregation, the County ignored the issue in its 2000 or 2004 “AIs,” and subsequent Annual Action Plans and CAPERS submitted to HUD.
E. Municipal Resistance and its Consequences Throughout the false claims period, Westchester was aware that municipal resistance to
affordable housing and to racial integration was operating in many parts of Westchester. The County’s Housing Opportunity Commission (“HOC”) identified such resistance in at least three of its reports.29 HOC’s Affordable Housing Action Plan, known to the Planning Department as it developed the 2004 “AI” (Drummond 207:6 – 210:11), explicitly reiterated the fact that progress in taking steps to facilitate the production of affordable housing “has been minimal in most municipalities,” and that “it is the municipalities who will determine whether the affordable housing crisis will be eased or whether it will continue to worsen for another decade.”30 In 1996, Westchester Residential Opportunities warned Westchester in a letter that strict zoning by municipalities limits equal housing opportunities and sends a “Stay Out” message to minorities.31 It also advised that “Westchester residents consider ‘low-income’ to be a synonym with ‘minority,’” resist participation in Section 8 programs, and thereby create or maintain residential racial segregation.32 Drummond agreed with each of these assessments (Drummond 425:25 – 426:25), but “from a county policy perspective” thinks that there is no obligation on the part of municipalities to see that affordable housing gets built (Drummond 429:2-8). The fact of continuing municipal resistance to affordable housing could not change the County’s pre-determined “cooperative approach” during the false claims period. As the County Executive revealingly
29 See Housing Opportunities for Westchester: A Guide to Affordable Housing Development (“Guide to Affordable Housing Development”) [App. I, Tab 10], End of Decade Report [App. I, Tab 11] and the Affordable Housing Action Plan [App. I, Tab 12]. 30 Affordable Housing Action Plan [App. I, Tab 12] pp. 10 and 15 (emphasis supplied). 31 August 5, 1996 letter from Westchester Residential Opportunities to Kim Holland of the Westchester Planning Department, Drummond Deposition Vol. II [Appendix III, Tab 28] Ex. 23. 32 Id.
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testified: “I’m a very successful politician, I won by three landslides. And I’ve won by operating the way I’m talking to you about...” (Spano Deposition [App. III, Tab 29] 106:15-18). F. The Significance of Location of Affordable Housing Units
The County knew that 20 overwhelmingly White CMs did not build a single unit of affordable housing between 1993 and 2006.33 Consequently, the County knew that its affordable housing program was not expanding fair housing choice for African-Americans into white communities, but further concentrating affordable housing in segregated neighborhoods.34 The County Executive himself, reflecting on the Yonkers litigation, understood that where affordable housing is and is not built has important racial dimensions.35
Drummond testified that putting more affordable housing in places that already have a lot of affordable housing may have the effect of perpetuating segregation in those communities (Drummond 177:11-19). Jerrold Levy, general counsel of the Enhanced Section 8 Outreach Program, an independent nonprofit without County funding, testified that “there’s been a history in Westchester County of both local and county government not taking any affirmative steps in any manner” to “integrat[e] the county,” but rather of “doing the opposite, actually funding groups that actually perpetuated segregation in the county” (Levy 11:18-25). G. Other Impediments to Fair Housing
Despite the County Legislature’s own finding in just a year before the start of the false claims period that “there have been repeated instances of intolerance and discrimination committed in Westchester County,” County Code §700.01, neither AI mentioned these issues. Nor did they
33 See End of Decade Report [App. I, Tab 11] pp. 1-2; Affordable Housing Allocation Plan [App. I, Tab 13] Tables A, C; Rebuttal Report of Andrew Beveridge, Ph.D. (“Beveridge Rebuttal Report”) [App. II, Tab 22] Ex. R-1, Ex. R-2. 34 Beveridge Rebuttal Report [App. II, Tab 22] 1-2, Exhibits R-1, R-2. 35 First observing that affordable housing was initially only being built on the West side of the city (but not on the east side), he characterized the case as being about “segregating the one group and putting them to one side of the city and not putting them to the other side of the city” (Spano 15:17 - 17:5).
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mention, as the County’s own experts and officials acknowledge, that the that lack of transportation and jobs could be barriers for African-Americans moving to parts of Westchester County. (Mulligan 48:7 – 49:13; 51:17 – 53:14). Another impediment to fair housing stems from the operation of affordable housing “preferences,” particularly for seniors or for existing local residents. (Drummond 324:20 – 325:17; 101:20 – 102:9; Spano 81:5 – 83:11). This housing has been understood to be “less controversial” than housing open to all comers (Spano 80:15-22; Drummond 335:16-20) but has the potential to perpetuate patterns of segregation.36
County officials were aware that some opposition to affordable housing was expressed in terms of a feared impact on the public schools. (Drummond 334:24 – 335:20). The HOC concluded that some municipalities had “generate[d] constitutionally prohibited zoning ordinance[s]” and that opposition to affordable housing on the basis of “school burden” was “a pretext for a fundamentally unacceptable use of the land use powers delegated … to local municipalities….”37 Drummond claimed not to know whether some African-American families might be inhibited from moving into a community that had a very small African-American population (Drummond 94:2-9),38 but did share her view that “African-Americans feel more comfortable living among other African-Americans and that White people feel more comfortable living among other White people.” (Drummond 337:7-17).
In the course of their depositions, high-ranking County officials also revealed their knowledge of a several fair housing impediments that were never included in the “AIs,” never analyzed, and never addressed by County action. Among the impediments the “County … chose not to list,” (Drummond 222:23-24) were (1) “blockbusting by realtors,” (Drummond 222:8 –
36 See Huntington Branch, NAACP, 844 F.2d at 937 (blocking affordable housing perpetuated segregation). 37 See End of Decade Report [App. I, Tab 11] p. 5. 38 Cf. testimony of defendant’s expert Clark: for African-Americans, lack of integrated neighborhoods “certainly has a constraint on the extent to which they can exercise their choice” (Clark 94:8-17).
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224:18); (2) racial steering by real estate agents (Mulligan 84:2 – 86:9);39 (3) adoption and enforcement of a zoning ordinance in Mount Kisco that the County believed had a disparate impact on the basis of national origin and familial status (Drummond 225:6 – 228:12); and (4) opposition to affordable housing planning boards in three CMs (Drummond 151:19-25; 193:18 – 194:12). H. Westchester’s Authority to Overcome Local Zoning
Westchester believed throughout the false claims period that the building of affordable housing serves an important and valid County purpose (Spano 42:23 – 43:2). Westchester knew exactly how to do it: “the way we normally operate is we get the land, and we get a developer to come in, we offset the costs so they can be affordable, and let them put it up” (Spano 50:6-9).
Prior to 2000, Westchester already knew that it had authority, pursuant to the County of Monroe and Berenson doctrines enunciated by New York State’s highest court, to overcome local restrictions on the building of affordable housing. The HOC repeatedly referred to the Berenson doctrine (a municipality’s obligation to zone for regional housing need) in its reports.40 In 1991, the County itself successfully invoked the County of Monroe “public interest” doctrine to override municipal ordinances in Elmsford when the County determined that a transitional housing program for formerly homeless people should be established there. See Westhab, et al v. Village of Elmsford, 151 Misc.2d 1071, 574 N.Y.S.2d 888 (N.Y. Supreme Court, Westchester Co., July 23, 1991. The County’s brief argued, and the Westhab court agreed, that:
It is clear that under either the Nehrbas standard…or under the new [County of] Monroe standard, neither the County nor Westhab as its agent are subject to the Village building code requirement. Westhab is performing an essential governmental function as an agent of Westchester County, as well as fulfilling the expressed intent of the legislature to aid the homeless in the public interest.
39 See Do Real Estate Agents Treat Minorities Differently Than Whites?, [App. I, Tab 14] and (Brathwaite 61:14 – 62:5) (indicating she “would not have contacted the Planning Department” concerning such matters, and did not participate in the e 2004 AI process). 40 See, e.g., Guide to Affordable Housing Development [App. I, Tab 10] at 12-13 (referring to “affordable housing as a mandated municipal obligation,” and Affordable Housing Action Plan [App. I, Tab 12] at 3.
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Neither Westhab nor the County are [sic], therefore, bound by local law.

CORRECTED

Westchester County’s Memorandum of Law in Response to Plaintiff’s Motion for a Preliminary Injunction, filed in Westhab, Inc. v. The Village of Elmsford, et al. [App. I, Tab 15] pp. 24-25.41

I. Westchester’s Knowledge of its AFFH Obligations By 1996, the County was well apprised of its AFFH obligations. 42 It knew it was

prohibited from funding CMs that did not AFFH, 24 C.F.R. §570.904, and the County knew it. See,

e.g., Cooperation Agreement, ¶6(a) and HUD’s Instructions for Urban County Qualification for

Participation in the CDBG Program for Fiscal Years (FYs) 2006-2008 (April 6, 2005), D0368484-

518 (providing that County “must submit [to HUD]…copies of fully executed cooperation

agreements … between the county and its [Consortium Municipalities]…”). In other words, the

Cooperation Agreements were a precondition to the County receiving federal funding for the

Consortium, and the submission of those agreements was a representation to HUD that the County

would neither act in ways contrary to the agreements nor fail to enforce the terms of the agreements

vis-à-vis the CMs. HUD was entitled to rely on this representation.

Westchester had the Planning Guide even before 2000, but it also had internal Planning Department memos to draw on. 43 One 1996 memo was entitled “Westchester County Fair Housing

Plan Outline,” written to a Drummond subordinate; the other, written in the same year by that

41 This authority existed in addition to the authority to challenge municipal restrictions on housing pursuant to the Fair Housing Act. See, e.g., Huntington Branch, NAACP v. The Town of Huntington, 844 F.2d 926 (2nd Cir. 1988) (local zoning illegally disparate impact on the basis of race). See (Spano 118:23-24) (”Any policy that we develop is vetted through the Law Department”). 42 See, e.g., Response to Requests for Admission [App. I, Tab 1] No. 4 and Chapter 2 of the Planning Guide [App. I, Tab 2]. See also a July 17, 1996 HUD letter to the County advising that the “[County’s 1996] AI should contain a description of the degree of segregation and restricted housing by race, ethnicity, disability status and families with children; explain how segregation and restricted housing supply occurred; and relate this information by neighborhood and cost of housing…Records should also be kept which pertain to specific actions taken to affirmatively further fair housing.” [App. I, Tab 4] 43 See Response to Requests for Admission [App. I, Tab 1] No. 4, and see discussion of Planning Guide, supra, at pp. 7-8. Norma Drummond specifically recalls having reviewed the Planning Guide prior to preparing the 2004 “AI” (Drummond 266:15-18). Either she also reviewed it prior to the 2000 “AI,” or she recklessly failed to do so.
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Drummond subordinate had the subject heading “Fair Housing Plan,” and Drummond was a recipient.44 The memos set out the substance of Westchester’s AFFH responsibilities, including the fact that demographic patterns should be looked at; that “segregation” is a type of impediment; and that any action, omission, or decision that has the effect of restricting the available of housing choice on the basis of race constituted an impediment to fair housing choice.
With the exception of the recommendation in the Fair Housing Plan memo to create a centralized database of all assisted housing programs in order, inter alia, to “integrate waiting lists, thereby broadening housing choices and encouraging applicants to consider racially non-impacted areas”45 – a recommendation with which Drummond did not agree (Drummond 402:24 – 404:2) – there was no part of that memo’s summary of AFFH requirements with which Drummond came to disagree in the period from 1996-2008 (Drummond 398:14-19). With respect to the “Fair Housing Plan Outline,” there was nothing in it which Drummond disagreed with (Drummond 367:5-14 and 369:9-14). Drummond also confirmed that she knew that Westchester’s AFFH obligations encompassed the obligation to maintain records that reflect its analysis of impediments to fair housing and that reflect the actions it took to overcome impediments (Drummond 368:4-7).
Westchester’s knowledge of its obligations was supplemented by a 2002 HUD training attended by Drummond, Westchester’s point person for AFFH compliance. The extensive training materials, which she kept in her office, repeatedly highlighted the importance of identifying the scope and causes of racial segregation, and taking actions to overcome that segregation.46 One section identified the need to speak to all categories of impediments to fair housing “even though there may be a particular area free, in the grantee’s view, of significant barriers.”47
44 The former is Drummond Vol. II [App. III, Tab 28] Exh. 18; the latter is Exhibit 19 to that deposition. 45 See Drummond Deposition Vol. II [App. III, Tab 28] Ex. 19, p. 3. 46 The materials are included as an exhibit to the Drummond deposition [App. III, Tab 31] Ex. 10. 47 Id. at Bates D0124508.
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Despite significant effort to evade the fact of racial segregation in Westchester, the County Executive explained that AFFH means “having a proactive policy to make sure that you have a appropriate mixture of racial integration,” something he believes Westchester has achieved “in the City of Yonkers” (Spano 94:10-22). He recognized that even non-systemic impediments to fair housing must be addressed (Spano 96:24 – 97:8).
Westchester knew that simply writing about affordable housing would not meet its obligation to analyze and act pursuant to its AFFH obligations. On more than one occasion, including in a 1996 letter from the Planning Department to Westchester Residential Opportunities (copied to Drummond), the County noted that “the Planning Department has prepared several reports that address affordable housing which should not be confused with the Fair Housing Plan.”48 J. Westchester’s Failure to Meet its AFFH Obligation to Analyze Impediments to Fair Housing
In the face of its knowledge both of relevant conditions and of its AFFH obligations, Westchester did not conduct an AI process at any time during the false claims period that bore any relation to what it was required to do. Indeed, the “AIs” are not even characterized as analyses of impediments to fair housing choice. Ignoring HUD training and guidance, and the County Executive’s admission of that AFFH imposes an obligation to work toward racial integration, the “AIs” make no reference to race, race discrimination, or racial segregation.49 This absence is not explained by any process of “analysis” – Westchester concedes that there are no documents other than the Consolidated Plans themselves that reflect or underlay any conclusion that “there were no
48 See Drummond Deposition Vol. II [App. III, Tab 28] Exh. 22 (emphasis supplied). 49 See generally, 1996 AI, 2000 AI, 2004 AI [App. I, Tabs 7,8] and [App. III, Tab 28].
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significant race-based impediments to fair housing choice in Westchester County, and the Consolidated Plans offer no support for that proposition.”50
Despite receiving warnings that an AI was supposed to be a study of impediment to fair housing, not simply a report on affordable housing, and despite Drummond knowing that this was true (Drummond 424:5-21), Westchester only examined affordable housing, and did so in a way entirely unrelated to the ways that the quantity and location of affordable housing has an impact on the fair housing choices of African-Americans. Westchester never even conducted any analysis of whether the production of affordable housing between 1992 and 2006, had the effect of increasing or decreasing racial diversity in the neighborhood in which it was built.51 Where the HOC placed municipal resistance at the forefront of the affordable housing crisis, the “AIs” are conspicuously silent on this issue, just as they are silent as to all other impediments discussed herein.
K. Westchester’s Failure to Take Appropriate Action to Overcome Impediments to Fair Housing In terms of action to fulfill its AFFH responsibilities, Westchester did nothing. No
monitoring; no requirements; no inclusion of fair housing issues in its master plan (Patterns for Westchester). Westchester never adopted as a goal or objective a reduction of large inter-municipal variations in racial composition.52 It did not use its County of Monroe authority (as it had done in the Westhab case) or its Berenson authority (which it also knew existed) to get housing built in resistant municipalities. Municipalities were not even required to consider whether their zoning and land use ordinances had the effect of limiting housing choice on the basis of race.53
50 Response to Second Revised Request for Documents [App. I, Tab 18a] No. 17. 51 Response to Second Requests for Admission [App. I, Tab 3] No. 37. 52 Response to Second Requests for Admission [App. I, Tab 3] No. 32. 53 Response to Second Requests for Admission [App. I, Tab 3] No. 36.
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Ignoring its obligation – set forth, inter alia, in its own Cooperation Agreements with CMs –
Westchester did not de-fund or threaten to de-fund municipalities that were failing to AFFH or that
were interfering with Westchester’s own efforts to AFFH.
Putting the County in the best possible light, Westchester was indifferent to the location of
County-funded affordable housing. The predictable result was that the development of Countyfunded affordable housing perpetuated rather than ameliorated segregation.54 Westchester was so
reckless about its AFFH obligations that it did not bother to train either Michael Lipkin (its
Planning Department “data person”) or Dana Sanchez (the Planning Department person responsible
for CDBG grant administration) or Mark Massari (the Department’s accountant who submitted
requests for payment to HUD) on Westchester’s AFFH responsibilities. (Lipkin 45:2 – 46:6;
Sanchez Deposition [App. III, Tab 38] 48:3-22; Massari Deposition [App. III, Tab 39] 20:15 –
22:8).
Legislatively, Westchester actively increased barriers to fair housing choice by giving
municipalities a “right of first refusal” device by which to increase the leverage municipalities could exert against the construction of affordable housing.55 The same legislative body has declined to
pass legislation prohibiting discrimination against Section 8 tenants, legislation that would facilitate freer fair housing choice throughout Westchester. (Levy 12:13 – 13:15).56
54 Beveridge Rebuttal Report [App. II, Tab 22] pp. 1-2. 55 Though Norma Drummond acknowledged that the legislation created an impediment to affordable housing construction (Drummond 163:2-7), this impediment was never mentioned in an AI or an update to an AI). 56 In terms of an area where legislative action had been taken prior to the false claims period – the creation of a Human Rights Commission – effective implementation did not follow. In 1999, the County Legislature found that there was no greater danger to the public welfare than prejudice based, inter alia, on race, and that, notwithstanding federal and state law, “there have been repeated instances of intolerance and discrimination committed in Westchester County.” Westchester County Code §700.01. Yet in 2008, the Human Rights Commissioner testified that “we’re just in the embryonic stage of doing [housing],” that “[w]e are just getting involved more in the housing discrimination area,” and that exploring the demographics of the county to determine their relationship with discrimination or other housing problems “is one of the things that's on our list to look at,” as “we now begin to get more involved in the fair housing.” (Braithwaite 88:9-11, 92:24-25, and 74:12-22, respectively).
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L. Westchester’s Failures to AFFH Were Driven by its a priori Policy Determinations Westchester’s failures to analyze or to act were matters of a priori Westchester policy, as
originally revealed in the ADC-Drummond meeting. See Contemporaneous Memo. Because of limitations on the size of this brief, three additional illustrations will have to suffice. The County Executive himself testified that he effectively gave municipalities a veto over where Westchester would and would not buy land for the construction of affordable housing.57 Where a municipality does not want affordable housing, the County Executive lets the municipality have its way (Spano 45:17 - 46:5), even though the County was warned of (and Norma Drummond now acknowledges) the segregating consequences (Drummond 424:23 – 426:17).
Despite Westchester’s insistence that the greatest impediment to fair housing is the absence of affordable housing, 2000 AI at 259; 2004 AI at Slide 302, and despite the clear language of the Consortium Agreements barring expenditure of funds in or for municipalities that fail to AFFH or interfere with Westchester’s efforts to AFFH, Westchester never took any action to exclude any of the 20 municipalities that met 0% of its affordable housing allocation (Mulligan 63:8-14).
Planning Commissioner Mulligan did acknowledge at his deposition the possibility of racebased impediments to fair housing existing in Westchester (Mulligan 79:14-23),58 though he was unable to say where they fell on a continuum of all impediments to fair housing (Mulligan 81:2-11). Nevertheless – even though County Executive Spano acknowledged at his deposition that the County’s AFFH obligation meant that even those impediments to fair housing not perceived to by
57 “I will never buy it unless I ask the town, hey, if I buy this land and sell it to this guy, what are you guys going to do about the housing, are you going to approve it or not approve it, because sometimes the land’s zoned one way and it has to be rezoned” (Spano 44:24 – 45:5) (emphasis supplied). 58 Cf. testimony of Human Rights Commissioner Braithwaite (Braithwaite 31:20-21) (“I’m sure there is housing discrimination in Westchester County, yes”).
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“systemic” must be addressed59 – Westchester had decided in the false claims period not to mention race-based impediments at all: “[W]e talked and decided to approach it the way we did” (Mulligan 81:19-20). This disconnect is only understandable in light of the County Executive’s acknowledgment that a willingness to work towards racial integration had to be tempered by what he called “political reality” (Spano 97:12-15), a limitation not contemplated by the County’s absolute obligations to AFFH.60
ARGUMENT POINT I
THE LEGAL FRAMEWORK FOR ASSESSING FALSE CLAIMS ACT LIABILITY In violation of the False Claims Act (“FCA”), Westchester: (1) made claims (2) to the
United States government, (3) that were false or fraudulent, (4) knowing of their falsity,61 and (5) seeking payment from the federal treasury. See Mikes v. Straus, 274 F.3d 687, 695 (2d Cir.2001). In multiple submissions to HUD, Westchester certified compliance with the Fair Housing Act, 42 U.S.C. §3601 et seq., the Housing and Community Development Act, 42 U.S.C. §5304; and related regulations, including the AFFH regulations, as a “condition to governmental payment” of Housing and Community Development (“HCD”) funds in the amount of more than $52 million during the false claims period. The County does not contest the first, second, and fifth elements of the Mikes
59“[W]e have an obligation…to try to do the best we can to make sure …that this world is as diverse and as integrated…as it can be, and we try that” (Spano 97:24 – 97:8). 60 There has been and continues to be a widespread perception that efforts to expand housing opportunity are politically difficult. See, e.g., Elsa Brenner, “Housing Goals Remain Elusive,” NEW YORK TIMES, August 31, 2008 (quoting Richard Hyman, a consultant to HOC remarking: “What’s more, a lot of good politicians who supported the cause [of affordable housing] have lost their jobs over the issue.” 61 FCA liability can be established by showing that the County “knowingly present[ed], or cause[d] to be presented, to an officer or employee of the United States Government … a false or fraudulent claim for payment or approval,” or that such person has “knowingly ma[de], use[d], or cause[d] to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government.” 31 U.S.C. §3729(a).
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test, and the balance of this brief addresses the third and fourth elements only.62 As the following
sections of the brief and Relator’s Rule 56.1 Statement document, there is no genuine issue of material fact with respect to the remaining elements.63
A. The FCA’s Definition of “Falsity”
Relator relies principally on the “legally false” certification theory, which is “predicated
upon a false representation of compliance with a federal statute or regulation … as a condition to governmental payment.” Mikes, 274 F.3d at 696, 697.64 In the Second Circuit, a claim can be
“legally false” where there has either been an express false certification or an implied false
certification. Id.at 697-99. With respect to the express certification claim, Westchester’s repeated
certifications throughout the false claim period that it would analyze impediments to fair housing
and take appropriate actions to overcome impediments to fair housing were both pre-requisites to
participation in and funding under federal housing programs, and, as shall be discussed below, were
irreconcilable with Westchester’s a priori decisions – as reflected both by admissions and by a
pattern of conduct – not to analyze and not to act, especially with regard to race-based impediments
or impediments dealing with municipal resistance to the placement of affordable housing.
The “implied” certification theory in Mikes was adopted from Ab-Tech Constr., Inc. v.
United States, 31 Fed.Cl. 429 (Fed.Cl.1994), aff'd w/o opinion, 57 F.3d 1084 (Fed.Cir.1995). In
Ab-Tech, the court found defendant’s “payment vouchers represented an implied certification by …
62 Relator satisfies the first and second prongs by way of the County’s admission that it made claims for payment of grant funds from the U.S. Government throughout the false claims period. Answer ¶26. This admission also implicitly supports the fifth prong, along with explicit support from the deposition testimony of Mark Massari, who has served as an accountant in the County’s Planning Department since 1984, and was the person primarily responsible for submitting payment requests to HUD. Massari testified that throughout his tenure, he submitted roughly 25 requests for payment to HUD each month, and that HUD thereafter wired funds to the County’s bank account. (Massari 55:23 – 57:14). 63 FCA liability can be established by showing that the County “knowingly present[ed], or cause[d] to be presented, to…the United States Government…a false or fraudulent claim for payment or approval,” or that the County has “knowingly ma[de], use[d], or cause[d] to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government.” 31 U.S.C. § 3729(a). 64 Relator also claims that Westchester made “factually false” certifications, certifications that involve “an incorrect description of goods or services provided or a request for reimbursement for goods or services never provided,” Mikes at 697, one variation of which has been characterized as a “worthless services claim.” Id. at 702.
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of its continuing adherence to the requirements for participation in the [government’s] 8(a)
program.” Id. at 434. The court held that the “Government was duped by [defendant’s] active
concealment of a fact vital to the integrity of the program,” id, and “[paid] out funds in the mistaken
belief that [defendant] was furthering the aims of the …program.” Id. See also U.S. ex rel. Willard
v. Humana Health Plan of Texas Inc., 336 F.3d 375, 382 (5th Cir. 2003) (“‘Implied certification’
amounts to nothing more than an alternative expression of the well-accepted idea that billing the
government for something not delivered may constitute a false claim. If the government defines its
bargain in a manner that requires adherence to a statute or regulation, compliance with that statute or regulation is implied by virtue of a request for payment.” [citations omitted]). 65
B. The FCA’s “Knowing” Prong Imposes No Requirement That a Defendant Have Had “Specific Intent” to Defraud The Government
For FCA purposes, knowledge may be demonstrated, inter alia, by a showing that a grantee
made certifications or sought payment in reckless disregard of the truth or falsity of its express of
implied representations, or acted in deliberate ignorance of the falsity of its representation. 31
U.S.C. §3729(b). The FCA imposes a standard of care with respect to governmental certifications:
One who signs a certification cannot choose to remain unaware of the veracity of that certification like the proverbial ostrich who buried its head in the sand so as to see no evil, hear no evil, and speak no evil. Thus, a failure to conduct a proper investigation before making a false statement may be sufficiently reckless to yield False Claims Act liability.
65
Because the County’s initial certifications were false, each subsequent request for payment based on those earlier false certifications was, itself, a knowing false claim made to the U.S. government for the purpose of seeking payment from the federal treasury. U.S. ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1157 (2d Cir.), cert. denied, 508 U.S. 973, 113 S.Ct. 2962 (1993) (holding that “the number of assertable FCA claims is not measured by the number of contracts, but rather by the number of fraudulent acts committed by the defendant,” and citing to United States v. Ehrlich, 643 F.2d 634, 638 (9th Cir.), cert. denied, 454 U.S. 940, 102 S.Ct. 474 (1981) for the proposition that “if a person knowingly causes a specific number of false claims to be filed, he is liable for an equal number of forfeitures”); see also United States v. Incorporated Village of Island Park, 888 F.Supp. 419, 441 (E.D.N.Y. 1995) (where federal mortgage commitments were secured fraudulently, “a separate claim for liability under the False Claims Act exists [against the defendant municipality] with respect to each monthly mortgage subsidy claim” submitted by the lender to HUD).
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U.S. v. Raymond & Whitcomb Co., 53 F.Supp.2d 436, 447 (S.D.N.Y. 1999). Therefore, Relator can prevail by proving “reckless or ‘willful blindness to the existence of a fact.’” Id., quoting from United States v. Inc. Village of Island Park, 888 F.Supp. 419, 439 (E.D.N.Y.1995). In this case, Westchester failed entirely in its duty to reasonably ensure that its certifications and its claims for payment were truthful.
POINT II WESTCHESTER SUBMITTED EXPRESS AND IMPLIED AFFH CERTIFICATIONS IN RECKLESS DISREGARD OF THEIR TRUTH OR
FALSITY At the start of the false claims period, Westchester was aware that both analysis and action must address impediments comprehensively, including race-based impediments, and included the obligation to try to move the County towards racial integration.66 Yet, as initially revealed to ADC by Drummond on July 7, 2005 (and confirmed through the absence of documents responsive to ADC’s FOIL request), Westchester had made a priori policy decisions not to analyze race-based impediments to fair housing choice, not to withhold or threaten to withhold federal funds from noncompliant Consortium Municipalities, not to treat as a fair housing impediment anything that was not brought to the County’s attention by a CM or other non-County entity, not to consider the County’s own policies or those of municipalities that may affect equal housing opportunity for members of protected classes, not to criticize CMs for their failure to meet their AFFH or affordable housing responsibilities, and not to require CMs to do anything to AFFH. Discovery in this litigation has confirmed what ADC’s intervention initially brought to light: in short, anything having to do with race-based impediments or with acting to overcome municipal resistance was off-the-table. As damning as are the various admissions made by Westchester
66 See, e.g., the testimony of County Executive Spano, acknowledging that AFFH means “having a proactive policy to make sure that you have a appropriate mixture of racial integration” (Spano 94:10-22).
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officials—for example, that the County simply did not conduct its 2000 and 2004 AIs through the lens of race discrimination and segregation, (Drummond 309:15-22), or that Westchester never adopted as an objective or goal the reduction of large inter-municipal variations in racial composition67 – it is the absence of any documents that reflect either actual analysis or appropriate actions that is most extraordinary. Consistent with ADC’s original discoveries and with the fact that Westchester was under an obligation to maintain records that documented the development of its “AI” and any “appropriate actions” it took,68 Westchester did not analyze or act on impediments to fair housing choice.
A. Express Certifications The timing and the interrelationship of Westchester’s knowledge of its obligations and its knowledge of a variety of impediments is especially significant in respect to Westchester’s express certifications that it would AFFH. Side-by-side with its knowledge of its AFFH obligations at the start of the false claims period, the County knew (or would have known if it had not willfully closed its eyes) that: the County was segregated, that numerous CMs were resisting the placement of affordable housing, and that the placement of affordable housing determined whether its construction would have a segregation-perpetuating or segregation-reducing impact. Nevertheless, Westchester ignored race-based and “municipal resistance” impediments and planned no action to overcome these types of impediments. Westchester did not even take seriously the warning in its own Cooperation Agreements with CMs that it was prohibited from funding municipalities that did not AFFH or that interfered with Westchester’s own efforts to AFFH. Westchester did not even take the basic step of analyzing whether the production of affordable
67 Response to Second Requests for Admissions [App. I, Tab 3] No. 36. 6842 U.S.C. §5304(b)(2); 24 CFR §§91.225, 570.601.
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housing between January 1, 1992 and April 1, 2006, had the effect of increasing or decreasing racial diversity in the neighborhood in which it was built.69
Even giving the County every benefit of the doubt, where the evidence demonstrates that
there was an unmistakable disjunction between what Westchester was promising on the one hand,
and what it was delivering on the other, there is only one conclusion to be reached: Westchester
made its express AFFH certifications in reckless disregard of their truth or falsity.
B. Implied Certifications
The federal government was undoubtedly bargaining for AFFH performance. Express
statutory language makes clear that Westchester would not have been given a grant of HCD funds
in the first instance without certifying “to the satisfaction of the [HUD] Secretary that …(2) the
grant will be conducted and administered in conformity with the … Fair Housing Act [42 U.S.C. 3601 et seq.], and the grantee will affirmatively further fair housing.” 42 USC §5304(b)(2)70 By its
applications and certifications, the County made itself “responsible for ensuring that CDBG funds
are used in accordance with all program requirements,” 24 CFR § 570.501(b). The AFFH obligations are clearly “program requirements.”71
The obligation to perform is reinforced by the applications for funding the County signed
each year, which provide that “the applicant will comply with the attached assurances if the
69 See Response to Second Requests for Admission [App. I, Tab 3] No. 37. 70 See also 24 CFR § 91.225(b)(6)( “The jurisdiction must submit a certification that the grant will be conducted and administered in conformity with title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), the Fair Housing Act (42 U.S.C. 3601–3619), and implementing regulations.”) 71 24 CFR §§91.225, 570.601 (mandating a certification that a grantee conducts an analysis of impediments, takes appropriate actions and maintains records); 24 CFR §570.307 (obligating a grantee to monitor the planning, analysis and performance of its participating jurisdictions); 24 CFR §§570.501 (obligating a grantee to ensure that funds used in accordance with all program requirements and to determine adequacy of performance under subrecipient agreements and for taking appropriate action when performance problems arise); 24 CFR §570.503 (requiring urban county consortia to enter into cooperation agreements with the subrecipient municipalities, and to take appropriate actions, including suspension or termination if the subrecipient “materially fails to comply with any term of the award); 24 CFR §570.506 (requiring grantee to “establish and maintain sufficient records to enable the [HUD] Secretary to determine whether the recipient has met the requirements of [the CDBG program]”).
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assistance is awarded,” Application for Assistance, and by the Cooperation Agreements, which, pursuant to HUD-required language, 24 CFR §570.503, call upon the County and the CMs to “take all required action to assure compliance with the certification.” Cooperation Agreement, ¶6(a).72
As one federal court recently held in a case involving an AFFH challenge to “local residence preferences” in the Housing Choice Voucher program which had the effect of excluding AfricanAmericans, “[t]hese regulations unambiguously impose mandatory requirements on the [public housing authorities] not only to certify their compliance with fair housing laws, but actually to comply.” Langlois v. Abington Housing Authority, 234 F.Supp.2d 33, 75 (D.Mass. 2002).73
In the face of this statutory and regulatory framework, Westchester’s repeated requests for payments under its federal HCD grants necessarily constituted implied certifications that Westchester had performed its AFFH obligations. If the County had been honest with HUD about what it was actually doing, as it was submitting twenty-five requests for payment each month,74 HUD surely would not have authorized the payments. Westchester surely would not have gotten $52 million in federal funds if it had said forthrightly, “We did not comply with our certifications, but pay us anyway.”
The County Executive has admitted that, by requesting payments from the government, Westchester was impliedly certifying that it had performed as it had promised, and was therefore eligible for payment. (Spano 108:16-22). As in Ab-Tech, Westchester withheld from HUD the fact
72 See also Initial Expert Report of Sara Pratt (“Sara Pratt Report”) [App. II, Tab 23] p. 6 (“…the County has the authority, and the obligation, not to fund, or to cease funding, subrecipients that violate any of these civil rights certifications and it must actually use that power. Finally, Westchester County retains the right, and the responsibility, not to include a jurisdiction that discriminates in the Consortium.”). 73 The Langlois Court struck down the preferences, in part because the authorities had failed to analyze fair housing impediments and failed to keep records to reflect that analysis and its actions in relation thereto. It concluded that “[t]he deposition testimony cited by the plaintiffs, in which housing authority directors could not even articulate precisely how their organizations affirmatively furthered fair housing, supports an implication of “naked certification.” Id. at 78. 74 Westchester requested payment from the federal government more than 1,000 times during the false claims period. Drawdown Report, Westchester County (Massari 63:7 – 75:6) [App. III, Tab 39] Ex. 1.
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that it had not actually performed as it had promised. Permitting HCD funds to be disbursed in the face of AFFH non-performance would defeat the purposes of the False Claims Act, just as permitting an analysis of impediments to ignore race would defeat the purposes of the FHA.
C. Westchester’s Failure to Take Appropriate Actions was Foreordained The Statement of Facts, Relator’s 56.1 statement, and Relator’s Expert Reports have set forth a vast array of analysis not conducted and actions not taken. Indeed, Westchester’s failure to analyze race-based impediments to fair housing is sufficient to render it liable for making knowingly false explicit and implied certifications. But it is important to recognize more broadly that Westchester’s policy posture was antithetical to its obligation to take appropriate actions. “Appropriate” actions to overcome impediments to fair housing are only reasonably understood as those appropriate to particular circumstances. This implies both continuing analysis of the facts on the ground, and a willingness to allow policy to develop from and be governed by the circumstances. The evidence shows that Westchester had rigid policies based on concerns about political popularity, not flexible policies designed, as required by its AFFH obligations, to get to the heart of the fair housing choice problems. If a potential action consisted of anything more than a polite request to a CM, Westchester would not consider it (let alone implement it), and, in the context of race-based impediments, wouldn’t even make such a polite request. Year after year, Action Plan after Action Plan, neither the fundamental facts of segregation and other race-based impediments nor the fundamental fact of municipal resistance to affordable housing and noncompliance with AFFH obligations were addressed.75
75 24 CFR §§570.501 and 570.503 requires the County to monitor the AFFH performance of the CMs, and 24 CFR §570.906 provides that the County is held “accountable for the actions or failures to act” of those CMs. Furthermore, the Cooperation Agreements empowered and required the County to take “all required action to comply with [the AFFH obligations.” Cooperation Agreement, ¶6(a).
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D. Westchester Effectively Hindered Fair Housing Choice

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In service of its decisions not to consider politically difficult issues related to race and

affordable housing, Westchester hindered rather than furthered fair housing choice. For example,

instead of using its authority to require affordable housing to be built in a segregation-reducing manner,76 Westchester permitted its two most significant affordable housing initiatives—the

Allocation Plan and the Housing Choice Voucher (rent subsidy) Program—to operate in a manner that further concentrated affordable units and minorities in racially segregated areas.77 (Levy 10:23

– 11:25, 104:16-20). It identified neither senior citizen nor local resident preferences as impediments to fair housing (even though Westchester knew they could be),78 and permitted CMs to

develop housing with those restrictions and continued to fund those municipalities.

Despite HUD’s warning that the mere production of affordable housing might not

affirmatively further fair housing, Planning Guide, 5-4, the County pushed forward with its Allocation Plan and Voucher programs without applying fair housing considerations.79 Far from

constituting “appropriate actions” to overcome segregation, these policies perpetuated it.

Westchester took other actions that hindered fair housing choice. Even as it was making its

AFFH certifications, the County Legislature was passing, and County Executive Spano was signing,

a municipal “first right of refusal law” in 2001 (Spano 57:10 – 58:3). Drummond saw this law as an

76 In re County of Monroe, 72 N.Y.2d 338, 533 N.Y.S.2d 702 (N.Y. 1988); Westhab, et al v. Village of Elmsford, 151 Misc.2d 1071, 574 N.Y.S.2d 888 (N.Y. Supreme Court, Westchester Co., July 23, 1991). 77 According to Professor Andrew Beveridge, for example, 71.8% of new affordable units were concentrated in six municipalities with large African-American populations, with 54.2% of all such units built in the 1990s located in Yonkers and Mount Vernon. Beveridge Initial Report [App. II, Tab 21] p. 12-16. A similar pattern held with respect to the placement of County-funded affordable housing units through 2007. Beveridge Rebuttal Report, [App. III, Tab 22] Exh. R-1 And R-2. When the locations of County funded affordable housing units are mapped, it is clear that such units are generally located in census tracts of Yonkers and Mount Vernon (and, for that matter, census tracts in Peekskill, Ossining, New Rochelle, White Plains and Greenburgh) with substantial African-American populations. Id.. Similarly, a majority of participants in the County’s Housing Choice Voucher (rent subsidy) Program are under lease in poor and minority areas, (Levy 15:17 – 19:9), many of which are characterized as “hypersegregated.” (Drummond 232:17-24). 78 (Drummond 101:20 – 102:9). 79 In deposition testimony, the County has admitted that it did not review data on race to determine whether Voucher recipients are able to live in any part of the county they desire to live. (Drummond 21:13-22:4).
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impediment to fair housing, (Drummond 163:2-7), but the County never incorporated this impediment into an AI or any related report it submitted to HUD, and, throughout the false claims period, never repealed the measure (Spano 62:5-25; Drummond 163:13-14).
In light of the facts that 20 CMs with predominantly white populations had not contributed a single unit of affordable housing, and that the vast majority of affordable housing units were located in neighborhoods with large minority populations, the County never mentioned these facts in its “AIs” or any related report it submitted to HUD. Despite the “no AFFH means no funding” language of the Cooperation Agreements with CMs, the County continued to fund many of the 20 CMs that built no affordable housing, to the tune of nearly $7.5 million during the false claims period (Massari 63:7 – 75:6; Massari [App. III, Tab 39] Exh. 2).
POINT III WESTCHESTER’S POST-HOC RATIONALIZATIONS FOR ITS ACTIONS AND FAILURES TO ACT ARE NOT PROBATIVE OF THE EXISTENCE OF “JUSTIFIABLE” OR “INNOCENT” MOTIVATIONS DURING THE FALSE CLAIMS PERIOD, BUT THE FALSITY OF THOSE RATIONALIZATIONS
PROVIDES POWERFUL AFFIRMATIVE EVIDENCE OF GUILT By definition post hoc rationalizations for conduct cannot have been contemporaneously important, and cannot be a bona fide reason relied on to justify that conduct. Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 940 (2nd Cir. 1988). Westchester has advanced a variety of these post hoc rationalizations in the course of this litigation, the first of which was the contention that an AI did not have to consider race-based impediments. The Court has already concluded that accepting such a proposition would lead to an “absurd” result. Anti-Discrimination Center, 495 F.Supp.2d at 387-88. Undeterred, Westchester has tried to excuse its failure to analyze impediments to fair housing or to take actions appropriate to the circumstances by:
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•

denying that residential racial segregation exists in the County;80

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• asserting that income is a proxy for race, even though, inter alia, Norma Drummond
testified that Westchester did not consider income an impediment to fair housing, even though
Westchester has no documentation of having studied the issue, and even though Census data demonstrate that racial segregation cannot be accounted for by black-white differences in income;81

• claiming that it has no authority to act to overcome barriers erected by municipalities, despite having successfully argued the opposite in court;82 and

• arguing that race-based impediments were not “significant” and thus did not have to be addressed by analysis or action, despite this view being contrary to the purpose of the FHA, the applicable regulations, the HUD training materials Westchester received, despite Norma Drummond’s admission that she had not concluded that there was no segregation in Westchester when she prepared the 2004 “AI,” and despite the County Executive’s own admission that pursuing racial integration is part and parcel of the AFFH obligation.83

Westchester, primarily through its experts, has also advanced other excuses:

• that segregation may not be due to discrimination, a non sequitur and something, in any event, that Westchester did not study;

• that residential patterns are explained by preference, even though Westchester’s own
expert opined that most of Westchester has a racial composition that operates as a “constraint” on the residential choices of African-Americans;84

• that integrative action would not be effective, a form of “harmless error” analysis contrary to the goal of the Fair Housing Act and the AFFH regulations that formed no part of Westchester’s consciousness in the false claim period; and,
• that other grantees do not do a good job in carrying out their AFFH responsibilities, something that is neither a cognizable defense nor a comparison that Westchester would necessarily like to make.85

The striking thing about all of Westchester’s excuses is that any reference to them is

entirely absent from Westchester’s records, a particularly probative absence in view of

80 See, e.g., (Drummond 69:5-12); (Spano 86:23 – 87:19) 81 See, e.g., Beveridge Initial Report [App. III, Tab 21] pp. 10-12. 82 See discussion, supra, at p. 17. 83 See discussion, supra, at pp. 20-21; (Drummond 389:12-19); (Spano 96:24 – 97:8). 84 (Clark 94: 8-17). 85 For example, Rockland County, right next door to Westchester, did not seem to have any difficulty in discussing racial discrimination and racial segregation, nor in discussing the “mythical notions” that clustering of minority population either is adequately explained by either “preference” or “low income.” See Rockland County’s Analysis of Impediments [App. I, Tab 20] pp. 1-7.
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Westchester’s obligation to maintain all records reflecting its analysis of impediments and the actions taken to overcome impediments. 24 C.F.R. §§570.601, 91.225. The absence of documents has been a consistent theme since Relator began its pre-suit investigation. In response to several requests for documents evidencing the County’s efforts to require CMs to comply with AFFH obligations or affordable housing goals, no documents were produced.
Post hoc rationalizations, however, are not irrelevant to a case. On the contrary, it is a “general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as “‘affirmative evidence of guilt.’” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (U.S. 2000) (internal citations omitted). Westchester’s various rationalizations—each clearly invented after the fact, and one more implausible than the next—are evidence that Westchester knew that its certifications and implied certifications of AFFH compliance were false.
CONCLUSION Relator is entitled to judgment that Westchester violated the False Claims Act on each occasion during the false claims period that it certified or assured the federal government, either expressly or impliedly, that it had or would affirmatively further fair housing.

Dated: September 30, 2008

Respectfully submitted,
_/s/ Michael Allen__________________ Michael Allen, admitted pro hac vice Stephen M. Dane, admitted pro hac vice John P. Relman, admitted pro hac vice RELMAN & DANE, PLLC 1225 19th Street, N.W., Suite 600 Washington, D.C. 20036-2456 Telephone: 202/728-1888 FAX: 202/728-0848 Counsel for Plaintiff/Relator
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 Case 1:06-cv-02860-DLC Document 118 Filed 02/24/2009 Page 1 of 54

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------- X

:

UNITED STATES OF AMERICA ex rel. ANTI- :

DISCRIMINATION CENTER OF METRO NEW

:

YORK, INC.,

:

Plaintiff,

:

:

-v-

:

:

WESTCHESTER COUNTY, NEW YORK,

:

Defendant.

:

:

----------------------------------------X

Appearances:

For Plaintiff/Relator: Michael Allen Stephen M. Dane John P. Relman Relman & Dane, PLLC 1225 19th Street, N.W., Suite 600 Washington, DC 20036-2456

For Defendant: Stuart M. Gerson Michael A. Kalish Carrie Corcoran Epstein Becker & Green, P.C. 250 Park Avenue New York, NY 10177-1211

06 Civ. 2860 (DLC) OPINION & ORDER

DENISE COTE, District Judge: The Anti-Discrimination Center of Metro New York, Inc.
(“ADC”) has brought suit as relator for the United States of America against Westchester County, New York (“Westchester” or the “County”), alleging that Westchester violated the False Claims Act, 31 U.S.C. § 3729, et seq. (“FCA”), through

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certifications made to the Secretary of Housing and Urban Development (“HUD”) between April 2000 and April 2006 to obtain over $52 million in federal funding for housing and community development. On July 13, 2007, this Court denied the County’s motion to dismiss, rejecting its contention that it had no legal obligation to consider race when it analyzed impediments to fair housing in connection with its certifications. The Court held that a grantee that certifies to the federal government that it will affirmatively further fair housing as a condition to its receipt of federal funds must analyze “the existence and impact of race discrimination on housing opportunities and choice in its jurisdiction.” United States ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester Cty., 495 F. Supp. 2d 375, 376 (2007).1
Discovery having been completed, the ADC has now brought a motion for partial summary judgment, contending that there is no genuine issue of material fact that the County knowingly submitted false certifications that it would affirmatively further fair housing (“AFFH”) by, inter alia, failing to analyze
1 The Court also denied the County’s motion to dismiss for lack of subject matter jurisdiction, finding that the statutory bar to jurisdiction set forth in 31 U.S.C. § 3730(e)(4) did not apply to the instant qui tam action. Anti-Discrimination Center, 495 F. Supp. 2d at 379-83. While the County restates its contention that the Court is without subject matter jurisdiction, this Court declines to reconsider its decision on the issue.
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impediments to fair housing choice within the County in terms of race. The County has filed a cross-motion for summary judgment, arguing that it did properly analyze race, and that even if its certifications were false in that regard, it did not make them with the requisite knowledge for liability to be imposed under the FCA. Those motions were fully submitted on November 14, 2008. For the following reasons, ADC’s motion for partial summary judgment is granted in part and denied in part, and the County’s motion for summary judgment is denied in full.
Before describing the evidentiary record created through this motion practice and the legal analysis of the ADC’s FCA claims, a brief summary of the parties’ contentions is in order. ADC contends that Westchester is a racially segregated county, and that to obtain the HUD funds at issue here the County had to analyze and record its analysis of the impediments to fair housing choice, and then take appropriate actions to overcome those impediments and also record those actions. ADC contends that, despite certifying to the federal government that it had taken each of these steps, the County did none of these things, instead focusing exclusively on obtaining federal funds to increase the stock of affordable housing within the County, and ignoring the fact that its actions were increasing patterns of segregation. ADC identifies several tactics that it contends the County could have (and should have) utilized to reduce the
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barriers to fair housing choice based on race within its jurisdiction.
The County has taken a variety of tacks in defending these charges. In addition to disputing that it was required to analyze race when analyzing impediments to fair housing choice, it contends principally that in any event it did analyze race, determined that racial segregation and discrimination were not significant barriers to fair housing choice, and concluded that the most pressing impediment to fair housing was the lack of affordable housing stock. It argues that it did an outstanding job in increasing the stock of affordable housing within the County, and that this litigation represents little more than a policy dispute over the most effective means for addressing local government resistance to integration and affordable housing. The County has adopted a policy of cooperation with municipalities, in light of what it terms “political reality” and due to its belief that cooperation is the most productive avenue for increasing the stock of affordable housing in the County.
BACKGROUND The undisputed facts of record, or, where disputed, taken
in the light most favorable to the County, establish the following.
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A. Statutory and Regulatory Framework Westchester County is comprised of 45 municipal entities.
All of the municipalities are part of the Westchester Urban County Consortium (“Consortium”), except for the municipalities of Mount Pleasant, Mount Vernon, New Rochelle, White Plains, and Yonkers. The County applied to HUD for federal funding, including Community Development Block Grants (“CDBG”), on behalf of itself and the Consortium each year from April 1, 2000 to April 1, 2006 (“the false claims period”).2
The United States grants housing and community developmentrelated funding to state and local entities. In order to receive certain federal funding, including CDBG funds, the County was required to certify that it would meet a variety of fair housing obligations, including that the County would AFFH. Specifically, grant recipients are required to make certifications to HUD that, inter alia, “the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 and the Fair Housing Act, and the grantee will affirmatively further fair housing.” 42 U.S.C. § 5304(b)(2). To AFFH, the County was required to undertake three tasks: to “conduct an analysis of impediments to fair housing choice within the area, take appropriate actions to overcome the 2 For ease of reference, this Opinion refers to the submissions the County submitted on behalf of the Consortium as the County’s submissions.
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effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions in this regard.” 24 C.F.R. § 91.425(a)(1)(i), see also id. § 570.601(a)(2). It is undisputed that the County was aware of its AFFH obligations during the false claims period, and that the County made claims for payments of grant funds from the United States during the period.
Westchester entered into Cooperation Agreements with municipalities participating in the Consortium. The agreements pertained to, inter alia, CDBG grants, and provided that
the County is prohibited from expending community development block grant funds for activities in or in support of any local government that does not affirmatively further fair housing within its jurisdiction or that impedes the County’s action to comply with its fair housing certifications. These Cooperation Agreements were submitted to HUD every three years.
B. The Requirement to Consider Race As set forth more fully in Anti-Discrimination Center, 495
F. Supp. 2d at 387-89, the statutory and regulatory framework set forth above -- in requiring the grantee of funds to certify that the grant will be “conducted and administered” in conformity with the Civil Rights Act of 1964 and the Fair Housing Act (“FHA”), and to certify that the grantee will AFFH
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-- requires the grantee to analyze the impact of race on housing opportunities and choice in its jurisdiction. In identifying impediments to fair housing choice, it must analyze impediments erected by race discrimination or segregation, and if such impediments exist, it must take appropriate action to overcome the effects of those impediments. Id. at 387.3
C. The County’s AFFH Certifications By the year 2000, Norma Drummond, a member of the County’s
Planning Department, was the person responsible for the County’s administration of the grants associated with the County’s affordable housing program and CDBG program. As discussed above, one of the County’s duties as part of the requirement to AFFH was to conduct an analysis of impediments or AI, as it is customarily called. Two AIs were reduced to writing during the false claims period and included within the County’s “Consolidated Plans” presented to HUD in 2000 and in 2004.
3 While the Opinion used the term “consider” as well as the term “analyze,” the regulation requires an analysis and a record of that analysis from the entity applying for the federal government funds. Thus, the Opinion rejected the County’s claim in its motion to dismiss that it had no legal obligation to consider or analyze race.
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1. Consolidated Plans and Related Submissions The County’s Consolidated Plans addressed housing and community development goals for four federal grant programs.4 Consolidated Plans serve four main functions: they are “[a] planning document for the jurisdiction,” “[a] submission for federal funds under HUD's formula grant programs,” “[a] strategy to be followed in carrying out HUD programs,” and “[a] management tool for assessing performance and tracking results.” 24 C.F.R. § 91.1(b). Consolidated Plans are required to describe, inter alia, the jurisdiction’s “general priorities for allocating investment geographically within the jurisdiction . . . and among different activities and needs” for the following categories: affordable housing, public housing, homelessness, other special needs (including the elderly, disabled, persons with alcohol or drug addiction, persons with HIV/AIDS and their families, and public housing residents), and nonhousing development pursuant to the CDBG program. Id. § 91.215. As part of the Consolidated Plan process, the County was required to make Action Plan submissions to HUD. The Action Plans were annual submissions that addressed the goals and objectives for the County as they related to the categories 4 Besides the CDBG grant program, the Consolidated Plan addressed the Emergency Shelter Grant, HOME Investment Partnership, and Housing Opportunities for Persons with AIDS programs.
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discussed above. See id. § 91.220; id. § 91.420. The Action Plans included the County’s annual applications for funding, as well as the County’s annual express certification that it would AFFH. See id. § 91.225; id. § 91.425. The County also made annual submissions, called Consolidated Annual Performance and Evaluation Reports (“CAPERs”), reviewing the “progress it has made in carrying out its strategic plan and its action plan” over the previous year. Id. § 91.520(a).
During the false claims period, the County submitted two Consolidated Plans (one covering the years 2000-2004 and one covering the years 2004-2008). It also submitted annual Action Plans (with express AFFH certifications) and CAPERs for each of the years 2000-2006. In its annual certifications during the false claims period, the County certified that it would: “affirmatively further fair housing, which means it will conduct an analysis of impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and actions in this regard.” The County included its 2000 and 2004 AIs in the Consolidated Plans it submitted to HUD, although the regulations did not require that the AIs themselves be submitted to HUD.
The County’s 2000 AI was one of eight components of the County’s 2000-2004 Consolidated Plan, and each component was
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discussed in separate chapters of the Consolidated Plan. In the chapter of the 2000-2004 Consolidated Plan addressed to the projected housing needs of the County for the next five years, the plan included figures showing the Consortium’s 1990 population by race, and also by race and income level. The 2000-2004 Consolidated Plan also identified communities in the County that had “areas of minority concentration,” and identified which municipalities in the Consortium had the largest black population, as well as which ones had the largest gain in black population during the 1980s. It also noted that blacks made up between .1% and 16% of all homeowners in the Consortium’s municipalities, and between 1 and 30% of the renters in the Consortium’s municipalities. The 2000-2004 Consolidated Plan also reviewed the waiting list for Section 8 rental assistance, and broke down the waiting list by race. The 2000-2004 Consolidated Plan noted that “[l]ow-income families and individuals and those with special housing needs (e.g., mentally ill, disabled and persons with AIDS) are frequently excluded from housing opportunities due to illegal discrimination,” and that the non-profit housing counseling agency Westchester Residential Opportunities (“WRO”) reported that they received approximately 120 housing discrimination complaints in 1999.
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Similarly, in the County’s 2004-2008 Consolidated Plan, the County noted that a key finding of the housing needs component of the Consolidated Plan (one of the nine components of the Consolidated Plan) was that while 72% of households in the Consortium own their own homes, only 46% of black households and 35% of Hispanic households own their own homes. In the Housing and Homeless Needs Assessment Component, the County identified “impacted areas” of the County, which were defined as areas that had populations that were over 40% minority or 40% “poverty.” The plan identified the municipalities in the Consortium that had the highest minority populations. The 2004-2008 plan noted that “[m]inorities are priced out of the expensive homeownership market,” citing the finding regarding the percentage of homeownership among all Consortium households and among minorities. The Appendix to the Consolidated Plan for 2004-2008 includes, inter alia, data tables from the 2000 census, including tables showing 1) population by race and Hispanic Origin, 2) the population by age, 3) cost-burdened owners and renters, 4) overcrowded housing units, and 5) housing deficiencies. The appendix also includes tables showing housing problems for Hispanic households and black, non-Hispanic households. These tables showed the percentage of these populations that experienced housing problems at different income levels, where having “any housing problem” was defined as
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a “cost burden [of] greater than 30% of income and/or without complete kitchen or plumbing facilities.”
2. Materials and Communications Relating to the Preparation of AIs
The County had received a copy of the HUD Fair Housing Planning Guide (“HUD Guide”) by April 1, 2000. The purpose of the HUD Guide is to help grantees fulfill the “fair housing requirements” of grants such as the CDBG. As for the requirement to AFFH, HUD stated in the Guide that it interpreted the objectives of conducting the AI, taking appropriate actions, and maintaining records reflecting the analysis and actions taken, to mean, inter alia, to “[a]nalyze and eliminate housing discrimination in the jurisdiction” and to “[p]rovide opportunities for inclusive patterns of housing occupancy regardless of race, color, religion, sex, familial status, disability and national origin.” An AI involves an “assessment of conditions, both public and private, affecting fair housing choice for all protected classes.” Such impediments are “actions, omissions or decisions” which “restrict housing choices or the availability of housing choices,” or which have the effect of doing so, based on “race, color, religion, sex, disability, familial status, or national origin,” including “[p]olicies, practices, or procedures that appear neutral on
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their face.” HUD’s suggested AI format includes a housing profile describing “the degree of segregation and restricted housing by race, ethnicity, disability status, and families with children; [and] how segregation and restricted housing supply occurred.”
The HUD Guide also explains the relationship of the AI to the Consolidated Plan, noting that the consolidated document includes, among other things, the community development plan and the submissions for various housing and development programs, including the CDBG. The HUD Guide notes that many of the fair housing problems that relate to housing choice for low and moderate income housing programs are addressed already elsewhere in the consolidated plan. The Guide cautions, however, that grantees should prepare AI’s using a “Fair Housing Perspective,” and that this means that while
the explanation of barriers to affordable housing to be included in the Consolidated Plan may contain a good deal of relevant AI information[, it] may not go far or deep enough into factors that have made poor housing conditions more severe for certain groups in the lower-income population than for others. Jurisdictions should be aware of the extent to which discrimination or other causes that may have a discriminatory effect play a role in producing the more severe conditions for certain groups. (Emphasis supplied). The distinction between AFFH actions and affordable housing activities is further explained in the HUD Guide:
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The two concepts are not equivalent but they are also not entirely separate. When a jurisdiction undertakes to build or rehabilitate housing for low- and moderate-income families, for example, this action is not in and of itself sufficient to affirmatively further fair housing. It may be providing an extremely useful service by increasing the supply of decent, safe, and sanitary affordable housing. Providing adequate housing and improving existing neighborhoods are vital functions and should always be encouraged.
Additionally, the provision of affordable housing is often important to minority families and to persons with disabilities because they are disproportionately represented among those that would benefit from lowcost housing. When steps are taken to assure that the housing is fully available to all residents of the community, regardless of race, color, national origin, gender, handicap, or familial status, those are the actions that affirmatively further fair housing.
(Emphasis supplied).
The HUD Guide informed grantees that “AIs are not to be
submitted to, or be approved by, HUD. However, HUD could
request submission of the AI in the event of a complaint or as
part of routine monitoring.” Rather, the HUD Guide explained
that jurisdictions should provide a summary of the AI, along
with the jurisdiction’s accomplishments for the past year, as
part of the CAPER submission.
Prior to the false claims period, the County received a
letter from HUD, dated July 17, 1996, in relation to its 1996
Consolidated Plan submissions. The letter set forth “matters of
advice” for “areas for future improvement.” One such matter of
advice informed the County that its AI
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should contain a description of the degree of segregation and restricted housing by race, ethnicity, disability status and families with children; explain how segregation and restricted housing supply occurred; and relate this information by neighborhood and cost of housing. Minorities should be categorized as follows: Black, Hispanic, Asian, Pacific-Islander, and American Indian/Alaskan Native. In addition, the County should submit data on the housing needs of homeless individuals and families by race/ethnicity in subsequent Consolidated Plan submissions.
Additionally, the County had its own internal documents
from before the false claims period relating to its AFFH
obligations and the preparation of AIs. One such document,
which is an outline of the County’s Fair Housing Plan (“FHP”),
sets forth the requirements that the County conduct an AI, set
out actions to be taken, and maintain records. The end of the
outline contains the following reminder: “Remember: This [the
FHP] is not a report on affordable housing, but FAIR HOUSING!!!”
Similarly, in a July 1996 letter to WRO, an employee of the
County’s planning department thanked the WRO for meeting to
discuss the FHP. The letter went on to say that
[w]hile this document [the FHP] is required by HUD to analyze Fair Housing throughout the Westchester Urban County Consortium, it will also be a useful tool for future planning and development of affordable housing. As you know, the Planning department has prepared several reports that address affordable housing, which should not be confused with the Fair Housing Plan. The goals of the Fair Housing Plan are: 1) to analyze barriers to housing that are based on race, religion, sex, disabilities, familial status, or national origin; 2) to develop strategies to remove those barriers; and 3) to maintain records of Fair Housing
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efforts, thus indicating the County’s commitment to fair housing choice. (Emphasis supplied). In 2002, Drummond attended HUD-sponsored training regarding AFFH. The training materials were titled “Affirmatively Furthering Fair Housing[:] Conducting the Analysis of Impediments and Beyond.” Those materials noted that “[d]uring the past thirty-seven years, Congress has spent more than one trillion dollars in a failed attempt to remedy the effects of a dual housing market in America,” and they traced the evolution of the dual market to, inter alia, African-Americans migrating to cities and encountering obstacles “designed to segregate them from the majority, and to maintain a dual society.” They explain that “Consolidated Planning blends community and economic development planning with Fair Housing Planning.”
3. The County’s 2000 AI Chapter Eight of Westchester’s 2000-2004 Consolidated Plan is titled “Impediments to Fair Housing.” The introduction to the chapter notes that the “Fair Housing Plan (FHP)” is part of the Consolidated Plan process and “consists of: 1) an Analysis of Impediments (AI) which addresses specific restrictions to housing choice; 2) actions taken to overcome the effects of identified impediments and, 3) maintenance of records to support
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the efforts to affirmatively further fair housing.” The FHP “includes information gathered from Westchester County agencies, not-for-profit organizations and local municipal officials,” and “[a] citizen participation component is part of the process” “to insure . . . that federal funds are actually administered based on the community’s agenda.” The chapter notes that this participation component is “significant in light of the fact that there are not scores of discrimination complaints on file.” The chapter explains that lack of such complaints “does not mean that Westchester County does not experience fair housing complaints,” but reflects the fact that “only those who are persistent enough to contact the proper agencies and generate an official complaint will be counted.” Thus, the chapter notes that the “[t]he citizen participation component of the FHP will allow residents to work together to remove unfair obstacles to housing choice.”
The Analysis of Impediments section of the Chapter provides as follows:
The FHP provides an evaluation of the needs for handicapped persons, larger/smaller families, extended families, and tenure opportunities when planning for their future development. It is important to note that within Westchester County, the greatest impediment to fair housing is the lack of affordable housing. While there are other restrictions to housing choice, Westchester’s housing stock is expensive relative to income and this significantly limits one’s housing options.
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(Emphasis supplied). The AI states that several studies have been prepared
regarding the lack of affordable housing, and that while progress has been made, “the lack of affordable housing remains the most significant impediment to fair housing.” The AI then lists the 10 “obstacles” that the “Consortium most contends with [sic] in addressing the housing needs of its residents.” These obstacles include: 1) the “Lack of Vacant Land”; 2) the “High Cost of Land” which “is often so expensive that it precludes the development of affordable housing thereon” 3) “Limited Availability of Funds” and the “fierce” competition for “other affordable housing dollars”; 4) “Limited Number of Section 8 Certificates and Vouchers”; 5) “Local Opposition” and the fact that “[a]ffordable housing remains a difficult concept to sell to existing homeowners and residents of communities throughout the Consortium” and that “such opposition is particularly strong when it involves proposed developments designed to assist the needs of the extremely low-income and low-income residents”; 6) “Limited Not-For-Profit Capacity” (the AI notes that “[t]ypically, not-for-profits are the most active in the creation of affordable housing”); 7) “High Construction Cost Area” which results in “fewer affordable housing units [that can] be built with the funds available”; 8) “Lengthy Review
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Process” which “impede[s] the development of affordable housing”; 9) “Few High Density Zones” which “limits the number of affordable units that may be built”; and 10) “Higher Rents Required for Some Public Assistance Recipients.”
The AI then goes on to discuss obstacles Westchester faces in addressing the housing needs of the homeless and at-risk populations. In this part of the analysis, the report considers obstacles faced by the “physically disabled,” “victims of domestic violence[,] or persons with substance abuse additions [sic] or mental disabilities.”
In response to the impediments analyzed, the chapter outlines four objectives as “[a]ctions to be taken.” These include “[i]ncrease[ing] the supply of affordable housing rental units, particularly large size units for low and extremely lowincome families,” “[i]ncrease[ing] the supply of affordable homeownership housing for moderate and middle income families,” “[r]educ[ing] the number of elderly households that are cost burdened,” and “[i]ncreasing the number of seniors assisted with grants and loans to rehabilitate their homes.” The chapter notes that in the “next three years, an estimated 270 units are anticipated for low and moderate income persons.”
In the “Maintenance of Records” section of the chapter, the County reports that through the CDBG program, the County provides funds to WRO for fair housing counseling services. WRO
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“submits monthly progress reports to document the use of these funds and this includes descriptions of the cases and recommended solutions.” Such reports are “one source of information to track the issues in the Fair Housing Plan.” The chapter states that “residents are also referred to the Human Rights Commission and WRO for support with discrimination cases,” and that “[l]ocal banks and the Federal Reserve Bank are resources for identifying potentially discriminatory lending practices throughout the Consortium.” The chapter noted that an initial review of Home Mortgage Disclosure Act data did “not identify any restrictive lending patterns,” but that “[f]urther investigation would be necessary to assess variables like race, gender, income and age.” Additionally, public meetings are held for residents to “discuss fair housing issues.”
Chapter Eight of the 2000-2004 Consolidated Plan makes no explicit reference to race or race discrimination as an impediment to fair housing other than as described above. For instance, race discrimination or segregation is not identified as one of the ten obstacles to fair housing. While the chapter mentions obstacles to housing faced by the disabled and those with substance abuse problems, it does not refer to any obstacles to housing based on, inter alia, race, national origin, or sex.
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4. The County’s 2004 AI The County’s 2004 AI was part of Chapter Nine (titled “Fair Housing Plan”) of Westchester’s 2004-2008 Consolidated Plan. The introduction to this chapter states that “the Fair Housing Plan is an evaluation of the needs for handicapped persons, larger/smaller families, extended families, and tenure opportunities when planning for their future development.” The Introduction outlines the chapter’s three sections: the “[a]nalysis of impediments addressing specific restrictions to housing choice,” the “[a]ctions taken to overcome the effects of identified impediments,” and “[m]aintenance of records to support the efforts to affirmatively further fair housing.” The AI section lists 13 “Impediments to Affordable5 Housing Identified.”6 (Emphasis supplied). The identified impediments are 1) “Lack of Affordable Housing in the New York Region”; 2) “Lack of Vacant Land”; 3) “High Cost of Land”; 4) “Limited Availability of Funds”; 5) “Limited Number of Section 8 Vouchers & Other Rental Assistance”; 6) “Local Opposition (NIMBY)”; 7) “Limited Non-Profit Capacity”; 8) “High Construction Costs”; 9) “Lengthy Review Process”; 10) “Few High Density Zones”; 11)
5 As noted above, the regulation requires an analysis of impediments to fair housing choice, not to affordable housing. 24 C.F.R. § 91.425(a)(1)(i). 6 The thirteenth impediment is included on a slide within the section, but is not listed at the beginning of the section.
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“Limited Shelter Allowance for Public Assistance Recipients”; 12) “High Prevalence of Lead-Based Paint in Housing Units;” and 13) “Limited Interest by Landlords and Developers.”
In elaborating on these obstacles, the AI notes that the “[g]reatest impediment to fair housing is the lack of affordable housing throughout the New York Region.” As in the 2000 AI, the 2004 AI notes that the price of land “often precludes development of affordable units” and that there is “fierce” competition for “affordable housing dollars.” The AI notes that Section 8 vouchers are a “major source of assistance for low and very low income families” and that “[r]eluctance by landlords to accept Section 8 continues to be a challenge.” As for the obstacle of Local Opposition or NIMBY, the AI notes that “Affordable Housing remains a difficult concept to sell to existing homeowners and residents,” especially for proposed developments relating to extremely low income residents. The AI also notes that landlords and developers have limited interest in affordable housing because “[m]ore profit can be made on market rate housing than affordable housing.” The 2004 AI also analyzes impediments to meeting the housing needs of the “[u]nderserved,” including the “[l]ack of accessible housing units for [the] physically disabled,” “NIMBYism and fear of homeless populations,” and the “[r]eluctance by many tenants -–
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especially those with mental illness or addictive behaviors to seek assistance.”
In the section of the chapter pertaining to actions to be taken to overcome these identified impediments, five objectives are listed: to “[i]ncrease the supply of affordable housing rental units, particularly large size units for low and extremely low income families,” to “[i]ncrease the supply of affordable homeownership units for moderate income families,” to “[r]educe the number of elderly households that are cost burdened . . . and ensure appropriate services to meet their needs as they age,” to “[i]ncrease the number of seniors assisted with funding to rehabilitate their homes,” and to “[c]onduct [a] public relations and marketing campaign to raise awareness of who needs housing.” In the Maintenance of Records section of the chapter, in addition to listing the WRO reports and HMDA data mentioned in the 2000 Fair Housing Plan Chapter, the County noted that a Human Rights Commission was established “to process and investigate discrimination complaints.”
As in the 2000-2004 Consolidated Plan, Chapter Nine of the 2004-2008 Consolidated Plan makes no explicit reference to race, or race discrimination or segregation as an impediment to fair housing other than as described above. Race discrimination or segregation are not identified as one of the thirteen obstacles to fair housing.
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D. Race and the County Westchester was aware of the racial makeup of its
municipalities (as reflected in the relevant censuses) when it prepared its 2000 and 2004 analyses of impediments to fair housing. According to the 2000 census, over half of the municipalities in the Consortium had African-American populations of 3% or less. In 1999, the Westchester Board of Legislators made a legislative finding that “there is no greater danger to the health, morals, safety, and welfare of the County than the existence of prejudice, intolerance, and antagonism among its residents because of . . . race, color, religion, ethnicity[, and other protected classes]” and that “there ha[d] been repeated instances of intolerance and discrimination committed in Westchester County.”
The County’s expert witnesses acknowledge the existence of racial “concentration” in parts of the County. An expert witness for the County testified that racial concentration may decrease if affordable housing opportunities were available in predominantly white areas and African-Americans chose to live or move to those areas. The ADC contends that the County’s focus on affordable housing in its AI, rather than fair housing, meant that the County did not analyze how its placement of affordable housing affected segregation and racial diversity, and in fact that the County’s production and placement of affordable housing
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increased segregation in the jurisdiction. The County admits that it did not undertake an analysis of whether the production of affordable housing between January 1, 1992 and April 1, 2006, had the effect of increasing or decreasing racial diversity in the neighborhood in which the housing was built.
Drummond testified that she told the ADC that the County “sees discrimination in terms of income, rather than in terms of race.” She also testified that she informed the ADC that the County’s AI “is seen through the lens of income and affordability, as opposed to race discrimination and segregation by race.”
E. Actions Taken by the County to AFFH and to Provide Affordable Housing
The County has not deemed any municipalities to be failing to AFFH, nor has it deemed any municipalities to be impeding the County’s ability to AFFH. As such, the County has not withheld any funds or imposed any sanctions on any participating municipalities for failure to AFFH. When the County considers where to acquire land for affordable housing, it seeks the concurrence of the municipality where the land is situated, and during the false claims period the County would not acquire any such land without the municipality’s agreement. The County produced no documentation showing that during the false claims
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period it funded or assisted the production of affordable housing in any municipality where the municipality opposed such production. The County set a goal in a 1993 Affordable Housing Allocation Plan to create 5000 affordable housing units; however, as of July 2005, at least 16 municipal units in the County had not created a single affordable housing unit.
F. The County’s Requests for Payments from HUD The ADC asserts that the County received over $52 million
from HUD in housing and community development funding during the false claims period. Mark Massari, an accountant in the County’s Planning Department, explained how the money would actually get from HUD to the County’s bank account. He stated that he would use an online system to submit payment vouchers to HUD to draw down the funds from a line of credit. Approximately 25 payment vouchers per month were approved for payment.
DISCUSSION Summary judgment may not be granted unless all of the
submissions taken together “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the
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court must view all facts in the light most favorable to the non-moving party. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). When the moving party has asserted facts showing that the non-movant’s claims cannot be sustained, the opposing party must “set forth specific facts showing that there is a genuine issue for trial,” and cannot rest on the “mere allegations or denials” contained in the pleadings. Fed. R. Civ. P. 56(e); accord Sista, 445 F.3d at 169. That is, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Only disputes over material facts -- facts that might affect the outcome of the suit under the governing law -- will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Second Circuit set forth the elements of a FCA claim in Mikes v. Straus, 274 F.3d 687 (2d Cir. 2001). In order to impose liability under the FCA, the plaintiff must show that defendants “(1) made a claim, (2) to the United States government, (3) that is false or fraudulent, (4) knowing of its falsity, and (5) seeking payment from the federal treasury.” Id. at 695. The Second Circuit expressly declined to decide whether a sixth element, damages to the United States, was
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required to be proven, noting that there was a split of authority on the issue. Id.
As to the first element, the court noted that the FCA “expansively defines the term ‘claim’ to cover ‘any request or demand, whether under a contract or otherwise, for money or property . . . if the United States Government provides any portion of the money or property which is requested or demanded.’” Id. (quoting 31 U.S.C. § 3729(c)). As to the fifth element, the court found that “the statute reaches only those claims with the potential wrongfully to cause the government to disburse money.” Id. at 696.
In the instant case, the only elements of these five that are in dispute are the third and fourth elements, i.e., whether there is no genuine issue of material fact that the County submitted false or fraudulent claims, knowing of their falsity. The County argues that in addition the plaintiff should be required to prove two more elements –- that the falsity was material, and that the United States suffered damages.
A. False or Fraudulent Claims Mikes describes two theories of falsity under the FCA.
Under the “legally false” or “certification theory,” liability is “predicated upon a false representation of compliance with a federal statute or regulation or a prescribed contractual term.”
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Id. at 696-97. The “factually false” certification theory, on the other hand, “involves an incorrect description of goods or services provided or a request for reimbursement for goods or services never provided.” Id. at 697.
In explaining the legally false certification theory of liability, the Second Circuit stated that “a claim for reimbursement made to the government is not legally false simply because the particular service furnished failed to comply with the mandates of a statute, regulation or contractual term that is only tangential to the service for which reimbursement is sought.” Id. (emphasis supplied). Because the FCA “is restitutionary and aimed at retrieving ill-begotten funds, it would be anomalous to find liability when the alleged noncompliance would not have influenced the government’s decision to pay.” Id. Thus, the FCA “does not encompass those instances of regulatory noncompliance that are irrelevant to the government’s disbursement decisions.” Id. (emphasis supplied). Therefore, the court held that “a claim under the Act is legally false only where a party certifies compliance with a statute or regulation as a condition to governmental payment.” Id. Finally, the Second Circuit explained that this holding was related to, but distinct from, adding a materiality element to a claim under the FCA:
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We add that although materiality is a related concept, our holding is distinct from a requirement imposed by some courts that a false statement or claim must be material to the government’s funding decision. A materiality requirement holds that only a subset of admittedly false claims is subject to False Claims Act liability. We rule simply that not all instances of regulatory noncompliance will cause a claim to become false. We need not and do not address whether the Act contains a separate materiality requirement. Id. (citation omitted). Among legally false certifications, there are both “express” and “implied” false certifications. “An expressly false claim is, as the term suggests, a claim that falsely certifies compliance with a particular statute, regulation or contractual term, where compliance is a prerequisite to payment.” Id. at 698. The ADC principally relies on the “legally false” certification theory, and alleges that the County made both express and implied false certifications. The ADC asserts that the County’s seven annual certifications submitted to HUD during the false claims period that it would comply with the duty to AFFH were expressly false, while the approximately 25 requests per month for payments from HUD for housing and community development projects during that same period were impliedly false.7 The County contends a) that it made only seven express
7 While the ADC refers in passing to the Cooperation Agreements submitted to HUD during the false claims period as documents which contained implied false certifications, it does not
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certifications, and that its requests for payment were not implied certifications, and b) that none of its certifications (express or implied) were false, because it appropriately complied with its AFFH obligations.
A. Were the County’s Certifications False? Addressing the latter issue first, the County argues that it truthfully certified that it would AFFH because it complied with its AFFH obligations by, inter alia, conducting an AI and taking appropriate actions to overcome impediments identified in the AI. As discussed above, however, the statutes and regulations require not just any AI, but one that analyzes impediments to fair housing that are related to race. There is no genuine issue of material fact such that a reasonable jury could find that the County analyzed race in conducting its AIs. A review of the 2000 and 2004 AIs demonstrates that they were conducted through the lens of affordable housing, rather than fair housing and its focus on protected classes such as race. Both AIs are devoted entirely to the lack of affordable housing in the County and related obstacles. While the AIs specify that lack of affordable housing is the “greatest” impediment to fair housing, a determination that affordable
develop this argument and therefore it will not be further discussed.
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housing is the greatest impediment does not absolve the County from its requirement to analyze race-based impediments to fair housing. Despite the regulatory obligation to maintain records reflecting the AI, there is simply no evidence that either of the County’s AIs during the false claims period analyzed racebased impediments to fair housing within its jurisdiction.
The County weakly asserts that the AIs were not devoid of any analysis of race because the references in the 2000 and 2004 AIs to an obstacle described as “local opposition” or “NIMBY” should be understood to include local opposition to new affordable housing on several bases, including on the basis of race. ADC disputes that the County used the term NIMBY to refer to a municipality’s opposition to integration or to anything other than an individual homeowner’s opposition to low-income housing being built in her neighborhood. Even assuming the County’s contention to be true, however, such a veiled reference, buried within a finding that local opposition was an obstacle to “affordable” housing, does not reflect any analysis of how race-based opposition impeded fair housing, as distinct from other forms of local opposition. Nor does this reference reflect an analysis of how race-based local opposition might be an impediment to fair, and not just affordable, housing. Without a targeted analysis of race as a potential impediment to fair housing, the County was unprepared to grapple with the
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second component of its AFFH duty to take appropriate action to overcome the effects of any racial discrimination or segregation it might identify as an impediment. As discussed above, while the Consolidated Plan was to focus broadly on several issues, including affordable housing, the AI was specifically focused on fair housing. The County, however, used its AI to further analyze issues related solely to affordable housing.
Despite the fact that race-based impediments to fair housing were not analyzed in the County’s AIs, the County contends that it did fulfill its obligation to analyze race in conducting its AIs, “in that it reviewed discrimination complaints filed with WRO, solicited and considered information on discrimination complaints from public housing agencies and Section 8 offices, analyzed census data, and consulted with a wide variety of sources, including fair housing organizations,” and it argues that nothing mandated that it find after reviewing this data that there were race-based impediments to fair housing.8 While it is true that federal law does not require the
8 The County’s argument in this regard might carry more weight if it took the position that neither discrimination nor segregation nor any other race-based factor was an impediment to fair housing during the false claims period. Tellingly, it does not assert that. Instead, its brief in opposition to the ADC’s motion for summary judgment asserts that the information it received “did not reflect that racial discrimination constituted a significant barrier to fair housing” and that it did not find that “any race-based impediments were among the most challenging barriers to fair housing.” (Emphasis supplied.) Moreover, even
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County to find evidence of racial discrimination or segregation where none exists, federal law does require that to obtain the HUD funds at issue here, the County had to maintain records of its analysis of whether race created an impediment to fair housing. The County has pointed to no such record other than the AIs contained within the two Consolidated Plans created during the false claims period, and neither those AIs nor the Consolidated Plans taken as a whole contain such an analysis. Thus, no reasonable jury could conclude either that the County appropriately analyzed race in conducting its AIs or that it maintained the required report of that analysis.
Moreover, as discussed above, the HUD Guide explains that pursuing affordable housing is not in and of itself sufficient to affirmatively further fair housing, and that affordable housing data that is found elsewhere in the Consolidated Plan does not go far enough in addressing fair housing concerns for protected classes. Thus, the focus of the AI is to be on “actions, omissions or decisions” which “restrict housing choices or the availability of housing choices,” or which have
if grant recipients were excused from the obligation to take actions to overcome the effects of minor impediments to fair housing, the County was still obligated to record its analysis of race-based impediments and it has been unable to point to any record of a contemporaneous analysis, much less one that embodies the conclusions recited in its summary judgment memorandum. Without such a contemporaneous analysis and record, the certification that one existed was false.
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the effect of doing so, based on “race, color, religion, sex, disability, familial status, or national origin,” including “[p]olicies, practices, or procedures that appear neutral on their face,” and HUD suggests that the AI contain a housing profile describing “the degree of segregation and restricted housing by race, ethnicity, disability status, and families with children; [and] how segregation and restricted housing supply occurred.” (Emphasis supplied). There is no dispute that the County’s AIs did not contain this analysis of segregation and the housing supply.
The County argues that the HUD Guide is not persuasive on the issue of what is required for an AI. It tries to recast the issues in this litigation as a quibble over whether the County was required to follow the specific tasks and format HUD lays out, which are not spelled out in the case law and statutory and regulatory framework. As already described, however, the County’s AIs during the false claims period utterly failed to comply with the regulatory requirement that the County perform and maintain a record of its analysis of the 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.
As discussed in Anti-Discrimination Center, 495 F. Supp. 2d at 387, “[i]nterpretations such as those in opinion letters --
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like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law -- do not warrant Chevron-style deference,” Christensen v. Harris County, 529 U.S. 576, 587 (2000), but “[i]nstead, . . . are ‘entitled to respect’ . . . only to the extent that those interpretations have the ‘power to persuade.’” Id. (citation omitted). Since the HUD Guide is firmly rooted in the statutory and regulatory framework and consistent with the case law, it is persuasive on the issue of whether the County was required to analyze race-based impediments in conducting its AI. Anti-Discrimination Center, 495 F. Supp 2d at 387.
The HUD Guide’s suggestion that the AI is to focus on acts, omissions, and decisions that restrict housing choice for protected classes, and that the grantee should analyze the degree of segregation within its jurisdiction, are firmly rooted in the statutory and regulatory framework and case law reviewed in Anti-Discrimination Center. See id. at 384-86 (reviewing fair housing statutes and case law underlying the obligation to AFFH and finding goal of HUD grant programs is “to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases” (citation omitted)). While the County was certainly not required to follow every specific suggestion or every recommendation in the HUD Guide, it also cannot be completely wide of the mark regarding the
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suggestions relating to the central goal of the obligation to AFFH -- to end housing discrimination and segregation –- and still be considered compliant with its AFFH obligations.
The actions cited by the County to argue that it “considered race” and therefore conducted an appropriate AI demonstrate in fact that it did not appropriately analyze racebased housing discrimination as required by the obligation to AFFH. While the County claims that it reviewed housing discrimination complaints from the WRO, it does not provide or show any analysis of those complaints and whether they revealed that either discrimination or segregation was an impediment to housing choice. Similarly, the fact that the Consolidated Plans include certain demographic data as to the racial makeup of County and municipality populations does not in any way show that the County conducted any analysis as to how this demographic data related to the existence or lack of race-based impediments to fair housing choice. In sum, the County has put forth no evidence, despite the AFFH obligation to maintain records of its AI, that it conducted an analysis of race as it pertains to impediments to fair housing choice, and likewise no evidence that after conducting any such analysis, the analysis led it to conclude that race-based discrimination or segregation was not an impediment to housing choice and relieved it of the
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duty to take action to overcome the effects that any such discrimination or segregation posed to fair housing choice.
The County also proffers a fallback argument that, while it may not have explicitly analyzed race-based impediments to housing choice, as required to AFFH, it concluded that it could conduct the required race-based analysis by using income as a proxy for race. For example, a member of the County’s planning department testified that statistics from the census and HUD showed that “there was a lack of affordable housing and it was more prominent among lower income persons and likewise racial minorities”; Drummond likewise testified that providing housing to protected classes “unfortunately . . . breaks down mostly to income.” The County also cites to data from other parts of the Consolidated Plans for the proposition that minorities made up a disproportionate share of the low income group in need of affordable housing.
The HUD Guide explains that while it is often the case that minorities are disproportionately represented among the lowincome population, simply providing affordable housing for the low-income population “is not in and of itself sufficient to affirmatively further fair housing.” This unsurprising statement is grounded in the statutory and regulatory framework behind the obligation to AFFH, which as already discussed, is concerned with addressing whether there are independent barriers
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to protected classes exercising fair housing choice. As a matter of logic, providing more affordable housing for a low income racial minority will improve its housing stock but may do little to change any pattern of discrimination or segregation. Addressing that pattern would at a minimum necessitate an analysis of where the additional housing is placed.
Moreover, even if the County’s analysis led it to conclude that income was an appropriate proxy for race, then it was required to report that analysis and demonstrate how it acted to overcome the effects of that race-based impediment to fair housing. Again, however, the County has not pointed to records reflecting either that analysis or the actions driven by that analysis.9 The County has simply not shown that it analyzed whether there were race-based impediments to housing choice independent of the problem of low income, and as such, it did not comply with the requirement to AFFH. Thus, the County has not demonstrated an issue of material fact as to whether it appropriately analyzed race in conducting its AI and recorded that analysis, and as such, its certifications to HUD that it would AFFH were false. 9 While the County argues that the actions it took to address the barriers to affordable housing should be considered actions promoting fair housing and specifically redressing racial discrimination in housing, for the reasons already described, the County cannot defeat this summary judgment motion with this post-hoc analysis. It was required to maintain records reflecting that analysis and those actions and it did not.
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Finally, the parties spill much ink disputing whether the County made a reasonable, or indeed, any effort to overcome impediments to fair housing during the false claims period, and thus whether the County’s annual certifications that it had taken appropriate actions to overcome the effects of any impediments to fair housing choice were false. The County defends its record by pointing to affordable housing that was built with its assistance and encouragement in municipalities that agreed to accept it. It argues that its cooperative approach with municipalities in its campaign to expand affordable housing stock within the County is the most prudent, realistic, and productive approach. The ADC lists several tactics that it believes the County should have employed but did not to encourage desegregation. Neither of these positions confronts directly the falsity at issue in this litigation.
The statutory and regulatory framework described above imposes no duty on the County to undertake any particular course of action to overcome an impediment to fair housing. After all, one course of action may be effective in one community and futile in another. The law does, however, require the recipient of the federal funds to certify that it will take “appropriate” actions to overcome the effect of the impediments to fair housing choice that its analysis has identified, and to maintain records reflecting both that analysis and those actions. See 24
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C.F.R. § 91.425(a)(1)(i). Because the County never did the required analysis of race-based impediments, it never created a contemporaneous record of how its management of the HUD-acquired funds or any other “appropriate” steps it could take would overcome the effects of those impediments. Thus, while the parties’ evidence regarding the actions the County took and failed to take during the false claims period may be relevant at trial to issues like motive and knowledge, by pointing to its programs regarding affordable housing the County has failed to raise a question of fact as to whether its certifications to HUD were false when they represented that the County would take appropriate actions to overcome the effects of race-based impediments to fair housing choice that its analysis had identified.
B. Did the County Make Implied Certifications? ADC asserts that the County made an implied false certification each time it submitted a payment request to HUD in connection with CDBG and other grants during the false claims period. “An implied false certification claim is based on the notion that the act of submitting a claim for reimbursement itself implies compliance with governing federal rules that are a precondition to payment.” Mikes, 274 F.3d at 699. The Second Circuit in Mikes noted that this theory “was applied in Ab-Tech
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Construction, Inc. v. United States, 31 Fed. Cl. 429 (Fed. Cl. 1994), aff’d, 57 F.3d 1084 (Fed. Cir. 1995) (unpublished table decision),” where “[t]he Court of Federal Claims held that the defendants’ submission of payment vouchers, although containing no express representation, implicitly certified their continued adherence to the eligibility requirements of a federal small business statutory program,” and that therefore “[t]he failure by defendants to honor the terms of this certification rendered their claims for payment false.” Mikes, 274 F.3d at 699.
The Second Circuit noted that this implied false certification theory should not be read expansively in the particular context of Mikes, which involved the healthcare field, because “[i]nterests of federalism counsel that the regulation of health and safety matters is primarily, and historically, a matter of local concern,” id. at 700 (citation omitted), and because of a concern that “permitting qui tam plaintiffs to assert that defendants’ quality of care failed to meet medical standards would promote federalization of medical malpractice.” Id. Thus, the court found that “a medical provider should be found to have implicitly certified compliance with a particular rule as a condition of reimbursement in limited circumstances,” id., specifically, “only when the underlying statute or regulation upon which the plaintiff relies
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expressly states the provider must comply in order to be paid.” Id. (first emphasis supplied).
In the instant case, 42 U.S.C. § 5304(b)(2), pertaining to CDBG grants, expressly states that “[a]ny grant under section 5306 of this title shall be made only if the grantee certifies to the satisfaction of the Secretary that . . . the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 and the Fair Housing Act, and the grantee will affirmatively further fair housing.” (Emphasis supplied). Likewise, the regulations governing the County’s submissions for its annual applications for housing and community development funding provide that the County “must” certify that it will AFFH. See 24 C.F.R. 91.425(a)(1)(i). Given this explicit statutory and regulatory scheme, it is easy to find that federal law conditioned payment of the housing and community development funds on compliance with the duty to AFFH and that each time the County submitted a request for payment of those funds it made an impliedly false certification.
The County argues that because the certification to AFFH is prospective in nature, the underlying provisions should be analyzed as an eligibility requirement for future reimbursement and not an express condition of payment. See Mikes, 274 F.3d at 701-02. The prospective nature of the certification, however, stems from the fact that program at issue here is the awarding
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of a grant, such that the eligibility and payment inquiries are in a sense the same. Thus, the periodic requests for payment made between the annual certifications are properly considered implied false certifications. See United States ex rel. Hendow v. University of Phoenix, 461 F.3d 1166, 1176 (9th Cir. 2006) (rejecting similar argument in the context of claims by a university for payments under the Higher Education Act, which inter alia banned institutions from paying recruiters on a perstudent basis).
The County’s claim that the payment requests cannot be implied certifications because they are related to the draw down of the grant and not the initial award are similarly unavailing. The requests for payments asked the United States to pay certain grant money -– grant money that been expressly conditioned on the certification that the County would AFFH. As such, the requests for payment of those grants funds impliedly certified their compliance with the grant requirements, including the requirement to AFFH.
Finally, the County cites United States ex rel. Conner v. Salina Regional Health Center, Inc., 543 F.3d 1211 (10th Cir. 2008), to support its contention that the certifications involve participation requirements and not payment conditions. Connor, however, is distinguishable. Connor specifically notes that its distinction between payment and participation conditions is
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important in contexts such as Medicare, “[w]here a contractor participates in [the] government program in order to perform the services for which payments are eventually made.” Id. at 1220. In the instant case, the County was not a contractor participating in a program to perform services and then bill the federal government for payment. Rather, in the context of a grant applicant for government funds, the distinction between participation and payment collapses. The County has therefore failed to raise a question of fact as to whether the County’s requests for payment of the housing and community development grant funds during the false claims period were implied false certifications.
B. Knowledge of the Claims’ Falsity Both the County and ADC contend that they are entitled to
summary judgment on the issue of the County’s knowing submission of false claims. “The Act defines ‘knowingly’ as either: (1) possessing actual knowledge; (2) acting in deliberate ignorance of falsity; or (3) acting in reckless disregard of falsity.” Mikes, 274 F.3d at 696 (citing 31 U.S.C. § 3729(b)). “[N]o proof of specific intent to defraud is required.” 31 U.S.C. § 3729(b).
In U.S. ex rel. Kreindler & Kreindler v. United Technologies Corp., the Second Circuit adopted the position that
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“[t]he requisite intent is the knowing presentation of what is known to be false. That the relevant [federal] government officials know of the falsity is not in itself a defense.” 985 F.2d 1148, 1156 (2d Cir. 1993) (citation omitted). The court noted, however, that
on the other hand, [federal] government knowledge may be relevant to a defendant’s liability: The fact that a contractor has fully disclosed all information to the government may show that the contractor has not “knowingly” submitted a false claim, that is, that it did not act with “deliberate ignorance” or “reckless disregard for the truth.” Id. at 1157 (citation omitted). The County has presented sufficient evidence to raise issues of fact as to whether it knowingly submitted false certifications and payment requests to the federal government. Conversely, the ADC also survives the County’s motion for summary judgment on the element of knowledge. Given the evidence ADC adduced, including the HUD Planning Guide, the training materials Drummond received, and the internal County Planning Department memoranda, all of which informed the County that failing to analyze race appropriately was a violation of its AFFH obligations, a reasonable factfinder could find that the County acted in knowingly or in reckless disregard as to the falsity of its certifications. This evidence, while supporting an inference of the County’s knowing or reckless disregard for the falsity of its certifications,
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however, does not compel such a conclusion. As explained in Kreindler, while the fact that the federal government officials may have known of the falsity does not bar FCA liability, disclosure by the County to the federal government is relevant to the issue of the County’s knowledge or reckless disregard. Despite the fact that HUD regulations do not require the submission of the AIs to HUD, the County submitted the AIs to HUD as part of the Consolidated Plans. While ADC cites the HUD Guide to demonstrate that it was not HUD’s role to review or approve AIs, whether or not HUD was to review the submissions, the County’s voluntary submission at least permits the inference that the County did not act in knowing and reckless disregard as to the falsity of its certifications.
C. Materiality and Damages The County argues that an FCA claim requires proof of
materiality and damages, in addition to the elements of the claim outlined in Mikes, 274 F.3d at 695, and that it is entitled to summary judgment on both elements. While the ADC will be required to show that the falsity in the certifications was material, the FCA does not impose a duty to prove damages. Moreover, disputed issues of fact require that the County’s motion for summary judgment on the issue of materiality be denied.
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As for the issue of damages, Mikes cites Harrison v. Westinghouse Savannah River Co., 176 F.3d 776 (4th Cir. 1999) (“Harrison I”), for the proposition that there is a split of authority as to whether damage to the government is an element of the offense. Mikes, 274 F.3d at 695. As Harrison I notes, there is no such requirement in the FCA itself of damages. Harrison I, 176 F.3d at 785 n.7. The statute provides for recovery of both a) two to three times the damages to the government and b) a civil penalty for the false or fraudulent claims. 31 U.S.C. § 3729(a). Blusal Meats, Inc. v. United States, 638 F. Supp. 824, 827 (S.D.N.Y. 1986), cited both by the County and the Fourth Circuit in Harrison I for the proposition that some courts consider damages as an element of an FCA offense, itself recognized that a violation of the (pre-1986 amendments) FCA could be found even in the absence of proof of damages to the United States, because of the civil penalty provisions of the FCA. Thus, the most faithful interpretation of the statutory language is a conclusion that damages to the United States need not be shown in order to establish FCA liability.
While the Second Circuit has declined to decide whether there is a materiality element for FCA violations, and therefore has not adopted a definition of materiality in this context, Mikes, 274 F.3d at 697, several other Circuits have found that
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an FCA claim requires a showing of materiality. See United States v. Bourseau, 531 F.3d 1159, 1170-71 (9th Cir. 2008) (reviewing cases and finding that First, Fourth, Fifth, Sixth and Eighth Circuits all have a materiality element for FCA claims); see also Connor, 543 F.3d at 1219 n.6 (adopting materiality element in Tenth Circuit for false certification claims). But see United States ex rel. Cantekin v. Univ. of Pittsburgh, 192 F.3d 402, 415 (3d Cir. 1999) (questioning whether materiality is an element, but declining to resolve the issue).
The circuits that have adopted a materiality element for an FCA claim have adopted different standards for assessing materiality. Some have looked to the Supreme Court’s statement in Neder v. United States that “[i]n general, a false statement is material if it has a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed,” 527 U.S. 1, 16 (1999) (citation omitted), and therefore have “adopted a ‘natural tendency test’ for materiality, which focuses on the potential effect of the false statement when it is made rather than on the false statement’s actual effect after it is discovered.” Bourseau, 531 F.3d at 1171 (emphasis supplied); see also United States v. Gaudin, 515 U.S. 506, 509 (1995) (applying natural tendency definition of materiality in the context of 18 U.S.C. § 1001,
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which proscribes making materially false or fraudulent statements in a matter within the jurisdiction of a federal agency). Other courts have adopted “a more restrictive ‘outcome materiality test,’ which requires a showing that the defendant’s actions (1) had the purpose and effect of causing the United States to pay out money it is not obligated to pay, or (2) intentionally deprive[d] the United States of money it is lawfully due.” Bourseau, 531 F.3d at 1171 (citation omitted).
This Court finds the reasoning requiring proof of materiality and adopting the “natural tendency test” for materiality, with its focus on the potential effect of the statement when made, more persuasive. See, e.g., United States ex rel. A+ Homecare, Inc. v. Medshares Management Group, Inc., 400 F.3d 428, 446 (6th Cir. 2005) (explaining that natural tendency test is more consistent with the plain language and underlying purposes of the FCA).
As discussed above in regard to the related question of legally false certifications, the grant funds at issue in this case were expressly conditioned on the AFFH certification requirement. The AFFH certification was not a mere boilerplate formality, but rather was a substantive requirement, rooted in the history and purpose of the fair housing laws and regulations, requiring the County to conduct an AI, take appropriate actions in response, and to document its analysis
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and actions. The County’s motion for summary judgment is therefore denied. See Hendow, 461 F.3d at 1175 (finding the parties’ argument over whether the false statements were material “largely academic” where the government funding was expressly conditioned on the particular requirement to which the false statements pertained); see also United States ex rel. Harrison v. Westinghouse Savannah River Co. (“Harrison II”), 352 F.3d 908, 915-17 (4th Cir. 2003) (rejecting argument that a certification was not material simply because the federal government continued to fund a subcontract after learning the certification was false where the certification was a prerequisite for bidding on the subcontract).
The County contends that correspondence between the County and HUD has shown that the certifications could not have been material to HUD’s funding decision as a matter of law, because HUD “knew” how the County interpreted its AFFH requirements based on the County’s submissions to HUD, and funded the County anyway.10 The County points to, inter alia, the fact that it submitted its Action Plans and CAPERs to HUD, which the County asserts showed HUD how it approached its AFFH obligations, and
10 The ADC contends that the County admitted in its answer that the certifications were a material condition for funding, while the County seeks to distinguish that admission or amend its answer in light of information it learned in discovery. The County’s statement in its answer will not preclude the ADC from having to prove materiality at trial.
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the fact that the County received correspondence back from HUD related to these submissions approving the County’s submissions and funding. For example, a letter from HUD relating to the 2002 Action Plan states in a Matter of Advice that HUD’s Office of Fair Housing and Equal Opportunity (“FHEO”) “noted that the Action Plan did not describe activities to address all of the housing needs of racial/ethnic groups with a disproportionate need,” and that “[p]olicies or actions that have a discriminatory impact on protected classes were not identified,” and that “[f]uture[] submissions could be improved by including such information”; the letter for the 2001 Action Plan had a similar notice. Additionally, a letter from HUD related to the 1999 CAPER advised the County that HUD’s FHEO noticed that the CAPER did not “identify/indicate the benefits to minorities by activity, the extent that CDBG [and other] funded activities benefited each racial and ethnic group, racial and ethnic group housing needs, and the proportion of expenditures received in relation to the needs of each racial/ethnic group” and that “[t]he County should have this information on file in the event of a HUD on-site review.” The County received a similar notice of insufficiency from HUD for the 2000 and 2001 CAPERs.
Westchester’s argument that its false certifications could not have been material because it submitted its AIs and related documents to HUD, and HUD continued to grant it funds, misses
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the mark in several respects. First, it overlooks the fact that submission of these materials does not establish that HUD “knew” precisely how the County was conducting its AI and its AFFH compliance. More significantly, the test for materiality is an objective one. There is no requirement that the plaintiff show that any grant official actually relied on the false certification in making the decision to send HUD fair housing and community development funds to the County. Conversely, an individual government employee’s decision to approve or continue such funding, even with full access to all relevant information or knowledge of the falsity of the applicants certification does not demonstrate that the falsity was not material. After all, the FCA is intended to police the integrity of those claims submitted to the government for payment, and the materiality of statements made in those claims is tested as of the time of submission to the government and in the context of the regulatory requirements. Thus, the assertion that certain HUD bureaucrats reviewed the County’s submissions and continued to grant the County funding cannot somehow make the false AFFH certifications immaterial, where the funding was explicitly conditioned on the certifications.11
11 The County also relies on United States v. Southland Management Corp., 326 F.3d 669 (5th Cir. 2003), to argue that its statements were not material, but that case is distinguishable. There, the United States sued “the owners of
53

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 Case 1:06-cv-02860-DLC Document 86 Filed 09/30/2008 Page 1 of 40

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA ex rel.

:

ANTI-DISCRIMINATION CENTER OF

:

METRO NEW YORK, INC.,

:

:

Plaintiffs,

:

– against –

:

:

WESTCHESTER COUNTY, NEW YORK,

:

:

Defendant.

:

--------------------------------------- x

ECF CASE 06 CV 2860 (DLC)

______________________________________________________________________________
DEFENDANT WESTCHESTER COUNTY, NEW YORK’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________

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Stuart M. Gerson Michael A. Kalish Carrie Corcoran EPSTEIN BECKER & GREEN, P.C. Of Counsel to Westchester County Attorney, Charlene Indelicato Attorneys for Defendant 250 Park Avenue New York, NY 10177 Telephone: (212) 351-4500

Case 1:06-cv-02860-DLC Document 86 Filed 09/30/2008 Page 2 of 40

TABLE OF CONTENTS

Page

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES ............................................................................................ii, iii, iv, v

BACKGROUND .............................................................................................................................3

A. The County Conducted Two AIs During The Limitations Period, and, in Doing So, Appropriately Considered Race..............................................................5

B. The County Took Appropriate Actions to Overcome Impediments to Fair Housing. .................................................................................................................12

C. HUD Approved the County’s Submissions That Fully Disclosed the Conduct of Which Relator Complains...................................................................17

ARGUMENT ................................................................................................................................19

POINT I

THE COUNTY TRUTHFULLY CERTIFIED IT WOULD AFFIRMATIVELY FURTHER FAIR HOUSING. ..............................................20

A. The County Conducted An AI ...............................................................................22

B. The County Took Appropriate Actions .................................................................25

POINT II

RELATOR CANNOT SHOW THAT THE COUNTY KNOWINGLY PRESENTED A FALSE CERTIFICATION.........................................................27

POINT III ANY DEFICIENCIES IN THE COUNTY’S AIS WERE NOT MATERIAL TO HUD’S FUNDING DECISION.................................................31

POINT IV

THIS COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE RELATOR WAS NOT AN ORIGINAL SOURCE OF PUBLICLY DISCLOSED INFORMATION. .......................................................32

CONCLUSION..............................................................................................................................34

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TABLE OF AUTHORITIES Page
CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................................19 Battle v. Board of Regents for Georgia, 468 F.3d 755 (11th Cir. 2006) .......................................33 Castenson v. City of Harcourt, 86 F. Supp. 2d 866 (N.D. Iowa 2000)..........................................23 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..............................................................................19 Coalition of Bedford-Stuyvesant Bloc. Ass'n, Inc. v. Cuomo, 651 F. Supp. 1202 (E.D.N.Y. 1987).............................................................................................................................11 Hope v. DuPage County, 738 F.2d 797 (7th Cir. 1984) ..........................................................12, 14 Christensen v. Harris County, 529 U.S. 576 (2000)). ...................................................................24 Hays v. Hoffman, 325 F.3d 982 (8th Cir. 2003) ............................................................................33 Jaimes v. Toledo Metro. Hous. Auth., 715 F. Supp. 835 (N.D. Oh. 1989) ....................................27 Land.com v. Kleiner, 815 N.Y.S.2d 234 (2d Dept. 2006) .............................................................26 Luckey v. Baxter Healthcare Corp., 183 F.3d 730 (7th Cir. 1999) ...................................21, 30, 31 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).....................................19 Mikes v. Straus, 274 F.3d 687 (2d Cir. 2001) ..........................................................................21, 31 In re Natural Gas Royalties Qui Tam Litig., 467 F. Supp. 2d 1117 (D. Wy. 2006)......................33 North Shore Unitarian Universalist Soc'y, Inc. v. Incorporated Village of Upper Brookville, 493 N.Y.S.2d 564 (2d Dept. 1985) .............................................................................26 Suffolk Housing Servs. v. Town of Brookhaven, 109 A.D.2d 323 (2d Dept. 1985), aff'd 70 N.Y.2d 122 (1987) .........................................................................................................................26 Tinsley v. Kemp, 750 F. Supp. 1001 (W.D. Mo. 1990)..................................................................27 United States ex rel. Aflatooni v. Kitsap Physicians Servs., 163 F.3d 516 (9th Cir. 1999)...........31 United States ex rel. Anderson v. Northern Telecom, Inc., 52 F.3d 810 (9th Cir. 1995)...............19

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United States ex rel Bly-Magee v. Premo, 470 F.3d 914 (9th Cir. 2006) ......................................33 United States ex rel. Ervin & Assocs., Inc. v. Hamilton Secs. Group, 298 F. Supp. 2d 91 (D.D.C. 2004) ................................................................................................................................28 United States ex rel. Farmer v. City of Houston, 523 F.3d 333 (5th Cir. 2008)...............27, 28, 30 United States ex rel. Hopper v. Anton, 91 F.3d 1261 (9th Cir. 1996) ...........................................20 United States ex rel. Kersulis v. RehabCare Group, Inc., No. 4:00-CV-00636 GTE, 2007 WL. 294122 (E.D. Ark. Jan. 29, 2007)..........................................................................................20 United States ex rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148 (2d Cir. 1993) (citing 31 U.S.C. § 3729(b)).........................................................................................28 United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013 (7th Cir. 1999) ................20, 29 United States ex rel. Mistick PBT v. Housing Auth. of Pittsburgh, 186 F.3d 376 (3d Cir. 1999) ..............................................................................................................................................32 United States ex rel. Smith v. Yale Univ., 415 F. Supp. 2d 58 (D. Conn. 2006)............................31 United States ex rel. Swafford v. Borgess Med. Ctr., No. 00-1288, 2001 WL. 1609913 (6th Cir. Dec. 12, 2001) .................................................................................................................20 United States v. Gatewood, 173 F.3d 983 (6th Cir. 1999).............................................................23 United States v. Intervest Corp., 67 F. Supp. 2d 637 (S.D. Miss. 1999) .................................31, 32 United States v. New York Med. Coll., 252 F.3d 118 (2d Cir. 2001).............................................33 United States v. Southland Mgmt. Corp., 326 F.3d 669 (5th Cir. 2003) ...........................21, 30, 32 United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992)..............................................21 United States v. Yonkers Bd. of Educ., 239 F.3d 211 (2d Cir. 2001).......................................26, 27 Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000)...............21 Wang v. FMC Corp., 975 F.2d 1412 (9th Cir. 1992)....................................................................30 X Corp. v. Doe, 816 F. Supp. 1086 (E.D. Va. 1993) ....................................................................29

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STATUTES, RULES AND REGULATIONS 31 U.S.C. § 3729........................................................................................................................4, 28 31 U.S.C. § 3730......................................................................................................................32, 33 42 U.S.C. § 5301..............................................................................................................................3 42 U.S.C. § 5302..............................................................................................................................3 42 U.S.C. § 5306..............................................................................................................................4 24 C.F.R. § 1.7 ...............................................................................................................................26 24 C.F.R. § 570.200 .........................................................................................................................3 24 C.F.R. § 570. 207 .....................................................................................................................3,4 24 C.F.R. § 570.3 .............................................................................................................................4 24 C.F.R. § 570.302 .........................................................................................................................4 24 C.F.R. § 570.307 .........................................................................................................................3 24 C.F.R. § 570.900 .................................................................................................................26, 29 24 C.F.R. § 570.904 .................................................................................................................26, 29 24 C.F.R. § 570.910 ...........................................................................................................17, 26, 29 24 C.F.R. § 85.43 ...........................................................................................................................29 24 C.F.R. § 91.105 .........................................................................................................................26 24 C.F.R. § 91.1 ...........................................................................................................................3, 4 24 C.F.R. § 91.15 .............................................................................................................................4 24 C.F.R. § 91.225 .........................................................................................................................29 24 C.F.R. § 91.400 et seq.................................................................................................................4 24 C.F.R. § 91.420 .........................................................................................................................18 24 C.F.R. § 91.425 ...........................................................................................................................4

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24 C.F.R. § 91.5 .............................................................................................................................29 24 C.F.R. § 91.520 .........................................................................................................................17 24 C.F.R. § 92.1 ...............................................................................................................................4 Fed. R. Civ. P. 56.......................................................................................................................1, 19 Final Rule, "Consolidated Submission for Community Planning and Development Programs," 60 Fed. Reg. 1878-01, 1895 (Jan. 5, 1995).................................................................21 Westchester Human Rights Law ...................................................................................................16 "Proposed Rules on Determining Accuracy of Certification that Fair Housing is Furthered," 63 Fed. Reg. 57882-01, 1998 WL 745863, at 57882 (HUD Oct. 28, 1998) ..............20
ADDITIONAL AUTHORITIES John P. Dellera, County Powers in Assisted Housing Programs: The Constitutional Limits in New York, 20 Fordham Urban L.J. 109, 113 (1993).......................................................27

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The County of Westchester, New York (the “County”), is entitled to summary judgment pursuant to Fed. R. Civ. P. 56(c) because discovery shows beyond material question that the County never made any false statement to the United States, never mind an intentionally false statement.1 Rather, the evidence shows that the County, in its role as an administrator of federal housing and community development funds, truthfully certified to the federal government that it would affirmatively further fair housing (“AFFH”), meaning it would conduct an analysis of impediments to fair housing (“AI”) and take appropriate actions to overcome identified impediments.
Relator believes that the County should have done more, or done it differently, with respect to its fulfillment of its AFFH certifications. But, at the end of the day, whatever Relator argues concerning the analytic and policy practices that it believes are best, no evidence contradicts the County’s reasonable conclusion that it satisfied federal housing policy requirements, let alone reflects that it had the intention to violate those requirements. No statute, regulation, or case law clearly required the County to do more than it did in connection with its AIs. And even if, as Relator argues, the County might not have followed every recommendation set forth in the U.S. Department of Housing and Urban Development’s (“HUD”) guidance materials, HUD nonetheless repeatedly accepted the County’s submissions, leading the County reasonably to believe it had complied with applicable requirements. Given both the County’s and HUD’s actions, Relator, as a matter of law, cannot satisfy the intent element of the False Claims Act.

1

The County also renews its argument, originally made in its earlier motion to dismiss, that the

Court lacks subject matter jurisdiction over Relator’s claim because the claim is based on information that

was publicly disclosed and as to which Relator is not the original source. Discovery now having been

concluded, it is clear as a matter of fact that Relator cannot satisfy its jurisdictional burden on this point.

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More basically, Relator cannot even show that the County violated its AFFH obligations. The evidence substantiates that the County at least satisfied the minimum requirements set forth in the governing laws and regulations, and satisfied HUD to boot. Relator, however, argues that the County simply ignored race in its fair housing analysis and claims that historical racial segregation in housing exists in some, but not all, of the municipalities of the large and diverse County. Contrary to Relator’s fundamental allegation, the County did not ignore race. Rather, its repeated inquiries demonstrated that race, per se, was not an impediment to fair housing. Racial discrimination was not cited as an obstacle by racial minorities or anyone else. Instead, the impediments to fair housing consistently identified to the County relate to economics, which are not unrelated to race. Relator’s emphasis on the County’s historical population patterns ignores the reality that such patterns develop as a result of many factors unrelated to discrimination. Housing costs in Westchester County are among the highest in the country, and many areas where racial minorities are scarce do not have plentiful public transportation or employment options. In short, the central issue faced by minorities in the County concerns whether they possess sufficient funds to lease or buy housing, not discrimination.
In any event, it is clear beyond cavil that the County satisfied its AFFH obligation by, among other things, analyzing census data, soliciting and considering the views of a diverse body of stakeholders in the County, including minority group members, operating an organization highly capable of addressing and remedying racial discrimination, and tirelessly promoting affordable housing in the County. In sum, Relator’s contention that the County did not satisfy best practices is not even evidence that the County’s certifications were false, and is certainly not evidence that they were intentionally false, within the meaning of the False Claims

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Act. Thus, this case remains, as it always has been, a dispute over policy best left to administrative or legislative fora, and Judgment should be awarded to the County.
BACKGROUND The County administers federal housing and community development grants on behalf of the Westchester Urban County Consortium (the “Consortium”). The Consortium consists of forty independent municipalities that have signed cooperation agreements with the County. [See County’s Rule 56.1 Statement of Undisputed Material Facts (“Stmt.”) ¶ 1]; 42 U.S.C. § 5302(a)(6)(A)(ii)(I)(b); 24 C.F.R. § 570.307(b)(1). The “overall goal” of the federal programs administered by the County “is to develop viable urban communities by providing decent housing and a suitable living environment and expanding economic opportunities principally for low and moderate income persons. The primary means towards this end is to extend and strengthen partnerships . . . in the production and operation of affordable housing.” 24 C.F.R. § 91.1(a)(1) (emphasis added).2 The majority of the funds administered by the County derive from the Community Development Block Grant program (“CDBG”). [Stmt. ¶ 2.] CDBG provides funds to communities for neighborhood revitalization and improvement. 42 U.S.C. § 5301(c).3 It exists “principally for persons of low and moderate income.” Id.; 24 C.F.R. § 570.207; see also 24 C.F.R. § 570.200(a)(2); [Stmt. ¶ 3 (“[M]unicipalities with the greatest populations of low and

2

The regulations clarify that “decent housing includes . . . increasing the availability of permanent

housing in standard condition and affordable cost to low-income and moderate-income families,

particularly to members of disadvantaged minorities, without discrimination on the basis of race, color,

religion, sex, national origin, familial status, or disability.” 24 C.F.R. § 91.1(a)(1)(i). Because minorities

constituted a disproportionate share of the County’s low- and moderate-income population, the County’s

focus on the provision of affordable housing disproportionately assisted disadvantaged minorities. See

infra.

3

The County also administers HOME Investment Partnership (“HOME”), Emergency Shelter

Grant (“ESG”), Housing Opportunities for Persons with Aids (“HOPWA”), and American Dream

Initiative (“ADI”) program funds. [Stmt. ¶ 2.]

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moderate income households are given the most consideration” for CDBG grants)]. Except in very limited circumstances, CDBG funds may not be used for the construction of housing or apartments.4 24 C.F.R. § 570.207(b)(3). HUD allocates CDBG funds to the Consortium pursuant to a formula, which takes into account its population and the age of its housing stock. See 42 U.S.C. § 5306(b)(2)(B)(iii). Many communities in the Consortium, because of their population size and the age of their housing stock, bring into the Consortium considerably more money than they receive in turn. [Stmt. ¶ 3.] In order to obtain continued federal funding, consortia periodically must submit to HUD a consolidated plan (a “Plan”) that serves as both an application and a planning document. 24 C.F.R. §§ 91.1(b), 91.15, § 91.400 et seq., & 570.302. A Plan must be grounded in a broad base of community input, and “describe[] needs, resources, priorities and proposed activities to be undertaken with respect to HUD programs,” present a strategy for the consortium’s HUD programs, and provide a benchmark for performance assessment. 24 C.F.R. §§ 91.1(b), 91.400 et seq., & 570.3.
Consortia must submit various certifications in conjunction with their HUD grant applications. See, e.g., [Stmt. ¶ 4]; 24 C.F.R. § 91.425. Thus, the County certified that it “will affirmatively further fair housing, which means it will conduct an analysis of impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and actions in this regard.” [Stmt. ¶ 4]; 24 C.F.R. § 91.425(a)(1)(i). Over the course of the relevant period, the County made seven such certifications, each signed by County Executive Andrew Spano after the County Planning Department advised him with respect to compliance. [Stmt. ¶

4

In contrast, HOME funds – which comprise a much smaller portion of the funds administered by

the County – may be used to construct housing. 24 C.F.R. § 92.1 (“HUD allocates funds . . . to expand

the supply of decent, safe, sanitary, and affordable housing . . . for very low-income and low-income

families.”).

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5.] None of the relevant statutes or regulations specify what an AI or “appropriate actions” must entail. [Stmt. ¶ 6.] Relator contends that the County’s AFFH certifications violated the False Claims Act because the County allegedly did not consider race appropriately in conducting its AI and because the County’s cooperative relationship with Consortium municipalities precluded it from taking “appropriate actions” to overcome the impediments it identified. The uncontroverted evidence reflects otherwise, showing that the County undertook an AI, and took appropriate actions to overcome the impediments to fair housing that its analysis identified. However, any dispute about the sufficiency of these activities is legally unimportant. Given what the County actually did and considered, Relator cannot, as a matter of law, show that the County acted with unlawful intent. Hence its claims must fail under the False Claims Act.
A. The County Conducted Two AIs During The Limitations Period, and, in Doing So, Appropriately Considered Race. Since 2000, the County has conducted two AIs. [Stmt. ¶ 7.] It submitted the first
AI to HUD as Chapter 8 of its Consolidated Plan Covering Fiscal Years 2000-2004 (“2000 Plan”)2000 Plan and it submitted the second AI as Chapter 9 of its Consolidated Plan Covering Fiscal Years 2004 - 2008 (“2004 Plan”)).5 [Id.] Although the County only denominated one chapter of each of the Plans as the AI, the County identified the impediments to fair housing through its analysis of the information and data contained in the Plans as a whole. [Id.] The Court, in its decision denying the County’s Motion to Dismiss, held that the AFFH obligation required the County to consider race when conducting its AI. [See Affirmation of Michael A. Kalish in Support of Defendant Westchester County, New York’s Motion for Summary

5

As part of a special HUD pilot program in which the County participated, the 2004 Plan is

presented in PowerPoint format in order to be more user-friendly. [Stmt. ¶ 8]

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Judgment (“Kalish Aff.”) Ex. 16 (Op. & Order denying County’s motion to dismiss (“Op.”)) at

28-32.] The County plainly carried out its AIs with sufficient race consciousness.

In looking to what the County actually did with respect to its two AIs, we note

that it was done against a background of racial sensitivity and concern. The County

acknowledges that minority group members face obstacles that white persons do not experience,

including individual cases of racial prejudice. [Stmt. ¶ 9] However, it has determined that the

fundamental housing issue that minorities face in the County is economic. [Id.] The County has

grappled with that impediment and its certifications were accurate.

Thus, the 2000 AI concluded that “the greatest impediment to fair housing is the

lack of affordable housing.” [Stmt. ¶ 10.] Although the County recognized “other restrictions

to housing choice,” affordability ranked first because the County’s “housing stock is expensive relative to income and this significantly limits one’s housing options.”6 [Id.] In addition to

affordability, the 2000 AI identified ten other obstacles with which the Consortium “most

contends . . . in addressing the housing needs of its residents.” [Stmt. ¶ 12.] These included

public and private conditions, policies, procedures and practices that limited housing choice such

as lack of vacant land, the high cost of land, limited funds, limited Section 8 vouchers and

certificates, local opposition, limited not-for-profit capacity, high construction costs, lengthy

review processes, few high-density zones, and higher rents for certain recipients of public

assistance. [Id.]

Although the County did not specifically find that any race-based impediments

were among the most significant barriers to fair housing, the 2000 AI does not ignore race.

[Stmt. ¶ 13.] “Local opposition” includes local opposition on racial grounds. [Id.] Furthermore,

6

HUD itself has recognized the preeminence of income-related issues to an individual’s ability to

access affordable housing. [Stmt. ¶ 11 (HUD report to Congress, stating that “the importance of income

for households seeking affordable housing cannot be overstated”).]

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the 2000 AI specifically notes that fair housing issues are encompassed by the County’s housing initiative, that the 2000 Plan “includes objectives and long term goals to eliminate housing discrimination,” that the County funds fair housing counseling services, and that the County provides a variety of resources to citizens wishing to make discrimination complaints. [Id.; see also id. (Westchester Hispanic Coalition thanking County for supporting its goal “to provide services designed to facilitate greater community integration . . . .”). The 2000 AI also reports that “there are not scores of discrimination complaints on file” and states that the County’s initial review of mortgage loan data “does not identify any restrictive lending patterns.” [Id.]
The 2004 AI likewise determined that the “[g]reatest impediment to fair housing is the lack of affordable housing throughout the New York region” and identified twelve additional impediments. [Stmt. ¶ 14.] These included public and private conditions, policies, procedures and practices that limited housing choice such as lack of vacant land and its high cost, limited funds, limited Section 8 vouchers and other rental assistance, local opposition, limited non-profit capacity, high construction costs, lengthy review processes, few high-density zones, high prevalence of lead paint, and limited interest by landlords and developers. [Id.] Although race-based impediments did not specifically make the County’s list, the County again found “local opposition” to be an impediment. [Stmt. ¶ 15.] Moreover, the AI specifically notes that the County funds Westchester Residential Opportunities’ (“WRO”) fair housing counseling activities. [Id.; see also id .(grant to the WRO Consortium-wide project to “educate low/moderate income households in fair housing laws, first time homebuyers, predatory lending”); id. (grant to Westchester Hispanic Coalition, Inc.); id. (categorizing “Fair Housing Assistance” as an aspect of its top CDBG priority to increase the supply of affordable housing).] It also reports that the County established a Human Rights Commission “to process and

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investigate discrimination complaints.” [Id.] Additionally, the AI directs the reader to home mortgage loan data. [Id.]
Relator’s untenable claim that the County did not analyze race in conducting its AIs is further belied by the abundant data and analysis related to race throughout the 2000 and 2004 Plans. [Stmt. ¶ 16; see also id. (reporting racial make-up of persons comprising the waiting lists for Section 8 housing vouchers and certificates); id. (identifying “Discrimination in Housing Opportunities” as a barrier to affordable housing); id. (reporting housing discrimination complaint data).] For example, the Plans identify areas of minority concentration within the Consortium. [Stmt. ¶ 17.] The County also assessed whether racial or ethnic groups had disproportionately greater housing needs at various income levels. [Id.; see also id. (listing as a “key finding[]” that “72% of Consortium households own their own home; yet only 46% of Black households and 35% of Hispanic households own their own home”).]
All of the work and activities of the County Planning Department informed the AIs. [Stmt. ¶ 18.] Additionally, in putting together the Plans and the AIs, the County gathered and analyzed a variety of information and data to determine, among other things, what impediments to fair housing existed in the County. [Id.] For example, the County reviewed discrimination complaints filed at WRO7 and in its Section 8 office. [Id.] Moreover, it analyzed a “comprehensive list of demographic material,” including the racial composition of municipalities and any increases or declines in such composition. [Id.] The views of a wide swath of constituents also provided a crucial source of information to the County. [Stmt. ¶ 20.] County Executive Andrew Spano and other County representatives had countless conversations during the limitations period with representatives of the African American community,

7

WRO is a HUD-certified housing counseling agency. [Stmt. ¶ 19] It investigates, mediates, and

refers complaints to other agencies. [Id.]

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municipalities, and others involved in the housing arena. [Id.] No one identified racial discrimination or segregation as a concern. [Id.] Instead, the County heard that the lack of affordable housing posed the greatest challenge. [Id.]
In addition to the County’s ongoing dialogue with its constituents, the Plans involved an “extensive citizen participation process that included Westchester County departments and agencies, not-for-profit organizations, local municipal officials, and interested citizens in the 39 towns, villages and cities that comprise the Consortium.”8 [Stmt. ¶ 21; see also id. (citizen participation plan, noting membership preference for minority group members in Citizen Development Advisory Group.] The not-for-profit housing groups with which the County met included the fair housing organization WRO and a “non-profit housing coalition.” [Stmt. ¶ 21; see also id. (County met with the Housing Action Council to determine impediments to fair housing choice.] The County also consulted with the WRO, a group devoted to furthering fair housing in the County, in drafting the AIs. [Id.]
Besides many face-to-face meetings, the County used questionnaires to solicit the views of municipalities, CDBG grantees, not-for-profit organizations, County departments, public housing authorities, Section 8 administrators, and members of the public. [Stmt. ¶ 23.] The questionnaire for public housing authorities and Section 8 administrators requested information on housing discrimination complaints the responders had received and requested the responders to rank tools for “eliminating housing discrimination.” [Id.; see also id. (only respondent reporting complaints of housing discrimination, but noting that such complaints were

8

Relator never participated in or attended any forum at which the County solicited the public’s

views on its housing and community development activities or utilized any HUD or other government

administrative channels. [Stmt. ¶ 22.] It simply, and wastefully, embarked on the tack of trying to get

this Court to legislate through litigation. In doing so, it undermines its own professed fair housing goals

by causing the County to expend precious funds defending meritless fraud allegations – resources that

could have been used to provide additional affordable housing opportunities to low-income and minority

families.

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“rare” and were not “formal” and not specifying that such complaints related to race).] The questionnaire for municipalities, County departments, and not-for-profits asked responders to rank the priority of “fair housing counseling” among other community service needs. [Id.] The input the County received prior to the 2000 and 2004 AIs did not reflect that racial discrimination constituted a significant barrier to fair housing. [Stmt. ¶ 24.] Rather, the responders, along with voluminous additional data and information before the County, confirmed that the County’s most pressing problem was lack of affordable housing stock. [Id.]
The County reasonably believed that the shortage of affordable housing disparately impacted classes protected by the FHA. [Stmt. ¶ 25.] The County’s analysis of census data suggested that minority group members made up a disproportionate share of the low income, rent-burdened, and overcrowded households that needed affordable housing. [Id.] Generally, African Americans and Hispanics disproportionately benefited from the Consortium’s grants, which themselves primarily benefited the County’s low and moderate income residents. [Id.] Additional information before the County highlighted that the patterns of race, income and poverty within the County are closely linked and a substantial overlap exists between race and low-income impoverished persons. [Stmt. ¶ 26; see also id. (County Affordable Needs Assessment, reporting that minorities are much more likely to live in deficient or overcrowded units); id. (Grant Street Senior Housing Fair Marketing Plan, reflecting higher proportion of minority renter households with low incomes and on Section 8 waiting lists); id. (affordable housing development funding applications, noting lack of home affordability “particularly burdensome for minority households”); id. (WRO CDBG grant application, discussing demographics of housing counseling clientele); id. (WestCop annual reports, recognizing that “[p]overty in Westchester County correlates strongly with race, ethnicity and family status”); id.

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(discussing distressed area in Peekskill with many low-income minority residents); id. (CDBG application for day care services, noting high percentage of low-income and minority clientele); id. (Ossining Community Action application, noting that poverty concentrated in Ossining’s African American and Hispanic neighborhoods); id. (Project Love after-school program application, noting “high correlation between race and poverty”); id. (CDBG application for summer camp, alluding to link between family income and minority status); id. (census block groups with 40% or more persons below poverty line or 40% minority); id. (Mount Vernon, Yonkers Community Health Centers description, “Low income and minority families surrounded by affluence are often subject to socioeconomic discrimination.”).] Thus, the County reasonably understood that the affordable housing shortage constituted the most important barrier to fair housing for minority group members.
Relator asserts that the County’s minority residents disproportionately experience housing problems because of their race (as opposed to their socioeconomic status). In support of this contention, Relator mainly relies on year 2000 census data that reflect that some municipalities had few African American residents and others had large African American populations. [Stmt. ¶ 27.] Based on these numbers alone, Relator claims that the County is segregated. [Id.] This conclusion is unduly simplistic, failing to address historical matters and whether alleged segregation is a de facto matter or was intentional. Cf. Coalition of BedfordStuyvesant Bloc. Ass’n, Inc. v. Cuomo, 651 F. Supp. 1202, 1210-11 (E.D.N.Y. 1987) (dismissing discrimination claim based on placement of homeless shelters in minority-concentrated communities because statistics insufficient to establish discriminatory intent). In any event, whatever one concludes as to historical population distribution, Relator has made no showing that it has anything to do with any barrier to fair housing between 2000 and 2006. The County

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cannot be deemed to be placed on notice of race-based impediments to fair housing choice solely because of historical population patterns.9 Relator also cannot show that, had the County

analyzed race-related issues in the manner ADC would like, it would have reached different

conclusions.

Relator also contends that the County should have undertaken a wide variety of

additional inquiries in relation to its AIs. But Relator cannot point to any statute or regulation

dictating that the County undertake these activities, only certain non-binding HUD suggestions

that are not necessarily focused on a County consortium of communities (rather than a state or a

single-city HUD entitlement) or on the unusual economic conditions of the County. Given that the County does not possess limitless resources,10 the County’s failure to follow each and every

suggestion by HUD simply cannot be deemed to be a failure to satisfy its obligations – never

mind fraud.

B. The County Took Appropriate Actions to Overcome Impediments to Fair Housing.

As it certified it would do, the County took appropriate actions throughout the

relevant period to overcome the impediments to fair housing that it identified. Relator ignores,

minimizes, or distorts these actions and, further, erroneously contends that the only appropriate

action available to the County was to take punitive measures against its municipalities. No such

requirement exists, and with good reason. It is far from irrational to conclude that a cooperative

9

The reasons for poor and minority concentrations in inner cities are multi-faceted. Concentration

per se is not evidence of discrimination and is not necessarily the outcome of government housing

policies or decisions. Cf. Hope v. DuPage County, 738 F.2d 797, 806, 809 n.4 (7th Cir. 1984) (rejecting

that housing patterns created inference of discrimination and noting that “it is natural and rational that

lower cost subsidized housing occurs with greater frequency in incorporated areas” with higher

percentage of minority population because subsidized housing requires services such as public

transportation, convenient shopping and school opportunities, and other services not found in more rural

areas). Nor can Westchester intervene with any certain ability to change these fundamental processes.

10

The affordable housing crisis within the County dwarfs the insufficient resources available. [Stmt.

¶ 28]

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approach is superior to a punitive one that would drive municipalities away from participation in the Consortium. Such a reasoned belief cannot constitute reckless disregard of the truth of its AFFH certification.
Relator ignores the fact that the County non-discriminatorily administers a variety of federal and state housing and community development programs11 that improve communities, develop and rehabilitate affordable housing, provide rental or home-ownership assistance, and provide related social services in a manner that AFFH (including fair housing counseling).12 [Stmt. ¶ 29.] The Consortium uses nearly all of the federal funds it receives to benefit low- and moderate-income persons and in communities that have high minority populations and its grants disproportionately benefit minority groups. [Stmt. ¶¶ 30- 31.]
On multiple fronts, the County has tackled the need for fair and affordable housing. [Stmt. ¶ 32.] These efforts include funding land acquisition, infrastructure improvements, and construction, spearheading initiatives designed to spur the creation of affordable housing, and spreading the word about the need for, and desirability, of it.13 [Id.] George Raymond, a well-known and respected affordable housing advocate and expert who heads the Housing Opportunity Commission, lauded the County for its trailblazing strategies to

11

In addition to CDBG, these include (but are not limited to) HOME, the Weatherization Referral

Assistance Program, the Lead Based Paint Removal Program, the Property Improvement Program, the

Residential Emergency Services to Offer Repairs to the Elderly program, HOPWA, the Section 8

program, American Dream Downpayment Initiative, ESG, and the Affordable Housing Corporation

Home Improvement Plan. [Stmt. ¶¶ 2, 29.]

12

The County even funded Westchester Hispanic Coalition’s challenge to Mount Kisco’s

discriminatory zoning ordinance. [Stmt. ¶ 30.]

13

The County also assists its homeless population and those at risk of becoming homeless by

supporting shelters, homeless-prevention programs, and related social services. [Stmt. ¶ 41.]

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increase affordable housing. [Id.] No other county in New York has done as much as Westchester County to increase affordable housing opportunities. [Id.]
For example, the County created and funded the New Homes Land Acquisition Program, through which the County purchases property at market rate and then conveys it to a developer for $1 in return for the development of affordable units on the conveyed property. [Stmt. ¶ 33.] As of March 2006, the County had approved $30 million in funding under this program. [Id.] Another County-funded program, the Housing Implementation Fund, subsidizes the construction of municipal infrastructure for affordable housing. [Stmt. ¶ 34.] As of March 2006, the County had approved $34 million in funding under this program. [Id.] The County’s Industrial Development Agency issues tax-exempt bonds to developers of affordable housing. [Stmt. ¶ 35.]
In 1990, the County retained consultants to assess the County’s affordable housing need. [Stmt. ¶ 36.] In 1993, the County allocated the needed units among all of its municipalities. [Id.] The County updated its housing needs assessment in 2004 and the affordable housing allocations in 2005. [Id.] As a result of these activities, over 3,000 units of affordable housing were built or under construction as of July 2005.14 [Id.] Although this amount falls short of the County’s needs, the amount of new affordable housing greatly exceeded

14

Relator makes much hay over the fact that some municipalities have had more affordable housing

built within their borders than others and contends that the municipalities in which less affordable housing

has been constructed should automatically be deemed not to have affirmatively furthered fair housing.

The world is not so simple. The shortage of affordable housing is not a problem that can be solved

overnight. Restrictive zoning is just one of many factors that can potentially impede the construction of

affordable housing. Cf. Hope v. DuPage County, 738 F.2d 797, 806, 809 n.4 (7th Cir. 1984). Other

factors include the limited resources available, and the fact that land is especially expensive in many of

the localities in which Relator would like more affordable housing constructed. [Stmt. ¶¶ 12, 14, 32, 37.]

Also, many of these communities are more remote from commercial and transportation hubs, making

them undesirable to low-income persons. Even if zoning in these locations permitted high density

developments, that does not mean that developers would build affordable housing. [Stmt. ¶ 37.]

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the affordable housing goals set forth in its Plans. [Id.] The goals set forth in the Plans – and not the most ambitious plan in New York state – are the proper measures of whether the County has taken appropriate actions.
The County’s strategies are constantly evolving. In 2003 and 2005, the County entered into agreements with the Towns of Lewisboro and Somers, respectively, pursuant to which the County provides funding to those municipalities for open space initiatives with the concomitant obligation that the municipalities create affordable housing. [Stmt. ¶ 38.]
With the assistance of a public relations firm, the County has conducted a “Campaign for Affordable Housing” throughout the limitations period to educate it citizens and increase support for affordable housing. [Stmt. ¶ 39.] County Executive Spano has repeatedly used his State of the County Addresses as a platform to further this cause. [Id.] The County has also led public meetings and tours of affordable housing developments, and created a video showcasing affordable housing developments and a website to educate its citizenry about affordable housing and to inspire localities to rise to the challenge. [Id.] This website, http://www.westchestergov.com/housing.htm, provides plentiful information about fair and affordable housing issues, including resources for developers, tenants, landlords, and homeowners. [Id.] Further to the County’s ongoing efforts to educate and encourage affordable housing, the County Planning Board uses the zoning “referrals” it receives from municipalities pursuant to statute to encourage municipalities to include affordable housing in their plans. [Stmt. ¶ 40.] And, the County urges Section 8 voucher holders to move into communities with lower concentrations of minorities and/or impoverished persons. [Stmt. ¶ 44.]
Throughout the relevant period, the County has also combated housing discrimination. [Stmt. ¶ 42.] It has supported and worked with fair housing organizations. [Id.]

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In 1999, the County enacted a Human Rights Law (“HRL”), which outlaws, among other things, housing discrimination. [Stmt. ¶ 43 (citing HRL § 700.5).] The HRL created the County’s Human Rights Commission, which opened its doors in 2000, whose mission encompasses legal, educational and legislative advocacy in the housing arena.15 [Stmt. ¶ 43; see also id. (citing HRL §§ 700.08, 700.09).] The County also educates persons about their right to be free of unlawful discrimination by creating and disseminating information concerning the anti-discrimination laws. [Stmt. ¶ 45; id. (citing HRL §§ 700.08, 700.09).]
The County has also ensured that the voices of the African American and Hispanic communities are heard. For example, since 1998, the County’s African American Advisory Board has provided feedback and input to the County Executive and Board of Legislators on issues impacting the African American community, including on housing issues, and develops and recommends effective policies, legislation and/or services to eliminate discrimination and improve opportunities for African-Americans and their families. [Stmt. ¶ 46.] The County’s Office for African American Affairs similarly works to identify and resolve issues affecting African Americans in the County. [Id.] The County likewise has an Office of Hispanic Affairs, which aims to help Hispanic residents integrate into the larger community and a Hispanic Advisory Board, which advises and assists the County Executive on public policy relating to Hispanic Americans in Westchester County, including housing issues. [Stmt. ¶ 47.]
In the face of this extensive list of appropriate actions taken by the County that address the barriers to fair housing within the County, Relator nevertheless asserts that the County cannot have satisfied its AFFH certification because it did not employ hard-nosed tactics, such as bringing litigation or withholding funds, to overcome any real or perceived opposition to

15

In March 2008, the County amended its Fair Housing Law to conform to the federal FHA. [Stmt.

¶ 43.]

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the construction of affordable housing. [Stmt. ¶ 48.] But the County never certified that it would steamroll over any perceived lack of municipal enthusiasm for its affordable housing initiatives. [Id.] During the limitations period, the County has mostly followed the “catch more flies with honey” approach in its dealings with municipalities, meaning that it has worked with municipalities to create fair and affordable housing opportunities. [Id.] The County has seen this approach bear fruit. [Id.] A litigation first approach would, in the County’s view, be counterproductive. [Id.]
C. HUD Approved the County’s Submissions That Fully Disclosed the Conduct of Which Relator Complains. Relator suggests that the County’s AIs, on their face, did not satisfy its AFFH
obligation. [See Kalish Aff. Ex. 45 (Compl.) at ¶¶ 3, 32-36.] Although not required to do so, the County submitted its AIs to HUD with its 2000 and 2004 Plans. [Stmt. ¶ 49.] Throughout the limitations period, HUD reviewed and approved the County’s Plan submissions and never sanctioned the County. [Id.]; 24 C.F.R. § 570.910. HUD’s approval of these and other County submissions, which fully disclosed the County’s activities to HUD, demonstrates both that the County complied with its AFFH and that it reasonably believed that it had done so. [Stmt. ¶¶ 4955.]
Each year, the County also submitted to HUD performance reports, or CAPERs, pursuant to 24 C.F.R. § 91.520. [Stmt. ¶ 50.] These CAPERs each contained a section entitled “Affirmatively Furthering Fair Housing.” [Id.]. In this section and elsewhere in the CAPERs, the County (1) alerted HUD that its AI focused on affordable housing issues (and, from 2004 onward, even re-listed all of the impediments identified in its 2004 AI); (2) discussed the actions that the County had taken to overcome identified impediments; (3) disclosed that municipal support for the County’s housing allocation was not unanimous and that “it is difficult to get

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municipalities to comply with this plan”; and (4) informed HUD that the County pursued a cooperative approach with municipalities and others in pursuit of its affordable housing goals. [Stmt. ¶ 51.] Each year during the limitations period, HUD approved the County’s CAPERs. [Stmt. ¶ 52.] The County also submitted annual Action Plans pursuant to 24 C.F.R. § 91.420, which HUD similarly approved. [Id.]
Underscoring both that it reviewed the County’ submissions and deemed them adequate, HUD provided comments on certain of the County’s submissions during the limitations period. [Stmt. ¶ 53.] A few such comments stemmed from HUD’s Office of Fair Housing and Equal Opportunity (“FHEO”). [Id.] Though FHEO noted that the County did not provide certain information concerning minorities, it nevertheless stated that “the County has been found to be administering its Consolidated Program in a satisfactory manner.” [Id.] Moreover, FHEO provided no criticism or advice after September 30, 2002. [Id.] Rather, HUD demonstrated its high regard for the County by choosing it as one of eleven jurisdictions with best practices in grant administration. [Stmt. ¶ 54; see also id. (County’s selection “was based largely on recommendations made by HUD Field Office staff”); Ex. 70.]
HUD also subjected the County to various audits during the limitations period. [Stmt. ¶ 55.] One of these audits even specifically included a “limited review of the County’s Fair Housing practices . . . to determine compliance with applicable guidelines, regulations, and [the Rehabilitation Act].” [Id.]. Although HUD offered limited constructive criticism in that particular audit’s conclusions, it did not even rise to the level of a “Concern” or a “Finding.” [Id.] The other audits did not identify any fair housing concerns. [Id.]

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HUD clearly deemed the County in compliance with its AFFH obligations and the County reasonably understood HUD’s approval of its submissions to mean that it complied with such AFFH obligations.
ARGUMENT “For a qui tam action to survive summary judgment, the relator must produce sufficient evidence to support an inference of knowing fraud.” United States ex rel. Anderson v. Northern Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1995). Because the Relator here can show neither unlawful intent nor a fraudulent certification, the County is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Simply put, no issue of fact exists as to whether the County made a false claim because the County’s certification is true in every regard: it did “conduct an analysis of impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and actions[.]” [See, e.g., Stmt. ¶ 4; Kalish Aff. Ex. 3 at D019487.] And even if that certification somehow were deficient, there is no evidence that the County acted with unlawful intent in making it. Moreover, Relator cannot show that any alleged shortcoming in the certification was material to HUD’s decision to fund the Consortium’s programs. Finally, the County renews its argument that this Court lacks subject matter jurisdiction over this action because Relator’s allegations were publicly disclosed and Relator was not the original source of those allegations.

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POINT I

THE COUNTY TRUTHFULLY CERTIFIED IT WOULD AFFIRMATIVELY FURTHER FAIR HOUSING.

The County cannot be liable under the False Claims Act (“FCA”) because it made

no false claims. Rather, it complied with the terms of its AFFH certifications in that it conducted

an “AI” and took “appropriate actions” to overcome the impediments it identified.

Contrary to relator’s unsupported assertion, no precise statutory, regulatory, or

jurisprudential roadmap exists for the broad mandate of conducting an AI, and reasonable minds can differ about how specifically certain issues may be addressed.16 However, “[f]or a certified

statement to be ‘false’ under the Act, it must be an intentional, palpable lie. . . . Innocent

mistakes, mere negligent misrepresentations and differences in interpretations are not false

certifications under the Act.” United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1267 (9th

Cir. 1996); see also United States ex rel. Swafford v. Borgess Med. Ctr., No. 00-1288, 2001 WL

1609913, at *1 (6th Cir. Dec. 12, 2001) (“Disputes as to the interpretation of regulations do not

implicate [FCA] liability.”); United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013,

1018 (7th Cir. 1999); United States ex rel. Kersulis v. RehabCare Group, Inc., No. 4:00-CV-

00636 GTE, 2007 WL 294122, at *13-*16 (E.D. Ark. Jan. 29, 2007) (even if plaintiff’s

interpretation of the rule were correct, defendant could not have submitted a “knowingly” false

certification of compliance where “‘defendant's interpretation of the applicable regulations is

16

In fact, HUD has recognized that the AFFH certification does not provide clear guidance. See

“Proposed Rules on Determining Accuracy of Certification that Fair Housing is Furthered,” 63 Fed. Reg.

57882-01, 1998 WL 745863, at 57882 (HUD Oct. 28, 1998) (“Proposed Rules”). Despite HUD’s efforts

in providing “both guidance and training to grantees on meeting the Consolidated Plan fair housing

certification requirements,” “confusion remains over both the[ir] meaning and application . . . .” Id. at

57883 (emphasis added). Although the Court declined to rest its interpretation of the AFFH certification

on the legislative history of this failed regulatory attempt [Kalish Aff. Ex. 16 (Op.) at 32], the County

does not cite this history here in support of a particular interpretation. Rather, the County cites this

history as evidence that confusion existed as to the meaning and application of the regulation, which is

relevant to the question of whether the County can be deemed to have knowingly submitted a false

certification.

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reasonable even though incorrect.’”) (citations omitted). In light of the punitive nature of the FCA, it would be unfair to append to these certifications specific requirements that simply are not there. Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 784-85 (2000); United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-18 (1992).
Whether the County could have done a “better” job in carrying out general mandates covered by the certification does not speak to whether the County’s certification was false because the certification does not contain qualitative criteria or requirements. HUD has explicitly recognized that the AFFH certification contained only “minimal requirements for compliance with the certification that a jurisdiction will [AFFH] [and lacks] performance standards for [AFFH].” See Final Rule, “Consolidated Submission for Community Planning and Development Programs,” 60 Fed. Reg. 1878-01, 1895 (Jan. 5, 1995). Thus, Relator’s allegations that the County should have conducted the analysis differently, or better, misses the point of the certification. See Mikes v. Straus, 274 F.3d 687, 698 (2d Cir. 2001) (“The term ‘medical necessity’ does not impart a qualitative element mandating a particular standard of medical care, and Mikes does not point to any legal authority requiring us to read such a mandate into the form.”); Luckey v. Baxter Healthcare Corp., 183 F.3d 730, 732-33 (7th Cir. 1999) (“Equating ‘imperfect tests’ with ‘no tests’ would strain language past the breaking point. . . . All this record reveals is a dispute about whether Baxter's testing protocols could be improved. An affirmative answer to that question would not suggest that Baxter's representations to the United States . . . were false or fraudulent.”) (citation omitted). HUD’s actions in approving the County’s submissions, giving the County passing grades in periodic audits, and declining to intervene in this lawsuit demonstrate that HUD has deemed the County to be in compliance with its certification. United States v. Southland Mgmt. Corp., 326 F.3d 669, 677 (5th Cir. 2003) (en

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banc) (“The undisputed conduct and exchanges by and between [HUD and defendant] during this entire period demonstrates, not only that the vouchers were promptly paid, but that all parties regarded them as entitled to be paid.”).
A. The County Conducted An AI With respect to the County’s obligation to “conduct an analysis of impediments to
fair housing choice within the jurisdiction,” the County’s 2000 and 2004 AIs clearly satisfy that requirement. These AIs, respectively, identify twelve and thirteen impediments to fair housing that had the effect of reducing housing choice for protected classes in the County. The barriers identified in the County’s AIs, which include policies, practices, and conditions in both the public and private sectors, demonstrate that the County undertook a comprehensive review of potential impediments to fair housing. In the absence of a more specific mandate as to what an AI constituted, the County reasonably undertook its AI by investigating potential barriers to fair housing, analyzing them, and distilling from this information a list of impediments to fair housing.
The potential impediments considered by the County included race-specific impediments to fair housing. Relator survived the County’s motion to dismiss for failure to state a claim because the Court construed its complaint to allege that the County “excluded consideration of impediments to fair housing based on race when it was required by statute to consider them.” [Kalish Aff. Ex. 16 (Op.) at 31.] With the benefit of discovery, it is now indisputable that the County did not “exclude[] consideration” of race-based impediments. Among other things, the County reviewed discrimination complaints filed with WRO, solicited and considered information on discrimination complaints received by public housing agencies and Section 8 offices, and analyzed census data. Its AI also benefited from input about housing barriers by not-for-profit entities (including fair housing organizations), various County agencies

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and offices, Section 8 offices, public housing authorities, municipalities, and members of the public. Thus, the County unquestionably considered the existence of race-based impediments, even though it ultimately determined that issues related to affordability posed the greatest challenges to fair housing choice. As Relator itself has recognized, nothing required the County to include race discrimination among its impediments to fair housing. [Kalish Aff. Ex. 76 at 2 n. 2.] As Relator alleged, the County did not “understand[] housing discrimination to be a problem throughout the County[,]” [Kalish Aff. Ex. 45 (Compl.) at ¶ 43.] Because the County “consider[ed] race in . . . appropriate way[s],” it should “prevail on the merits.” [Kalish Aff. Ex. 16 (Op.) at 33.]
Although Relator contends that the County should have complied with the AI requirement better or differently, it cannot point to any requirement mandating that the County conduct the AI in the manner Relator sees fit. See United States v. Gatewood, 173 F.3d 983, 987 (6th Cir. 1999) (“The indictment . . . purports to raise a direct conflict between the certification that Gatewood made and the actual facts . . . [but actually] presents a false dichotomy, because certifying that one has made payments to subcontractors is not inconsistent with having yet to pay the subcontractors in full.”); Castenson v. City of Harcourt, 86 F. Supp. 2d 866, 880-881 (N.D. Iowa 2000) (holding defendant, who failed to conduct an archeological survey, did not falsely certify compliance with the National Environmental Policy Act because no explicit survey requirement found in the regulations).
Admittedly, the County did not follow each of HUD’s suggestions contained in its Fair Housing Planning Guide (the “Guide”). [See, e.g., Kalish Aff. Ex. 16 (Op.) at 28 (discussing “HUD's suggested analysis-of-impediments format”) (citing the Guide at 2-28 [Kalish Aff. Ex. 73 at PL-763]) (emphasis added).] The Guide, however, does not purport to

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decree a one-size fits-all AI model. Rather, the Guide itself characterizes its advice as “suggestions on how . . . jurisdictions can carry out their [fair housing planning] responsibilities.” [Kalish Aff. Ex. 73 at PL-0740, PL-0734, PL-0761 (“Suggested AI Format”), PL-0765 (same), PL-0744 (describing list of data items needed for an AI as not “conclusive”).] Suggestions and recommendations fall short of mandates. Moreover, the Guide sets the bar low for assessing compliance with the AFFH certification. HUD indicates that only if “the AI was substantially incomplete or the actions taken were plainly inappropriate to address the identified impediments,” would it provide “notice to the jurisdiction that it believes the AFFH to be inaccurate and would provide the jurisdiction an opportunity to comment.”17 [Kalish Aff. Ex. 73 at PL-0759 (emphasis added).] Thus, even the Guide does not contemplate that a jurisdiction must adhere to each and every one of its suggestions concerning the elements and format of an AI in order to comply with the AFFH certification.
Even if the Guide itself purported to require a jurisdiction to follow each and every suggestion within it, which is simply not the case, such mandate would not be persuasive. As the Court recognized, the Guide “‘lack[s] the force of law’” and “‘do[es] not warrant Chevron-style deference.’” [Kalish Aff. Ex 16 (Op.) at 27 (quoting Christensen v. Harris County, 529 U.S. 576, 587 (2000)).] It is “‘entitled to respect’ . . . only to the extent that [its] interpretations have the ‘power to persuade.’” [Id. (quoting Christensen, 529 U.S. at 587).] Although the Court found the Guide “persuasive on the issue addressed” in its decision on the County’s motion to dismiss [id. at 27-28], the issues in the present motion are different. In the motion to dismiss, the issue was whether the County had to consider race discrimination in conducting its AI. The issues now before the Court are whether the County, in considering race

17

Indeed, HUD’s decision not to provide such notice to the County speaks volumes as to the

County’s compliance with its obligation to conduct an AI.

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discrimination and other potential impediments, had to follow each and every suggestion by HUD as to how to conduct its analysis and if the County’s failure to follow each and every suggestion somehow disqualified the County’s AI.18 With respect to these issues, HUD’s laundry list of suggestions concerning an AI is not “firmly rooted in the statutory and regulatory framework and consistent with the case law.” [Cf. id. at 27.] Statutes, regulations, and case law do not speak to the issue of what specific tasks an AI must comprise or what particular format it must take. Thus, the Guide should not be deemed to be persuasive on the precise elements of a compliant AI.
In sum, the County reviewed and analyzed various information relating to housing barriers in the County, including information considering race discrimination. The County satisfied the requirements of an AI.
B. The County Took Appropriate Actions With respect to the County’s obligation “to take appropriate actions to overcome
the effects of any impediments identified through” its AI, the County also satisfied this requirement. As set forth supra, increasing the County’s supply of affordable housing has been a top policy priority for the County throughout the limitations period. The County has pursued this policy through a variety of means including through funding mechanisms, technical assistance, and campaigns to win over the hearts and minds of residents and local officials. During the limitations period and before, the County has also expanded the tools to fight housing discrimination in the County by creating a Human Rights Commission, disseminating information about the right to be free of discrimination, and funding not-for-profits that provide fair housing counseling and undertake other efforts to counter discrimination.

18

Additionally, as addressed infra, issues of intent and materiality exist.

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Contrary to Relator’s assertion, an obligation to take “appropriate actions” does not mandate that the County overcome local opposition by instituting litigation or withholding funds from the Consortium Municipalities. First, although the County at times encountered some local resistance to affordable housing, the County nevertheless believed that, over time, it was able to work productively with its various municipalities. It never deemed any municipality not to be AFFH. Second, an adversarial relationship would have been counter-productive. The County must work with municipalities on a range of issues on a daily basis. Moreover, if the County turned on its municipal partners, then less needy municipalities would have dropped out of the Consortium, leaving the County with fewer funds for the needier municipalities.
As this lawsuit undoubtedly attests, ADC prefers litigation over diplomacy as an engine of social change.19 But litigation, a costly and uncertain tactic, is hardly the panacea that Relator makes it out to be. See United States v. Yonkers Bd. of Educ., 239 F.3d 211, 213-14 (2d Cir. 2001) (recounting lengthy proceedings and noting “[i]n spite of the length, care, and detail of this Court's opinion, the City resisted (and at times even stood in contempt of) the District Court's efforts to remedy the City's intentional racial discrimination”). The County operates in a context where New York vests broad authority over land use with municipalities. See Suffolk Housing Servs. v. Town of Brookhaven, 109 A.D.2d 323, 331 (2d Dept. 1985) (the “Court of Appeals . . . has not . . . articulated any constitutional obligation on the part of our municipalities to zone for low-to-moderate-income housing”), aff’d 70 N.Y.2d 122 (1987); Land.com v.

19 In addition to any number of productive ways that the Relator could have expressed its concerns to the County, including through public meetings organized by the County, the regulations also provide a mechanism that Relator could have utilized to express its concerns to HUD. 24 C.F.R. § 1.7; see also 24 CFR 91.105(j)(“the jurisdiction must provide a timely, substantive written response to every written citizen complaint . . . .”). The regulations also set forth what HUD may do when it is confronted with inaccurate certifications. 24 C.F.R. §§ 570.900, 570.904, 570.910. The procedure provides for due process, including that a jurisdiction has an opportunity to remedy any deficiencies HUD has identified. Apparently, this process was not sufficiently punitive for Relator’s taste.

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Kleiner, 815 N.Y.S.2d 234, 235 (2d Dept. 2006) (rejecting challenges under Berenson v. Town of New Castle and FHA to Orangetown's zoning ordinance); North Shore Unitarian Universalist Soc’y, Inc. v. Incorporated Village of Upper Brookville, 493 N.Y.S.2d 564, 565 (2d Dept. 1985) (rejecting challenge and noting “zoning ordinances carry a presumption of constitutionality which must be rebutted by proof beyond a reasonable doubt”). Moreover, as the Yonkers litigation demonstrates, even where plaintiffs prevail, municipalities still have numerous means at their disposal to tie up affordable housing. Yonkers, 239 F.3d 211, 213-16; John P. Dellera, County Powers in Assisted Housing Programs: The Constitutional Limits in New York, 20 Fordham Urban L.J. 109, 113 (1993) (“The resistance of Yonkers to the construction of courtordered public housing shows how a housing development may be adversely affected when the municipal government opposes the project.”). In short, the County’s zealous efforts to create affordable housing opportunities for all protected classes through cooperative efforts was a reasonable approach. Relator cannot show a false claim, but only a policy disagreement.
Because the County conducted an AI and took appropriate actions to overcome the impediments it identified, Relator cannot present an issue of material fact as to whether the County presented a false claim.
POINT II RELATOR CANNOT SHOW THAT THE COUNTY KNOWINGLY PRESENTED A FALSE CERTIFICATION. Even if the Court determined that an issue of fact existed as to whether the County complied with the terms of the AFFH certification, the Court should nonetheless grant the County’s motion for summary judgment because Relator cannot create an issue of fact with

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respect to intent. Importantly, Relator has not sued the County under the FHA,20 but the FCA. Thus, alongside the potential windfall of a treble-damage recovery exists the requirement that Relator prove that the County “knowingly” submitted false certifications. United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 341 (5th Cir. 2008) (“FCA's demanding knowledge requirement”). The FCA defines “knowingly” to mean that defendant “(1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information.” 31 U.S.C. § 3729(b). Relator need not prove specific intent to defraud. Id. “Reckless disregard” requires at least “extreme gross negligence.” See United States ex rel. Ervin & Assocs., Inc. v. Hamilton Secs. Group, 298 F. Supp. 2d 91, 100-01 (D.D.C. 2004) (“Proof of reckless disregard requires much more than errors, even egregious errors.”); see also United States ex rel. Farmer, 523 F.3d at 338 & n.9.
The County’s actions bespeak an entity that believed that it complied with applicable requirements and had nothing to hide. For example, though it had no obligation to do so, the County initiated a face-to-face meeting with Relator to discuss Relator’s New York Freedom of Information Law (“FOIL”) requests. The County also posted on its website its Plans, including its AIs, and voluntarily provided its AIs to HUD. The County’s AI and its other submissions to HUD fully disclosed the practices and policies of which Relator complains in this lawsuit. [Kalish Aff. Ex. 45 (Compl.) at ¶¶ 32-36.] These practices and policies include that the County viewed affordable housing issues to constitute the key fair housing concerns facing the County and that the County intended to overcome impediments to fair housing by working cooperatively with the municipalities, even though some resistance to affordable housing may

20

No intent requirement exists under the FHA. See Tinsley v. Kemp, 750 F. Supp. 1001, 1010-12

(W.D. Mo. 1990); Jaimes v. Toledo Metro. Hous. Auth., 715 F. Supp. 835, 841 (N.D. Oh. 1989).

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have existed at the municipal level. HUD repeatedly approved the County’s submissions and gave the County passing grades in periodic audits. The County’s openness with respect to its practices indicates that it did not knowingly submit any false claims. See United States ex rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1157 (2d Cir. 1993) (“‘The fact that a contractor has fully disclosed all information to the government may show that the contractor has not “knowingly” submitted a false claim, that is, that it did not act with “deliberate ignorance” or “reckless disregard for the truth.”’”) (quoting amicus curiae Brief of the United States) (citing 31 U.S.C. § 3729(b)).
HUD’s acceptance of the County’s submissions reinforced the County’s reasonable belief in its own compliance. 24 C.F.R. § 91.225(a)(1) requires that the jurisdiction annually submit to HUD an AFFH certification “satisfactory to HUD.” 24 C.F.R. § 91.5 defines certification as a “written assertion, based on supporting evidence, that . . . . shall be deemed to be accurate unless HUD determines otherwise, after inspecting the evidence and providing due notice and an opportunity for comment.” See also 24 C.F.R. 570.900 et seq.; 24 C.F.R. 85.43 (describing enforcement options where grantee “materially fails to comply with . . . an assurance”) (emphasis added). Although HUD suggested on a few occasions that the County’s submissions could be improved, HUD repeatedly informed the County that its submissions, which included the certifications, were “satisfactory.” HUD never availed itself of any procedures it could have used to compel the County to correct any perceived deficiencies on the County’s part. This case is thus like United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1020 (7th Cir. 1999). In Lamers, the Seventh Circuit found that the fact that the government approved a City’s grant application “even when it knew [that the city’s] program was not entirely up to snuff,” rendered “[t]he notion that the [government] was somehow being

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duped by the City . . . absurd.” Id. The Seventh Circuit found inappropriate Lamers’ attempt to “preempt” the government’s “discretionary decision not to pursue regulatory penalties against the City.” Id. (“[V]iolations of Federal Transit Act regulations are not fraud unless the violator knowingly lies to the government about them.”); X Corp. v. Doe, 816 F.Supp. 1086, 1094 (E.D. Va. 1993) (“X Corp.'s disclosure [to the government] provides persuasive evidence that X Corp. did not ‘knowingly’ make a misrepresentation.”). Notably, HUD continues to fund the County’s housing community development programs and has declined to intervene in this lawsuit. See Luckey, 183 F.3d 733. HUD’s acquiescence in the County’s conduct demonstrates that the County did not “knowingly” submit any false claims.
If the County was mistaken in its belief that its AI met HUD’s requirements and that it took appropriate actions, its mistake amounted to no more than negligence. As set forth above, the statute and the regulations do not spell out what an AI or appropriate actions entail. United States v. Southland Mgmt. Corp., 326 F.3d 669, 675 (5th Cir. 2003) (en banc) (noting that to prove scienter in case involving housing regulation that was “not precise or measurable,” the U.S. Attorney would have to prove defendant “knew he could not honestly describe the property as” complying with regulation). The broad-ranging impediments identified by the County reflect, at the least, a good-faith attempt to assess fair housing barriers. Even if the Court determined that the County fell short of its obligation in some respect, its AIs cannot be deemed so deficient as to create an issue of fact concerning whether the County knowingly did not comply. United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 341 (5th Cir. 2008) (“Although the jury could find that defendants were negligent . . . and that the breakdowns that defendants accepted may not have complied with all applicable rules and regulations, it is significant that the documents were not totally barren in this regard. No reasonable jury could

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find the knowledge requirement met based on this evidence alone.”); Southland Mgmt. Corp., 326 F.3d at 684 (Jones J. concurring) (“Where there are legitimate grounds for disagreement over the scope of a contractual or regulatory provision, and the claimant's actions are in good faith, the claimant cannot be said to have knowingly presented a false claim.”); cf. Wang v. FMC Corp., 975 F.2d 1412, 1420-21 (9th Cir. 1992) (stating “[b]ad math is no fraud,” “[p]roof of one's mistakes or inabilities is not evidence that one is a cheat,” and “low quality” work and “faulty” design does not render defendant “culpable under the Act”); United States ex rel. Aflatooni v. Kitsap Physicians Servs., 163 F.3d 516, 526 & n.15 (9th Cir. 1999) (deficient auditing procedures bespeak negligence, not fraud). Thus, no issue of fact exists here as to the County’s intent.
POINT III ANY DEFICIENCIES IN THE COUNTY’S AIS WERE NOT MATERIAL TO HUD’S FUNDING DECISION. Although the Second Circuit has not yet decided the issue, courts generally hold that the FCA requires that the false statement be material to the government’s funding decision. United States ex rel. Smith v. Yale Univ., 415 F. Supp. 2d 58, 90 n.14 (D. Conn. 2006); Mikes v. Straus, 274 F.3d 687, 697 (2d Cir. 2001) (recognizing "[a] materiality requirement holds that only a subset of admittedly false claims is subject to False Claims Act liability"). Relator cannot raise an issue of fact that whatever deficiency may have existed in the County’s AFFH certification was material to HUD’s funding decision. Luckey v. Baxter, 183 F.3d 730, 732-33 (7th Cir. 1999) (in cases where a relator alleges fraud by omission, relator must show “that the omitted facts were material to the listener's decision”).21

21

Whether a false statement is material is a mixed question of law and fact that the Court decides.

United States v. Intervest Corp., 67 F. Supp. 2d 637, 647 (S.D. Miss. 1999).

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HUD repeatedly approved the County’s submissions notwithstanding the FHEO’s observations concerning the County’s race analyses. This demonstrates that whatever shortcomings may have existed in the County’s analyses, such shortcomings were not material to HUD’s decision to fund the Consortium’s programs. “Clearly, HUD was unconcerned with the apparent discrepancy between the [AFFH] certification and [the County’s AIs] and intended to continue the payments.” United States v. Intervest Corp., 67 F. Supp. 2d 637, 648-49 (S.D. Miss. 1999) (holding certification not “substantively material to the decision to pay” because “HUD [paid] HAP Vouchers despite the fact that inspection reports they were receiving indicated that the certification was not true.”). Although HUD formally required that the County submit the certification, it did not condition payment on the County’s following each and every suggestion on how to analyze issues concerning race. Southland Mgmt. Corp., 326 F.3d at 68081 (Jones J. concurring) (when HUD knew that defendant’s apartments did not meet relevant standard, its continued payment to defendant reflected that compliance with standard was immaterial). Not only did HUD continue to fund the County despite the FHEO’s comments, it did not even warn the County that it was in danger of losing its funding or require the County to fix the issues it identified. Thus, whatever flaws may have existed in the County’s AI, any such flaws were not material to HUD’s funding decisions.
POINT IV THIS COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE RELATOR WAS NOT AN ORIGINAL SOURCE OF PUBLICLY DISCLOSED INFORMATION. As the County argued in support of its motion to dismiss for lack of subject matter jurisdiction,22 the Court lacks jurisdiction over this litigation because Relator’s lawsuit mainly

22

[See Kalish Aff. Ex. 74 (County Br. in Supp. of Mot. to Dismiss) at 9, 15-20; id. Ex. 75 (Reply

Br. in Further Supp. of Mot. to Dismiss) at 5-10.]

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relies upon the County’s responses to its requests under FOIL which consisted entirely of administrative reports that the County had submitted to HUD and posted on its website. See United States ex rel. Mistick PBT v. Housing Auth. of Pittsburgh, 186 F.3d 376, 383 (3d Cir. 1999) (Alito, J.). See 31 U.S.C. § 3730(e)(4)(A). In its decision denying the County’s motion to dismiss, the Court agreed that information disclosed pursuant to a Freedom of Information Law request might constitute a “public disclosure” under the jurisdictional bar. [Kalish Aff. Ex. 16 (Op.) at 12.] However, the Court concluded that disclosures in non-federal administrative reports, such as the County reports at issue here, do not trigger the bar. [Id. at 19.] We respectfully disagree and renew our argument to preserve it for future review.23 To that end, we note that Relator is not the original source of the information regarding the County because it does not have any “direct and independent knowledge of the information on which [its] allegations are based,” as required by the FCA, 31 U.S.C. § 3730(e)(4)(B). Because Relator learned the information upon which it bases its claim against the County through FOIL requests, Relator cannot prove that it was the “‘source of the core information’ upon which the . . . complaint is based.” United States v. New York Med. Coll., 252 F.3d 118, 121 (2d Cir. 2001) (citation omitted). Thus, the Court lacks subject matter jurisdiction over this lawsuit.

23

See United States ex rel Bly-Magee v. Premo, 470 F.3d 914, 918-19 (9th Cir. 2006); Battle v.

Board of Regents for Georgia, 468 F.3d 755, 762 (11th Cir. 2006); Hays v. Hoffman, 325 F.3d 982, 988-

89 (8th Cir. 2003); In re Natural Gas Royalties Qui Tam Litig., 467 F. Supp. 2d 1117, 1143-44 (D. Wy.

2006).

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CONCLUSION
For the foregoing reasons, the County’s Motion for Summary Judgment should be
granted, the Complaint should be dismissed with prejudice, and the County should be awarded
its costs, reasonable attorneys’ fees and such other and further relief as the Court finds to be in
the interest of justice.
Dated: New York, New York September 30, 2008
Respectfully submitted,
EPSTEIN BECKER & GREEN, P.C.
OF COUNSEL TO CHARLENE M. INDELICATO WESTCHESTER COUNTY ATTORNEY
By: ______s/Stuart M. Gerson____________ Stuart M. Gerson Michael A. Kalish Carrie Corcoran
250 Park Avenue New York, New York 10177-1211 (212) 351-4500 Attorneys for Defendant

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 Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 1 of 39

uNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
UNITED STATES OF AMERICA ex rei. ANTI-DISCRIMINATION CENTER OF METRO NEW YORK, INC.,
Plaintiff,
v.

USDCSDNY
DOCUMENT ELECTRONICALLY FILED

DOC#: DATE FILED:

It 5? /; t1 I0 1

STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL
No. 06 Civ. 2860 (DLC)

WESTCHESTER COUNTY, NEW YORK,

Defendant.
-------------------------------------------------------------X

WHEREAS, the development of affordable housing in a way that affirmatively furthers fair housing is a matter of significant public interest;
WHEREAS, the broad and equitable distribution of affordable housing promotes sustainable and integrated residential patterns, increases fair and equal access to economic, educational and other opportunities, and advances the health and welfare of the residents of the defendant County of Westchester, New York (the "County") and the municipalities therein;
WHEREAS, the County receives federal funding for housing and community development, including funds under the Community Development Block Grant ("CDBG") program, the Emergency Shelter Grant program, the HOME Investment Partnerships, and the Housing Opportunities for Persons with AIDS program;
WHEREAS, as a recipient of CDBG funds, the County must comply with, inter alia, the provisions of the Housing and Community Development Act, including the requirement that it affirmatively further fair housing ("AFFH") as set forth in 42 U.S.C. § 5304(b)(2);
WHEREAS, as an applicant for those funds, the County was required to certifY- as a material condition of its eligibility to receive such funds- that it would AFFH;

Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 2 of 39
WHEREAS, the United States and the County agree and acknowledge that: (i) pursuant to New York State law, municipal land use policies and actions shall take into consideration the housing needs of the surrounding region and may not impede the County in its performance of duties for the benefit of the health and welfare of the residents of the County; (ii) it is incumbent upon municipalities to abide by such law and for municipalities that are parties to the Urban County Cooperation Agreement to comply with that agreement, including the commitment to AFFH; and (iii) it is appropriate for the County to take legal action to compel compliance if municipalities hinder or impede the County in its performance of such duties, including the furtherance of the terms of this Stipulation and Order;
WHEREAS, the County was obligated to conduct an analysis of the impediments to fair housing choice within its jurisdiction (an "AI"), and obligated to take appropriate actions to overcome the effects of any impediments identified through that analysis;
WHEREAS, for the years 2000 to the present, the County has certified that it was in compliance with those requirements;
WHEREAS, the Anti-Discrimination Center of Metro New York, Inc. (the "Relator") filed a civil action as a relator under the qui tam provisions of the False Claims Act, 31 U.S.C. §§ 3729 et seq. (the "False Claims Act"), against the County to recover damages allegedly sustained by the United States of America (the "United States" or "Government") as a result of the County's alleged violations of the False Claims Act during the period April 1, 2000 to April!, 2006 (the "Relator's Complaint");
WHEREAS, the Relator alleged in particular that the County had failed to conduct a meaningful AI and failed to take appropriate steps to overcome existing and known impediments to fair housing arising from racial discrimination and segregation;
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WHEREAS, the Relator further alleged that, as a result of such failures and inaction, the County's certifications to the United States to receive CDBG and other federal funds were false;
WHEREAS, the United States subsequently filed a notice of intervention pursuant to 31 U.S.C. § 3730(b)(4), and filed a Complaint-in-Intervention (the "Government's Complaint") against the County (i) to recover, under the False Claims Act, damages sustained by, and penalties owed to, the United States as the result of the County having knowingly presented or caused to be presented to the United States false claims to obtain federal funding for housing and community development, and (ii) seeking, pursuant to 42 U.S.C. § 5311 (b), appropriate remedies for the County's non-compliance with community development requirements, including mandatory or injunctive relief;
WHEREAS, the United States Department of Housing and Urban Development ("HUD") contends that it has administrative claims against the County to address some or all of the alleged conduct set forth in the Relator's Complaint and the Government's Complaint;
WHEREAS, the County denies all of the allegations in the Relator's Complaint and the Government's Complaint, denies that it has any liability relating to these allegations, and denies that the United States was damaged by its actions;
WHEREAS, the County contends that it reasonably believed that it was complying with the requirement to AFFH because, among other things, the County maintains that: (i) it actively supported and gave priority status to the construction, rehabilitation, and preservation of affordable housing; (ii) it undertook to analyze impediments to housing opportunities and submitted Ais to HUD in 2000 and 2004; (iii) prior to the filing of relator's complaint, it never had its submissions or certifications to HUD disapproved or rejected; and (iv) the HUD Office of
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Policy Development and Research identified the County in 2005 as a community that demonstrated effective sub-recipient management practices with respect to CDBG grants;
WHEREAS, this Stipulation and Order of Settlement and Dismissal (the "Stipulation and Order") is neither an admission by the County of any liability or wrongful conduct nor a concession by the United States that its claims are not well-founded; and
WHEREAS, to avoid the delay, expense, inconvenience, and uncertainty of protracted litigation, pursuant to the terms set forth below, the United States and the County desire to reach a full and final compromise and resolution of the claims against the County in this action;
NOW, THEREFORE, in consideration of the mutual promises, undertakings, obligations and commitments set forth below, the parties hereto covenant and agree as follows:
Subject Matter Jurisdiction I. The parties hereto consent to this Court's exercise of subject matter jurisdiction over this action and personal jurisdiction over each of them.
Administrative Payment to HUD 2. The County shall pay twenty-one million, six hundred thousand ($21 ,600,000) into the County's account with HUD in accordance with HUD's administrative procedures. Such payment is for settlement of the claims brought pursuant to this action and not for the financing of a capital improvement. The County shall make such payment by electronic funds transfer pursuant to written instructions that the United States Attorney's Office for the Southern District of New York or HUD will provide to counsel for the County. HUD shall make those funds available to the County for the development of new affordable housing units that will AFFH in the County, provided that the County's use and expenditure of the funds, and any program
Page 4 of 38

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income earned from the use of the funds, as defined by 24 C.F.R. § 570.500(a), shall be subject
to the requirements of the CDBG program and the terms and conditions set forth in paragraph 7. Payment to the Federal Government to Settle False Claims Act Allegations
3. The County shall pay to the United States the sum of thirty million dollars ($30,000,000) (the "Settlement Amount"), in full compromise and satisfaction of the False Claims Act allegations in this action. This Settlement Amount shall constitute a debt due and owing upon entry of this Stipulation and Order by the Court, and shall be discharged upon payment to the United States, no later than ninety (90) calendar days after the Court's entry of this Stipulation and Order. With respect to such payment, the County shall receive a credit of twenty-one million, six hundred thousand ($21 ,600,000) for the payment to HUD set forth in paragraph 2. The County shall pay the remaining eight million, four hundred thousand ($8,400,000) to the United States by electronic funds transfer pursuant to written instructions that the United States Attorney's Office for the Southern District ofNew York will provide to counsel for the County.
Relator's Attorneys' Fees Under the False Claims Act 4. Pursuant to 31 U.S.C. § 3730(d)(l ), no later than ninety (90) calendar days after the Court's entry of this Stipulation and Order, the County shall pay to Relator's Counsel the sum of two million, five hundred thousand dollars ($2,500,000) as expenses, attorneys' fees, and costs in full settlement of Relator's claims against the County. The County shall make such payment pursuant to instructions that counsel for the Relator, no later than five (5) business days prior to the due date for payment, shall provide to counsel for the County. The United States has no liability or responsibility for the payment of the Relator's expenses, attorneys' fees, or costs.
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Mandatory and Injunctive Relief to Develop Affordable Housing to AFFH in Settlement of Housing and Community Development Act Claims 5. The County shall, in full compromise and satisfaction of the Housing and Community Development Act claims in this action, undertake the mandatory and injunctive relief set forth below. To pursue such equitable relief, the County shall, in addition to the payment of the Settlement Amount described in paragraph 3, secure resources sufficient to ensure the equitable relief is funded by thirty million dollars ($30,000,000) for County fiscal years 2009 through 2014 for land acquisition, infrastructure improvement, construction, acquisition, or other necessary direct costs of development of new affordable housing units that AFFll as set forth in paragraph 7. 6. The County shall meet the funding obligation set forth in paragraph 5 solely through County funds, and not from any Federal, State, or other funding sources. County's Development of Affordable AFFH Units 7. Through the use of the funds set forth in paragraphs 2 and 5, the County shall, within seven (7) years of the entry of this Stipulation and Order, ensure the development of at least seven hundred fifty (750) new affordable housing units that meet the terms and conditions set forth in this paragraph ("Affordable AFFH Units"): (a) No less than six hundred thirty (630) of the Affordable AFFH Units shall meet the following locational criteria: (i) the municipality in which the units are to be developed had, according to 2000 Census data, both a "single race African-American only" population less than three (3) percent and a Hispanic population less than seven (7) percent, as calculated after removing people living in group
Page 6 of 38

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quarters as defined by the 2000 Census of Population and Housing (U.S. Census Bureau) ("group quarters") from the relevant population; and (ii) the units shall not be developed in any census block which had, according to 2000 Census data, (A) a "single race African-American only" population of more than ten (1 0) percent and a total African-American population of twenty (20) or more, or (B) a Hispanic population of more than ten (1 0) percent and a total Hispanic population of twenty (20) or more, as calculated after removing people living in group quarters from the relevant population, except to the extent such requirement is waived pursuant to paragraph 15(a)(ii). (b) A maximum of sixty (60) ofthe Affordable AFFH Units may meet the following locational criteria: (i) the municipality in which the units are to be developed had, according to 2000 Census data, both a "single race African-American only" population less than seven (7) percent and a Hispanic population less than ten ( 10) percent, as calculated after removing people living in group quarters from the relevant population; and (ii) the units meet the terms and conditions set forth in paragraph 7(a)(ii). (c) A maximum of sixty (60) of the Affordable AFFH Units need not meet the locational criteria set forth in paragraphs 7(a) or 7(b), provided that: (i) the municipality in which the units are to be developed had, according to 2000 Census data, a "single race African-American only" population less than fourteen (14) percent and a Hispanic population less than sixteen
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(16) percent, as calculated after removing people living in group quarters from the relevant population; (ii) no funds governed by this Stipulation and Order shall be used for such units until one hundred seventy-five (175) units meeting the locational criteria set forth in paragraph 7(a) have received building permits; and (iii) the County shall use no more than four million dollars ($4,000,000) of the funds set forth in paragraph 5, and none of the funds described in paragraphs 2 and 3, on such units. (d) At least fifty (50) percent ofthe Affordable AFFH Units shall be rental units, of which rental units at least twenty (20) percent shall be affordable to and occupied by households with incomes at or below fifty (50) percent of Area Median Income ("AMI"), with the remainder of such rental units affordable to and occupied by households with incomes at or below sixty-five (65) percent of AMI. Affordable as used in this subparagraph shall be defined by the rent limitations for HOME-assisted units set forth in 24 C.F.R. § 92.252 (a) and (b). Such units shall be controlled by deed restrictions or other legal measures to ensure that they remain affordable to and occupied by eligible households for a period of no less than fifty (50) years. Such rental units may be converted to cooperative or condominium occupancy during the fifty (50) year period, provided that: (i) tenants shall be given the opportunity to purchase their units; (ii) the affordability levels provided in this paragraph are preserved; and
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(iii) tenants who do not exercise such a purchase option shall not be displaced as a result of the conversion.
(e) The remaining portion of Affordable AFFH Units shall be home-ownership units affordable to and occupied by households with incomes at or below eighty (80) percent of AMI and shall be controlled by deed restrictions or other legal measures to ensure that they remain affordable to and occupied by eligible households for a period of no less than fifty (50) years. Afiordable as used in this subparagraph shall mean no more than thirty-three (33) percent of the adjusted income of a family whose annual income equals eighty (80) percent of the AMI for principal, interest, taxes, insurance, and condo fees where applicable, based on a no more than forty-year fixed-rate mortgage with a dovvn payment of five (5) percent.
(f) No more than twenty-five (25) percent of the Affordable AFFH Units shall be units intended for occupancy by senior citizens that are controlled by age restrictions ("senior units"). No funds governed by this Stipulation and Order shall be used for such senior units until at least one hundred seventy-five (175) non-senior units meeting all of the criteria specified in this paragraph have received building permits, and no funds governed by this Stipulation and Order shall be used for any senior unit above a total of ninety (90) senior units until three hundred fifty (350) non-senior units have received building permits.
(g) In the County's facilitation of the development of the Affordable AFFH Units, priority shall be given to sites within qualifying municipalities and census tracts that are located in close proximity to public transportation. No sites, Page 9 of 38

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however, shall be excluded from consideration because of lack of public transportation access. (h) No more than twenty-five (25) percent of the total number of Affordable AFFH Units described in this paragraph may be achieved through the acquisition of existing housing units, provided that: (i) all such units shall meet all terms and conditions set forth in this
paragraph; (ii) no such units, before acquisition, may be controlled by a deed restriction
or other legal measure to be affordable to households with incomes at or below eighty (80) percent of AMI; and (iii) if any such units, before acquisition, are affordable to households with incomes at or below eighty (80) percent of AMI, they shall be made affordable, after acquisition, through deed restrictions or other legal measures that ensure they remain affordable to and occupied by households with incomes at or below sixty-five (65) percent of AMI for a period of no less than fifty (50) years. (i) The County shall use all available means as appropriate to achieve the objectives set forth in this paragraph, including, but not limited to, 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 on actions that promote the objectives of this paragraph. It is anticipated that the County will accomplish the objectives of this paragraph by leveraging the funds that it is expending pursuant to paragraphs 2, 3 and 5 with
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Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 11 of 39
supplemental funds, and nothing in this paragraph shall be construed to prevent the County from meeting the objectives of this paragraph by identifying and combining other affordable housing funding sources.
G) In the event that a municipality does not take actions needed to promote the
objectives of this paragraph, or undertakes actions that hinder the objectives of this paragraph, the County shall use all available means as appropriate to address such action or inaction, including, but not limited to, pursuing legal action. The County shall initiate such legal action as appropriate to accomplish the purpose of this Stipulation and Order to AFFH. 8. Affordable units in housing developments that have received preliminary or final land use or financing approval at the time of the Court's entry of this Stipulation and Order shall be excluded from the Atiordable AFFH Units described in paragraph 7. If a development with such units is no longer viable and the County believes it can resuscitate the development by providing financing or other specified means within the County's control, the County can seek inclusion of the units in such a development pursuant to paragraph 13(h). The County shall provide to HUD a list of housing units that are excluded pursuant to this paragraph contemporaneously with the execution of this Stipulation and Order.
Implementation and Enforcement of the Settlement- Appointment of Monitor 9. The Government, in its sole discretion but with input from the County, shall select a monitor to be appointed by the Court (the "Monitor"). The Government shall submit the name of the Monitor to the Court for approval within sixty (60) calendar days of the Court's entry of this Stipulation and Order.
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10. The Monitor shall serve for so long as the County's obligations set forth in this Stipulation and Order remain unsatisfied. Upon the County's satisfaction of its obligations set forth in this Stipulation and Order, the Monitor shall inform the Court, the Government, and the County that the services of the Monitor are no longer needed.
11. If the Monitor is unable to complete the Monitor's term of office, the Government shall submit, after consultation with the County, another candidate to serve as Monitor for the Court's review and approval.
12. The Government, in its sole discretion, may remove and terminate the service of the Monitor. ln such an event, the Government shall submit, after consultation with the County, another candidate to serve as Monitor for the Court's review and approval.
13. The Monitor shall have all powers, rights, and responsibilities necessary to achieve the AFFH purposes of this Stipulation and Order, including the authority to:
(a) Review all County programs, policies, and procedures to ensure compliance with this Stipulation and Order.
(b) Take reasonable and lawful steps to be fully informed about all aspects of the County's compliance with this Stipulation and Order. Specifically, the Monitor shall have access to all books, records, accounts, correspondence, files and other documents, and electronic records of the County and its officers, agents, and employees concerning the subject matter and implementation of this Stipulation and Order. It is recognized that the Monitor may have access to sensitive information; accordingly, the Monitor shall limit distribution of such information obtained hereby to representatives of the Department of Justice and HUD, and consultants and personnel retained by the Monitor. The Page 12 of 38

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Monitor shall not have access to materials protected by the attorney-client privilege or the work-product doctrine. (c) Identify, recommend, and monitor implementation of additional actions by the County needed to ensure compliance with this Stipulation and Order. (d) Make recommendations, if needed, to the County and the Government of any remedies to foster compliance with applicable laws and regulations. (e) Seek outside expert technical assistance to review the County's actions, advise the County, and develop recommendations for County action. The County and HUD shall explore the availability of private funding to support such technical assistance. (f) Employ, in accordance with paragraph 17(b), personnel necessary to assist in the proper discharge of the Monitor's duties, including but not limited to a housing advisor. (g) Apply to the Court, upon reasonable notice to the County and the Government, for such assistance as may be necessary to the performance of the Monitor's duties. The Monitor shall provide the Government and the County with copies of the application and all accompanying materials. (h) Deem units otherwise excluded from the AFFH Affordable Units pursuant to paragraph 8 as AFFH Affordable Units based on compelling evidence provided by the County that, even though the units are in a development that previously received preliminary or final land use or financing approval, the development is no longer viable and the County can resuscitate the development in a manner that complies with the terms and conditions set forth
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Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 14 of 39
in paragraph 7 by providing financing or other specified means within the County's control. 14. The Monitor shall have the authority to resolve disputes between the County and the Government: (a) At all stages, the County and the Government pledge good faith to resolve their disputes with regard to the implementation of this Stipulation and Order. (b) In the event such efforts fail to resolve the dispute, the County and the Government shall, in writing and in accordance with such procedures as the Monitor may establish, notify the Monitor of the dispute. (c) The Monitor shall, within a reasonable time from receiving such notification, issue to the County and the Government a written report and recommendation addressing the matter(s) in dispute.
.
(d) Within ten (10) business days of receipt of the Monitor's report and recommendation, the County or the Government may seek additional review from the magistrate judge assigned to this case; otherwise, the Monitor's resolution shall be final, binding and non-appealable. Should the County or the Government seek such additional review from the assigned magistrate judge, the relevant provisions of the Federal Rules of Civil Procedure, the Local Rules and the Court's Individual Rules governing reports and recommendations from a magistrate judge shall apply.
15. The Government and the County understand that the nature of real estate development, especially in the context of developing affordable housing, depends on a number of factors that cannot always be predicted or controlled. To address those uncertainties of real
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Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 15 of 39
estate development, the Monitor, consistent with the terms of paragraphs 28, 29, 39 and 40, shall conduct an assessment of the County's efforts and progress related to the obligations set forth in this Stipulation and Order, particularly those described in paragraph 7, to be completed on December 31, 2011 and every two years thereafter until the expiration of the Stipulation and Order. In making such an assessment, the Monitor may consider any information appropriate to determine whether the County has taken all possible actions to meet its obligations under this Stipulation and Order, including, but not limited to, exploring all opportunities to leverage funds for the development of the Affordable AFFH Units, promoting inclusionary and other appropriate zoning by municipalities by offering incentives, and, if necessary, taking legal action.
(a) For one hundred eighty (180) calendar days following each such assessment, the Monitor shall have the authority, after having first secured the written consent of the Government and the County, to modify or refine: (i) paragraph 5 to the sole extent of specifying an allocation of the resources specified therein among uses such as the purchase of land, infrastructure improvements, construction, or other necessary development activities; (ii) the applicability of sub-paragraph 7(a)(ii) to the sole extent of authorizing development of Affordable AFFH Units in census blocks otherwise precluded by that sub-paragraph upon a written finding by the Monitor that to do so would not be inconsistent with the purpose of this Stipulation and Order to AFFH; (iii) the locational criteria set forth in sub-paragraph 7(a), in the event that the Monitor determines that such locational criteria do not serve the purpose Page 15 of 38

Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 16 of 39
of the Stipulation and Order to AFFH, to take into account 2010 Census data in the determination of eligible municipalities and census blocks set forth in paragraphs 7(a), 7(b), and 7(c), or to remedy a concentration or other issue related to the geographic distribution of the Affordable AFFH Units that does not serve the purpose of the Stipulation and Order to AFFH, except no municipality included under the calculations set forth in paragraphs 7(a), 7(b), or 7(c) shall be excluded after modiflcation or refinement to those subdivisions; (iv) the terms, conditions and criteria set forth in sub-paragraphs 7(d) and 7(e) that govern the development of Affordable AFFH Units; (v) the benchmarks described in paragraph 23 and the interim or final time frames in which the Affordable AFFH Units must be developed, provided that the Monitor determines that the County has employed best efforts and has taken all appropriate actions within its control to meet its obligations, but, due to factors outside of the County's control, the County will not be able to meet those obligations; (vi) the number of Affordable AFFH Units described in paragraph 7, provided that: (A) such modification or refinement occurs no earlier than four years following the entry of the Stipulation and Order, and no earlier than two years after the Monitor has first modified or refined the final time frames in which the Affordable AFFH Units must be developed; and (B) the County has provided compelling evidence and the Monitor finds that the County has taken all appropriate actions to
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Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 17 of 39
meet the obligations set forth in paragraph 7, further extension of the time frames will not be sufficient to permit the possible satisfaction of the County's obligations, and specific factors beyond the County's influence or control exist that preclude the County's satisfaction of its obligations; and (vii) the AFFH obligations described in paragraph 33. (b) The Monitor, however, shall have no authority to modifY or ret1ne any other provisions of this Stipulation and Order. (c) The Monitor shall provide the Government and the County written notification of any proposed modifications or refinements, upon recommendation of either the Government or the County or in the Monitor's discretion, and all decisions concerning those proposed modifications or refinements. (d) In the event that the Government and the County provide the requisite consent, modifications or refinements approved by the Monitor shall be submitted to the Court to be so-ordered and incorporated into this Stipulation and Order. (e) The County, within ten (10) business days of receipt of notice pursuant to sub-paragraph 15(c), may seek review with the magistrate judge assigned to this case where the Government has refused to provide consent or the Monitor has refused to approve a proposal from the County. Should the County seek such review with the assigned magistrate judge, the relevant provisions of the Federal Rules of Civil Procedure, the Local Rules, and the Court's Individual Rules governing reports and recommendations from a magistrate judge shall apply.
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(f) The Government, within twenty (20) business days of receipt of notice pursuant to sub-paragraph 15(c), may seek review with the magistrate judge assigned to this case where the County has refused to provide consent or the Monitor has refused to approve a proposal from the Government. Should the Government seek such review with the assigned magistrate judge, the relevant provisions of the Federal Rules of Civil Procedure, the Local Rules, and the Court's Individual Rules governing reports and recommendations from a magistrate judge shall apply.
16. The County shall direct all County officers, employees, agents, and consultants to cooperate fully with the Monitor concerning any matter within the Monitor's jurisdiction as set forth in this Stipulation and Order, including providing any documents requested by the Monitor and submitting to interviews by the Monitor.
17. The County shall, out of funds exclusive of the amounts identified in paragraphs 2-5, 33(h) and 38, pay for the Monitor and all necessary personnel and consultants retained by the Monitor to assist in the proper discharge of the Monitor's duties. The Monitor and any persons retained by the Monitor shall receive reasonable compensation comparable to that received by personnel and consultants of similar skill and experience, as well as reimbursement for any reasonable expenses necessary to the performance of the Monitor's role.
(a) On a monthly basis, the Monitor shall submit to the County an itemized invoice, with supporting material, for services and expenses. The Monitor shall also certify that the Monitor's expenses were reasonably incurred. The County shall have ten (1 0) business days from receipt in which to contest the invoice by filing a written objection with the Monitor. If the Monitor and the Page 18 of 38

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County are unable to resolve any objections, the Monitor shall refer the matter to the assigned magistrate judge for decision. If no objection is submitted, the County shall pay all amounts due within fifteen ( 15) business days of receipt and, if a written objection is filed, all amounts not in dispute shall be paid as provided above. (b) During the first two years following the entry of this Stipulation and Order, the Monitor shall incur no more than $250,000 in annual fees and expenses for which the County is responsible, and no more than $175,000 in such fees and expenses annually thereafter, provided that the Monitor may make an application to the magistrate judge to incur fees and expenses for which the County shall be responsible beyond those amounts upon a showing by the Monitor that such fees are appropriate to fulfill the obligations set forth in this Stipulation and Order.
The County's Implementation Plan, Benchmarks, Additional Obligations to AFFH, and AI
18. The County shall, within one hundred twenty (120) calendar days ofthe Court's entry of this Stipulation and Order, provide to the Monitor and the Government a plan setting forth with specificity the manner in which the County plans to implement the provisions of this Stipulation and Order, set forth in paragraph 7, concerning the development of Affordable AFFH Units (the "implementation plan"). Provided that the Government, in its sole discretion, provides written consent, the Monitor may extend the deadline once for the submission of the implementation plan.
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Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 20 of 39
19. The implementation plan shall include, inter alia, proposed timetables and benchmarks for the first six-month and one-year periods and for each year thereafter.
20. Upon receipt of the County's proposed implementation plan, the Monitor shall review it and, in the Monitor's discretion and based upon such outside expertise and consultants as the Monitor deems necessary, accept or reject the proposed plan. In the event that the Monitor rejects the County's implementation plan:
(a) The Monitor shall, within twenty (20) calendar days of rejecting the plan, meet with the County and the Government.
(b) At that meeting, the Monitor shall identify with specificity the deficiencies that led to the rejection and potential cures that should be incorporated into the implementation plan.
(c) The County shall have ten (1 0) business days after that meeting to submit to the Monitor a revised implementation plan for the Monitor's review and acceptance or rejection.
(d) In the event that the Monitor deems the revised plan submitted by the County insufficient to accomplish the objectives and terms set forth in this Stipulation and Order, the Monitor shall specify revisions or additional items that the County shall incorporate into its implementation plan.
21. Following the Monitor's approval and acceptance of the implementation plan, the County shall incorporate the implementation plan into its AI.
22. In developing the implementation plan, the County shall, among other activities it deems appropriate and in consultation with the Monitor:
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(a) Assess the availability of vacant land suitable for development and adaptive reuse opportunities in the municipalities that meet the locational criteria described in paragraphs 7(a), 7(b), and 7(c), with consideration given to the way in which the available sites provide or have the potential to provide access to services and facilities that will promote sustainable, inclusive communities, such as employment and educational opportunities, medical and other family services, and public transportation.
(b) Conduct meetings with developers (for-profit and non-profit) and property owners (including office park owners) to determine their interest in furthering developments that will AFFH.
(c) Conduct meetings with key local officials in each of the municipalities that meet the locational criteria set forth in paragraph 7(a) to explore potential development opportunities.
(d) Conduct meetings with the New York State Division of Housing and Community Renewal and the New York State Housing Finance Agency to explore opportunities for targeted state financing for projects that will implement the provisions of this Stipulation and Order Settlement, as well as other forms of state assistance.
(e) Explore and implement mechanisms by which the monies made available pursuant to paragraphs 2, 3 and 5, and proceeds from the expenditure of those funds, can be placed in a revolving fund dedicated to the development of Affordable AFFH Units. To the extent there are obstacles to doing so, the
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County shall identify the obstacles in writing to the Monitor and any steps that can be taken to overcome the obstacles. (f) Assess the means by which the County can maximize the development of Affordable AFFH Units in the eligible municipalities and census blocks with the lowest concentrations of African American and Hispanic residents. 23. To ensure the satisfaction of the goals set forth in paragraph 7, the County shall meet the following interim benchmarks:

By end of calendar year
2010 2011 2012 2013 2014 2015 2016

Sites with financing in place
(number of units)
100 200 300 450 600 750

Units with building permits
50 125 225 350 525 750

24. The County's implementation plan shall include the benchmarks set forth in paragraph 23 and specify steps and activities that will be needed to meet those benchmarks. The Monitor, upon acceptance of the County's implementation plan, may designate any elements of the plan as benchmarks that shall be incorporated into this Settlement and shall be enforceable in the same fashion as the other terms of this Stipulation and Order.
25. To facilitate the development ofthe Affordable AFFH Units, the County shall include in the implementation plan:
(a) A "model ordinance" that the County will promote to municipalities to advance fair housing. The model ordinance shall include, inter alia:

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(i) a model inclusionary housing ordinance that requires new development projects to include a certain percentage of affordable units, including criteria and standards for the affordable housing units and definitions of who is eligible for affordable housing;
(ii) standards for affirmative marketing of new housing developments to ensure outreach to racially and ethnically diverse households;
(iii) standards for expedited review of proposals for affordable housing that AFFH including procedures for streamlining the approval process for the design, permitting, and development of these units; and
(iv) standards for legal mechanisms to ensure continued affordability of new affordable units.
(b) A CDBG allocation process/plan designed to promote activities that AFFH, including such steps as providing priority to projects that further the development of AFFH afTordable housing units as set forth in paragraph 7, and providing incentives and priority to municipalities throughout the County that take actions that further fair housing.
(c) A commitment to amend County Law to eliminate a municipality's right of "first refusal" with respect to Fair Housing or Affordable Housing land purchases by the County.
(d) A policy to condition, as appropriate, the use of public funds and resources, including, but not limited to, CDBG funds and the County Open Space funds, by municipalities on commitments included in the funding agreement between the County and the municipalities that the municipalities shall, inter alia: Page 23 of 38

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(i) ban local residency requirements and preferences and other selection preferences that do not AFFH;
(ii) offer the County a "right of first refusal" to retain and/or purchase land acquired in rem to be used for affordable housing that AFFH; and
(iii) actively further implementation of this Stipulation and Order through their land use regulations and other affirmative measures to assist development of affordable housing.
26. The County may propose amendments to the implementation plan, which shall be subject to the Monitor's review and approval pursuant to paragraph 20.
27. The County shall, within one hundred twenty (120) calendar days of the entry ofthis Stipulation and Order, amend the Long Range Land Use Policies as contained in Westchester 2025 to embody the goals of this Stipulation and Order, as well as the substantive provisions of the model ordinance described in paragraph 25(a) and the policy statement adopted pursuant to paragraph 31.
28. The County shall, beginning March 31, 2010, prepare reports for the Monitor and the Government on a quarterly basis providing all information the County believes is relevant to its implementation efforts and all information deemed necessary by the Monitor. The Monitor shall, no later than February 1, 2010, prepare a template report for the County to follow. In addition to all items identified by the County and the Monitor, the quarterly reports shall include:
(a) the location of the Affordable AFFH Units (i) for which there are sites with financing in place, (ii) which are under construction, and (iii) which are completed, and the racial and ethnic demographic information of the municipality and the census block in each location; and Page 24 of 38

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(b) racial and ethnic demographic information of the occupants of the Affordable AFFH Units.
29. If the County believes that market conditions or other circumstances outside of the County's influence or control will prevent it, or have prevented it, from meeting its obligations under this Stipulation and Order, the County shall, as soon as possible, but in no event later than the submission of its next quarterly report, notify the Monitor in writing. The County's submission shall provide sufficient information for the Monitor to assess the obstacles to compliance, the County's actions, and the results of those actions.
30. All reports prepared by the County pursuant to this Stipulation and Order shall be publicly available.
31. The County acknowledges the importance of AFFH, and shall adopt, within ninety (90) calendar days after the date of the Court's entry of this Stipulation and Order, a policy statement providing that:
(a) the elimination of discrimination, including the present etiects of past discrimination, and the elimination of de facto residential segregation are official goals of the County's housing policies and programs;
(b) AFFH significantly advances the public interest of the County and the municipalities therein; and
(c) the location of affordable housing is central to fulfilling the commitment to AFFH because it determines whether such housing will reduce or perpetuate residential segregation.
32. The County shall complete, within one hundred twenty (120) calendar days of the entry of this Stipulation and Order, an AI within its jurisdiction that complies with the guidance
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in HUD's Fair Housing Planning Guide, see U.S. Dept. ofHUD, Fair Housing Planning Guide (1996). The AI must be deemed acceptable by HUD. The County shall take all actions identified in the AI. In the AI, the County shall:
(a) commit to collecting data and undertaking other actions necessary to facilitate the implementation of this Stipulation and Order; and
(b) identify and analyze, inter alia: (i) the impediments to fair housing within its jurisdiction, including impediments based on race or municipal resistance to the development of affordable housing; (ii) the appropriate actions the County will take to address and overcome the effects of those impediments; and (iii) the potential need for mobility counseling, and the steps the County will take to provide such counseling as needed.
33. As part of its additional obligations to AFFH, the County also shall: (a) solicit CDBG proposals that would AFFH from community leaders, public interest groups, and others; (b) advertise the rights of all persons to fair housing and avenues to redress allegations of housing discrimination, including informing the public that complaints may be filed with the Westchester County Human Rights Commission (''HRC") and requiring County agents to refer housing discrimination complaints and any information about possible violations of fair housing laws to the HRC and to HUD;
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(c) create and fund campaigns to broaden support for fair housing and to promote the fair and equitable distribution of affordable housing in all communities, including public outreach specifically addressing the benefits of mixed-income housing and racially and ethnically integrated communities;
(d) educate realtors, condominium and cooperative boards, and landlords with respect to fair and atiordable housing activities;
(e) affirmatively market atiordable housing within the County and in geographic areas with large non-white populations outside, but contiguous or within close proximity to, the County, and include in all agreements between the County and a developer requirements that the developer meet these same affirmative marketing requirements and hire consultant(s) to carry out outreach activities, where appropriate;
(f) centralize the intake of potential horne buyers for affordable housing that AFFH, working in conjunction with local not-for-profit organizations and community organizations, and through that centralized service provide, inter alia, information concerning home-buyer counseling, community resources, job data by municipality, affordable housing developments under construction and in development;
(g) promote, through the County Executive, legislation currently before the Board of Legislators to ban "source-of-income" discrimination in housing;
(h) pay for consultants and public education, outreach, and advertising to AFFH, as described in this paragraph, out of County resources and CDBG funds over
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five years, exclusive of the amounts set forth in paragraphs 2, 3 and 5, in an amount not less than four hundred thousand dollars ($400,000); and (i) incorporate each undertaking set forth in this paragraph in the County's AI.
Penalties for Non-Payment and Non-Compliance 34. The County shall be in default of this Stipulation and Order if it fails to make the payment set forth in Paragraph 3 on or before its due date. The United States shall provide written notice of the default, and the County shall have an opportunity to cure such default within five (5) business days from the date of its receipt of the notice. Notice of default shall be sent by e-mail and overnight mail to the undersigned attorneys for the County. If the County fails to cure the default within five (5) business days, the Settlement Amount shall be immediately due and payable, and interest shall accrue at the rate of twelve (12) percent per annum compounded daily from the date of default on the remaining unpaid principal balance. The County shall consent to a Consent Judgment in the amount of the unpaid balance, and the United States, at its option, may:
(a) rescind this Stipulation and Order and reinstate the Government's Complaintin-Intervention filed in this action;
(b) seek specific performance of the Stipulation and Order; (c) offset the remaining unpaid balance from any amounts due and owing the
County by any department, agency or agent of the United States at the time of default; or (d) exercise any other rights granted by law, or under the terms of this Stipulation and Order, or recognizable at common law or in equity.
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35. The County shall not contest any offset imposed nor any collection action undertaken by the United States pursuant to paragraph 34, either administratively or in any state or federal court.
36. The County shall pay the United States all reasonable costs of collection and enforcement under paragraph 34, including attorneys' fees and expenses.
37. In the event that the United States opts to rescind this Stipulation and Order, the County expressly agrees not to plead, argue, or otherwise raise any defenses under the theories of statute of limitations, laches, estoppel, or similar theories, to any civil or administrative claims that relate to the allegations in the Government's Complaint, except to the extent those defenses were available on the date of entry of this Stipulation and Order.
38. In the event that the County fails to comply with its obligations set forth in paragraph 7 or with the interim benchmarks for the development of the Affordable AFFH Units set forth in paragraph 23, the County shall, as further mandatory and injunctive relief, make available additional resources funded by thirty thousand dollars ($30,000), exclusive of the amounts funded pursuant to paragraph 5, on the first day of the failure, for the development of affordable housing to AFFH in addition to the Affordable AFFH Units required pursuant to paragraph 7 ("Additional Affordable AFFH Units"). If, after thirty (30) calendar days, the failure to comply has not been remedied, the County shall, for each and every month the noncompliance persists, make available additional resources funded by sixty thousand dollars ($60,000) for the development of Additional Affordable AFFH Units. The Monitor shall determine the formula for calculating the number of Additional Affordable AFFH Units required each time a specified amount in imposed penalties is accumulated. In the Monitor's discretion, the Monitor may waive or alter the imposition of penalties or the number of additional
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Affordable AFFH Units required pursuant to this paragraph. In the event the County has failed to comply with the obligations set forth in paragraph 7 or with the interim benchmarks set forth in paragraph 23 by more than 50 percent, the penalties provided for in this paragraph shall be doubled.
Reports to Court Concerning Implementation and Enforcement of Settlement
39. The Monitor shall report to the Court in writing, with copies to the Government and the County, as often as the Monitor believes appropriate, but no less than every six months for the first two years after the Monitor's appointment and annually thereafter. Such report shall incorporate, when available, assessments undertaken pursuant to paragraph 15. The report to the Court shall address, inter alia:
(a) the Monitor's activities; (b) observed or substantiated lapses in the County's compliance with the
Stipulation and Order; (c) the adequacy of the County's implementation plan and efforts; and (d) recommended steps or activities to improve the County's performance. 40. Prior to the submission of such reports to the Court, the Monitor shall meet with representatives of the County and the Government to discuss compliance issues, recommendations for corrective action, and other matters included in the Monitor's reports to the Court.
Releases 41. Subject to the exceptions in paragraph 46, in consideration of the obligations of the County set forth in this Stipulation and Order, and conditioned upon the County's payment in
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full of the Settlement Amount, the United States (on behalf of itself, its officers, agents, agencies and departments) agrees to release the County from any civil or administrative monetary or injunctive claim the United States has or may have under the False Claims Act, 31 U.S.C. §§ 3729 et seq., the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801 et seq., the Housing and Community Development Act, 42 U.S.C. § 5311, or under the common law or equitable theories of payment by mistake, unjust enrichment, constructive trust, misrepresentation, breach of contract, and fraud for the conduct alleged in the Relator's Complaint or the Government's Complaint.
42. Subject to the exceptions in paragraph 46, in consideration of the obligations of the County set forth in this Stipulation and Order, and conditioned upon the County's payment in full of the Settlement Amount, HUD releases the County, its officials, and employees from administrative liability pursuant to 2 C.F.R. Part 2424 and 24 C.F.R. Part 28 with respect to any and all allegations concerning the County's failure to comply with its certification to AFFH in connection with its participation in the CDBG and HOME programs through the date of execution of this agreement by HUD. This release does not extend to any conduct that occurs after such date.
43. Subject to the exceptions in paragraph 46, in consideration of the obligations ofthe County set forth in this Stipulation and Order, and conditioned upon the County's payment in full of the Settlement Amount, HUD agrees to refrain from instituting, directing, or maintaining any suspension or debarment action under 24 C.F.R. Part 2 against the County based on the conduct alleged in the Relator's Complaint or the Government's Complaint. Nothing in this Stipulation and Order precludes HUD from:
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(a) taking enforcement actions pursuant to the Fair Housing Act (42 U.S.C. §
3601-18), Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d-1), Section 504 of the Rehabilitation Act of 1973 (29 U.S. C.§ 794), Section 109
of the Housing and Community Development Act of 1974 (42 U.S.C. § 5309),
their implementing regulations, or any other appropriate non-discrimination or equal opportunity law or regulation, including, but not limited to, limiting future grant awards; or (b) taking action against entities or persons, or for conduct and practices, for which claims have been reserved in paragraph 46. 44. The County agrees to the following: (a) Unallowable Costs Defined: that all costs (as defined in the Federal Acquisition Regulation, 48 C.F.R. § 31.205-47) incurred by or on behalf of the County, and its present or former officers, directors, employees, shareholders, and agents in connection with: (i) the matters covered by this Stipulation and Order; (ii) the United States' audit(s) and civil investigation(s) of the matters
covered by this Stipulation and Order; (iii) the County's investigation, defense, and corrective actions undertaken in
response to the United States' audit(s) and civil investigation(s) in connection with the matters covered by this Stipulation and Order (including attorneys' fees); (iv) the negotiation and performance of this Stipulation and Order;
Page 32 of 38

Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 33 of 39
(v) the payment that the County makes to the United States pursuant to this Stipulation and Order and any payments that the County may make to Relator, including costs and attorneys' fees, are unallowable costs for government contracting purposes (hereinafter referred to collectively as ''Unallowable Costs").
(b) Future Treatment ofUnallowable Costs: Unallowable Costs will be separately determined and accounted for by the County, and the County shall not charge such Unallowable Costs directly or indirectly to any contracts with the United States.
(c) Treatment of Unallowable Costs Previously Submitted for Payment: The County further agrees that within 90 calendar days of the entry of this Stipulation and Order it shall identify any Unallowable Costs included in payments previously sought by the County from the United States. The County agrees that the United States, at a minimum, shall be entitled to recoup from the County any overpayment plus applicable interest and penalties as a result of the inclusion of such Unallowable Costs in any such payments. Any payments due shall be paid to the United States pursuant to the direction of the Department of Justice and/or the affected agencies. The United States reserves its rights to disagree with any calculations submitted by the County regarding any Unallowable Costs included in payments previously sought by the County, or the effect of any such Unallowable Costs on the amount of such payments.
(d) Nothing in this Stipulation and Order shall constitute a waiver of the rights of the United States to audit, examine, or re-examine the County's books and Page 33 of 38

Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 34 of 39
records to determine that no Unallowable Costs have been claimed in accordance with the provisions of this paragraph. 45. The County agrees to release the United States, its agencies, departments, employees, servants, and agents from any claims (including attorneys' fees, costs, and expenses of every kind and however denominated), that the County has asserted, could have asserted, or may assert in the future against the United States or its agencies, departments, employees, servants, and agents related to the matters covered by the Government's Complaint, and the United States' investigation and prosecution thereof and this Stipulation and Order. 46. Notwithstanding the releases given in paragraphs 41 and 43, or any other term of this Stipulation and Order, the United States does not release or discharge the County, including the County's employees, agents, representatives, subdivisions, and agencies, from: (a) any liability arising under the Internal Revenue Code, Title 26 of the United States Code, and the regulations promulgated thereunder; (b) except as explicitly stated in this Stipulation and Order, any administrative liability, including the suspension and debarment rights of any federal agency; (c) any liability to the United States (or its agencies) for any conduct other than the conduct alleged in the Government's Complaint; or (d) any obligations created by this Stipulation and Order.
Miscellaneous Provisions 47. This Stipulation and Order is intended to be for the benefit of the parties to this Stipulation and Order only, and by this instrument the parties to this Stipulation and Order do not release any claims against any other person or entity, except as expressly provided by this Stipulation and Order.
Page 34 of 38

Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 35 of 39
48. None of the amounts that the County must pay pursuant to paragraphs 2, 3, 4, 5, 33(h), or 38, except to the extent specified in those paragraphs, shall come from funds received by the County from any federal programs, grants or contracts, and the County certifies and warrants that such payment is not being and shall not be made from any such federal funds.
49. The County will retain all material records relating to the conduct alleged in the Government's Complaint in their original form for no less than six (6) years after the Court's entry ofthis Stipulation and Order. Before the expiration of the six-year period and before disposing of any records covered by this paragraph, the County will consult with the United States Attorney's Office for the Southern District of New York concerning the continuing need for preserving such records. The County shall make such records, subject to redactions of privileged material, available to the United States upon written request.
50. Each party to this Stipulation and Order shall bear its own legal and other costs incurred in connection with this matter, including costs incurred in connection with the preparation and performance of this Stipulation and Order, except as provided in paragraph 4.
51. This Stipulation and Order is governed by the laws of the United States. The exclusive jurisdiction and venue for any dispute arising between and among the parties under this Stipulation and Order as it relates to this action will be the United States District Court for the Southern District of New York.
52. This Stipulation and Order sets forth the entire agreement and understanding among the parties, and fully supersedes any and all prior agreements or understandings among the parties pertaining to the subject matter hereof.
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Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 36 of 39
53. With the exception of modifications made by the Monitor pursuant to paragraph 15, this Stipulation and Order may not be supplemented, modified, canceled, or waived or otherwise altered in any way, in whole or in part, except in writing, by the United States and the County.
54. The undersigned representatives of the parties certifY that they are authorized by the parties to enter into and consent to the terms and conditions of the Stipulation and Order, and to execute and bind the parties to it. In particular, the individuals signing this Stipulation and Order on behalf of the County represent and warrant that they are authorized by the County Executive to execute this Stipulation and Order, subject to final approval of the Stipulation and Order by the County Legislature as set forth in paragraph 55. The United States and HUD signatories represent and warrant that they are signing this Stipulation and Order in their official capacities.
55. This Stipulation and Order is subject to and conditioned upon: (a) approval by a simple majority of the County's Board of Legislators; and (b) approval of a Bond Act in the amount of$32.9 million by a two-thirds majority of the County's Board of Legislators.
56. In the event that the County's Board of Legislators fails to provide the necessary approvals within forty-five (45) calendar days of the Court's entry of this Stipulation and Order, the Stipulation and Order shall be null and void. In such an event, trial of this action shall proceed at the Court's earliest convenience.
57. Subject to and upon receipt of the Settlement Amount, the Relator's Complaint and the Government's Complaint shall be dismissed with prejudice, with each party to bear its own attorneys' fees and costs, except as provided in paragraph 4. The dismissal of this action shall be subject to paragraph 46.
Page 36 of 38

Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 37 of 39
58. Notwithstanding any other provisions of this Stipulation and Order, this Court shall retain exclusive jurisdiction over this Stipulation and Order, including, but not limited to, any application to enforce or interpret its provisions, and over each party to the extent its obligations herein remain unsatisfied.
59. Each party and signatory to this Stipulation and Order represents that it freely and voluntarily enters in to this Stipulation and Order without any degree of duress or compulsion.
60. This Stipulation and Order may be executed in one or more original, facsimile or PDF counterparts, each of which constitutes an original and all of which constitute one and the same agreement. For purposes of this Stipulation and Order, signatures transmitted by facsimile or PDF shall constitute acceptable, binding signatures.
61. The effective date of this Stipulation and Order is the date on which this Stipulation and Order is entered by this Court.
SO ORDERED: DENISE . COTE UNITED STATES DISTRICT JUDGE
-fl~ar 1.,, A"'"~
Page 37 of 38

Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 38 of 39

Dated:

New York, New York August :)_ , 2009

LEVLDASSIN Acting United States Attorney for the Southern District of New York Atl6ll!ey for the t;nited Sta~esit-
By: .-~'v~ (' ' (1J t
~ESL.COTT
S N C. CENAWOOD JAMIN H. TORRANCE
Assistant United States Attorneys Telephone: 212.63 7.2695/2 705/2 703 Fax: 212.637.2686

Dated:

Washington, D.C. August __ , 2009

UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
By: RON SIMS Deputy Secretary for the U.S. Department of Housing and Urban Development 451 7th Street, SW Washington, DC 20410

Dated:

Washingtl, D.C. August , 2009

EPSTEIN BECKER & GREEN stchester County
By: ARTGER 0 , Esq.
Epstein, Becker & Green 1227 2Sh Street, NW Washington, D.C. 20037 Telephone: 202-861-0900 Fax: 202-861-3540

Dated: White Plains, New York August - / - , 2009 By:

148 Martine Avenue White Plains, New York 10601 Telephone: 914-995-2900 Fax: 914-995-3372
Page 38 of 38

Case 1:06-cv-02860-DLC Document 320 Filed 08/10/09 Page 39 of 39

Dated: New York, New York

LEV L DASSIN

August __ , 2009

Acting United States Attorney tor the

Southern District of New York

Attorney for the United States

By: JAN1ES L. COTT
SEAN C. CENA \VOOD
BENJAMIN H. TORRANCE
Assistant United States Attorncv.; s Telephone: 212.637.2695/2705/2703 Fax: 212.637.26X6

Dated:

Washingt9.nn.,, D.C . August-~ , 2009

UNITED STATES DEPAfn'MENT OF

,//HOLTS!~ AND URBAN DE)4ELOPMEN'r

,

'

.·· I

f

By:'

.. ~:V.l/lc~A:.

t(/L

....n~.~J·iK'"<·I,·:)~~.lVy:.l'-:·!

Deputy Secretary for the .S. Department of

Housing and Urban Development

451 7th Street, SW

\Vashington, DC 2041 0

Dated:

\Vashington, D.C. August , 2009

EPSTEIN BECKER & GREEN Attorneys for Defendant Westchester County

By:

STUART GERSON, Esq.

Epstein, Becker & Green

1227

25

1 h

Street,

N\V

Washington, D.C. 20037

Telephone: 202-861-0900

Fax: 202-861-3540

Dated:

vVhitc Plains. New York

August

, 1009

WES'l'CHESTER COUNTY
B·y: ,.c\.NDRE\V SPANO Westchester County E:x~::cutivc 148 Martine Avenue \Vhitc Plains, New York l 060 l
Telephone: 9!4-995-2900
Fax. 914-995~3372
Page 3R of 3R

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------- X

:

UNITED STATES OF AMERICA ex rel., ANTI- :

DISCRIMINATION CENTER OF METRO NEW

:

YORK, INC.

:

Plaintiff/Relator, :

:

-v-

:

:

WESTCHESTER COUNTY, NEW YORK,

:

Defendant.

:

:

----------------------------------------X

06 Civ. 2860 (DLC) OPINION & ORDER

APPEARANCES:

For the Government:

David J. Kennedy Benjamin H. Torrance United States Attorney’s Office 86 Chambers Street New York, NY 10007

For Westchester County, New York:

Robert F. Meehan James F. Castro-Blanco Carol F. Arcuri Linda Trentacoste Shannon S. Brady Adam Rodriguez Westchester County Attorney’s Office 138 Martine Avenue, 6th Floor White Plains, NY 10601

DENISE COTE, District Judge:

The United States (“Government”) has objected to the

Opinion of March 16, 2012 (“Opinion”) issued by the Honorable

Gabriel Gorenstein insofar as it sustained the objection of

1

Westchester County (“County”) to one portion of the Report and Recommendation of the Monitor James E. Johnson (“Monitor”) dated November 14, 2011 (“Report”). At its essence, this dispute concerns whether the veto of legislation breached the duty to promote the legislation. For the following reasons, the Government’s objection to the Opinion is well-founded, and the Monitor’s Report is upheld in its entirety.
BACKGROUND This litigation began six years ago. In 2006, the Anti-
Discrimination Center of Metro New York, Inc., acting as a qui tam relator, sued the County for violation of the False Claims Act (“FCA”). The lawsuit asserted that the County had received money from the federal government after falsely certifying that it was affirmatively furthering fair housing. As described in the pertinent federal regulations, the task of affirmatively furthering fair housing (“AFFH”) required the County to conduct an analysis of the impediments to fair housing choice and to take appropriate actions to overcome the effects of any such impediments.
Following the completion of discovery, partial summary judgment was entered against the County. United States ex rel. Anti-Discrimination Ctr. v. Westchester County, New York, 668
2

F.Supp.2d 548 (S.D.N.Y. 2009). This Court found, inter alia, that the County had not analyzed race in conducting its Analysis of Impediments (“AI”), and had thereby submitted false certifications to the Department of Housing and Urban Development (“HUD”). Id. at 561-63. Since the County had submitted false certifications to receive approximately $52 million from HUD, it was liable for over $150 million in damages pursuant to the treble damages provision of the FCA. A trial was scheduled to determine whether the violation had been willful.
On August 10, 2009, the Government intervened and elected to proceed with this action, filing its own complaint. The Government’s complaint alleged violations of the FCA and of the Housing and Community Development Act. Simultaneously, the Government submitted an executed settlement of the litigation (“Settlement”).
The Settlement provided for the County to pay the Government $30 million, with $21.6 million of that amount credited to the County’s account with HUD for development of housing in accordance with the Stipulation. The County was also required to secure $30 million in additional funding for such housing development over six years.
3

The Settlement also provided for injunctive relief. Among other things, a Monitor was appointed and given authority, inter alia, to resolve disputes between the Government and the County, and to assess every two years, starting on December 31, 2011, the County’s progress in fulfilling its obligations under the Settlement.
In the Settlement, the Country agreed to affirmatively further fair housing in a variety of ways. These included the development of 750 units of new affordable housing (“Affordable AFFH Units”) over the course of seven years in areas with low black and Hispanic populations. Of particular significance to this dispute, the Settlement required the County to “promote, through the County Executive, legislation currently before the [County’s] Board of Legislators to ban ‘source–of-income’ discrimination in housing,” and to “incorporate” that undertaking in the Country’s AI, which the County was required to submit to HUD. As the Monitor noted in his December 31, 2011 biennial report, legislation to ban source of income discrimination in housing (herein “source-of-income legislation”) “if it were to become law, would prevent landlords from refusing to rent to tenants solely on the grounds that a person’s income is derived from government programs such as Section 8, Social Security, or disability benefits.” The County
4

itself has noted that “Section 8 vouchers are a major source of assistance for low and very low income families and that reluctance by landlords to accept Section 8 continues to be a challenge.” Westchester, 668 F.Supp.2d at 558 (quoting County’s 2004 AI).
In addition, the Settlement required the Country to identify specific zoning practices within the County that hinder the development of Affordable AFFH Units. The Country agreed to establish a process for notifying the implicated municipalities of changes that must be made to such zoning practices and the consequences for a failure to make those changes.
At the time of the Settlement, the Country’s Board of Legislators (“Board”) had legislation before it that prohibited housing discrimination by landlords based on source of income. While the Board approved the Settlement, it did not approve the legislation before the end of its session in December 2009. Nonetheless, County Executive Andrew J. Spano (“Spano”) had written to the Board in October 2009 urging the passage of the legislation and in November had written letters to five housing advocacy organizations urging them to advocate for passage of the legislation.
On January 19, 2010, source-of-income legislation was reintroduced in the Board’s new legislative session. The Board
5

held at least eight meetings on the proposed legislation, as well as public hearings. Spano’s successor, County Executive Robert Astorino (“Astorino”), who took office on January 1, did not participate in any of the meetings or hearings. The Board’s Committee on Legislation (“the Committee”) submitted an amended version of the legislation to the Board on May 10. In a May 10 memorandum accompanying the proposed legislation, the Committee stated that source-of-income legislation “would prevent the growing trend of discrimination based upon a person’s source of income, which creates an extreme hardship for individuals with lower incomes, including the disabled and the elderly, and for families transitioning from welfare to work.” The Committee further stated that the proposed legislation “complies with the County’s obligations in its fair housing contract with [HUD].”
On June 14, the Board passed the source-of-income legislation. Astorino vetoed it on June 25. That veto is at the heart of the dispute before this Court.
Through a letter of July 13, 2011, HUD notified the County that the County’s revised AI did not meet the requirements of the Settlement since it did not incorporate the corrective actions which HUD had specified in a May 13 letter regarding “promotion of source-of-income legislation or plans to overcome exclusionary zoning practices.” HUD therefore rejected the
6

County’s certification that it would affirmatively further fair housing, as well as the County’s FY 2011 Annual Action Plan (“FY 2011 Plan”). As a consequence of HUD’s disapproval of the FY 2011 Plan, the County ceased being a grantee of federal Community Planning and Development programs covered by the County’s AI, effective May 1, 2011.1
In response to the federal funding cut-off, the County invoked the dispute-resolution procedures in the Settlement and sought the Monitor’s assistance on July 20 in resolving its dispute with HUD. The Government also invoked the disputeresolution procedures of the Settlement in an August 18 letter. It identified two relevant issues as the Country’s failure to promote legislation prohibiting discrimination on the basis of source-of-income and its failure to establish a process for addressing exclusionary zoning practices.
With respect to the County’s obligation to promote sourceof-income legislation, the Government requested in its August 18 letter that the Monitor resolve the following dispute between the parties:
Whether [the County] has fully complied with paragraph[s] 33(g) and 33(i) of the [Settlement],
1 In a July 20, 2011 letter to the Monitor, the County stated that the funding cut-off would force the County to lay off housing staff and would hinder its ability to comply with its obligation to develop the Affordable AFFH Units.
7

requiring the County, as part of its additional obligations to affirmatively further fair housing, to “promote, through the County Executive, legislation currently before the [BOL] to ban ‘source-of-income’ discrimination in housing,” and to ‘incorporate’ that undertaking in the County’s analysis of impediments to fair housing choice within its jurisdiction. If not, what actions the County must take to satisfy this obligation.
On November 14, the Monitor issued his Report responding to
the parties’ requests. Among other things, he found that the
County was in breach of its obligation to promote source-of-
income legislation, and that by February 29, 2012, it should
analyze zoning ordinances in connection with the required
Analysis of Impediments.
The Report explained in detail the legal and factual bases
for its finding that the County was in breach of its obligation
to promote source-of-income legislation. It identified the key
questions for resolution as “(a) what does it mean to ‘promote’
the Source of Income legislation through the County Executive;
(b) over what period of time did that duty exist; and (c) did
the County Executive discharge that duty.” The Monitor
concluded that while the “Settlement does not mandate the
ultimate adoption of Source of Income legislation,” the acts
undertaken by the County Executive were insufficient to
constitute promotion. The Report reviewed definitions of
promotion that included “to help or encourage to exist or
8

flourish,” “to bring or help bring into being,” and “to contribute to the growth, enlargement, or prosperity of.” Using these and similar definitions of the term “promote”, the Report found that “[n]either the single letter [sent by Spano] to the [Board], nor the five letters to advocacy organizations, taken separately or together, can be credibly considered as acts sufficient” to constitute promotion, and that the veto by Astorino “vitiated any prior act of promotion and placed the County in breach of the Settlement.”
The County appealed these and other determinations to the Magistrate Judge. In a March 16, 2012 Opinion, the Magistrate Judge sustained the County’s objection to the Monitor’s finding that the Settlement required the County Executive to sign the source-of-income legislation.
The Government has filed an objection seeking review by this Court of the portion of the Opinion that concluded that the County Executive’s veto of source-of-income legislation passed by the Board did not violate the Settlement. No party has filed objections to the remainder of the Opinion, which sustained other portions of the Monitor’s Report. The briefing on the Government’s objection was fully submitted on April 13.2
2 On April 16, the Government submitted an additional letter in response to the County’s April 13 opposition, addressing
9

DISCUSSION A district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The court shall conduct a de novo review of those sections of a report to which a party timely objects. Id. To accept those portions of the report to which no timely objection has been made, a district court “need only satisfy itself that there is no clear error on the face of the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes.
I. The County’s Jurisdictional Argument As an initial matter, the parties dispute whether this Court
has jurisdiction over the Government’s objection to the Opinion. The County argues that the parties consented in ¶ 14 of the Settlement to the Magistrate Judge issuing a final order resolving any dispute between them, pursuant to 28 U.S.C. § 636(c).
Upon the consent of the parties, a [magistrate judge] may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case[.]” 28 U.S.C.
jurisdictional and constitutional arguments raised in the County’s opposition.
10

§ 636(c). The consent of each party to the magistrate judge exercising plenary jurisdiction under § 636(c) must be “clear and express.” New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 996 F.2d 21, 24 (2d Cir. 1993).
Paragraph 14(d) of the Settlement does not constitute the parties’ consent to the magistrate judge’s plenary jurisdiction. To the contrary, the Settlement provides in ¶ 14(d) that should a party to the Settlement seek review of the Monitor’s report and recommendation from the magistrate judge, “the relevant provisions of the Federal Rules of Civil Procedure, the Local Rules and the Court’s Individual Rules governing reports and recommendations from a magistrate judge shall apply.” Under those provisions, a timely objection from a party to the magistrate judge’s report and a recommendation must be resolved de novo by the district court. Fed. R. Civ. P. 72(b)(3). Moreover, the County’s argument that the parties consented to the magistrate judge’s plenary jurisdiction is entirely inconsistent with ¶ 58 of the Settlement, through which this Court “retain[s] exclusive jurisdiction over [the Settlement], including, but not limited to, any application to enforce or interpret its provisions, and over each party to the extent its obligations remain unsatisfied.” The Court will therefore decide the Government’s objection on the merits.
11

II. The Scope of the County’s Obligation to “Promote” Sourceof-Income Legislation
Resolving the Government’s objection requires interpretation of the Settlement, a consent decree between the Government and the County. Consent decrees “reflect a contract between the parties (as well as a judicial pronouncement), and ordinary rules of contract interpretation are generally applicable.” Doe v. Pataki, 481 F.3d 69, 75 (2d Cir. 2007). “[D]eference is to be paid to the plain meaning of the language of a decree and the normal usage of the terms selected.” United States v. Broadcast Music, Inc., 275 F.3d 168, 175 (2d Cir. 2001) (citation omitted). In interpreting a consent decree, as when interpreting a contract, “the court is to consider its particular words not in isolation but in the light of the obligation as a whole and the intention of the parties as manifested thereby.” JA Apparel Corp. v. Abboud, 568 F.3d 390, 397 (2d Cir. 2009) (citation omitted).
“[W]hen faced with unclear language in a consent decree, a court of equity may, in construing the provision, consider the purpose of the provision in the overall context of the judgment at the time the judgment was entered.” Broadcast Music, 275 F.3d at 175. “[A] consent decree is an order of the court and thus, by its very nature, vests the court with equitable
12

discretion to enforce the obligations imposed on the parties.” United States v. Local 359, United Seafood Workers, 55 F.3d 64, 69 (2d Cir. 1995). While “the factual findings of an administrator [of a consent decree] are entitled to great deference,” id. at 68 (citation omitted), an administrator’s conclusions of law are not entitled to deference. See N.L.R.B. v. J.P. Stevens & Co., Inc., 563 F.2d 8, 14 (2d Cir. 1977) (Fed. R. Civ. P. 53 Master’s report and recommendation).
Paragraph 33(g) of the Settlement provides: “As part of its additional obligations to [affirmatively further fair housing], the County shall . . . promote, through the County Executive, legislation currently before the Board of Legislators to ban ‘source-of-income’ discrimination in housing.” As the Monitor noted, “the key questions” for resolving whether the County has breached the Settlement by failing to fulfill this obligation are:
(a) what does it mean to “promote” the Source of Income legislation through the County Executive; (b) over what period of time did that duty exist; and (c) did the County Executives discharge that duty. The parties effectively agree that the County’s obligation to “promote” source-of-income legislation must be understood in accordance with the plain meaning and normal, everyday usage of the term. As the Second Circuit has recently observed, “[t]he ordinary meaning of ‘promote’ includes ‘to bring or help bring
13

into being,’ to ‘contribute to the growth, enlargement, or prosperity of,’ or to ‘encourage’ or ‘further’.” United States v. Awan, 607 F.3d 306, 314 (2d Cir. 2010) (citing Webster’s Third New Int’l Dictionary 1815 (2002)). See also Dictionary.com, “Promote”, http://dictionary.reference.com /browse/promote?s=t (last visited April 22, 2012) (“to help or encourage to exist or flourish; further”).
Thus, the answer to the first “key” question is straightforward. The County’s obligation to “promote” sourceof-income legislation required the County Executive to take active steps to foster and facilitate passage of the legislation. Those obligations are not limited to hortatory steps.
The answer to the second question is also easy to discern from the structure and terms of the Settlement itself. The County’s obligation to promote source-of-income legislation is an ongoing obligation, and did not terminate upon the expiration of the 2009 legislative session. Paragraph 33, the paragraph that requires the County to promote source-of-income legislation, does not contain any time limitation. In contrast, the parties were careful to set forth specific time limitations and deadlines for other obligations imposed by the Settlement, and to provide mechanisms by which the County might seek an
14

extension of those deadlines, for example, in connection with the implementation plan mandated by ¶ 18 of the Settlement.3
Any other interpretation of the County’s obligation to promote source-of-income legislation would also be inconsistent with the structure of the County’s obligations under the Settlement as a whole, and thus is disfavored. The Settlement requires the County to “incorporate each undertaking set forth in [¶ 33] in the the County’s AI.” Settlement ¶ 33(i). The County was originally required to submit its AI to HUD 120 days after the Settlement was entered. The Settlement provided a mechanism by which the County could seek an extension of that deadline. At the earliest, therefore, the Settlement contemplated an AI submission deadline of December 9, 2009, only weeks before the end of the 2009 BOL session. The County took advantage of the opportunity for an extension, however, and did not submit its AI to HUD until July 23, 2010. As noted, the Settlement required the County to address at that time within its AI, its obligation to promote, through the County Executive, the legislation currently before the Board to ban source-ofincome discrimination in housing. Thus, the settlement
3 Paragraph 18 of the Settlement requires that the County submit an implementation plan to the Monitor and the Government within 120 days of entry of the Settlement. It further provides that if “the Government, in its sole discretion, provides written consent, the Monitor may extend the deadline once for the submission of the implementation plan.”
15

contemplated a continuing duty to advise HUD of the County’s efforts to promote source-of-income legislation.
Finally, the County breached its obligation to promote source-of-income legislation. The County does not dispute that County Executive Spano’s single letter to the Board and five letters to advocacy organizations during the fall or 2009 do not constitute efforts sufficient to discharge the County’s obligation to promote, through the County Executive, source-ofincome legislation. It is also undisputed that the sole action the County Executive has taken since December 2009 in relation to the legislation he is obligated to promote is to veto it. It is unnecessary to decide the precise contours of the duty to promote that the Settlement imposed on the County. Under no reasonable understanding of the term can the County Executive be said to have discharged the obligation to promote source-ofincome legislation when he vetoed the legislation. The veto was an unambiguous breach of the duty to promote.
Paragraph 13(c) of the Settlement grants the Monitor authority to “[i]dentify, recommend, and monitor implementation of additional actions by the County needed to ensure compliance with [the Settlement].” The Monitor has recommended, pursuant to ¶ 13(c), that
a reasonable interpretation of “promotion” of legislation could encompass, at a minimum, requesting
16

that the legislature reintroduce the prior legislation, providing information to assist in analyzing the impact of the legislation, and signing the legislation passed. “Until parties to [a consent decree] have fulfilled their express obligations, the court has continuing authority and discretion -- pursuant to its independent, juridical interests - to ensure compliance.” E.E.O.C. v. Local 580, Int’l Ass'n of Bridge, Structural and Ornamental Ironworkers, Joint ApprenticeJourneyman Educ. Fund, 925 F.2d 588, 593 (2d Cir. 1991). The Monitor’s recommendation properly describes the steps the County must take to comply with its obligation to promote source-ofincome legislation, and the Court adopts it. The County raises disputes at each stage of the analysis above. First, the County argues that actions of promotion encompass acts of persuasion or advocacy only. While the County points to the Awan court’s reasoning, the Court of Appeals’ decision cannot be read so narrowly. In Awan, the Second Circuit interpreted a sentencing enhancement for terrorism, which applies where the defendant’s offense “involved, or was intended to promote, a federal crime of terrorism[.]” U.S.S.G. § 3A1.4 (emphasis added). Noting the disjunctive phrasing of § 3A1.4, the court held that since the enhancement “must be interpreted to avoid redundancy, the ‘intended to promote’ prong must be applicable in some
17

circumstances in which the ‘involved’ prong is not, i.e., where the defendant’s offense or relevant conduct does not include a federal crime of terrorism.” Awan, 607 F.3d at 314. It reasoned that a person “promoting” an act or event takes an active role in bringing that act or event to fruition. In the terrorism context, “an offense is ‘intended to promote’ a federal crime of terrorism when the offense is intended to bring about, encourage, or contribute to a federal crime of terrorism[.]” Id. (emphasis supplied).
Awan does not stand for the proposition that there is a “dichotomy” between promoting a goal and the actual accomplishment of the goal, as the County would have it, or that the two concepts are mutually exclusive. While the Awan court held that a defendant who intends to promote a crime of terrorism has “not necessarily” completed the crime, it did not suggest the converse. Id. at 315. It did not suggest that a person who completes a crime cannot be said to have promoted it. The phrase “intended to promote” is differentiated from the word “involved” by being broader, not by being exclusive. The Awan court’s discussion of the import of the term “promote” is therefore entirely consistent with a finding that the County breached its obligation to promote the source-of-income legislation when the County Executive exercised his veto.
18

The County also argues that other obligations it assumed in ¶ 33 of the Settlement indicate its obligation under ¶ 33(g) to promote source-of-income legislation is limited to acts of persuasion. It argues that the other tasks and actions set forth in ¶ 33 require it only to undertake acts of persuasion.4 But, several of the County’s obligations under the remaining subsections of ¶ 33 require it to act, rather than merely to attempt to persuade others to act. For example, the County is required to “affirmatively market affordable housing within the County”, and to include legal language in all agreements with developers that developers will affirmatively market affordable housing. Settlement ¶ 33(e). The County must also “centralize the intake of potential home buyers for affordable housing that AFFH”. Settlement ¶ 33(f). The collective obligations under ¶ 33 of the Settlement, therefore, include actions for the County to do by itself and with others. Together, these activities would materially enhance the County’s efforts to desegregate housing within the County.
Next, the County contends that ¶ 33(g) applies only to legislation before the BOL during its 2009 session. The County
4 For example, the County is obligated under ¶ 33(b) to “advertise the rights of all persons to fair housing and avenues to redress allegations of housing discrimination . . . .” Under ¶ 33(h), the County is obligated to “pay for consultants and public education, outreach, and advertising to AFFH . . . out of County resources . . . .”
19

emphasizes that the phrase “currently before the [BOL]” is not set off by commas. When ¶ 33(g) is read not in isolation, but in the context of the County’s Settlement obligations as a whole, it is clear that the obligation did not terminate with the end of the 2009 legislative session. Such a reading would frustrate the clear intention of the parties that the County’s commitment to promote source-of-income legislation be incorporated as an ongoing obligation into its AI. The more reasonable reading of “currently before the [BOL]” is as a description of the type of legislation the County has an obligation to promote: the bill then pending before the BOL or legislation sufficiently similar to it. The County has not pointed to any material differences between the source-of-income legislation pending before the Board in August 2009 and the amended version passed by the Board in June 2010.
With respect to the question of whether the County breached the Settlement, the County argues that the Settlement did not obligate the County Executive to sign source-of-income legislation. As a preliminary matter, this is an overly narrow characterization of the parties’ dispute. The scope of the dispute addressed by the Monitor is whether the County has fully complied with its obligation under ¶ 33(g) of the Settlement to promote source-of-income legislation, or whether the County has
20

breached that obligation. Paragraph 33(g) of the Settlement vests the County’s obligation to promote source-of-income legislation in the County Executive, and it is sufficient for purposes of finding a breach of that obligation to note that the only actions a County Executive has taken towards furthering such legislation or bringing it into being are Spano’s letters prior to December 2009. Since that time, the sole action a County Executive has taken in relation to source-of-income legislation is Astorino’s June 25, 2010 veto of the June 14 bill passed by the Board. These actions are insufficient to constitute promotion.
The Monitor also correctly found that Astorino’s veto constituted, by itself, a breach of the County’s obligation under ¶ 33(g) of the Settlement. The County is correct that the term “promote” has a different meaning from the term “enact”. While the Settlement did not require the County to guarantee passage of the legislation, it required the County Executive to promote that passage. As already discussed, the terms “promote” and “enact” are not mutually exclusive; failing to take an action which is necessary to enact legislation -- particularly when it is the final act -- may also constitute a failure to promote that legislation, i.e. to “bring [the legislation] into being.” Awan, 607 F.3d at 304. To the extent the Magistrate
21

Judge found otherwise, it was through reliance on an overly
narrow definition of the term “promote”, encompassing only
hortatory acts, and his failure to consider the definition in
Awan, id. Astorino’s veto effectively killed source-of-income
legislation in Westchester.5 The County Executive’s action
constituted the very opposite of what was required under the
Settlement, and placed the County in breach.
III. The County’s Remaining Arguments
The County claims that constitutional principles would be
violated if the Monitor’s interpretation and application of
¶ 33(g) is upheld. None of these arguments has merit.6
The County cites to dicta in Horne v. Flores, 557 U.S. 433,
129 S.Ct. 2579 (2009), to argue that ¶ 33(g) of the Settlement
5 The fact that the Board might have overridden Astorino’s veto by a supermajority vote is irrelevant to the question of whether or not the County complied with its obligation to promote, through the County Executive, source-of-income legislation.
6 The Government argues that the County forfeited several of these arguments by failing to raise them before the Monitor. It is true that the County did not present its reserved powers, unmistakability, and Guarantee Clause arguments to the Monitor. The County was on notice that the Monitor might interpret the Settlement to find the County in breach based upon the County Executive’s veto, and in fact argued that such an interpretation would raise federalism concerns. It is unnecessary to decide whether the County forfeited its other constitutional arguments by “fail[ing] to make the timely assertion of a right,” United States v. Olano, 507 U.S. 725, 733 (1993), as these arguments fail on the merits regardless.
22

“improperly deprive[s] future officials of their designated legislative and executive powers.” Horne, 557 U.S. at ___, 129 S.Ct. at 2594 (citation omitted). In Horne, the Supreme Court found that a lower court had “strayed” from the correct legal standard when it evaluated a state’s Fed. R. Civ. P. 60(b)(5) motion for relief from a final judgment based on changed circumstances. Id. at 2595. Federalism concerns played a large role in the Court’s discussion of the proper standard to apply to a state’s Rule 60(b)(5) motion for relief from a remedial order. Id. at 2595-98. But Horne is inapposite here, where the County has not sought modification of a consent decree but has instead flouted one of its provisions. As the Monitor aptly noted, “[n]othing in Horne suggests that any party has the right to undertake an extra-judicial change of a consent decree’s terms.”
The County raises two related arguments that proceed from the assumption that an interpretation of ¶ 33(g) of the Settlement obliging the County Executive to sign source-ofincome legislation passed by the Board involves a surrender of “sovereign power.” The County argues that such an interpretation would violate the “reserved powers doctrine.” The County also argues that the “unmistakability doctrine” should be applied to construe the Settlement so as not to oblige
23

the County Executive to sign source-of-income legislation passed by the Board. These arguments will be addressed in turn.
The reserved powers doctrine “describe[s] the uncontroversial proposition that a state may not enter a contract that ‘surrenders an essential attribute of its sovereignty’ and that, as a consequence, the Contracts Clause may not be used to compel a state to adhere to a contract that purports to achieve such a result.” Matsuda v. City and County of Honolulu, 512 F.3d 1148, 1153 (9th Cir. 2008) (citing U.S. Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977)). State powers constituting “essential attributes of sovereignty” include the police power and the power of eminent domain. Matsuda, 512 F.3d at 1153.
The County is incorrect that this dispute implicates the reserved powers doctrine. First, the County has failed to point to a case supporting the proposition that the reserved powers doctrine applies to an agreement entered into by a county, as opposed to a state. Second, even if the doctrine applies to a consent decree entered into by a county, the County Executive’s exercise of his veto is not an “essential attribute of sovereignty”, akin to the police power or the power of eminent domain. Rather, it is a prerogative of the County Executive within Westchester’s system of governance, established by local
24

code.7 See Westchester County, N.Y. Code, § 110.11 (11).
Finally, the reserved powers doctrine does not apply where an
agreement binds a sovereign to exercise its powers, rather than
to refrain from using them. See Matsuda, 512 F.3d at 1154. As
the Supreme Court has noted, “a State is without power to enter
into binding contracts not to exercise its police power in the
future.” U.S. Trust Co., 431 U.S. at 23 n.20 (emphasis added).
In short, ¶ 33(g) of the Settlement does not mandate that the
County refrain from using its police powers or any other power
that could be deemed an “essential attribute of sovereignty.”
The unmistakability doctrine is a rule of contract
construction which provides that in “a contract with a sovereign
government . . . an ambiguous term of a grant or contract [will
not] be construed as a conveyance or surrender of sovereign
power.” United States v. Winstar Corp., 518 U.S. 839, 878
(1996). “[A] clear statement of intent to surrender a state’s
legislative authority is even more appropriate when the alleged
7 The County also seeks to argue that the Settlement cannot be interpreted to require the County Executive not to veto sourceof-income legislation, because the County Executive’s veto power may only be altered by local referendum. But the Settlement does not alter the County Executive’s veto power. Indeed, the County Executive did veto the source-of-income legislation. The Settlement instead governs the legal consequences of that veto, consequences that arise out of the litigation the Settlement brought to a conclusion. In consenting to the Settlement, a consent decree that allowed the County to evade potentially enormous damages, the County agreed to comply with its provisions or face the sanctions described therein.
25

restrictions on future law-making power are part of an agreement authorized and enforced by a federal court.” Pataki, 481 F.3d at 79. As discussed, an interpretation of ¶ 33(g) of the Settlement that obliges the County Executive to sign source-ofincome legislation passed by the Board does not require surrender of any “sovereign power” that may be possessed by the County. Equally significant, the obligation addressed herein does not arise from an ambiguous term of the Settlement. The unmistakability doctrine is therefore inapposite.
Finally, the County argues that the interpretation of ¶ 33(g) of the Settlement adopted here violates the Constitution’s Guarantee Clause. See U.S. Const. art IV, § 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government.”). The courts have traditionally held that arguments premised upon the Guarantee Clause present nonjusticiable political questions. See Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996). Even if the County’s Guarantee Clause challenge to the Settlement were justiciable, it would fail. Cf. New York v. United States, 505 U.S. 144, 185 (1992). The County cannot show the denial to any state of a republican form of government. Finding a breach of the Settlement simply enforces an agreement which the County
26

voluntarily entered to avoid liability of approximately $150 million.
IV. Additional Disputes The Magistrate Judge’s Opinion overruled the County’s
objections to several other portions of the Monitor’s Report. The Opinion agreed with the Report that the County must specify its strategy for overcoming exclusionary zoning practices, and that the Monitor may require the County to identify the types of municipal zoning practices that would, if not remedied by the municipality, cause the County to pursue legal action. The Opinion also overruled the County’s objections to the Monitor’s refusal to rule on the propriety of HUD’s rejection of the County’s AI. Neither party has objected to these portions of the Opinion, and the Magistrate Judge’s findings with respect to these three issues are not clearly erroneous. The Court therefore adopts these sections of the Opinion.
Conclusion The Government’s objection to the Magistrate Judge’s March
16 Opinion is sustained. The Court adopts those sections of the Monitor’s Report dealing with the County’s obligation to promote
27

source-of-income legislation. The remaining sections of the

March 16 Opinion are adopted.

SO ORDERED:

Dated:

New York, New York May 3, 2012

United

Judge

28 


 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------X

:

UNITED STATES OF AMERICA, ex rel.

ANTI-DISCRIMINATION CENTER OF

:

METRO NEW YORK, INC.

:

Plaintiff,

:

-v.-

:

WESTCHESTER COUNTY, NEW YORK,

:

Defendant.

:

---------------------------------------------------------------X

OPINION AND ORDER 06 Civ. 2860 (DLC) (GWG)

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Westchester County (“the County”) and the Government presented certain disputes to a

special master appointed to oversee the implementation of the settlement that resolved this

action. The special master issued a report and recommendation regarding the disputes. See

Monitor’s Report and Recommendation Regarding Dispute Resolution, filed Nov. 14, 2011 (Docket # 383) (“Report”). The County now objects to the special master’s Report.1 For the

reasons stated below, the County’s objections are sustained in part and overruled in part.

1 The objections were the subject of briefing by the parties. See County’s Objections to the Monitor’s Report & Recommendation, filed Dec. 7, 2011 (Docket # 386) (“Cnty. Mem.”); Response of the United States to Westchester County’s Objection to Monitor’s Report & Recommendation, filed Dec. 22, 2011 (Docket # 388) (“Gov. Mem.”); County’s Reply to the Government’s Response to the Objections to the Monitor’s Report & Recommendation, filed Jan. 6, 2012 (Docket # 390) (“Reply”). After briefing was completed, the Court directed the parties to make additional submissions. See Order, filed Jan. 26, 2012 (Docket # 392); Letter from Robert Meehan to the Hon. Gabriel Gorenstein, filed Feb. 3, 2012 (Docket # 393) (“Cnty. Supp. Br.”); Letter from Benjamin Torrance to the Hon. Gabriel Gorenstein, filed Feb. 3, 2012 (Docket # 394) (“Gov. Supp. Br.”); Declaration of Benjamin Torrance, filed Feb. 6, 2012 (Docket # 395).

I. BACKGROUND In 2006, the Anti-Discrimination Center of Metro New York, Inc. filed this lawsuit under
the False Claims Act, 31 U.S.C. § 3729, as a qui tam relator to the United States alleging that the County had made false statements to obtain funding from the United States Department of Housing and Urban Development (“HUD”). Eventually, the United States intervened in the action, see Complaint-in-Intervention of the United States of America, filed Aug. 10, 2009 (Docket # 324), and submitted a stipulation settling the case, which the district court entered on August 9, 2009, see Stipulation and Order of Settlement and Dismissal, filed Aug. 10, 2009 (Docket # 320) (the “Settlement”).
The Settlement obligates the County to take a number of actions that “affirmatively further fair housing” within the County, including the construction of affordable housing units. Settlement ¶¶ 7–8. It also authorizes a court-appointed special master – referred to as the “Monitor” – to, inter alia, review the parties’ compliance with the consent decree and make recommendations that will ensure compliance. Id. ¶¶ 9-13. The Monitor’s powers include the authority to resolve any disputes between the County and the Government relating to the Settlement. See id. ¶ 14. The Monitor’s report and recommendation as to a given dispute is a final determination of the matter unless a party seeks additional review by presenting objections within ten business days to the magistrate judge assigned to this case. See id. ¶¶ 14(c)–(d).
The issues before this Court concern (1) the County’s obligation to “promote . . . legislation . . . to ban ‘source-of-income’ discrimination in housing,” id. ¶ 33(g); (2) the County’s obligations with respect to zoning practices of municipalities within the County; and (3) whether the Monitor erred in refusing to resolve a dispute between the County and HUD.
The Settlement provides that this Court’s review of a report and recommendation of the 2

Monitor is governed by “the relevant provisions of the Federal Rules of Civil Procedure, the Local Rules and the Court's Individual Rules.” Id. ¶ 14(d). The parties agree that the standard of review is de novo. See Gov. Mem. at 7; Cnty. Mem. at 2; 28 U.S.C. § 636(b)(1). II. GOVERNING PRINCIPLES
Courts construe consent decrees, such as the Settlement here, “according to the general interpretive principles of contract law.” Mastrovincenzo v. City of New York, 435 F.3d 78, 103 (2d Cir. 2006) (citation omitted). The primary objective of a court interpreting such agreements is to “give effect to the intent of the parties as revealed by the language they chose to use.” Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992) (citing Slatt v. Slatt, 64 N.Y.2d 966, 967 (1985)).
“The threshold question in a dispute over the meaning of a contract is whether the contract terms are ambiguous.” Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 66 (2d Cir. 2000); accord Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42 (2d Cir. 2006) (“Whether a contract is ambiguous, however, is a ‘threshold question of law to be determined by the court.’”) (quoting Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 390 (2d Cir. 2005)). The meaning of an unambiguous settlement agreement “is a question of law for the court to decide,” Revson, 221 F.3d at 66 (citing K. Bell & Assocs. v. Lloyd’s Underwriters, 97 F.3d 632, 637 (2d Cir. 1996)), and is determined solely by reference to the “four corners of the agreement,” Abundance Partners LP v. Quamtel, Inc., 2012 WL 32350, at *8 (S.D.N.Y. Jan. 5, 2012). The meaning of an ambiguous agreement is a question of fact to be determined by the factfinder where extrinsic evidence exists to guide the interpretation of the parties’ intentions. Revson, 221 F.3d at 66 (citing cases). However, the meaning of an ambiguous agreement as to which no extrinsic evidence exists is a question of law to be
3

determined solely by the court. Id. (citing cases). A court interpreting a consent decree must read the language selected for its “plain
meaning” and according to the chosen words’ “normal usage.” Mastrovincenzo, 435 F.3d at 103 (quoting City of Hartford v. Chase, 942 F.2d 130, 134–35 (2d Cir. 1991)). Where possible, a consent decree’s terms should be read so as not to render any provision superfluous or meaningless. See Galli v. Metz, 973 F.2d 145, 149 (2d Cir. 1992). Additionally, “the language of a consent decree must dictate what a party is required to do and what it must refrain from doing.” Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003) (citing United States v. O’Rourke, 943 F.2d 180, 187 (2d Cir. 1991)). The scope of the obligations a consent decree imposes on its signatories should be given a “narrow construction,” id., and “must be discerned within its four corners, . . . not by reference to what might satisfy the purposes of one of the parties to it,” id. (quoting United States v. Armour & Co., 402 U.S. 673, 682 (1971)). Therefore, “courts must abide by the express terms of a consent decree and may not impose supplementary obligations on the parties even to fulfill the purposes of the decree more effectively.” Id. (citing cases). This prohibition on imposing additional obligations applies “no matter how much of an improvement it would make in effectuating the decree’s goals.” Id. (quoting United States v. Int’l Bhd. of Teamsters, 998 F.2d 1101, 1107 (2d Cir. 1993)). III. ANALYSIS
Three issues have been presented to this Court for resolution: (1) whether the Settlement obligated the County Executive to sign legislation banning housing discrimination on the basis of a tenant’s source of income; (2) whether the Monitor could properly require the County to state its intentions with respect to the potential need to challenge zoning policies of municipalities in Westchester; and (3) whether the Monitor erred by refusing to resolve a dispute
4

between the County and HUD. We address each separately. A. Source-of-Income Legislation 1. Background To interpret the language of the Consent Decree, we begin by reviewing the decree
overall, as it provides some context for the specific language at issue. The Settlement requires the County to pay $30 million to the United States, of which the United States agreed to credit $21.6 million into the County’s account with HUD for the development of new affordable housing units. Settlement ¶¶ 2–3. The Settlement also requires the County to “ensure the development of” 750 new affordable housing units, id. ¶ 7; to develop an implementation plan for doing so, id. ¶ 18; to amend its “Long Range Land Use Planning Policies,” id. ¶ 27; to adopt a policy statement favoring fair housing, id. ¶ 31; and to complete an “analysis of the impediments to fair housing choice” (“AI”) acceptable to HUD and take all actions identified in the AI, id. ¶ 32.
Paragraph 33 of the Settlement contains the obligation with respect to source-of-income legislation. That paragraph imposes a number of additional obligations on the County, including the obligation to solicit proposals from community leaders and public interest groups for community development block grants that would further fair housing, id. ¶ 33(a); to advertise fair housing rights, id. ¶ 33(b); to create and fund pro-fair housing campaigns, id. ¶ 33(c); to educate realtors and others regarding fair housing, id. ¶ 33(d); to affirmatively market affordable housing, id. ¶ 33(e); and to pay for consultants and public education, outreach, and advertising regarding fair housing, id. ¶ 33(h). Included in paragraph 33 is the following obligation:
As part of its additional obligations to [affirmatively further fair housing], the County also shall . . . promote, through the County Executive, legislation currently before the Board of Legislators to ban “source-of-income”
5

discrimination in housing. Id. ¶ 33(g).
On the date the Settlement was entered by the district court, August 10, 2009, legislation to ban source-of-income discrimination in housing was pending before the County’s Board of Legislators (“BOL”). See Report at 2–3. In October 2009, the County Executive at that time, Andrew J. Spano, wrote to the leadership of the BOL urging passage. Id. at 3. In November 2009, he also wrote letters to five housing advocacy organizations urging them to support and advocate for the legislation. Id. Although the 2009 bill failed to pass and expired at the close of the 2009 legislative session, the bill was reintroduced in the subsequent legislative session on January 19, 2010. Id. On June 14, 2010, the BOL passed legislation banning source-of-income discrimination in housing, the terms of which differed from the bill that had been introduced in 2009. See id. at 4. County Executive Robert P. Astorino, who took office on January 1, 2010, vetoed that legislation on June 25, 2010. See id. at 3–4. The County has not taken any action with respect to source-of-income legislation since then. See id. at 3.
The Monitor concluded that the six letters the County Executive sent to the BOL and to housing advocacy organizations in 2009 failed to satisfy the County’s obligation to promote source-of-income legislation. See id. at 8. The Monitor further concluded that County Executive Astorino’s veto of source-of-income legislation “vitiated any prior act of promotion and placed the County in breach of the Settlement.” Id. The Monitor viewed the Settlement as imposing upon the County a continuing obligation to promote the legislation, which it has not done in any capacity since June 2010. See id. at 8–10. The Monitor concluded as follows: “‘promotion’ of legislation could encompass, at a minimum, requesting that the legislature reintroduce the prior legislation, providing information to assist in analyzing the impact of the
6

legislation, and signing the legislation passed.” Id. at 10. In this Court, the County’s Objection focuses almost exclusively on the Monitor’s
conclusion that the Settlement required the County Executive to sign the legislation. The Government defends the Monitor’s decision. The resolution of this question turns on the meaning of the word “promote” in paragraph 33(g).
2. Analysis “A sound method for determining the plain meaning of words is to look at their dictionary definitions,” CBS Corp. v. Eaton Corp., 2009 WL 4756436, at *4 (S.D.N.Y. Dec. 7, 2009) (citation and internal quotation marks omitted), although a “strained alternative” definition will not be considered where it was “plainly not the understanding of the contracting parties,” In re Delta Air Lines, Inc., 608 F.3d 139, 147–48 (2d Cir. 2010). Here, the Government contends, and the County does not dispute, that “[t]he relevant dictionary definition of ‘promote’ is ‘[t]o urge the adoption of; advocate.’” Gov. Mem. at 10 (quoting American Heritage Dictionary of the English Language (4th ed. 2000)). In other words, an obligation “to promote” a particular piece of legislation is an obligation to urge the adoption of or to advocate for that legislation. This obligation could have been met in any number of ways, and the Settlement does not spell out which particular means must be employed. The only issue before this Court, however, is whether the obligation to promote meant that the County Executive had to sign the source-ofincome legislation once the County BOL passed it.2
2 Because of our resolution of this question, it is unnecessary to reach the County’s alternative argument that if the County Executive had an obligation to sign the legislation, that obligation extended only to legislation pending during the 2009 session of the BOL. See Cnty. Mem. at 5–6. The Court notes that there is some force to this argument inasmuch as the clause “currently before the Board of Legislators” is not set off by commas, the usual method by which a non-restrictive clause is indicated. See, e.g., Gravatt v. Gen. Star Indem. Co., 1998 WL
7

The Government argues that “[n]o possible definition of ‘promoting’ legislation would include vetoing it,” and, in a similar vein, that “[u]nder no reasonable reading can the County Executive be said to have ‘urged the adoption’ of legislation whose adoption he prevented, or to ‘advocate’ such legislation he vetoed.” Gov. Mem. at 10. But these arguments, while having some surface appeal, miss the point. The issue here is not whether vetoing comes within the meaning of “promote” – it obviously doesn’t – but rather whether the obligation imposed on the County Executive to “promote” legislation included an obligation to sign it. To illustrate the problem with the Government’s argument: had the Settlement imposed an obligation on the County Executive merely to “send letters” explaining the benefits of source-of-income legislation, it would be quite obvious that the parties did not intend this language to require that the County Executive sign the legislation. And, in such a circumstance, we would find irrelevant an argument that “no possible definition of ‘sending letters’ to support legislation would include vetoing such legislation.” The argument would be irrelevant because it fails to address the critical question: whether the obligation to “send letters” imposed on the County Executive a duty not to veto the legislation.
Turning to the language of the Settlement, it is plain from the use of the word “promote” – and it is undisputed by the Government, see Gov. Mem. at 11 n.9 – that the County’s obligation to promote source-of-income legislation did not require the County to enact such legislation. Accord Report at 7 (“[T]he Settlement does not mandate the ultimate adoption of Source of Income legislation . . . .”). If the parties intended for the County to enact a ban on source-of-income legislation, the Settlement could have contained language stating as much.
842351, at *4 n.5 (S.D.N.Y. Dec. 2, 1998); K & K Merch. Grp., Inc. v. Shalala, 1996 WL 183023, at *5 (S.D.N.Y. Apr. 17, 1996).
8

See Spallone v. United States, 493 U.S. 265, 276 (1990) (implicitly upholding a city’s obligation to enact legislation agreed to in a consent decree). Indeed, elsewhere the Settlement required that the County “adopt” a certain policy statement, Settlement ¶ 31, and “amend” its written land use policies, id. ¶ 27. The Settlement does not contain such language with respect to source-ofincome legislation and instead only requires that the County Executive promote – that is, “advocate for” or “urge” the adoption of – such legislation. This language is in accord with similar obligations imposed on the County in paragraph 33, including the obligation to “solicit” pro-fair housing proposals, id. ¶ 33(a); to “advertise” fair housing rights, id. ¶ 33(b); to fund profair-housing “campaigns,” id. ¶ 33(c); to “educate” regarding fair housing, id. ¶ 33(d); to “market” affordable housing, id. ¶ 33(e); and to pay for “public education, outreach, and advertising” regarding fair housing, id. ¶ 33(h). All of these obligations involve acts of persuasion, and the intended meaning of “promotion” must be understood in this context. See 11 Williston on Contracts § 32:6 (4th ed. 2007) (“[T]he meaning of unclear words may be gleaned by reference to other words associated with them. . . .”).
Even the dictionary definitions of promotion – involving the concepts of “advocating” and “urging,” to use the Government’s preferred definitions – encompass only acts of persuasion. An act of persuasion, however, is very different from – and does not include – taking steps to effectuate the goal of that persuasion. In other words, a person’s agreement to engage in acts of persuasion toward achieving a goal does not require that person to take all steps necessary to achieve that goal.
Here, the passage and signing of source-of-income legislation are unquestionably the ultimate goals of the “promot[ion]” mandated by paragraph 33(g). But the concept of “promotion” simply does not denote the undertaking of an act that (1) does not involve any act
9

of persuasion or (2) is unique to the legislative process, such as the casting of a vote by a member of the BOL or, in the case of the County Executive, the signing of a bill.
It is certainly unusual – not to mention awkward and apparently self-defeating – for a person or entity to promote a goal and then not undertake a step within its lawful power to accomplish the goal of that promotion. But it is not illogical that the parties might have agreed to such a result with respect to actions by the County Executive, particularly in light of the fact that the BOL has the power to enact legislation by a two-thirds vote notwithstanding any veto by the County Executive. See Westchester County Charter, § 107.71. More importantly, as already noted, it is common ground that the Settlement does not impose on the County as a whole the obligation to accomplish the goal that the County Executive’s mandated promotional efforts furthered: that is, the enactment of the legislation into law. It thus follows that the Settlement does not require any particular constituent political actor of the County government – such as the County Executive – to take a step within his power to accomplish the goal of the promotion. The act of signing legislation is a potential step in the process of enacting a bill. It is not an act of persuasion.
For all these reasons, we conclude that the parties did not intend that the County’s duty to “promote” obligated the County Executive to sign source-of-income legislation passed by the BOL. The Court’s conclusion is further buttressed by the fact that the language of paragraph 33(g) actually places the obligation to “promote” on the County as a whole. Had the County Executive not been mentioned in paragraph 33(g), it would have been even more obvious that by agreeing merely to “promote” legislation, the County was not agreeing to take the much more significant – and qualitatively different – step of enacting it. That the clause makes reference to the County’s obligation to promote being undertaken “through the County Executive” should not
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change the fundamental nature of the obligations created by the word “promote.” Moreover, the extrinsic evidence provided by the parties on the inclusion of the “through the County Executive” language shows that it was added at the County’s request, not the Government’s, because of the County’s desire to “[m]odify language throughout as appropriate to distinguish between [the] County Executive and [the] Board of Legislators (i.e., promote ‘source of income’ legislation).” Memorandum, dated July 8, 2009 (annexed as Ex. E to Cnty. Supp. Br.); accord Cnty. Supp. Br. at 2. It is illogical that the County’s requested modification was intended to place a signing obligation exclusively on the County Executive where, as it is conceded, no obligation to enact was being placed on the BOL or on the County as whole.
The Government argues that “the implied covenant of good faith and fair dealing inherent in any settlement agreement” precludes the County Executive from “undertak[ing] to ‘promote’ a ban on source-of-income legislation [and] then veto the passed legislation.” Gov. Mem. at 10–11 (quoting Handschu v. Special Servs. Div., 2007 WL 1711775, at *10 n.10 (S.D.N.Y. June 13, 2007), reconsideration denied, 2008 WL 515695 (S.D.N.Y. Feb. 27, 2008)) (internal quotations omitted). The implied covenant of good faith and fair dealing was not breached, however, because the County did not deprive the Government of any “benefits under their agreement.” Frankini v. Landmark Constr. of Yonkers, Inc., 937 N.Y.S.2d 80, 83 (2d Dep’t 2012) (citing cases). The covenant of good faith and fair dealing “cannot create obligations inconsistent with, or beyond the scope of, [the] terms of the contractual relationship.” Hertzog, Calamari & Gleason v. Prudential Ins. Co. of Am., 1996 WL 221616, at *2 (S.D.N.Y. May 1, 1996); accord Alpine Bank v. Hubbell, 555 F.3d 1097, 1104–05 (10th Cir. 2009) (“[The duty of good faith and fair dealing] does not obligate a party to accept a material change in the terms of the contract or to assume obligations that vary or contradict the contract’s express
11

provisions.”) (citation omitted). Because the Settlement does not impose any obligation on the County or County Executive to enact source-of-income legislation, it does not violate the covenant of good faith and fair dealing for the County Executive to veto such legislation. See Perez, 347 F.3d at 424 (“[C]ourts must abide by the express terms of a consent decree and may not impose supplementary obligations on the parties even to fulfill the purposes of the decree more effectively.”) (citing cases).
Accordingly, we conclude that the able Monitor erred in concluding that the County Executive violated the Settlement by vetoing the source-of-income legislation enacted by the BOL. In light of this ruling, the Monitor is free to reexamine the question of whether the County breached the duty in paragraph 33(g) in other ways and what measures, if any, should be taken by the County to remedy any breach that may be found.
B. Zoning 1. Requirements of the Settlement
The Settlement requires the County to ensure the development of at least 750 new affordable housing units within seven years that are to be constructed with various characteristics and in certain geographic and demographic markets. See Settlement ¶¶ 7(a)–(h). It further requires the County to:
use all available means as appropriate to achieve the [building of the 750 units], including, but not limited to, 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 on actions that promote the objectives of this paragraph. Id. ¶ 7(i). The Settlement states that the parties “anticipate[] that the County will accomplish the objectives of this paragraph by leveraging the funds that it is expending pursuant to paragraphs 2, 3 and 5 [of the Settlement] with supplemental funds.” Id. The Settlement further provides:
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In the event that a municipality does not take actions needed to promote the objectives of this paragraph, or undertakes actions that hinder the objectives of this paragraph, the County shall use all available means as appropriate to address such action or inaction, including, but not limited to, pursuing legal action. The County shall initiate such legal action as appropriate to accomplish the purpose of this Stipulation and Order to [affirmatively further fair housing (“AFFH”)]. Id. ¶ 7(j).3 As for the Monitor’s role in effectuating the Settlement, the Monitor is required to periodically “conduct an assessment of the County’s efforts and progress related to the obligations set forth in this Stipulation and Order, particularly those described in paragraph 7.” Id. ¶ 15. For purposes of conducting this assessment, the Monitor “may consider any information appropriate” that will help him “determine whether the County has taken all possible actions to meet its obligations under this Stipulation and Order, including, but not limited to, exploring all opportunities to leverage funds for the development of the Affordable AFFH Units, promoting inclusionary and other appropriate zoning by municipalities by offering incentives, and, if necessary, taking legal action.” Id. Additionally, paragraph 28 of the Settlement requires the County to prepare quarterly reports for the Monitor and the Government in which it must provide “all information deemed necessary by the Monitor.” Id. ¶ 28. Finally, paragraph 32 of the Settlement provides that the County must complete an AI, containing an analysis of the impediments to fair housing choice in Westchester County. The Settlement requires that the County, in the AI, (b) identify and analyze, inter alia:
3 Consistent with this language, the parties agreed in a “whereas” clause that “it is appropriate for the County to take legal action to compel compliance if municipalities hinder or impede the County in its performance of such duties, including the furtherance of the terms of this Stipulation and Order.” Id. at 2.
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(i) the impediments to fair housing within its jurisdiction, including impediments based on race or municipal resistance to the development of affordable housing; [and]

(ii) the appropriate actions the County will take to address and overcome the effects of those impediments . . . .

Id. ¶ 32(b).

2. The Instant Dispute

As part of his assessment, the Monitor recommended that the County submit an analysis

of the impacts of certain zoning practices. Specifically, the Monitor stated that

[t]he County should, at a minimum, assess the impact of each of the following zoning practices or explain why the analysis of the listed practices (“Restrictive Practices”) would not be helpful to understanding the impact of the zoning ordinances taken as a whole:

•

Restrictions that limit or prohibit multifamily housing

development;

•

Limitations on the size of a development;

•

Limitations directed at Section 8 or other affordable housing,

including limitations on such developments in a municipality;

•

Restrictions that directly or indirectly limit the number of

bedrooms in a unit;

•

Restrictions on lot size or other density requirements that

encourage single-family housing or restrict multifamily housing;

and

•

Limitations on townhouse development.

Report at 13–14. The County does not object to this recommendation. Cnty. Mem. at 15.

On the question of local zoning ordinances, the County indicated that it would undertake

the following actions: “(1) identify[] specific zoning issues that may have exclusionary impacts by December 31, 20124; (2) review[] specific zoning ordinances that promote, permit or restrict

the development and preservation of affordable housing that limit multi-family housing

4 The County has agreed to comply with the Monitor’s recommendation that it accomplish this task by February 29, 2012. Cnty. Mem. at 15.
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development; and (3) communicat[e] to municipalities the County’s recommendations on changes that could be made to local regulations so as to enable the local officials to take the necessary corrective action.” Report at 14 (quoting County’s Statement of Position, dated Oct. 7, 2011 (annexed as Ex. 3 to Report) at 8).
The Monitor concluded that these steps were not sufficient, however, and directed the County to (1) “develop a clear strategy that encourages compliance by municipal governments” and “explain[s] how [the County] intends to persuade municipalities to follow [its] recommendations and what additional steps, if any, it will take if those recommendations are not followed;” (2) “[d]evelop a process for notifying municipalities of zoning issues that hinder the County’s obligations under the Settlement and changes that must be made, and if not made, the consequences of municipalities’ failure to make them;” (3) “[d]evelop a process to involve municipal decision-makers in consultation regarding changes in zoning and land use restrictions;” and (4) “[p]rovide a description of how these requirements will be included in future contracts or other written agreements between the County and municipalities.” Report at 15–16. The Report concludes that “litigation is a powerful lever the County may exercise to bring municipal governments into compliance, and that the County must identify the types of zoning practices that would, if not remedied by the municipality, lead the County to pursue legal action.” Id. at 18.
In its objections, the County disputes (1) “whether the County is required to specify a strategy to overcome exclusionary zoning practices” and (2) “whether the County is required to identify the types of [municipal] zoning practices that would, if not remedied by the municipality, require the County to pursue legal action.” Cnty. Mem. at 14–15 (quoting Report at 11–12).
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3. Analysis With respect to the first of these disputes – whether the County must supply its “strategy” for overcoming exclusionary zoning practices – the County’s main argument seems to be that, due to the progress of the building of the 750 units, the Settlement does not at this time actually require it to undertake any of the actions underlying the “strategy” sought by the Monitor, Reply at 7, or that the request by the Monitor constitutes a “remedial measure,” id. at 8–9. This argument fails, however, because the Court does not understand the Monitor to be requiring the County at this time to take any particular step to overcome exclusionary zoning laws. Rather, the Monitor merely seeks information from the County: specifically an “expl[anation] of how [the County] intends to persuade municipalities to follow [its recommendations regarding zoning practices] and what additional steps, if any, it will take if those recommendations are not followed.” Report at 15 (emphasis added). As noted, the Settlement vests considerable power in the Monitor as to the information he may seek from the County. Paragraph 28 of the Settlement broadly requires the County to provide “all information deemed necessary by the Monitor.” Settlement ¶ 28. The subject area of the information sought by the Monitor is within the scope of the Settlement, which directs that “the Monitor may consider any information appropriate to determine whether the County has taken all possible actions to meet its obligations under this Stipulation and Order, including, but not limited to, . . . promoting inclusionary and other appropriate zoning by municipalities by offering incentives, and, if necessary, taking legal action.” Id. ¶ 15. Accordingly, we reject the County’s objection that the Monitor could not require it to “specify” a strategy that it intends to employ to overcome exclusionary zoning practices. See Cnty. Mem. at 14. In light of the fact that the County has declined to provide its strategy on this front at all – or has done so only in
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the vaguest terms – we do not view as ripe any question as to whether whatever strategy the County intends to pursue in this area does or does not come within its settlement obligations. That dispute may be brought to the Court’s attention, if necessary, at a later time. All that is required now is that the County provide the strategy document required by the Monitor.
As to the question of whether the Monitor could properly require the County to identify the types of municipal zoning practices that would, if not remedied by the municipality, cause the County to pursue legal action, we similarly find that requiring the County to provide this information is within the Monitor’s power. The Settlement specifically contemplates that “[i]n the event that a municipality does not take actions needed to promote” the development of affordable housing units or “undertakes actions that hinder” the development of affordable housing, “the County shall use all available means as appropriate to address such action or inaction, including, but not limited to, pursuing legal action” against such municipalities. Settlement ¶ 7(j). That the eventuality contemplated by this clause allegedly has not occurred – or is “premature” to use the County’s word, see Reply at 9 – is not a basis for sustaining the County’s objection. The Monitor is entitled under paragraph 32 to seek information from the County as to its intentions in this regard, including in situations that may arise in the future. The Monitor’s direction to the County to “identify the types of zoning practices that would, if not remedied by the municipality, lead the County to pursue legal action,” Report at 18, is tailored to the County’s obligation in the Settlement to pursue litigation where necessary. Thus, it is within the Monitor’s power to require this information.
C. The Monitor’s Refusal to Consider the Adequacy of the County’s AI As noted, paragraph 32 of the Settlement requires the County to conduct an analysis of the impediments to fair housing choice within its jurisdiction. This AI must contain certain
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information and analyses, comply with HUD’s Fair Housing Planning Guide, and “be deemed acceptable by HUD.” Settlement ¶ 32. HUD has rejected five iterations of the County’s AI proposals, Report at 1 n.1; Cnty. Mem. at 22, and HUD rejected the County’s most recent AI because the County “provided insufficient evidence to support the accuracy of the County’s AFFH certification,” Letter from Westchester County to the Monitor, dated July 20, 2011 (annexed as Ex. H to Cnty. Mem.).
The County requested that the Monitor resolve the impasse between it and HUD. See id. The Monitor declined to rule on the propriety of HUD’s rejection of the AI, however, because “[t]his issue is not properly joined for resolution.” Report at 1. The County argues that the Monitor erred in refusing to consider the adequacy of its submissions to HUD because the County’s AI submissions fully complied with the Settlement’s requirements. See Cnty. Mem. at 22. The issue presently before the Court, however, is not the adequacy of the County’s submissions to HUD, but whether it was appropriate for the Monitor to refuse to consider the adequacy of those submissions on the ground that the issue was not properly before him.
The County argues that HUD has acted unreasonably, but it does not explain why the question of the adequacy of its AI was a matter to be adjudicated by the Monitor. The County has not argued that the Settlement vests in the Monitor any authority to require HUD to accept an AI or to adjudicate disputes as to the adequacy of the AI. Indeed, the Settlement vests authority for such approval of the AI exclusively in HUD. Id. ¶ 32 (AI must “be deemed acceptable by HUD”). Accordingly, the County has not proffered any basis for this Court to find that the Monitor erred in refusing to consider the sufficiency of the County’s AI submissions, and its objection to the Report on this ground is therefore overruled. III. CONCLUSION
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For the foregoing reasons, the County’s objections to the Monitor’s Report (Docket # 386) are sustained in part and overruled in part. Dated: March 16, 2012
New York, New York ______________________________ GABRIEL W. GORENSTEIN United States Magistrate Judge
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 Case: 12-2047 Document: 122-1 Page: 1 04/05/2013 897951 22

12-2047 United States v. Westchester County, New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________

August Term, 2012

(Argued: December 12, 2012

Decided: April 5, 2013)

Docket No. 12-2047-cv

____________________

UNITED STATES OF AMERICA ex rel. ANTI-DISCRIMINATION CENTER OF METRO NEW YORK, INC.,

Plaintiff-Appellee,

v.

WESTCHESTER COUNTY, NEW YORK,

Defendant-Appellant.*

____________________

Before: POOLER, HALL, and CHIN, Circuit Judges.

Westchester County (“the County”) appeals from a judgment of the United States District

Court for the Southern District of New York (Denise Cote, J.) finding the County in violation of

the duty to promote source-of-income legislation under a consent decree entered into to resolve a

qui tam action brought by relator, the Anti-Discrimination Center of Metro New York, Inc.,

under the False Claims Act for the submission of false claims by the County to the United States

Department of Housing and Urban Development in order to obtain federal grant monies for fair

housing. We hold that the district court had jurisdiction to review the decision of the reviewing

* The Clerk of the Court is directed to amend the caption as set out above.

Case: 12-2047 Document: 122-1 Page: 2 04/05/2013 897951 22
magistrate judge under the consent decree. We also hold that the County violated the terms of
the consent decree.
Affirmed.
____________________
ROBERT F. MEEHAN, Westchester County Attorney (Linda M. Trentacoste, Associate County Attorney, Adam Rodriguez, Senior Assistant County Attorney, Justin R. Adin, Assistant County Attorney, on the brief), White Plains, NY, for DefendantAppellant. DAVID J. KENNEDY, Assistant United States Attorney, Southern District of New York (Preet Bharara, United States Attorney, Sarah S. Normand, Benjamin H. Torrance, Assistant United States Attorneys, on the brief), New York, NY, for Plaintiff-Appellee. Martin Sander Kaufman, Atlantic Legal Foundation, Larchmont, NY, for Amicus Curiae Building & Realty Institute of Westchester County, in support of Defendant-Appellant. POOLER, Circuit Judge: Westchester County (“the County”) appeals from a judgment of the United States District
Court for the Southern District of New York (Denise Cote, J.) finding the County in violation of its duty to promote source-of-income legislation under a Stipulation and Order of Settlement and
Dismissal (“consent decree”) entered into by the County with the United States to resolve a qui tam action initially brought by relator, the Anti-Discrimination Center of Metro New York, Inc. (“ADC”), under the False Claims Act alleging the submission of false claims by the County to
the United States Department of Housing and Urban Development (“HUD”) in order to obtain
federal grant monies for fair housing. We hold that the district court indeed had jurisdiction to
review the decision of the reviewing magistrate judge under the consent decree. We further hold
that the County violated the terms of the consent decree.
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BACKGROUND I.
In April 2006, the ADC brought a qui tam action against the County under the False Claims Act, 31 U.S.C. §§ 3729-33. The action charged that from 2000 through 2006, the County submitted false claims to HUD in order to obtain millions of dollars in funds that were required, under 42 U.S.C. § 5304(b)(2), to be used to “affirmatively further fair housing.” HUD regulations require grantees, as part of the requirement to affirmatively further fair housing, to consider the existence and impact of racial discrimination in analyzing the barriers to housing opportunities in their areas as a condition to receive these federal funds. See 24 C.F.R. §§ 91.425, 570.601; 1 Office of Fair Hous. & Equal Opportunity, U.S. Dep’t of Hous. & Urban Dev., Fair Housing Planning Guide 2-7 to -8; 2-16 to -17 (1996), available at www.hud.gov/offices/fheo/images/fhpg.pdf; see also Exec. Order No. 11,063, 27 Fed. Reg. 11,527 (Nov. 20, 1962). The ADC contended that the County failed to comply with HUD regulations but nonetheless certified its compliance with the grant requirements. In initial proceedings before the district court, the court ruled that the County was obligated to consider race in connection with its certification to HUD, United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 495 F. Supp. 2d 375, 376 (S.D.N.Y. 2007), and that the County’s certifications to HUD were false as a matter of law, United States ex rel. AntiDiscrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 668 F. Supp. 2d 548, 562-65 (S.D.N.Y. 2009).
In August 2009, the United States intervened and, on the same day, presented the Court with a consent decree to which all the parties had agreed. The consent decree obligated the
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County to pay $30 million to the United States, $21.6 million of which would be credited to the County’s HUD account to fund fair housing, and pay $2.5 million to the ADC as relator. The County also made various commitments to affirmatively further fair housing and to eliminate discrimination in housing opportunities. The County’s exposure under the False Claims Act would have been $156 million—treble damages based on $52 million in false claims. See 31 U.S.C. § 3729(a)(1). In order to ensure compliance with the consent decree, the district court appointed James E. Johnson of Debevoise & Plimpton to serve as Monitor, authorized to oversee the steps taken by the County to affirmatively further fair housing as contemplated by the consent decree. The Monitor was charged with reviewing the County’s actions, recommending additional actions needed to ensure compliance, and to resolve disputes between the United States and the County. The dispute resolution provision of the consent decree reads:
Within ten (10) business days of receipt of the Monitor’s report and recommendation, the County or the Government may seek additional review from the magistrate judge assigned to this case; otherwise, the Monitor’s resolution shall be final, binding and non-appealable. Should the County or the Government seek such additional review from the assigned magistrate judge, the relevant provisions of the Federal Rules of Civil Procedure, the Local Rules and the Court’s Individual Rules governing reports and recommendations from a magistrate judge shall apply. As part of the County’s obligation to affirmatively further fair housing, the County agreed to, among other things, “promote, through the County Executive, legislation currently before the Board of Legislators to ban ‘source-of-income’ discrimination in housing.” Sourceof-income legislation bans housing discrimination based upon an individual’s source of income, primarily whether an individual’s lawful income comes in the form of Social Security benefits or any form of state or federal public assistance, including Section 8 vouchers.
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In 2009, as recognized by the consent decree, the County Board of Legislators was considering the passage of source-of-income legislation. Following the County’s commitment to the consent decree, the County Executive at the time, Andrew Spano, sent five brief letters to advocacy organizations expressing his hope that they would continue the work in which they were already engaged in advocating for the legislation. Spano also sent a letter to the leadership of the Board of Legislators encouraging enactment of the legislation. The legislation was not approved by the Board by the end of the 2009 legislative session, but it was reintroduced in 2010 in a form identical to the legislation pending when the consent decree was ratified at the Board of Legislators. The Board passed the source-of-income legislation in June 2010. The version passed by the Board contained three alterations made throughout the legislative process that rendered the passed legislation less protective against source-of-income discrimination than the initial version had been: It (1) removed “court-ordered payments” and “inheritance, annuities, pensions, and child and spousal support” from the definition of source of income, (2) set a monetary penalty of $50,000 for wanton, willful or malicious discrimination, while previous versions set the penalty at $50,000 for discrimination and $100,000 for wanton, willful or malicious discrimination, and (3) exempted cooperative apartments and condominiums. It is undisputed that, at the reintroduction of the legislation in January 2010, newly elected County Executive Robert Astorino took no steps to promote the legislation and subsequently vetoed the amended version on June 25, 2010.
Per the consent decree, on July 11, 2011, the County submitted its revised Analysis of Impediments (“AI”) plan to HUD. By letter dated July 13, 2011, HUD notified the County that the AI did not meet the requirements of the consent decree because it did not incorporate the
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corrective actions that HUD had earlier specified, including “promotion of source-of-income legislation or plans to overcome exclusionary zoning practices.” HUD thus rejected the County’s certification that it would affirmatively further fair housing and its Fiscal Year 2011 Action Plan (“FY2011 Plan”). Once the FY2011 Plan was rejected, the County was removed as a grantee eligible for HUD funds, and thus their federal funding was discontinued. In response to this rejection and the cut-off of federal funding, the County sought review by the Monitor on July 20, 2011. On August 18, 2011, the United States also sought review of several disputes from the Monitor, including the claim that County Executive Astorino’s veto of the source-ofincome legislation breached the consent decree. The other disputes addressed by the Monitor and the lower courts at that time are not at issue in the current appeal.
On November 17, 2011, the Monitor issued his amended report which found, among other things, that “the County is in breach of its obligation to promote certain ‘Source of Income’ legislation” and concluded that, under the consent decree, “promote” included an obligation to “help bring [such legislation] into being.” On December 7, 2011, the County objected to the Monitor’s determination and sought review from the Magistrate Judge. The Magistrate Judge, in a March 16, 2012 opinion and order, sustained the County’s objection on the dispute over source-of-income legislation. In response to this decision, the United States filed an objection with the district court seeking review of the portion of the Magistrate Judge’s opinion concluding that the County did not violate its duty to promote source-of-income legislation.
II. Before the district court, the County argued that, based upon the terms of the consent decree, the court was without jurisdiction to review the Magistrate Judge’s opinion and order.
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Further, the County argued that the Magistrate Judge’s decision had been correct and that an alternate reading of the consent decree’s duty to promote would violate the federal Constitution. As an initial matter, the district court addressed the County’s jurisdictional argument, finding that, under the terms of the consent decree, it did indeed have authority to review the Magistrate’s determination. United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 06 Civ. 2860, 2012 WL 1574819, at *4 (S.D.N.Y. May 3, 2012). On the merits, the district court reversed the Magistrate Judge’s decision regarding the County’s obligation with respect to the source-of-income legislation and affirmed the Monitor’s initial decision that the County was in breach of its duty to promote that legislation. Id. at *5-9. The County now appeals.
DISCUSSION Interpretation of a consent decree is an issue of law that this Court reviews de novo. Davis v. N.Y.C. Hous. Auth., 278 F.3d 64, 79 (2d Cir. 2002). Similarly, we review jurisdictional questions de novo. See, e.g., Velez v. Sanchez, 693 F.3d 308, 314 (2d Cir. 2012). The propriety of relief granted for violations of a consent decree is reviewed for abuse of discretion. Davis, 278 F.3d at 79. “And ‘though a court cannot randomly expand or contract the terms agreed upon in a consent decree, judicial discretion in flexing its supervisory and enforcement muscles is broad.’” Id. at 80 (quoting EEOC v. Local 580, Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, 925 F.2d 588, 593 (2d Cir. 1991)). Consent decrees “reflect a contract between the parties (as well as a judicial pronouncement), and ordinary rules of contract interpretation are generally applicable.” Doe v. Pataki, 481 F.3d 69, 75 (2d Cir. 2007). This requires that “‘deference . . . be paid to the plain
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meaning of the language of a decree and the normal usage of the terms selected.’” United States v. Broad. Music, Inc., 275 F.3d 168, 175 (2d Cir. 2001) (quoting Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985)). The rules of contract interpretation, however, do not contemplate considering any provision of the contract in isolation “but in the light of the obligation as a whole and the intention of the parties as manifested thereby.” JA Apparel Corp. v. Abboud, 568 F.3d 390, 397 (2d Cir. 2009) (citation and internal quotation marks omitted).
I. We first look to the terms of the consent decree to determine if the district court had jurisdiction to review the decision of the Magistrate Judge. Under the terms of the consent decree, the district court retains jurisdiction over both enforcement and interpretation: Notwithstanding any other provisions of this Stipulation and Order, this Court shall retain exclusive jurisdiction over this Stipulation and Order, including, but not limited to, any application to enforce or interpret its provisions, and over each party to the extent its obligations herein remain unsatisfied. The County urges this Court to read the provision of the consent decree that contemplates review of decisions of the Monitor to divest the district court of its reserved jurisdiction. This provision of the consent decree reads: the County or the Government may seek additional review from the magistrate judge assigned to this case; otherwise, the Monitor’s resolution shall be final, binding and non-appealable. Should the County or the Government seek such additional review from the assigned magistrate judge, the relevant provisions of the Federal Rules of Civil Procedure, the Local Rules and the Court’s Individual Rules governing reports and recommendations from a magistrate judge shall apply. In addition to the fact that the agreement reserves jurisdiction in the district court “[n]otwithstanding any other provisions” of the consent decree, the section concerning review of the Monitor’s decisions cannot be read in the way the County urges. Contrary to the County’s
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arguments, this provision does not invoke the jurisdiction of 28 U.S.C. § 636(c), whereby parties can agree to submit to the jurisdiction of a Magistrate Judge and authorize him or her to make binding decisions, and instead clearly invokes “the relevant provisions of the Federal Rules of Civil Procedure, the Local Rules and the Court’s Individual Rules governing reports and recommendations from a magistrate judge.” Once the County chose to seek review from the Magistrate Judge, it also consented to the application of the rules that govern all magistrate reports and recommendations. Federal Rule of Civil Procedure 72 expressly governs this scenario. Far from making the decision of a magistrate final, that Rule specifically states that the “district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). It is plain from the face of the consent decree that the district court did indeed have jurisdiction to review the decision of the Magistrate Judge once it had been properly objected to by one of the parties—in this case, the United States. As we have determined that the district court had jurisdiction below, we now turn to the merits of this appeal.
II. At issue here is whether the County has breached the consent decree’s requirement, laid out in paragraph 33(g), that it “promote, through the County Executive, legislation currently before the Board of Legislators to ban ‘source-of-income’ discrimination in housing.”
A. This Court has recently observed that “[t]he ordinary meaning of ‘promote’ includes ‘to bring or help bring into being,’ to ‘contribute to the growth, enlargement, or prosperity of,’ or to ‘encourage’ or ‘further.’” United States v. Awan, 607 F.3d 306, 314 (2d Cir. 2010) (citation
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omitted). The plain meaning of the word “promote” naturally remains the same here. Thus, in entering into the consent decree, the County agreed to help bring the source-of-income legislation into being through the County Executive. While such a duty certainly does not require the County Executive to ensure that the legislation be enacted into law, cf. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 821 (1984), promotion requires affirmative action by the obligated party to help bring the object in question into being. While promotion does not require insurance, promotion is also not met by taking no action or taking an action that detracts from, rather than furthers, the end goal. The fact that the County Executive does not fulfill the duty to promote if he takes no action or takes affirmative steps to detract from the passage of this legislation does not convert the duty to promote into a duty to ensure. For example, if the Board never passed the legislation, but the County Executive undertook numerous active steps trying to bring the legislation into being, the duty to promote could be discharged even while the passage would not have been ensured.
Despite the requirement imposed by the word promote, the County, relying on Suter v. Artist M., 503 U.S. 347 (1992), would have us conclude that the obligation contemplated in this provision of the consent decree is unclear in what it requires and is thus intended to be merely hortatory. Suter actually holds the converse—that where language was intended to be hortatory, it could not be said to provide unambiguous notice of what was required. Id. at 356. To rely on the logic of Suter, this Court need first consider whether the language at issue is hortatory. In the instant case, the plain language of the agreement belies any claim that the duty to promote was merely hortatory. Rather, the duty to promote is one of a series of enumerated duties that the County “shall” undertake, and thus Suter does not provide grounds upon which the County could somehow be relieved of this duty.
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The County also insists that because other obligations taken on by the County in this section of the consent decree used terms such as “adopt” or “amend,” paragraph 33(g) does not actually impose a particular duty upon the County Executive. The mere fact that other parts of this section of the consent decree used different verbs to describe other obligations does not change the clear meaning of the duty to promote. By its express terms, paragraph 33(g) contemplates a duty of the County to be carried out through the County Executive. As the County has repeatedly noted throughout this litigation, the passage of legislation takes both a majority vote from the Board and signing by the County Executive. A duty to adopt or amend could not apply where the County Executive is the operative party because the County Executive could not force the Board to pass the given legislation. Imposing a duty to “adopt” instead of a duty to “promote” on the County Executive would be attempting to bind the Executive to do something not solely within his power. As written, the provision places an affirmative duty on the County Executive, one that requires him to help bring the source-of-income legislation into being. Furthermore, the fact that this paragraph is not styled as the duty of the County Executive to sign passed legislation does not undermine the plain reading that there is an affirmative duty imposed upon the County Executive. Namely, the duty to promote is actually broader than a duty merely to sign a legislative enactment once passed by the Board. The duty to promote imposes affirmative duties on the Executive even before legislative enactment, whereas a duty simply to sign would only impose a duty on the Executive after the Board had passed the legislation in question. Thus, we hold that the plain language of the consent decree imposes a duty on the County, through the County Executive, to help bring the source-of-income legislation into being.
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B. Having determined what constitutes promotion, we next consider whether the obligation under paragraph 33(g) was a continuing one, as the United States urges and the district court found, or if it was extinguished with the close of the 2009 legislative session, as argued by the County. Paragraph 33(g) calls for the County Executive to promote “legislation currently before the Board of Legislators to ban ‘source-of-income’ discrimination in housing.” The use of “currently” in this sentence is most naturally read as a descriptor of the legislation in question, providing great detail as to what legislation would be required in a few words by making reference to potential legislation being considered by the Board at the time the consent decree was entered. The County urges this provision be read as creating a time period in which the duty to promote would have existed—namely, what would have amounted to less than five months: from the time of the August 2009 entry into the agreement to the end of the legislative session in December 2009. The terms of the agreement do not support this reading. Language that would have limited the duty to the scant five months left in the 2009 legislative session would have either (1) explicitly set a time limitation or (2) read something like “promote before the current Board of Legislators . . . .” The consent decree does neither of these things.1 Rather, this provision is best read to attach the duty to promote to source-of-income legislation of the kind
1 The County also argues that because paragraph 33(g) refers to “the County Executive,” its obligation only enured to Andrew Spano, who was County Executive when the agreement was signed in 2009. The use of the definite article in this provision simply cannot bear the weight that the County attempts to assign to it. At any given time there is only one County Executive, so it is only natural that this office would be referred to with the definite article. If the consent decree contemplated only binding Spano and not any future holder of the office of County Executive, it would have either (1) identified Spano by name or (2) said “the current County Executive.” The County’s argument attributing such significance to the use of the definite article is unsupportable.
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pending before the Board at the entry of the consent decree. Elsewhere in the consent decree, the parties demonstrate that they clearly knew how to establish a temporal obligation if one was intended and to provide mechanisms for the County to apply for the extension of such deadlines, lending further support to interpreting the provisions that lack such deadlines as imposing continuing obligations upon the County.
It is ordinary practice that when a bill is not passed by a legislature during one session, it is introduced again in the next legislative session, which indeed is what occurred in this case. The exact same legislation that was pending at the time of the entry of the consent decree was reintroduced at the start of the Board’s 2010 legislative session. Because the duty to promote did not expire with the end of the 2009 legislative session, the County Executive had a continuing duty to promote this legislation that was reintroduced in January 2010.
C. Having concluded that the duty to promote requires the County Executive to help bring the legislation into being and that it was not temporally limited to the 2009 legislative session, the final question at issue is whether the County breached this duty. The total sum of action taken by the County, through two successive County Executives, in relationship to the source-ofincome legislation amounted to: (1) a single letter to the Board of Supervisors from County Executive Spano in October 2009; (2) five identical letters to community organizations from Spano in November 2009, thanking them for their work and stating, “I hope you will continue your advocacy and efforts in reaching out to members of the Board of Legislators,” in an effort perhaps best characterized as preaching to the choir; and (3) County Executive Astorino’s June 25, 2010 veto of the source-of-income legislation passed by the Board. While the first two
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actions do constitute promotion, the veto was wholly inconsistent with the County Executive’s duty to promote. Moreover, because the three aforementioned actions were the sum total of what the County Executive did with respect to the legislation, and no affirmative steps had been taken to promote the legislation since the November 2009 letters to the advocacy organizations, we hold that the County breached its duty to promote under the consent decree.
III. The County further argues that because the County Executive and members of the Board are subject to term limits, they cannot bind their successors to the obligations of the consent decree—a proposition that, if accepted, would terminate all of the obligations under the consent decree at the close of the terms of office during which the agreement was entered. Such a conclusion would amount to a sea change in the operation of consent decrees in the United States. Elected officials, when entering into such agreements, are serving as representatives of their unit of governance. And this Court has had no difficulty concluding that a consent decree is binding on successor public officials: “[a]lthough the individual defendants named in the caption no longer serve . . . , no one disputes that the consent decree remains binding on their successors.” Barcia v. Sitkin, 367 F.3d 87, 90 n.1 (2d Cir. 2004). The Third Circuit has been even more explicit that “the election of a new administration does not relieve [a local government] of valid obligations assumed by previous administrations.” Harris v. City of Phila., 47 F.3d 1311, 1327 (3d Cir. 1995). Just as the County “would not have been free to break its contract with a vendor or other contractor because of the election of a new administration,” so too the election of new officeholders, even into term-limited offices, does not permit the County “to unilaterally default on its obligations to the court and other litigants.” Id. We now explicitly
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hold what we implied in Barcia: a local government is not relieved of its obligations under a consent decree taken on by a previous administration merely because new local officials will and do take office.
Virtually all of the terms of the consent decree require future and continuing action by the County government. While it is true that in New York, the “term limits rule prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so,” Karedes v. Colella, 100 N.Y.2d 45, 50 (2003) (emphasis added), that rule is inapposite to the case at hand. The cases construing the term limits rule all deal with the actual structure of governance and not with a duty to undertake a substantive action in accordance with a consent decree. See Morin v. Foster, 45 N.Y.2d 287, 293 (1978) (county legislature could not amend charter to allow county manager to be removed at will); City of Utica Urban Renewal Agency v. Doyle, 66 A.D.3d 1495, 1496 (N.Y. App. Div. 2009) (public officials and agency appointees could not enter into agreement extending term of agency executive director); Hampton Heights Dev. Corp. v. Bd. of Water Supply, 140 A.D.2d 958, 958 (N.Y. App. Div. 1988) (mayor serving four-year term could not appoint water board member serving five-year term). These cases illustrate that “governance” does not include each and every action taken by an elected official, but rather refers to the actual structuring of the local government and not the enactment of any legislation or the promotion of such legislation. Thus, the argument that the term limits rule in New York prevents the County from entering into the consent decree fails. Further, the cases cited by the County to the contrary—Perkins v. City of Chi. Heights, 47 F.3d 212 (7th Cir. 1995), and Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984)—are inapposite on this same ground. Both of these cases
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deal with the restructuring of the local government, changing elections systems from at-large to single-member districts. In addition to the fact that these precedents would not bind this Circuit in any event, they remain inapplicable where the structure of governance has not been altered. Here, the County entered into the consent decree, agreeing that the County Executive would promote the source-of-income legislation. Requiring action on one piece of legislation does not alter the structure of County governance, as occurred in each of the cases cited by the County. We thus hold that the County did have the authority to enter into the consent decree and that the consent decree continues to bind successive elected County officials.
We also note that for the County to now claim that it was without power to do what it expressly represented was in its power as it sought to avoid hundreds of millions of dollars in liability is all the more problematic. In entering into the consent decree, the County chose to bind itself to these terms “rather than have the District Court adjudicate the merits.” Badgley v. Santacroce, 800 F.2d 33, 38 (2d Cir. 1986). “The strong policy encouraging settlement of cases requires that the terms of a consent judgment, once approved by a federal court, be respected as fully as a judgment entered after trial.” Id. Such an agreement constitutes “a fully enforceable federal judgment that overrides any conflicting state law or state court order.” Id.
IV. Finally, the County urges this Court to reject the lower court’s interpretation of the consent decree as untenable under two constitutional doctrines and a provision of the Constitution: (1) “the canon of contract construction that surrenders of sovereign authority must appear in unmistakable terms,” United States v. Winstar Corp., 518 U.S. 839, 860 (1996), (2) “the doctrine that a government may not . . . contract to surrender certain reserved powers,” id.,
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and (3) the Guaranty Clause, U.S. Const. art. IV. § 4. Turning to each of these below, we conclude that none alters our interpretation of the consent decree.
A. The County argues that the unmistakability doctrine prevents the current interpretation of the consent decree because the agreement did not surrender a sovereign power of the County Executive in unambiguous terms. This doctrine is a rule of contract construction that provides that in a contract with a sovereign government, “an ambiguous term of a grant or contract [will not] be construed as a conveyance or surrender of sovereign power.” Winstar, 518 U.S. at 878. The unmistakability doctrine prevents governments from being bound to contracts notwithstanding subsequent changes in the law, unless the government consented to be bound in clear and unmistakable terms in the contract. Id. at 872. The County’s reliance on this doctrine is flawed for two reasons. First, it strains, almost to the point of breaking, any reasonable definition of the word “promote” to contend that it could include a legislative veto. The County’s commitment to help bring the source-of-income legislation into being was expressed in the consent decree in unmistakable terms. Second, even accepting, for purposes of this discussion, the County’s argument that the duty to promote was unclear, the unmistakability doctrine still does not compel its preferred outcome. In the instant case, there is no subsequent change in the law that bears at all upon the County’s obligations in the consent decree. Rather, in this case, the consent decree contemplates future promotion and possible passage of one piece of legislation. This is not an instance where the County would be prevented from undertaking “sovereign acts, needful for the public good,” because doing so would “incidentally disable” it from performing the act promised in the consent decree. Id. at 921. Here, the County agreed to
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promote one particular piece of legislation; it has not been “incidentally disabled” from any sovereign act. The unmistakability doctrine does not allow governments to undertake actions that are specifically aimed at voiding a contract or preventing performance of a contract. See id. at 878 n.22 (sovereign power is that which “could otherwise affect the Government’s obligation under the contract”). A government cannot “abrogate one of its contracts by a statute abrogating the legal enforceability of that contract, Government contracts of a class including that one, or simply all Government contracts.” Id. The County’s attempted invocation of the unmistakability doctrine would do just that if accepted here. Thus we conclude that the unmistakability doctrine does not apply to the interpretation of the consent decree at issue here because (1) the obligation at issue is not ambiguous, and (2) the County is not “incidentally disabled” from undertaking any sovereign acts; rather, the County expressly agreed to action related to a single piece of legislation.
B. The County next moves to invoke the “reserved powers” doctrine to avoid the plain interpretation of the duty to promote under the consent decree. The “reserved powers” doctrine holds that “a state government may not contract away ‘an essential attribute of its sovereignty.’” Id. at 888 (citation omitted). Sovereign powers include, for example, the police power and the power of eminent domain. U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 23-24 (1977). The County asserts that an interpretation of the consent decree that would require passage of the source-of-income legislation strips the County Executive of “an essential attribute of its sovereignty,” as it implicates the police power. The singular exercise (or not) of a veto, however, is not essential to the Executive’s “sovereignty,” akin to the police power. The
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agreement does not alter the structure of County governance writ large, nor does it prevent the County Executive from exercising his standard powers.2
As the Court has noted, “a State is without power to enter into binding contracts not to exercise its police power in the future.” Id. at 23 n.20. However, as indicated above, the consent decree does not prevent any exercise of the County’s police power. The County conclusorily asserts that vetoing legislation implicates the police power, without demonstrating any connection between a veto of the source-of-income legislation and the police power, and further appears to miss the fact that the consent decree does not create some general change in the power of the County Executive to veto legislation, which perhaps could be viewed as altering his sovereign powers, but is merely a substantive commitment to one piece of legislation. Moreover, the County retains the power to veto even this source-of-income legislation. By agreeing to such promotion in the consent decree, the County did not disable itself from taking contrary action with respect to the legislation. Rather, the County allocated the risk of breach to itself by entering into the consent decree. The County Executive remains free to veto the legislation, but if he does so, the County will be in breach of the consent decree and must live with the consequences of that choice. The County is not disabled from exercising “an essential attribute of its sovereignty.” Winstar, 518 U.S. at 888. Moreover, as noted by the district court, this municipal veto is not an essential part of the police powers of the County, but rather “a
2 We also note that a contract does not actually compel the actions agreed upon. Rather, if a contracting party chooses to act contrary to that which he has agreed, he will simply be in breach and be subject to the consequences of that breach. It is this unremarkable proposition to which the lower court was referring when noting that the County Executive had not been stripped of his veto power even in this one instance. Westchester Cnty., 2012 WL 1574819, at *10 n.7.
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prerogative of the County Executive within Westchester’s system of governance, established by local code.” Westchester Cnty., 2012 WL 1574819, at *10 (citing Westchester County, N.Y. Code, § 110.11 (11)). An agreement to help bring a single piece of legislation into being does not implicate an essential attribute of sovereignty because the agreement is in reference to the substance of the matter before it, namely, housing discrimination, and does not intrude upon the general powers and prerogatives of the County Executive or the County government.
C. As its final constitutional salvo, the County argues that the instant interpretation of the consent decree violates the Constitution’s Guaranty Clause. U.S. Const. art IV, § 4. As this and other courts have repeatedly noted, such determinations are nonjusticiable political questions. Colegrove v. Green, 328 U.S. 549, 556 (1946) (holding that a “[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts”); Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996). While we have recognized that “perhaps not all claims under the Guarantee Clause present nonjusticiable political questions,” just as in Padavan, “there is no basis for us to say that the [County] here ha[s] presented a justiciable claim.” Id. (emphasis added) (citation and internal quotation marks omitted). Furthermore, even if we determined the question here was justiciable, the County has not presented any evidence that it has been deprived of a republican form of government. The residents of the County remain able to “choose their own officers” and “pass their own laws,” Appellant’s Br. at 43, and they chose their own officers—ones that decided to enter into the current consent decree rather than open up the County to $156 million in damages liability.
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D. Finally, we note that the concerns identified in Horne v. Flores, 557 U.S. 433, 448 (2009), and Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 441-42 (2004), are real ones, and federal courts should carefully consider the validity and scope of consent decrees before them. This Court takes that responsibility seriously and has done so in the current case. To the extent the County argues that these cases compel a different interpretation of the consent decree here or mandate a different outcome on its Guaranty Clause claim, however, it seriously misreads the holdings of these cases. Horne, notably, does not contain a generalized admonition against consent decrees, but is concerned with Fed. R. Civ. P. 60(b) applications for modifications of consent decrees. In this context of consent decrees that have been in place for a long period of time, the Court was concerned that reviewing courts carefully consider the changed circumstances after the passage of many years when determining whether to alter or modify such agreements. Horne, 557 U.S. at 447-48. In Frew, the Court held that the enforcement of a consent decree did not violate the Eleventh Amendment. Frew, 540 U.S. at 436-41. This Court, applying Frew, has held that the case “reiterat[ed] the authority of a federal court to enforce federal consent decrees, as long as the decree was validly entered.” Barcia, 367 F.3d at 102 (quoting Frew’s definition of “validly entered federal consent decrees as those that ‘spring from a federal dispute and further the objectives of federal law’” (alterations omitted)). Further, both Barcia and Frew recognized that a party may move to modify a consent decree based on changed circumstances, including when “the objects of the decree have been attained.” Frew, 540 U.S. at 442; Barcia, 367 F.3d at 102. The County would have this Court rely upon the legitimate concerns that motivate modification of long-standing consent decrees to allow the
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Case: 12-2047 Document: 122-1 Page: 22 04/05/2013 897951 22 County to shirk its voluntarily agreed to obligations, made less than four years ago, with no showing that the objects of the consent decree have been obtained and strong evidence indicating that they have not been. This we will not do.
CONCLUSION For the reasons stated above, the judgment of the district court hereby is AFFIRMED.
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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

DENNIS JACOBS
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: April 05, 2013 Docket #: 12-2047cv Short Title: United States of America v. Westchester County, New York

DC Docket #: 06-cv-2860 DC Court: SDNY (NEW YORK CITY) DC Judge: Cote Gorenstein

BILL OF COSTS INSTRUCTIONS
The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case: 12-2047 Document: 122-3 Page: 1 04/05/2013 897951 2

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

DENNIS JACOBS
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: April 05, 2013 Docket #: 12-2047cv Short Title: United States of America v. Westchester County, New York

DC Docket #: 06-cv-2860 DC Court: SDNY (NEW YORK CITY) DC Judge: Cote Gorenstein

VERIFIED ITEMIZED BILL OF COSTS
Counsel for _________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________
and in favor of _________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature

Case: 12-2047 Document: 122-3 Page: 2 04/05/2013 897951 2

Case: 12-2047 Document: 122-4 Page: 1 04/05/2013 897951 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

DENNIS JACOBS
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: April 05, 2013 Docket #: 12-2047cv Short Title: United States of America v. Westchester County, New York

DC Docket #: 06-cv-2860 DC Court: SDNY (NEW YORK CITY) DC Judge: Cote Gorenstein

NOTICE OF DECISION
The court has issued a decision in the above-entitled case. It is available on the Court's website http://www.ca2.uscourts.gov. Judgment was entered on April 5, 2013; and a mandate will later issue in accordance with FRAP 41. If pursuant to FRAP Rule 39 (c) you are required to file an itemized and verified bill of costs you must do so, with proof of service, within 14 days after entry of judgment. The form, with instructions, is also available on Court's website.
Inquiries regarding this case may be directed to . 212-857-8560

 
 Anti-Discrimination Center, Inc.
“One Community, No Exclusion”
	  
April 17, 2014
Hon. Denise Cote United States District Judge 500 Pearl Street New York, New York 10007
Re: U.S. ex rel. Anti-Discrimination Center v. Westchester County, 06-CV-2860
Your Honor:
As you previously affirmed in 2012, “Until parties to [a consent decree] have fulfilled their express obligations, the court has continuing authority and discretion -- pursuant to its independent, juridical interests -- to ensure compliance.” U.S. ex. rel. Anti-Discrimination Center v. Westchester County, Order and Opinion of May 3, 2012 (Doc. 402, p. 17), quoting E.E.O.C. v. Local 580, Int’l Ass'n of Bridge, Structural and Ornamental Ironworkers, Joint ApprenticeJourneyman Educ. Fund, 925 F.2d 588, 593 (2d Cir. 1991).
Because defendant Westchester County continues to defy its obligations pursuant to Your Honor’s order of August 10, 2009 (“the consent decree”), and because neither the Government nor its Monitor has been prepared to keep the court properly informed about defendant’s misconduct,1 let alone vindicate the integrity of the consent decree by seeking to hold defendant in contempt for its multiple violations of that decree, the Anti-Discrimination Center (ADC) feels constrained to bring the relevant facts to your attention in the hope that you will exercise your independent, juridical interest to see that the consent decree is enforced. I have attached a copy of our just-issued report, entitled “Cheating on Every Level.” Among the findings:
(1) Westchester has improperly fomented opposition to your order -- the county executive in his campaign literature, for example, depicted dark and threatening clouds over a Westchester town with an apartment building suffocating single-family homes, with the headline, “Don’t Let the Federal Government INVADE Tarrytown” (the theme of “invasion” is, of course, a traditional method used to stoke racial fears).
(2) Westchester has never developed a decree-compliant implementation plan, thereby giving itself more leeway to spend money on inappropriate sites that did not AFFH.
(3) Most development sites have been isolated or otherwise undesirable.
(4) When counting only units appropriate to the consent decree, Westchester is over twothirds (more than 200 units) behind the development obligations it had by the end of 2013.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1 Indeed, it appears that the Monitor has not yet filed the biennial report on Westchester’s performance that was due pursuant to Consent Decree, ¶ 15 on December 31, 2013.
1745 Broadway, 17th Floor, New York, New York 10019 212-537-5824
	  

(5) Westchester has refused, across-the-board and regardless of circumstance, to meet its obligations to use all means necessary to overturn restrictive municipal zoning.
(6) The County Executive, in an audiotaped conversation that came to be published, was urged by a supporter to defy the federal government. “Well, I’ve been doing that,” Mr. Astorino replied. The County was “holding our ground” on zoning. “Oh my God,” he said a moment later, “I’m not yielding an inch to these guys.”
(7) Westchester has failed to have the ending of de facto segregation be a goal of its housing policies and programs.
(8) Westchester has never submitted an analysis of impediments that is satisfactory to HUD.
You may recall that, at an initial hearing on ADC’s motion to enforce and to intervene almost three years ago, the Assistant United States Attorney said:
[T]he premise of much of ADC's papers are essentially that the County has failed to meet certain obligations, the government and monitor together has failed to enforce that. I would anticipate by the middle of July, both because of the AI and I believe because of the progress of the implementation plan, that those premises may be undercut” (emphasis added).2
Well, July 2011 has long since come and gone; the premises have, sadly, not been undercut; and noncompliance continues unabated. ADC is not by this letter seeking to intervene in this case, but pointing out that the importance of upholding the rule of law means that someone must take the initiative in holding Westchester accountable for each and all of its violations of a binding federal court order.
Respectfully submitted,
[Signed]
Craig Gurian Executive Director
cc: Robert F. Meehan, Counsel for Defendant David J. Kennedy, Assistant United States Attorney James E. Johnson, Monitor (all via email)
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    2 Transcript of proceedings, June 7, 2011, p. 9. 	  
2 	  

Cheating On Every Level:
Anatomy of the Demise of a Civil Rights Consent Decree
Anti-Discrimination Center
April 2014

Table of Contents
I. Introduction ............................................................................................................................................... 1
A. Demographic and zoning perspective: creating and maintaining a segregated count ............. 1
B. Challenging the status quo ......................................................................................................... 2
C. Westchester shows its contempt…and the Government and the Monitor accept window dressing ............................................................................................................. 3
D. What’s happening here?............................................................................................................. 4
E. What’s next?
II. Instead of enforcing the decree requirement that all development proceed pursuant to an Implementation Plan that furthers the decree’s goal of affirmatively furthering fair housing, the Government and the Monitor have allowed Westchester to proceed with development on an ad hoc basis. The results have been predictable: a proper accounting shows that Westchester is way behind schedule in terms of its unit-specific obligations; more fundamentally, the units that have been allowed to be built represent a betrayal of the promise of the consent decree to secure affordable housing units that both affirmatively further fair housing on their own and act as catalysts to break down barriers to fair housing choice more
broadly	  
A. Lack of a decree-compliant implementation plan ...................................................................... 6
B. Westchester has failed to meet even half of its unit-specific obligations due by the end of 2013 ............................................................................................................... 8
1. Isolated or otherwise undesirable sites .......................................................................... 8
2. Sites where pre-decree litigation meant that there was no longer a barrier to remove ........................................................................................ 9
3. Double-counting ............................................................................................................ 9
4. Ignoring 2010 census data to evade municipal-level limits ......................................... 10
C. Squandering the potential multiplier effect that decree-compliant units would have created ................................................................................................................... 12
III. Westchester has flatly refused to obey the dual obligations of paragraph 7(j) to litigate against municipalities that continued to maintain barriers to fair housing choice, and the Government and the Monitor have never called the County to account for its failure to act ............................................................................................................................................ 1

	  

i	  

A. The obligation to take legal action ........................................................................................... 14
B. An open, continuous, and across-the-board refusal to comply ................................................ 15
C. The county executive’s position is flatly contradicted by the decree ....................................... 16
D. County Executive Astorino’s contempt escalates further ......................................................... 17
E. The barriers to fair housing choice imposed by municipalities are deep and widespread ............................................................................................................... 20
F. The Monitor and the Government won’t hold Westchester to account.................................... 21
G. The Monitor downplays the scope and significance of restrictive zoning and the United States Attorney stands idly by .......................................................................... 23
1. Paragraph 7(j) ............................................................................................................... 23
2. County of Monroe ........................................................................................................ 23
3. Berenson ...................................................................................................................... 23
4. Disparate impact under the Fair Housing Act .............................................................. 27
H. Paragraph 7(j) does not have a “litigation last” provision ........................................................ 31
I. Other basic steps not taken ....................................................................................................... 32
IV. The Government and the Monitor refuse to bring to the Court’s attention Westchester’s ongoing violation of paragraph 31(a): the obligation to use all the county’s housing policies and programs to eliminate de facto residential segregation throughout the county.............. 33
V. The Government and the Monitor refuse to seek to hold Westchester in contempt for being in violation of paragraph 32, notwithstanding the undisputed fact that Westchester has not submitted an Analysis of Impediments that has been deemed deemed acceptable by HUD................................................................................................................. 34
VI. The problems with “buy in” theory....................................................................................................... 35
VII. Conclusion .......................................................................................................................................... 37
	  

	  

ii	  

Why not just defy the federal government in connection with Westchester’s obligations under a federal court order?
- Supporter of County Executive Rob Astorino in telephone call with the county executive
“Well, I’ve been doing that…I’m holding our ground...I’m not yielding an inch to these guys.”
- County Executive Astorino in reply (audiotape recording)

I. Introduction
Most people understand that it is fundamental to the operation of our society that federal court orders -like them or not -- need to be obeyed. The days of Southern officials making their “states’ rights” defense of segregation are, after all, long gone. But in liberal Westchester County, New York, a federal court housing desegregation order has been defied for almost five years, and Westchester has yet to be held to account. How can that be?

A. Demographic and zoning perspective: creating and maintaining a segregated county

Prior to World War II and for decades thereafter, housing patterns in Westchester County, as elsewhere in the country, were shaped by open and active discriminatory policies engaged in by every category of player in the housing market: governmental entities, private developers, landlords, and individual homeowners. Once in place, housing patterns tend to remain in place even if nothing further is done to reinforce those patterns. That is especially true when members of a traditionally excluded group continue to feel unwelcome.

In Westchester, existing housing patterns were powerfully reinforced by municipal zoning restrictions that effectively prevented the construction of affordable housing with desegregation potential. The impact of these zoning policies was magnified by the county’s policy of steering subsidized housing for lower-income families (most notably Section 8 housing) into areas of minority concentration.

20 towns and villages in Westchester (nearly half of Westchester’s local jurisdictions) have African-American populations of 2.0

percent or less.
The results were predictable and visible today to anyone who does not close his eyes to demographic reality. 20 towns and villages in Westchester (nearly half of Westchester’s local jurisdictions) have African-American populations of 2.0 percent or less.1 This in a county whose overall African-American population is about 13 percent and that has cities with significant concentrations of African-Americans (including Mount Vernon, which is over 60 percent AfricanAmerican). New York City -- the adjoining jurisdiction that is part of the same housing market and part of any reasonable calculation of regional housing need -- has an African-American population of about

1 2010 United States Census data, with population in group quarters excluded. 13 of the 20 also have

1

23 percent; there are almost twice as many African-Americans living in New York City as there are people of all races and ethnicities living in Westchester.

B. Challenging the status quo

Eight years ago, in 2006, the Anti-Discrimination Center (ADC) filed under seal a False Claims Act lawsuit against Westchester County, a wealthy New York suburb, because Westchester had been defrauding the federal government (which is to say defrauding American taxpayers) by falsely claiming that it had been meeting its affirmatively furthering fair housing (AFFH) obligations. Those are the obligations to analyze, identify, and take the necessary actions to eliminate barriers to fair housing choice.

All the while Westchester represented that it was complying -- a requirement in order to get tens of millions of dollars of federal housing funds -- it was really ignoring its AFFH obligations, instead taking a hands-off attitude toward ultra-white towns and villages in the County that were deeply resistant to the construction of affordable housing with desegregation potential.

After the U.S. Attorney declined to intervene in the case at the end of 2006, the complaint was unsealed, and two-and-a-half years of intense litigation followed. The evidence against Westchester was so strong that the federal judge presiding over the case, the Hon. Denise Cote, found in February 2009 as a matter of law that Westchester had “utterly failed” to meet its AFFH obligations and that more than a thousand representations that it had complied were either “false or fraudulent.”

Westchester “utterly failed” to meet its AFFH obligations and more than a thousand representations that it had complied were either “false or fraudulent.”

Even after that ruling, the U.S. Attorney’s office refused to intervene in the case. It was unwilling to join with ADC and advocate a civil rights perspective.
Ultimately, in August 2009, a consent decree was entered, thereby resolving the litigation phase of the case. Because the case had been brought under the False Claims Act, the Government, not ADC, was a party to the decree. ADC, relying on promises that the decree would be enforced, did not, as was its right, interpose objections to the proposed decree.

-- Judge Cote, 2009

The consent decree was designed to begin the process of ending the

residential segregation that had long characterized Westchester. The

County was obliged to take on a variety of obligations, all of which were intended to overcome barriers

to fair housing choice. The most well known of these obligations was the requirement to fund the

construction of at least 750 units of affordable housing that would AFFH and would be developed

pursuant to an implementation plan that met the objectives of the decree to AFFH. But there were

others.

Westchester had to agree to take all necessary actions both to facilitate the construction of the affordable housing units and, more generally, to overcome barriers to fair housing choice maintained by its municipalities, including zoning barriers. Litigating as necessary against those municipalities was explicitly specified as part of the obligation.

2

Westchester also had to start using all of its housing policies and programs to end residential segregation in the County. And Westchester had to submit an “analysis of impediments” to fair housing choice that was satisfactory to HUD.
Throughout the text of the consent decree -- as it had been throughout the litigation -- the conduct of municipalities took center stage. It was restrictive municipal zoning (and Westchester’s acceptance of that zoning) that was the most powerful impediment to fair housing choice, and thus action to counter precisely that resistance was at the core of what was demanded.
C. Westchester shows its contempt…and the Government and the Monitor accept window dressing
It became clear very quickly that Westchester was backing away from each and all of its commitments. That in itself was not terribly surprising: civil rights defendants often continue to resist change, even when a consent decree is in place.
What was surprising was the willingness of the Government and the Monitor that had been appointed (James Johnson) to allow Westchester to evade its obligations under a binding federal court order.
ADC warned within weeks of the entry of the consent decree that “appeasement only emboldens resistance,” but the warning was not heeded.
• Westchester failed to develop a decree-compliant implementation plan so that it had more leeway to spend money on inappropriate sites that did not AFFH
• Most of the sites picked have been isolated or otherwise undesirable
• When counting only units appropriate to the consent decree, Westchester is more than two-thirds (more than 200 units) behind the development obligations it had by the end of 2013
• Westchester has refused, across-the-board and regardless of circumstance, to meet its obligations to use all means necessary to overturn restrictive municipal zoning
• Westchester has failed to have the ending of de facto segregation be a goal of its housing policies and programs
• Westchester has fomented opposition to a lawful federal court order -- the county executive in his campaign literature, for example, depicted dark and threatening clouds over a Westchester town with an apartment building suffocating singlefamily homes, with the headline, “Don’t Let the Federal Government INVADE Tarrytown” (the theme of “invasion” is, of course, a traditional method used to stoke racial fears)
• Westchester has never submitted an analysis of impediments that is satisfactory to HUD
3

Despite these ongoing violations and provocations, the Government and the Monitor have not sought to have the court hold the County in contempt. Instead, the Government and the Monitor pretend that “progress” is being made.

D. What’s happening here?

Westchester tells the story that, despite doing great, it is being pressed by the Government to go beyond the requirements of the decree. The Government and the Monitor acknowledge that there have been bumps in the road, but insist that good progress is being made. ADC, by contrast, says that the consent decree process is entirely off the tracks. Who to believe?

We say: take the time to learn what the consent decree actually says. Then see which narrative fits the facts as they have developed over the last four and a half years the best.

In terms of Westchester, the answer is obvious: this is a civil rights defendant who wanted to maintain the status quo as much as it was able. The County was especially concerned to make sure that housing developments would be sited in ways to avoid raising the ire of residents of ultra-white neighborhoods as much as possible. Accordingly, every development has avoided taking on a barrier in the midst of any existing, ultra-white residential neighborhood.

As a political matter, however, it takes some courage to stand behind a decree that, if actually enforced according to its

Consistent with the goal of maintaining the status quo as much as possible, Westchester has tried to squeeze the greatest number of units into the fewest possible developments. Accordingly, most projects have consisted of 100 percent subsidized units (instead of including market rate units), and several are large projects in isolated areas.

terms, is apt to generate a political firestorm. Neither the U.S. Attorney, nor the Secretary of HUD, nor the

And, of course, Westchester is committed -- politically and ideologically -- to maintaining the barriers of restrictive zoning. So it has flat out refused to meet its obligation to challenge them.

Monitor has courage.

had

that

The willingness of the Government and the Monitor to go along -- and the Monitor was clear early on that he was looking for the

easy road, to seek “low-hanging fruit” -- can only be understood as being governed first and foremost

by considerations of political expediency. As a factual matter, it is not difficult to understand that a

county whose residential zoning (especially in ultra-white jurisdictions) is overwhelmingly single-family

cannot make significant progress on generating affordable housing with desegregation potential if it is

agreed to allow all of that zoning to remain undisturbed. As a political matter, however, it takes some

courage to stand behind a decree that, if actually enforced according to its terms, is apt to generate a

political firestorm. Neither the U.S. Attorney, nor the Secretary of HUD, nor the Monitor has had that

courage.

An additional factor (and sometime explicit rationale) is that easing the decree will yield “buy-in” (the misguided and naïve view that a long-time civil rights outlaw will magically volunteer to engage in structural civil rights change).

4

E. What’s next? In all likelihood, the promise of the consent decree has been lost. It is possible, of course, that some combination of the U.S. Attorney, HUD, and the Monitor will see the light, although each has been consistently and persistently unresponsive to ADC’s appeals.2 The best hope is that the presiding judge, who has acknowledged a court’s own juridical interest in the enforcement of its orders, will take a close look at both Westchester’s pattern of violating the decree and at the failure of the Government and the Monitor to vindicate the public interest in enforcement of the order.
“The location of affordable housing is central to fulfilling the commitment to AFFH because it determines whether such housing will reduce or perpetuate residential segregation.”
-- Consent Decree, ¶ 31(c)
2 For example, see the letter, annexed as Exhibit A, that ADC sent to the Assistant United States Attorney working on this case back in June seeking to find out if the U.S. Attorney disagreed with any of 25 propositions about Westchester’s obligations and the County’s violation of them. No response was ever forthcoming.
5

II. Instead of enforcing the decree requirement that all development proceed pursuant to an Implementation Plan that furthers the decree’s goal of affirmatively furthering fair housing, the Government and the Monitor have allowed Westchester to proceed with development on an ad hoc basis. The results have been predictable: a proper accounting shows that Westchester is way behind schedule in terms of its unit-specific obligations; more fundamentally, the units that have been allowed to be built represent a betrayal of the promise of the consent decree to secure affordable housing units that both affirmatively further fair housing on their own and act as catalysts to break down barriers to fair housing choice more broadly.

A. Lack of a decree-compliant implementation plan

The consent decree could have been written so that all that had to be followed were municipal-level demographic limitations on where housing intended to meet the unit-specific requirements of the decree could be built. But that was not what was negotiated. Yes, there were municipal-level limitations, but: (a) the decree contemplated that they would be updated to include 2010 Census data; (b) there were requirements at the level of census blocks as well (such as seeking to place units on the census blocks with the lowest concentrations of African-Americans and Latinos); and (c) most importantly, all development was required to proceed pursuant to an Implementation Plan that affirmatively furthered fair housing, which is to say: all the units were supposed to overcome barriers to fair housing choice.

Why require an Implementation Plan (“IP”) that affirmatively furthers fair housing? Because a civil rights defendant that had been committed to coddling municipal resistance to affordable housing with desegregation potential could reasonably be expected -- if left to its own devices -- to try to get away with as little structural change as it could.

When a revised version was

“insufficient to accomplish

the objectives and terms set

forth” in the decree, the

consent decree commanded

that “the Monitor shall

specify

revisions

or

additional items that the

County shall incorporate into

its implementation plan.”

Consent Decree ¶ 20(d).

So not only did the decree demand an Implementation Plan to be developed within months of the entry of the August 2009 decree (paragraph 18), it came up with a mandatory “two-strikes-and-you’re-out” rule with an accompanying mandatory remedial response (paragraph 20(d)).
In the event that the County’s original IP wasn’t acceptable, and a revised version was “insufficient to accomplish the objectives and terms set forth” in the decree, the consent decree commanded that “the Monitor shall specify revisions or additional items that the County shall incorporate into its implementation plan.” Consent Decree ¶ 20(d) (emphasis added).

It is important to pause to understand that the “objectives” of the decree are not cloaked in mystery. As stated in paragraph 7(j), the purpose of the decree is “to AFFH.” Paragraph 13 gives the Monitor the “powers, rights, and responsibilities” to accomplish “the AFFH purposes” of the decree. The purpose of the decree “to AFFH” is referenced again at paragraph 15(a)(iii).

Affirmatively furthering fair housing involves overcoming barriers to fair housing choice. Restrictive municipal zoning was the barrier most on the mind of ADC during its litigation against Westchester, and that overriding concern was reflected in the consent decree.

6

But, despite his not accepting Westchester’s first two submissions (his rejection of the second occurred in July 2010), the Monitor has refused to fulfill his obligation to specify a decree-compliant IP -- either then or in the years that have followed.3

In other words, Westchester remains in violation of its obligation to produce a compliant IP and, through the complicity of the Monitor and the Government, nothing has been done about it.

The results of throwing the IP requirement overboard have been enormously consequential. Basic provisions necessary to make sure that an IP affirmatively furthers fair housing have never been put in place. These include requirements that developments: (a) actually overcome barriers to fair housing choice; (b) are not sited on or near undesirable sites (like brownfield sites or those that abut railroad tracks or large highways); (c) are not isolated away from existing white residential neighborhoods; and (d) are themselves mixed income (to provide, among other things, cross-subsidy from market-rate units for the subsidized units, economic integration within the development, protection against poor siting, and a greater ability to integrate into the broader community).

Could the Monitor really be violating a mandatory duty?
It seems so incongruous that the officer charged with making sure that a court order was being obeyed would himself pick and chose the obligations he obeys, but the text of paragraph 20(d) leaves no doubt that he is. There is no “defer indefinitely” proviso.

They also include locational requirements designed to maximize the number of units on blocks with the lowest concentrations of African-Americans and Latinos (consistent with paragraph 22(f) of the decree).

Critically, they would include actual plans to overcome

municipal zoning barriers.

As noted earlier, the

acknowledgment the County was forced to make in the

decree that it had the authority and responsibility to litigate

against resistant municipalities pursuant to, among other

powers, the County of Monroe and Berenson doctrines would

have no meaning if the County failed to plan to acquire

interests -- direct or indirect -- in properties whose

desegregation potential was stymied by restrictive zoning.

Westchester’s IP submissions had none of this, and the Monitor failed to impose any of these requirements. Indeed, most of the relief that ADC had sought in its May 2011 motion to enforce the decree consisted of action items that belong in a compliant IP.4 Instead of acknowledging this to the Court, the Government and the Monitor joined Westchester in urging the Court not to hear an enforcement motion at all.

Three years after successfully keeping the questions ADC raised from the Court, the IP process lies abandoned, and the necessary AFFH components of an IP ignored.

3 A screen shot taken on April 16, 2014 of the implementation plan page of the Monitor’s website is annexed hereto as Exhibit B. The text describes the IP submitted in August 2010 as being “currently under review by the Monitor.” See also the April 2013 revision to Westchester’s Analysis of Impediments, p. 165 (“the full and final approval of the Implementation Plan remains pending”).
4 Annexed hereto as Exhibit C is the declaration of ADC’s executive director in support of ADC’s May 2011 motion to enforce the decree. It explains the relief sought.

7

It has never been difficult to see the writing on the wall. The Monitor revealed early on that he was not interested in having the units built under the decree be catalysts for broader change -- or even have them be the means by which to overcome barriers to fair housing choice.
Instead, within weeks of his appointment in 2009, he said that he would be looking for “low-hanging fruit,” that is, properties that could yield “countable units” without difficulty.
Indeed, looking for units to count -- instead of looking for units that should count -- has been the procedure all along.

B. Westchester has failed to meet even half of its unit-specific obligations due by the end of 2013
Because the Government and the Monitor have gone along with the County’s unit-specific deceptions, Westchester has been able to claim repeatedly that it is ahead of schedule in terms of building units (the most recent year-end claim was that financing was in place for 399 units at the end of 2013, more than the 300 units required by that time).
In fact, Westchester has produced well under half of its unit-specific obligations. There have been four principal methods of cheating that have concealed that fact:

1. Isolated or otherwise undesirable sites

It should be obvious, but when an isolated or otherwise undesirable site is selected for affordable

housing, the units are unlikely to affirmatively further fair housing. That is especially the case when the

project contains only subsidized units. The development is not integrated into the existing community in

any respect; on the contrary, it is easily stigmatized as being separate and different. It does not offer the experience of genuinely living within an established residential

In fact, Westchester has produced well under half of

neighborhood. It means that the price of admission for its unit-specific obligations.

prospective African-American and Latino residents is the There have been four principal

acceptance of conditions that market-rate residents would customarily avoid. Crucially, it is also reflective of a decision to avoid finding sites in a jurisdiction that are free of

methods of cheating that have concealed that fact.

negative features because doing so would require Westchester to confront the restrictive single-family

zoning that characterizes so much of the County.

The initial projects submitted by the County and approved by the Monitor provide useful illustrations:

Larchmont development (46 units): a brownfield site, located where a moving company used to be. Its census block is separated from I-95 only by the railroad tracks that directly abut the block. The census block extends to within 500 feet of New Rochelle, a municipality that already has a high percentage of African-American and Latino residents. No market-rate units.

8

Cortlandt development (83 units): the site abuts a major Veterans Administration psychiatric and substance abuse facility, a major road, and railroad tracks. Other than VA facility residents, the block was unpopulated. No market-rate units.
City of Rye development (18 units): the site is located next to two major highways (I-95 and I287) and is distinctly separated from almost the entire city. It abuts Port Chester, a Latino-majority jurisdiction -- so much so that, to get to the public street from the property, one has to cross into Port Chester. The census block itself is majority-minority. The units -- studios and one-bedrooms -- were designed for seniors but allowed to count as housing without age restriction because the “seniors-only” label was removed (without changing the configuration of units to make them family-friendly). No market-rate units.
Even were these the only projects sited in ways that meant that they failed to AFFH -- and they’re not -that would be 147 inappropriately counted units. Thus, not even taking into account other forms of cheating, Westchester could count no more than 252 units (399 minus 147), already under the 300 required by the end of 2013.

2. Sites where pre-decree litigation meant that there was no longer a barrier to overcome

A central element of the strategy to avoid taking on restrictive single-family zoning was the decision to seek out sites where a zoning barrier had already been removed by litigation concluded prior to the entry of the decree. These sites are some of the “low-hanging fruit” to which the Monitor has referred. The result -- unacceptable in consent decree terms because AFFH means removing barriers -- is that the opportunity to expand the universe of possible sites for affordable housing was sacrificed.

Both the Larchmont and Cortlandt sites, already mentioned, fall into this category. The North Salem site (June Road, 65 units) does as well. That represents a total of 194 units of cheating on these grounds. Leaving aside units already deducted because they should not have been counted because of site isolation and desirability, this brings Westchester down to 187 units.

The cheating units discussed in this subsection represent over 50 percent of the minimum consent decree

It is important to note that the 194 units of cheating (or 212 units if obligation for new you include the undesirably sited City of Rye development that construction that is not was already underway prior to the entry of the consent decree) are age-restricted.
not simply a large percentage of 750 units. Westchester was obliged to have newly constructed units that are not age-restricted constitute at least half of that total (375 units). Thus, the cheating units discussed here represent over 50 percent of the minimum consent decree obligation for such housing.

3. Double-counting
The Somers site (Clayton Boulevard, 75 units) is another that is not properly counted. This is a circumstance where Somers had a pre-existing agreement with Westchester to build at least 188 units of affordable housing or lose $2 million of $4 million the County had given Somers to help purchase open

9

space (the Angle Fly Preserve). It is nothing more than a shameless accounting trick to count units for consent decree purposes that were already required to be built (and which will be counted towards the Angle Fly obligation). Here again, Westchester, with the collaboration of the Monitor and the Government, is getting away with failing to expand the sites where affordable housing can be built. This does not constitute affirmatively furthering fair housing, as all units were supposed to do.
Subtracting out these units, Westchester is down to 119 units, only about 40 percent of its 2013 yearend obligation and 181 units short.
4. Ignoring 2010 census data to evade municipal-level limits
If what one wanted to do was to be faithful to the consent decree’s desire to have the overwhelming bulk of housing (84 percent) built in the municipalities that have the lowest concentrations of AfricanAmerican and Latino residents (less than 3 percent and 7 percent, respectively), one would naturally have looked to 2010 Census data as soon as it became available, as the decree empowered the Monitor to do.5
Failing to do that would allow housing to be built even in jurisdictions that had come to have percentages higher than the caps. This was not especially relevant in respect to African-Americans, whose numbers remained basically flat from 2000 to 2010, but was very much relevant to Latinos, the population of which had grown substantially (although in still powerfully segregated patterns).
Why would the Monitor and the Government choose not to look at 2010 data? Because there would be fewer towns and villages within which to build a minimum of 630 units and thus greater difficulty in avoiding taking on existing zoning barrier or facing down opposition to construction on a block that was part of an existing white residential block.
ADC has examined 2010 Census data, and found that, of the units being developed, only 172 of the total claimed units comply with the demographic requirements of paragraph 7(a) (the ultra-white jurisdictions, required at the municipal level to have an African-American population of less than 3 percent and a Latino population of less than 7 percent). This represents only 27.30 percent of the minimum ultimately required by the decree.
68 of the total claimed units are located in paragraph 7(b) jurisdictions (those where the AfricanAmerican population is less than 7 percent and the Latino population is less than 10 percent). This violates the Decree because only a maximum of 60 such units are permitted by the Decree. In other words, the defendant is already at 113.33 percent of the maximum.
Finally, fully 159 of the total claimed units are located in paragraph 7(c) jurisdictions (those where the African-American population is less than 14 percent and the Latino population is less than 16 percent). This violates the decree by a wide margin because only a maximum of 60 such units are permitted by the decree. In other words, the defendant is already at 265.00 percent of the maximum.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
5 A proper IP would have taken population change into account; see also Consent Decree, ¶ 15(a)(3) (giving the Monitor additional authority to do so).
10

Ignoring the facts on the ground
The decree’s municipal-level requirements set a minimum of 630 units in the whitest towns and villages, a maximum of 60 units in the intermediate group of municipalities, and a maximum of 60 in the least white group. Counting ALL claimed units, and looking at up-to-date Census data, here’s how Westchester has performed in relation to those standards through the end of 2013.
So Westchester, in addition to performing disproportionately poorly in the whitest jurisdictions, is cheating by 107 units on the dimension of municipal-level requirements (8 in paragraph 7(b) municipalities and 99 in paragraph 7(c) municipalities). Because our accounting has already removed the North Salem and Cortlandt sites, we only deduct an additional 16 excess paragraph 7(c) units, bringing Westchester’s overall total down to 103 units, little more than a third of the minimum requirement by the end of 2013. And this is without a comprehensive analysis of sites for isolation or proximity to undesirable features. Included in the remaining 103 units are 4 units in Rye Brook on a block that is 43 percent Latino and 12 percent African-American (majority minority); 2 units in Tarrytown on a block that is 37 percent Latino and 11 percent African-American; 26 units in Yorktown Heights on a block that is 13 percent Latino; and a single unit in Buchanan on a block that is 32 percent Latino. None of these units would have been counted if development had proceeded according to an IP that required AFFH development in general and was obliged to figure out even more specifically the means by which to maximize development on the census blocks with the lowest concentrations of African-Americans and Latinos. Remove these 33 units, and Westchester is down to 70 units, less than 25 percent of its minimum by the end of 2013.
11

Claimed versus actual performance
By the end of 2013, Westchester was supposed to have at least 300 units with financing in place. The County has trumpeted its success, and the Government and the Monitor haven’t challenged its claims. But once you exclude units improperly counted (the “cheating units”), there is a much different story.
C. Squandering the potential multiplier effect that decree-compliant units would have created In a county of nearly one million people, 750 units of housing over seven years is, in terms of people actually housed, a drop in the bucket. (That is one of the reasons the decree treats Westchester’s unitspecific obligations as only one of its many duties under the decree.) But the units built were supposed to do more than provide housing for slightly more than 100 families a year. They were supposed to act as catalysts that would spur future development by private developers. The way that would have worked would have been for the units to be sited on parcels that required a town or village to relax a zoning barrier, including the barrier created by single-family zoning.6 6 Some of that zoning -- large-lot zoning, in particular -- has long been recognized as being exclusionary. But there are ways to build more than a single unit even on smaller lots while at the same time being cautious to avoid building more units on a site than can reasonably be sustained. In short, despite fear tactics that have been employed by Westchester, neither ADC nor anyone else is proposing to have apartment buildings built on small lots.
12

Once the zoning barrier had been relaxed, two things would have occurred. First, existing residents

would have learned that the sky did not fall: affordable housing can be placed in the midst of an existing

single-family neighborhood and co-exist

harmoniously. Second, the consent decree

Playing games with paragraph 22(f)

housing would have done the heavy lifting

of removing a zoning barrier, so the private developers would have been able to follow along with the easier task of constructing affordable housing with desegregation potential under a reformed zoning regime.

This provision of the decree requires Westchester to maximize the housing built on census blocks “with the lowest concentrations of African-American and Hispanic residents.”

Instead, Westchester -- joined by the Westchester has claimed that building on

Government and the Monitor -- took the vacant blocks meets the requirement: that is,

path of least resistance (the low-hanging fruit, as the Monitor puts it). That, of course, leaves no low hanging fruit for

zero members of any group means that there is a low concentration of every group.

private developers. They will be forced to try to overcome barriers without the tools and the resources provided under the decree.

In fact, this command contemplates that one is looking for blocks that are residential in character. “Lowest concentrations” is meant as a relative term: low concentrations of African-

As noted, the motivation is simple to Americans and Hispanics in comparison to high understand: trying to build on the most concentrations of whites.

appropriate sites -- including, pursuant to

paragraph 22(f) of the decree, on the census blocks with the lowest percentages of African-Americans and Latinos -- is more controversial than building on sites set apart from existing ultra-white residential neighborhoods.

Housing on blocks that were vacant or not residential in character might have counted for 22(f) purposes if the requirement were only to avoid high concentrations of AfricanAmericans and Hispanics (a vacant block can’t be said to have such concentrations), but not

It is also the case that implementing the decree without taking single-family zones

when the requirement was an affirmative one to seek out low concentrations.

off the table would have required each

development to be smaller, and thus more Westchester’s approach is consistent with its

developments in total. More developments would have meant more barriers to overcome. That is a

positive in consent decree terms, but the additional battles are something that Westchester, the

Government, and the Monitor wanted very much to avoid.

13

III. Westchester has flatly refused to obey the dual obligations of paragraph 7(j) to litigate against municipalities that continued to maintain barriers to fair housing choice, and the Government and the Monitor have never called the County to account for its failure to act.
The consent decree does impose analysis and planning obligations on the County (see, for example, the discussion at page 34 of Westchester’s failure to comply with its obligation to develop an analysis of impediments to fair housing choice that is deemed acceptable by HUD).
But one cannot appreciate the scope of Westchester’s misconduct -- or the extent to which the Government and the Monitor have failed to meet their enforcement obligations -- if one doesn’t understand that there are action obligations as well, action obligations that go beyond the construction of a minimum of 750 units of housing.

A. The obligation to take legal action

It has been, for example, a core obligation of the Monitor to assess -- first at the end of 2011, next at the end of 2013 -- whether “the County has taken all possible actions to meet its obligations” under the decree (emphasis supplied). Specifically included in the Monitor’s obligation was determining whether all possible steps were taken by Westchester to promote “inclusionary and other appropriate zoning by municipalities” by “taking legal action.” Consent Decree, ¶ 15.

The most important action obligations are the two separate obligations contained in paragraph 7(j). The first obligation relates to unit-specific obligations (building units that affirmatively further fair housing). It states:

In the event that a municipality does not take actions needed to promote the objectives of this paragraph, or undertakes actions that hinder the objectives of this paragraph, the County shall use all available means as appropriate to address such action or inaction, including, but not limited to, pursuing legal action.

We are not talking here about the “spirit” of the decree, an elective matter, or an obligation subject to negotiation. The obligation on the County is mandatory: it is required (“the County shall”) to use all available means as appropriate (not a limited and predetermined subset) to address a municipality’s action or inaction.

We are not talking here about the “spirit” of the decree, an elective matter, or an obligation subject to negotiation. The obligation on the County is mandatory: it is required (“the County shall”) to use all available means as appropriate (not a limited and predetermined subset) to address a municipality’s action or inaction. The only item specifically mentioned was “pursuing legal action.” This had to be specified because the voluntary means used over the years had already proven to be insufficient, and because the County -- prior to and throughout the litigation -- had falsely claimed that it had not authority to take such action.
Each municipality is supposed to be examined to see if it is either failing to promote the construction of units or hindering the construction of units. No municipality is excepted, and no municipality is given a pass in the

14

circumstance that other municipalities are compliant.
The failure to eliminate zoning rules that pose an impediment to the construction of decree-appropriate affordable housing obviously constitutes a failure to take action needed to promote the construction of affordable housing with desegregation potential (the continued enforcement of such zoning provisions is also properly seen as actions that hinder the objective of building such housing).
The second obligation of paragraph 7(j), unlike the first obligation, is not limited to securing the objectives of the decree’s paragraph on developing a minimum number of units of affordable housing with desegregation potential.
It states that:
The County shall initiate such legal action as appropriate to accomplish the purpose of this [consent decree] to AFFH.
It is impossible to construe this second obligation as being merely duplicative of the first. The first is framed in terms of the objectives of a single paragraph of the decree; this second obligation is framed in terms of the purposes of the decree as a whole.
The sweeping nature of this obligation cannot be overstated. Here is a mandatory obligation to initiate the legal action needed to accomplish the purpose of the decree to AFFH, which is to say overcome the barriers to fair housing choice.
As a final preliminary matter, it is also important to note that paragraph 7(j) had no delayed implementation date. Westchester’s obligations under paragraph 7(j) began on August 10, 2009.

B. An open, continuous, and across-the-board refusal to comply

That numerous Westchester towns and villages have had and still maintain zoning that creates

impediments to fair housing choice is not subject

to serious dispute (illustrations are discussed at “The County shall initiate such legal

pages 24-26, below). But it is important first of all to understand that it has been the express position of the County -- as expressed in numerous venues and in numerous ways by the

action as appropriate to accomplish the purpose of this [consent decree] to AFFH.” It is impossible to construe

county executive -- to refuse on an across-the- this second obligation as being merely

board basis -- to perform either of its paragraph 7(j) action obligations in relation to even a single municipality.

duplicative of the first. The first is framed in terms of the objectives of a single paragraph of the decree; this

The county executive began to express his second obligation is framed in terms position early in his term. In his first month of of the purposes of the decree as a office, for example, he said in connection with the whole.
possibility of taking municipalities to court, “I won’t do that. I will not do that.” He added that “we don’t want to use…a stick…the approach we’re

15

going to be using…is the carrot.”
This is the exact opposite of an attempt to shape action to varying conditions in different municipalities, and his posture has not varied.
At a press conference in July of 2011, for example, he railed against requests by HUD that Westchester list in its Analysis of Impediments the steps the County would take, including litigation, if municipalities did not change their restrictive zoning.7 Astorino said, “We can’t dismantle local zoning, nor would I,” asserting that such a request “certainly goes beyond” what is in the consent decree and shows a “complete ignorance of the laws of New York State as a ‘home rule’ state” (emphasis added).8

C. The county executive’s position is flatly contradicted by the decree

The county executive should have read the consent decree. Paragraph 7(j), as explained above, makes clear Westchester’s obligation to overcome municipally imposed barriers to fair housing choice. But the consent decree went even further. Westchester had, prior to and during the litigation, consistently pretended that it had no authority or responsibility in relation to the conduct of municipalities. So that consent decree was determined to eliminate that excuse.

Westchester was forced to acknowledge and agree that, “pursuant to New York state law,” “municipal land use policies and actions shall take into consideration the housing needs of the surrounding region.” Consent Decree, page 2, para. 1, subpara. (i). That’s an acknowledgment of the Berenson doctrine, the law in New York since 1975.9
Westchester was forced to acknowledge and agree that “municipal land use policies and actions…may not impede the County in its performance of duties for the benefit of the health and welfare of the residents of the County.” Id. That’s an acknowledgment of the County of Monroe doctrine,10 the

Westchester was forced to acknowledge and agree that “municipal land use policies and actions…may not impede the County in its performance of duties for the benefit of the health and welfare of the residents of the County.”

7 Note that HUD was focused on the analysis of impediments, ignoring the action requirements of paragraph (7)(j)
8 July 15, 2011, video available online at http://bit.ly/1hJmCyL.
9 Berenson v. Town of New Castle, 378 N.Y.S.2d 672 (N.Y. 1975).
10 Matter of County of Monroe (City of Rochester), 533 N.Y.S.2d 702 (N.Y. 1988). Ironically, Westchester itself made use of this doctrine. The County argued successfully that the County of Monroe test was applicable to the County’s interest in creating a family shelter and that the interests of the County and its developer agent in forming such an essential governmental function outweighed those of the Village. Westhab, Inc. v. Village of Elmsford, 574 N.Y.S.2d 888 (N.Y. Sup. Ct., Westchester County, 1991).

16

law in New York since 1988, a doctrine that holds that a county may challenge a municipality’s restrictive zoning on the grounds that the county’s public interests in proceeding with development outweigh the municipality’s interests in restricting such development.

The consent decree didn’t leave any room for Westchester to argue that the county’s interest wasn’t substantial. The first clause of the entire decree states that “the development of affordable housing in a way that affirmatively furthers fair housing is a matter of significant public interest.” Consent Decree, page 1, para. 1.

Westchester was forced to acknowledge and agree that “it is appropriate for the County to take legal action to compel compliance if

The decree goes on to state explicitly that “the broad and equitable distribution of affordable housing promotes sustainable and integrated residential patterns…and advances the health and safety of the residents” of the county and its municipalities. Consent Decree, page 1, para. 2.

municipalities hinder or

For good measure, the consent decree evaluates in advance

impede the County in its

the circumstance where a municipality hinders or impedes

performance of such duties,

the County in the performance of duties for the benefit of

including the furtherance of the terms” of the decree.

the health and welfare of the residents of the County. Westchester was forced to acknowledge and agree that “it is appropriate for the County to take legal action to compel

compliance if municipalities hinder or impede the County in

its performance of such duties, including the furtherance of the terms” of the decree.

In short, the county executive’s position is directly contradicted by the text of multiple parts of the decree. The refusal to obey the decree constitutes contempt.

D. County Executive Astorino’s contempt escalates further
The county executive’s contempt has not abated. Last fall, for example, a recorded conversation between County Executive Astorino and a supporter (Sam Zherka) was published in The Journal News.11 Astorino claimed to have “such support in this county” on the “steps to stand up to the federal government.”
Zherka responded by saying that if Astorino “just stood up a little more and defied it” he would be “governor and presidential” material; “if you told the Feds ‘I’m not doing it; you can arrest me,’ and let them put handcuffs on you.”
Astorino’s response was clear: “Well, I’ve been doing that.” HUD, he said, was attacking zoning, but “we’re holding our ground.”
11 “Astorino loses Independence ruling,” Westchester Journal News, Aug. 12, 2013. The audiotape recording is available online at www.antibiaslaw.com/node/1405. The portion of the recording related to the case begins at about the seven-minute mark.

17

Zherka said, “Hold your ground. Hold it hard, hard, hard.” Astorino replied: “Oh my God, I’m not yielding an inch to these guys.” The promise not to yield an inch on zoning is nothing more or less than a promise to continue to violate the requirements of the decree. Astorino’s version of standing on the schoolhouse steps in defense of the status quo -- and in defiance of the consent decree -- did not stop. In campaign literature that can only be described as constituting disgusting appeals to fear and prejudice (see below), he depicted dark and threatening clouds over a Westchester town with an apartment building suffocating single-family homes, with the headline, “Don’t Let the Federal Government INVADE Tarrytown.” The theme of “invasion” is, of course, a traditional method used to stoke racial fears.
Another flyer (see next page) poses the electoral choice as “DEFEND or SURRENDER?” and promises that Astorino will “continue to DEFEND our local communities.” The flyer -- again featuring dark storm clouds to represent the threat -- says that Astorino has been “a tireless DEFENDER of the home rule rights” of municipalities and will “fight for our communities” against the threat to “our neighborhoods.” There are two points to be made. The first: shame on the county executive for such conduct. The second: this is not the posture of someone who has even the smallest intention to obey paragraph 7(j).
18

19

E. The barriers to fair housing choice imposed by municipalities are deep and widespread

The techniques of the big lie are well known: just keep insisting on a proposition -- regardless of its falsity -- and hope that: (a) some people will believe it to be true; and (b) “he said, she said” media sources will report, “People disagree.” This is what Westchester has done. “There is no exclusionary zoning,” it says. Let’s be clear: that is a lie. The barriers to the construction of affordable housing that would AFFH are enormous and exist in virtually every municipality where such housing is supposed to be built pursuant to the decree.

The fact that there is very little land zoned for multiple-family housing, and the fact that many of the municipalities have remarkably low population density, is well known, and was actually documented by Westchester itself back in 2010.

Its “Parcel-Based Land Use Map,” annexed hereto as Exhibit D, provides a striking visual representation of the fact that residential property (depicted in yellow) is overwhelmingly single-family and that multifamily housing (depicted in orange) is hardly anywhere to be found in the towns and villages where consent decree housing is supposed to be built.

Multi-family housing including condominiums constitutes less than 1.0 percent of all residential acreage in eight municipalities, 1 and between 1.0 and 4.75 percent in another 10 municipalities.1

Westchester’s 2010 Land Use Report provides the back-up data. For example, multi-family housing including condominiums constitutes less than 1.0 percent of all residential acreage in eight municipalities,12 and between 1.0 and 4.75 percent in another 10 municipalities.13
Residential density (units per acre) is only 0.27 in Pound Ridge, 0.32 in North Salem, 0.441 in Bedford, 0.48 in Lewisboro, 0.57 in North Castle, and 0.70 in New Castle.

Residential density (units per acre) is only 0.27 in Pound Ridge, 0.32 in North Salem, 0.441 in Bedford, 0.48 in Lewisboro, 0.57 in North Castle, and 0.70 in New Castle.
Westchester’s paragraph 7(j) obligations.

Data gathered by consultants to the Monitor and submitted in connection with a September 13, 2013 report from the Monitor also paints a devastating picture of the failure of Westchester municipalities to remove zoning restrictions that are impediments to fair housing choice (and thus continue to constitute both conduct that hinders the development of consent decree housing and conditions that undercut the purpose of the decree to AFFH). That is, the conditions that exist are conditions that triggered both of

The Monitor’s commentary on the data tries to play down its significance, and his exclusionary zoning analysis is remarkably incomplete (as discussed in pages 23-30 of this report). But even the Monitor

12 Bedford, Harrison, Lewisboro, North Castle, North Salem, Pound Ridge, Rye Brook, and Scarsdale.
13 Ardsley, Briarcliff Manor, Buchanan, Croton-on-Hudson, Larchmont, Mamaroneck, Mount Pleasant, New Castle, Pelham, and Pelham Manor.

20

found that seven municipalities14 had exclusionary zoning (“the County’s assertion that exclusionary zoning is absent from Westchester is strongly contradicted by its own zoning,” he wrote).15

Moreover, another nine municipalities were found to have affordable housing provisions that were “too narrow in scope to provide genuine opportunities to meet local and regional need.”16

In Mount Pleasant, for example, the Monitor’s analysis says the town is only ready to meet future need for affordable housing to the extent of five units.

This already accounts for 16 municipalities with zoning that acts as a barrier to fair housing choice. The fact that the Government and the Monitor have chosen not to place this information in the context of Westchester’s paragraph 7(j) obligations doesn’t change the fact that Westchester was indeed supposed to confront them starting in 2009 and has refused to do so across-the-board.17

That circumstance, by any reasonable definition, is one that makes the town one where there are AFFH barriers that need to be

Many other municipalities also have barriers and are in the Monitor’s “warrants improvement” category, a category inconsistent with the conclusion that those municipalities are not hindering the building of consent decree housing or impeding the AFFH purposes of the decree.

overcome.

In Mount Pleasant, for example, the Monitor’s analysis says

the town is only ready to meet future need for affordable housing to the extent of five units. That

circumstance, by any reasonable definition, is one that makes the town one where there are AFFH

barriers that need to be overcome.

F. The Monitor and the Government won’t hold Westchester to account
Neither the Government nor the Monitor have ever sought the Court’s intervention on the grounds that Westchester, ignoring the hindrances to fair housing choice maintained by so many municipalities, has failed to take legal action against municipalities pursuant to its paragraph 7(j) obligations. The Government and the Monitor have stood by despite Westchester’s outright denial that a problem exists, and despite the County’s clear statement that it will not act against any municipality’s zoning.
To repeat: there has not been any time in more than four and a half years where the Government or the
14 Croton-on-Hudson, Harrison, Lewisboro, Mamaroneck, Ossining, Pelham Manor, and Pound Ridge.
15 Monitor’s Report to the Court, Doc. 452, filed Sept. 13, 2013 (hereafter “Monitor’s Sept. 2013 Report”), p. 40.
16 Briarcliff Manor, Bronxville, Buchanan, Cortlandt, Eastchester, Larchmont, Rye, Somers, and Tuckahoe.
17 Westchester officials will often say that municipalities are “cooperating.” But they are not cooperating with what the consent decree demands, they are cooperating with Westchester’s approach of trying to maintain the status quo.

21

Monitor has gone to Judge Cote and sought to hold the County In contempt for failing to take the actions required by paragraph 7(j).

There are a variety of distractions that will be interposed in an attempt to distract people from this dereliction of duty. None have merit.

The Government will say that it has sought to have Westchester identify exclusionary zoning and a program to respond to such zoning. But that is not what paragraph 7(j) demands. The first prong of paragraph 7(j) speaks in terms of “pursuing legal action”; the second prong speaks in terms of “initiating such legal action as appropriate to accomplish the purpose of this [consent decree] to AFFH.” Neither the Government nor the Monitor has sought to hold the Westchester responsible for failing to have done so.

The Government will also point to the fact that it belatedly began to withhold federal grant money from Westchester. In doing that without holding Westchester to account under paragraph 7(j), the Government is very seriously undercutting the rule of law.

Westchester, like all jurisdictions, is subject to having funding withheld if it fails to meet its AFFH obligations. HUD has done that.

But Westchester is not like other jurisdictions -- it is operating under a federal court consent decree that imposes additional obligations.

The Government’s position tells Westchester -- and all other jurisdictions across the country -- that there are no more consequences to violating both the general AFFH obligation and a separate consent decree obligation than there are to violating only the general AFFH obligation. That reduces the consent decree obligation to a nullity.
The way that the funds cutoff does bear on the degree of culpability the Government bears for its failing to enforce the decree is that the funds cutoff reflects the fact that the Government does actually recognize that Westchester has failed to confront the zoning barriers that continue to exist. As such, the Government’s failure to vindicate the paragraph 7(j) requirements does not come merely from inexcusable ignorance of the facts, but rather from an inexcusable unwillingness to enforce the consent decree.

The Government’s position

tells Westchester -- and all

other jurisdictions across the

country -- that there are no

more consequences to

violating both the general

AFFH obligation and a

separate consent decree

obligation than there are to

violating only the general

AFFH obligation.

That

reduces the consent decree

obligation to a nullity.

The Monitor, who has consistently operated under the belief that he can substitute his own judgment for the course of action demanded by the consent decree itself, will doubtless say that he has undertaken discussions with some municipalities about their zoning. But the consent decree imposes obligations on Westchester, and simply does not permit the Monitor (or the Government) to decide that discussions with non-parties are an acceptable alternative to holding the defendant to its paragraph 7(j) obligations.

22

G. The Monitor downplays the scope and significance of restrictive zoning and the United States Attorney stands idly by
The Monitor’s report on exclusionary zoning is woefully incomplete, does not focus on the consent decree, and fails to apply the appropriate standards.
(1) Paragraph 7(j).
In his September 13, 2013 report to the Court on zoning, the Monitor simply did not evaluate the zoning data from the perspective of how much of it represented a “failure to promote” or a “hindering” of the construction of consent decree units, nor did he evaluate the data from the perspective of whether the zoning contradicted the decree’s purpose to AFFH. He likewise failed to examine whether Westchester had taken any actions (let alone “all possible actions,” Consent Decree ¶ 15) to meet its paragraph 7(j) obligations. The United States Attorney did not bring this to the Court’s attention.
(2) County of Monroe.
The Monitor also failed to consider the fact that Westchester was unjustifiably failing to exercise its rights under the County of Monroe doctrine in respect to the seven jurisdictions he found to have exclusionary zoning nor in respect to the fact that, “There is evidence of exclusionary zoning in many of the 20 category 2 [“warrants improvement”] municipalities.”18 Even if it were true that there were factors that “militated” against a finding that zoning was exclusionary under the Berenson doctrine (and it isn’t true), that wouldn’t change the fact that the consent decree began by identifying a stronger interest on the part of the County (and of the citizens of its municipalities) to encourage affordable housing with AFFH potential than municipalities have in maintaining restrictive zoning, and by forcing Westchester to acknowledge it authority and responsibility to challenge such zoning, inter alia, pursuant to County of Monroe. The United States Attorney did not bring these facts to the Court’s attention.
(3) Berenson
As to whether municipalities failed to comply with the Berenson doctrine, the Monitor’s primary focus -the Monitor mangled the legal standards and failed to apply the facts to the law.
Take the requirement that a municipality must have a “properly balanced and well ordered plan for the community.”19 In addition to those the Monitor found to be exclusionary on this ground, the Monitor rated 17 jurisdictions as “warrant[ing] improvement.”20
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
18 Monitor’s Sept. 2013 Report, p. 57.
19 Berenson, supra, 378 N.Y.S.2d at 680.
20 Exhibit 2 to the Monitor’s Sept. 2013 Report, annexed hereto as Exhibit E, contains three charts: the first is intended to show whether municipalities have provided a properly balanced and well-ordered plan for the community (the “Balanced Plan Chart”); it is that chart that contains the rankings referred to
23

These are all jurisdictions where the Monitor was unable to find that they did provide a well-ordered plan, but where he was unwilling to say that the jurisdictions were exclusionary. It is the equivalent of a school district using a very lenient grading scale to avoid being seen as having too many failing students. . Indeed, the Monitor explicitly states that jurisdictions are being given “credit” for “addressing” affordable housing need even if their comprehensive plans only mention that affordable housing should be considered without making detailed recommendations on how to develop that housing.21

Here are a few of the jurisdictions that the Monitor was unwilling to put into the exclusionary category. According to the Monitor’s reported data:

Ardsley only has 1 percent of residential land zoned for multi-family use. The undeveloped land that is zoned multi-family is only 0.3 percent of the village’s total acreage.

Bedford only has 0.5 percent of residential land zoned for multi-family use. The undeveloped land that is zoned multi-family is only 0.01 percent of the village’s total acreage.

Mount Pleasant only has 1.2 percent of residential land zoned for multi-family use. The undeveloped land that is zoned multi-family is only 0.03 percent of the village’s total acreage. Mount Pleasant’s ability to meet “future need” for affordable housing is a total of only five units.
Scarsdale only has 0.26 percent of residential land zoned for multi-family use. The undeveloped land that is zoned multi-family is only 0 percent of the village’s total acreage -- there is no such land. Scarsdale’s ability to meet future need for affordable housing is a total of zero units.

Scarsdale only has 0.26 percent of residential land zoned for multi-family use. The undeveloped land that is zoned multi-family is only 0 percent of the village’s total acreage -- there is no such land. Scarsdale’s ability to meet future need for affordable housing is a total of zero units.

To reiterate, the Monitor declined to place any of these jurisdictions in the exclusionary category of failing to provide a properly balanced and well-ordered plan for the jurisdiction.

The other Berenson obligation is that the municipality must consider and provide for its share of regional affordable housing need.22 The Monitor took as his guide to regional need the report prepared in 2005

above. The second chart contained in the exhibit is intended to show whether municipalities have or can meet their share of regional affordable housing need (the “Regional Share Chart”); the third is intended to show factors that could justify restrictive zoning (the “Rebuttal Factors Chart”).
21 Balanced Plan Chart, n. 8.
22 Berenson, supra, 378 N.Y.S.2d at 681-82.

24

by the Center for Urban Policy Research at Rutgers University for Westchester’s Housing Opportunity Commission. That Commission determined that regional need was for over 10,000 units of affordable housing.23
The first problem with this aspect of the Monitor’s analysis is that Westchester is part of a broader housing market that includes New York City. To treat the affordable housing needs of New York City households as zero units profoundly understates the regional need for affordable housing in the metropolitan area, and thus understates each municipality’s obligation in relation to that regional need.
The second problem is that the Monitor did not ultimately take the question of meeting regional need seriously. Bronxville, Buchanan, Dobbs Ferry, Mount Pleasant, and Scarsdale have each failed to build a single unit of their allocation from 2000 (when initial allocations were made) through 2013. Eastchester built only 2; New Castle, only 3;24 and Irvington only 4. In terms of “potential” to meet regional need as measured by the allocation, Bronxville and Scarsdale, the Monitor states, have the potential to meet 0 percent of the benchmark; Mount Pleasant, 0.5 percent; Irvington, 2.6 percent; Buchanan, 12.5 percent; and New Castle only 13.7 percent.
North Castle only has the potential, the Monitor says, to get to 18 percent of its share of countywide need (again, ignoring the needs of that part of the region that is outside Westchester).
None of these nine jurisdictions were treated by the Monitor as having failed to provide for its share of regional need.25
A critical means by which the Monitor avoided making findings of exclusionary zoning pursuant to Berenson was to treat “certain other factors” (not made transparent) as providing a “rebuttal to the presumption that [the municipalities’] ordinances are exclusionary.”26
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
23 Monitor’s Sept. 2013 Report, p. 21. The Monitor provides only a portion of the picture when he focused on the fact that those units do not “expand” the County’s unit-specific obligations under the decree. Id., n. 8. What the Monitor doesn’t discuss is that the County’s abandonment of those goals runs directly contrary to its obligation under paragraph 31(a) of the decree. See discussion, below, at pp. 33-34.
24 The Monitor made a point of noting that a developer was seeking approvals for the “Chappaqua Crossing” development, which would include 20 affordable units. The development shares some of the undesirable characteristics of several other projects “counted” by the Monitor: it is a brownfield site, it is separated from residential Chappaqua, and it is squeezed between the railroad tracks and the Saw Mill River Parkway.
25 This may be, in part, because of a linguistic trick in the Monitor’s categorization scheme. The exclusionary category is reserved for municipalities that have “not considered” and “does not have the potential to satisfy its share of regional need.” Regional Share Chart, n. 8. In fact, a municipality is exclusionary under Berenson if it does not have the potential to satisfy its share of regional need, even if that municipality has “considered” the question of regional need.
26 Monitor’s Sept. 2013 Report, p. 34
25

In the Monitor’s chart of rebuttal factors, one category is “rebuttal unsuccessful because the zoning ordinance, though it may have provisions addressing affordable housing opportunities, is too narrow in scope to provide genuine opportunities sufficient to meet local and regional need.”27

Leaving aside municipalities ultimately found by the Monitor to be exclusionary under Berenson, there

were an additional 11 jurisdictions with unsuccessful rebuttals that the Monitor nonetheless placed only in the “warrants improvement” category instead of in the “fails Berenson”

Leaving aside municipalities ultimately

category.28 In fact, zoning ordinances that are “too narrow in found by the Monitor to be

scope to provide genuine opportunities sufficient to meet local exclusionary under

and regional need” are indeed exclusionary.

Berenson, there were an

One factor treated as a significant positive development by the Monitor is if a municipality adopted the so-called Model Ordinance. The consent decree had provided that one of the obligations of Westchester under the decree was to develop and promote a “model inclusionary housing ordinance.” Consent Decree, ¶ 25(a).

additional 11 jurisdictions with unsuccessful rebuttals that the Monitor nonetheless placed only in the “warrants improvement” category

Model ordinances can serve an important purpose. But the instead of in the “fails version that the Monitor approved is entirely inadequate. It has Berenson” category.
literally no provision to expand the acreage that a municipality is required to devote to as-of-right multi-family housing. It is only when municipality is already permitting building to go forward that a modest component of affordable units is required. Municipalities most committed to preserving an anti-development, anti-affordablehousing status quo, in other words, are let off the hook.

Put another way, even if every jurisdiction were to adopt the model ordinance, that would not mean that even a single additional unit of as-of-right multi-family housing was required to be built anywhere in the County.

Even if every jurisdiction were to adopt the model ordinance, that would not mean that even a single additional unit of as-ofright multi-family housing was required to be built anywhere in the County.

Nevertheless, at least in some cases, the Monitor used the adoption of the model ordinance as the basis by which to say that municipalities met their rebuttal burden (Bedford and New Castle are two examples.)
It is ironic that the Monitor did so because he himself cited in his report Continental Building Co., Inc. v. Town of North Salem, 625 N.Y.S.2d 700, 704 (3rd Dept. 1995), a case in which the court cautioned that provisions (like the density bonuses at issue in that case) that are “intrinsically narrow in scope and do very

27 Rebuttal Factors Chart, n. 6.
28 Briarcliff Manor, Bronxville, Buchanan, Cortlandt, Eastchester, Larchmont, Mamaroneck, Pelham, Rye, Somers, and Tuckahoe.

26

little to genuinely address the established need for multifamily housing” are insufficient to meet a jurisdiction’s burden of proof of non-exclusion, and also cited Land Master Montg I. LLC v. Town of Montgomery, 821 N.Y.S.2d 432, 440 (Sup. Ct., Orange Cty. 2006 (a case that rejected a zoning scheme that, “effectively, creates the illusion of affordable housing availability while limiting its reality to a few chosen sectors and vesting almost total control in the Town”).29
The model ordinance is exactly the kind of illusory gain for multi-family housing that the decisions condemned, but Monitor didn’t apply the law to the incentives or mandates that were similar to the model ordinance. As elsewhere, the U.S. Attorney failed to bring the wider scope of Berenson violations to the Court’s attention.

(4) Disparate impact under the Fair Housing Act

The Monitor does reference the fact the municipal zoning can violate the Fair Housing Act if it has a

disparate impact on the basis of race, national

origin, or other protected class, either by having a disproportionate adverse impact on a minority group or by perpetuating segregated housing

Why would the monitor accept an inadequate model ordinance?

patterns, citing, inter alia, Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 937 The M o nito r w as ex plicit tha t t he

(2nd Cir. 1988) and United States ex rel. Anti- m od el o r dina nce he ap p ro ved w a s

Discrimination Center, 495 F. Supp. 2d 376, 387 sub o pt im a l. Bu t he a rg ued t hat it

(S.D.N.Y. 2007).30

had to be one that was not

unpalatable to municipalities. In

But he fails to perform basic, relevant analysis necessary to identify the various expressions of disparate impact. The focus of his inquiry is whether there is large variation between the African-American or Latino population of zoning districts within a municipality and the AfricanAmerican or Latino population of zoning districts

other words, instead of requiring Westchester to do the things that would cause municipalities to adapt to the goals of the consent decree (including litigation), the Monitor had the consent decree adapt to

within the same municipality. The Monitor saw an ticip at ed int ran sig ence on t he

the relevant “import of Huntington” to be to p ar t o f m unicip a lit ies.

See

“identify the types of housing that appear to M o nito r’ s O ct. 2010 Re po rt , D o c.

correspond to the preferences of blacks and 3 3 4 , p. 7 .

Hispanics in the community and whether such

housing is then restricted to one or two segments of that community” (emphasis added).31

Such restrictions indeed constitute one form of disparate impact in violation of the Fair Housing Act, but

29 Sept. 2013 Monitor Report, p. 22. 30 Id., p. 24. 31 Id., p. 42, n. 14.

27

the scope of disparate impact doctrine sweeps much broader. Huntington itself pointed out that permitting the housing that the defendant town had denied “would likely [result in] a desegregative effect on Huntington Township as a whole in comparison to the region, given the tight housing market throughout the area.”32 The court did not make a factual finding on this question, however, only “because we find sufficient desegregative impact with Huntington itself from the project.”33 In other words, the question of whether a governmental entity perpetuates segregation is not just a local question, but a regional one as well.

In Metropolitan Housing Development Corp. v. Village of Arlington Heights, for example, the court held as follows:

We reaffirm our earlier holding that the Village's refusal to rezone had a discriminatory effect. The construction of Lincoln Green [the project that had been blocked] would create a substantial number of federally subsidized low-cost housing units which are not presently available in Arlington Heights. Because a greater number of black people than white people in the Chicago metropolitan area satisfy the income requirements for federally subsidized housing, the Village's refusal to permit MHDC to construct the project had a greater impact on black people than on white people. Moreover, Arlington Heights remains almost totally white in a metropolitan area with a significant percentage of black people. Since Lincoln Green would have to be racially integrated in order to qualify for federal subsidization, the Village's action in preventing the project from being built had the effect of perpetuating segregation in Arlington Heights.34

The regional perspective is crucial. Consider a municipality that has limited multiple-family housing

available, and little if any of that is now affordable. Because the municipality had historically been

unwelcoming to African-Americans when the multiple-family housing was constructed and tenanted (and

when it was more affordable), even the multi-family zones

have just as low a percentage of African-Americans as the zones that do not allow multi-family housing. To use that lack of variation in the African-American population between types of zones to suggest the municipality’s current zoning perversely rewards the whitest municipalities

Only a regional perspective can go beyond the housing needs of the people who haven’t been excluded

that most effectively kept African-Americans out, and is altogether from a jurisdiction

unsuited to answering the question, “What would be the impact on segregation if zoning restrictions were loosened?”

and look to the housing needs of the people who have been excluded.

Only a regional perspective can go beyond the housing needs of the people who haven’t been excluded altogether from a jurisdiction and look to the housing

32 Huntington, supra, 844 F.2d at 938, fn. 8.
33 Id.
34 Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir. 1977) (emphasis added).

28

needs of the people who have been excluded.

The Monitor, however, never performed a regional analysis -- the widest lens he used was a town’s county subdivision. In the Monitor’s frame of reference, New York City does not exist. The omission is particularly glaring because the consent decree very consciously treated New York City as part of the broader housing market of which Westchester is part: New York City is the principal geographic area “with large non-white populations outside, but contiguous or within close proximity to, the County” in which consent decree housing (and, indeed, all affordable housing) had to be affirmatively marketed. Consent Decree, ¶ 33(e).

Remember that 20 Westchester municipalities have African-American populations of 2.0 percent or less, excluding population in group quarters. The African-American population of New York City is 22.8 percent, and, in raw numbers, almost twice the population of Westchester as a whole. The numbers shout exclusion, and a loosening of restrictive zoning practices -- thereby enhancing the ability to construct affordable housing -- would very clearly have a desegregative impact (or, put another way, the maintenance of those restrictive zoning practices perpetuate segregation). No one would seriously argue otherwise.

ADC performed an analytical experiment that illustrates how even steps that would only assist middleclass and upper-middle-class households would have a desegregative impact. 35 What if zoning restrictions were eased just to the extent of making housing affordable to households earning at least $75,000 per year? We looked at the percentage of households earning at least that much who were non-Latino, African-Americans.

In New York City, 17.7 percent of those $75,000-plus households were African-American. This is more than 875 percent to more than 2,500 percent greater than the African-American populations of the 20 Westchester municipalities with African-American populations of 2.0 percent or less.

In New York City, 17.7 percent of those $75,000plus households were African-American. This is more than 875 percent to more than 2,500 percent greater than the AfricanAmerican populations of the 20 Westchester municipalities with AfricanAmerican populations of 2.0 percent or less.

Even in Westchester, 9.11 percent of $75,000-plus households are African-American (from more than 450 percent to more than 1,300 percent greater than in those Westchester jurisdictions.
And combining Westchester and New York City, 16.4 percent of the $75,000-plus households are Africa-American (from more than 800 percent to more than 2,300 percent greater than in those Westchester municipalities).
This analysis -- which, as noted, doesn’t even look at the vast disparate impact of restrictive zoning practices from the point of view of low-income African-American households in New York City -- shows that the practices of Westchester towns and villages to limit the availability of affordable housing powerfully perpetuate segregation on the basis of race (and are thus

35 It is in no way acceptable to continue practices that exclude poorer households; the experiment simply highlights the breadth of current restrictive practices.

29

exclusionary in Fair Housing Act terms), regardless of whether African-Americans may be relatively evenly distributed between and among a single municipality’s different types of zoning districts.

The Monitor acknowledged that his analysis provided “only an initial step in identifying whether the municipal zoning ordinances are such that they may impede integration by placing a barrier on the ability to build affordable housing” and that “further analysis would be necessary.”36

Stop and consider how remarkable that is. More than four years after the entry of a housing desegregation consent decree, and the person charged with monitoring compliance professes not to be able to say whether municipalities that Westchester was supposed to sue on the basis of practices that contravened the purpose of the decree to AFFH are continuing practices that rise to the level of disparate impact violations of the Fair Housing Act.

The only thing more extraordinary is the deafening silence from the U.S. Attorney for the Southern District of New York. As it surely cannot take that office more than four years to conduct a disparate impact analysis, the only reasonable conclusion is that the U.S. Attorney has chosen to avert his eyes from the disparate impact (and from Westchester’s refusal to act against it).

The only thing more extraordinary is the deafening silence from the U.S. Attorney for the Southern District of New York.

A powerful contrast is provided by the case just filed by the U.S. Attorney for the Eastern District of New York against Oyster Bay, a town in Nassau County.37 The complaint challenges preferences for town residents and relatives of town residents for below-market-rate housing because “African-Americans constituted less than 1% of families living in Oyster Bay who were income eligible and otherwise qualified” as compared with the fact that the “eligible population of Nassau County and Suffolk County residents was approximately 10% African-American” and the “eligible population in the New York metropolitan areas was approximately 20.5% African-American.”38

In other words, the U.S. Attorney for the Eastern District (working with the Civil Rights Division of the Justice Department) had no difficulty determining that in-jurisdiction demographics has to be measured against out-of-jurisdiction demographics, even to the extent of including the New York metropolitan area.

The failure of the Government and the Monitor to highlight the disparate impact of the zoning of many Westchester municipalities simply cannot be explained by the facts or the law.

36 Monitor’s Sept. 2013 Report, pp. 40-41, 58 37 United States of America v The Town of Oyster Bay et al., 14-CV-2317 (Spatt, J.), filed April 10, 2014. The complaint is annexed hereto as Exhibit F. 38 Complaint, ¶ 20; see also Complaint, ¶ 9 (referencing the demographics of the population of the five boroughs of New York City).
30

H. Paragraph 7(j) does not have a “litigation last” provision

The Monitor describes paragraph 7(j) as placing the County under a duty to “engage with municipalities.”39 He then claims that that engagement “may” encompass “a variety of tools, from technical assistance, through litigation.”40 Noticeably absent, as discussed earlier, is any assessment that the County should have litigated at any point from 2009 through 2013, or any demand that it do so now.

The approach is consistent with the Monitor’s desire to avoid litigation, but not with the language of the decree. Paragraph 7(j) requires Westchester to use all available means to address hindrances to its unitspecific obligations, and states that the County shall initiate the legal action needed to accomplish the purpose of the consent decree to AFFH.

Throughout the text of the consent decree -- as it had been throughout the litigation -- the conduct of municipalities took center stage. It was restrictive municipal zoning (and Westchester’s acceptance of that zoning) that was the most powerful impediment to fair housing choice, and thus action to counter precisely that resistance was at the core of what was demanded.

Paragraph 15(a) of the decree underlines the fact that litigation is not supposed to be reserved as a last option: Westchester’s compliance -- including in the first biennial report of the Monitor that was due at the end of 2011 -- was supposed to be evaluated on the basis of whether it has taken “all possible actions to meet its obligations” under the decree. These actions include taking legal action to secure appropriate zoning. Paragraph one of page two of the decree also recites that it is appropriate for the County to take legal action against municipalities that hinder the County in the fulfillment of the terms of the consent decree or, more generally, in its duty to develop housing that promotes integrated residential patterns.
In the absence of the consent decree, the Monitor or the Government would certainly be free to pursue policy options that demoted or ignored altogether the lever of litigation. But, of course, the consent decree exists, and neither is free to ignore the course of conduct the decree prescribes.

It is a very basic failing of oversight and enforcement that the question, “Has Westchester been using all available means at its disposal to overcome municipal barriers to fair housing choice?” has never been addressed by the Monitor or the Government.41

39 Monitor’s Sept. 2013 Report, p. 7.
40 Id.
41 It is true that, in its eagerness to make sure that ADC’s motion to intervene was denied and its motion to enforce not heard, the U.S. Attorney cynically used a declaration from a Westchester legislator -- that is, a representative of the defendant -- that said, “To my knowledge, no municipality has sought to obstruct the development of Affordable AFFH Units.” Declaration of John M. Nonna, July 29, 2011, Doc 370, ¶ 6. If the U.S. Attorney actually believes that Westchester has been using all available means to overcome municipal barriers to fair housing choice, he should say so and explain why he disagrees with HUD, his client.

31

I. Other basic steps not taken
A useful tip-off to the fundamental unwillingness of the Government and Monitor to enforce the decree has been their failure to push Westchester to acquire -- directly or indirectly -- interests in sites with desegregation potential where AFFH development is stymied by restrictive zoning.
Such interests would, in the normal course, be the basis on which Westchester could use its Berenson and County of Monroe litigation tools. The same would generally be necessary for Westchester to have standing to pursue a disparate impact claim under the Fair Housing Act.42
The decree contemplated that such interests would be acquired. If it hadn’t, the extensive recitations in the first two pages of the decree about Westchester’s authority under Berenson and County of Monroe and its responsibility to litigate against municipalities would have been of no practical consequence.
We are unaware of a single circumstance where the Government or the Monitor has asked Westchester to take this prerequisite step. Given the fact that acquiring a site and working up a development proposal and seeking municipal approval takes time (before the inevitable turndown), Westchester’s inaction on this front -- and the failure of the Government and the Monitor to push Westchester to act -means that Westchester has already guaranteed that most of the seven-year period initially contemplated as the term of the consent decree will have been squandered without any required litigation being commenced.
Another useful tip-off as to the reluctance to enforce is the unwillingness of the Government and Monitor to discuss the fact that single-family zoning cannot remain unchanged throughout the County if genuine AFFH is to occur. To be clear: given how much of Westchester is already zoned and occupied as singlefamily housing, the ability to generate affordable housing units with desegregation potential is significantly more limited if redevelopment of existing residential sites is excluded.
Neither the Government nor the Monitor appears willing to recognize this. On the contrary, there is a willingness to look principally for other alternatives.
In a recent court filing, for example, the Monitor reported that Mamaroneck had made “great strides” towards the provision of affordable housing and the meeting of regional need for such housing.43 It turns out, however, that the rezoning that occurred involved permitting residential development as of right in what had previously been a business district and allowing residential development by special permit in what had previously been a service business district. These are not bad changes, by any means. But they don’t change the reality that development remains strictly limited in residential districts.
One other element of that recent filing bears mention. The Monitor describes recent meetings with exclusionary municipalities as “an important starting point for a collaborative process designed to
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
42 This is not intended to exclude the possibility that Westchester could bring one or more claims under a parens patriae theory.
43 Monitor’s Report, Feb. 10, 2014, Doc. 463, p. 9.
32

improve opportunities for affordable housing development.” 44 Optimism is fine, but it is simply unacceptable to treat the first four and a half years of the consent decree’s term as nothing more than a warming-up period, with the prospect that open-ended negotiations will consume the balance of the consent decree’s present term.
IV. The Government and the Monitor refuse to bring to the Court’s attention Westchester’s ongoing violation of paragraph 31(a): the obligation to use all the County’s housing policies and programs to eliminate de facto residential segregation throughout the County.
Another consent decree obligation that goes well beyond the obligation to build a minimum of 750 units of AFFH housing is set out in paragraph 31(a) of the decree. Westchester had to establish as “official goals of the County’s housing policies and programs” the “elimination of de facto residential segregation.”
Notice that the obligation is not simply to eliminate intentional segregation; the focus is on housing patterns characterized by residential segregation -- regardless of one’s view of the original cause of those patterns.
The obligation is not limited by time, does not expire when a set number of units (let alone as few as 750) are built, and was operational as of November 2009.
Westchester has done nothing to meet this obligation; on the contrary, it has taken the existing Housing Allocation Plan (which reflected more than 6,000 un-built units in the municipalities covered by the decree and had desegregation potential if implemented) and thrown it out the window.
It wouldn’t be surprising to hear a civil rights defendant try to wheedle its way out of its commitment by saying that, as an “official” matter, a policy statement reciting the goal of using all housing policies and programs to end de facto segregation has been issued, and the obligation ends there.
What is shocking, however, is that this is apparently the view of the Government and the Monitor. Under that view, there is no substantive point to the provision, only window dressing: “We don’t care if you actually have the ending of de facto residential segregation as a policy or goal; we only want the goal to be on paper as ‘official’ so as to create the appearance of a policy or goal.”
In fact, the clear and natural import of the paragraph 31(a) requirement is, in plain terms, “We’re not only going to require the County to marshal all its housing policies and programs towards the goal of ending de facto residential segregation, this consent decree objective is so fundamental that we’re going to require the County to embed that objective as part of its own laws.” In short, the obligation is for the County to have as a real goal in all its housing policies and programs the ending of de facto residential segregation. That is something that is judged by the County’s conduct, not by whether it nominally has set forth something “official.”
As the Government and the Monitor have refused to vindicate this provision of the consent decree, it
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
44 Id., p. 4.
33

falls to the court to hold Westchester to account for failing to have the ending of de facto residential segregation as a goal of its housing policies and programs.
V. The Government and the Monitor refuse to seek to hold Westchester in contempt for being in violation of paragraph 32, notwithstanding the undisputed fact that Westchester has not submitted an analysis of Impediments that has been deemed acceptable by HUD.
Every recipient of federal housing funds is subject to having funding withheld or rescinded if it fails to meet its AFFH obligations, including its obligation to submit an adequate analysis of impediments to fair housing choice (“AI”).
Westchester has an additional obligation: paragraph 32 of the consent decree required it to develop an AI that was “deemed acceptable by HUD,” one that included analysis of impediments to fair housing choice based on “race or municipal resistance to the development of affordable housing.”
It is clear that Westchester never submitted such an AI, either in November 2009 when originally due, in Spring 2010 (per an agreed-upon extension), or in the years thereafter.45 Indeed, when the Assistant U.S. Attorney appeared before the Court almost a year ago, he noted that, as opposed to the 120 days originally allotted under the consent decree, there had already been 1,200 days that had elapsed without the submission of an adequate AI.46
Simply put, there is no question that Westchester has violated its paragraph 32 obligations for years, and the Government and the Monitor have never sought to have the Court hold defendant in contempt for this violation.
The fact that the Government has withheld funding from Westchester does not excuse its failure to vindicate this consent decree provision; on the contrary, it’s failure to act when its funding actions confirm that it has not deemed any AI submission satisfactory is especially pernicious to the rule of law.
The Government and the Monitor have sent a remarkably destructive message: a jurisdiction that is a civil rights defendant under a consent decree will not face consequences beyond those faced by jurisdictions not under consent decrees. It is hard to imagine a posture more conducive to encouraging disrespect for the law in general and for the integrity of the court’s orders in particular.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
45 That Westchester thinks that HUD should have deemed one or more iterations of its AI acceptable is not relevant. That doesn’t change the fact that what the consent decree demands of Westchester is an AI that HUD has deemed acceptable, and that type of AI has not been produced.
46 Transcript of conference of April 26, 2013, p. 15.
34

VI. The problems with “buy-in” theory

Over the years, we have heard from many people who shake their head in wonder at why the Government and the Monitor have such a difficult time understanding that court orders are supposed to be obeyed in full. But we have also heard from people who say, in effect, “What’s so bad about trying to work things out?”

The answer: nothing…so long as you insist on full compliance and don’t think of “buy-in” as a substitute for enforcement.

Unfortunately, it is not uncommon for people to indulge in the fantasy that “engagement” is a surefire means by which to achieve change in any and all circumstances. The party that is being wooed will “buy in” to what you are selling. Often paired with the cult of buy-in is strong skepticism that a forcedcompliance approach is appropriate.

As ProPublica has reported, the Monitor has “argued that persuading the county to draw up an acceptable [implementation] plan would achieve more than forcing one upon it” (emphasis added). “Actually engaging with those whose behavior you would like to change has yielded results,” he said.47

“Appeasement only emboldens resistance” - ADC to Monitor, Aug. 2009

What about actually enforcing the consent decree? “I can’t predict what the county’s behavior would have been in that circumstance,” he said. “I could have played a game of chicken, but I wasn’t going to do that.”48

As is evident from the foregoing, it is clear that the Monitor had bought in to the idea that old-fashioned enforcement of a court order was too fraught with peril (in this he is not alone; the Government has expressed similar sentiments).

The problem, of course, is that Westchester has not bought in to the idea that fundamental zoning change was good for it.

Why would anyone have staked the fate of the consent decree on achieving buy-in? Westchester and its municipalities had for decades maintained exclusionary zoning; there was in 2009 (and there remains today) a powerful commitment to the status quo.

But when people are committed first and foremost to the idea that engagement will yield cooperation,

47 Nikole Hannah-Jones, “Soft on Segregation: How the Feds Failed to Integrate Westchester County” (ProPublica, Nov. 2, 2012).
48 Id. HUD’s fear of genuine enforcement was also palpable. A “former high-ranking HUD official who worked on Westchester strategy” said that HUD was worried that the decree could fall apart entirely if they pushed too hard. “The key was not to make mistakes,” the former official said. “HUD loses this case, we’re back to a loss of confidence and people would say we’re worthless.” Id.

35

three things tend to happen.

First, the “engagement” is imagined as a negotiation. That may be fine when one is sent to mediate an international dispute between two warring factions in circumstances where there is no authority to compel a resolution. There, fostering mutual understanding -- or at least a sense of mutual self-interest - is the only tool one has. But a federal court order is not supposed to represent the starting point for a negotiation. It is the culmination of a negotiation and the task is to see that it is obeyed. Negotiating away any part of a court order represents a betrayal of that order and of the rule of law. Moreover, unlike the international mediation, there are very clearly powerful means to compel compliance available, if only they were not disdained by those with the authority to employ them.

“Westchester is banking on an old strategy: adopt an extreme position, and hope you can negotiate a middle ground…The terms of the [consent decree], however, are non-negotiable. Negotiating away either portions of the letter or the spirit of the [consent decree] would be improper and impermissible.”
- ADC’s “Prescription for Failure” report, February 2010

Second, a commitment to buy-in often means that proponent of that strategy often comes to measure success by whether he has yielded an agreement to do something, not whether there is agreement to do the required thing. Here again, the allure of “cooperation” is allowed to trump the actual demands of the court order.
Third, a commitment to buy-in frequently goes along with a failure to appreciate how strict enforcement is itself the best hope for yielding cooperation with the terms that are actually required.

Where a party is permitted to choose between and among three options – full compliance, nominal compliance, and maintaining the status quo – many will pick maintaining the status quo, and most of the others will elect nominal compliance. Few if any will opt for full compliance.

This has been the experience in Westchester for close to five years now.

The only way to maximize voluntary cooperation is to make people understand that full compliance is a given; and that neither maintaining the status quo nor some facsimile of it is a viable option. The only choice that should have been offered is whether full compliance was going to be achieved with local input (the choice made available to those who would cooperate), or whether full compliance was going to be achieved without that local input (the choice made available to those who would resist).

It should also be noted that the idea that strong enforcement will just “wear off” and that matters return to the status quo ante (in a manner similar to that which might occur if a peacekeeping force left without having altered attitudes and power relations) ignores the changes that strong enforcement would stimulate.

Opening towns and villages to affordable housing would spur new construction by developers encouraged by the breaking down of zoning barriers. When a town or village is no longer seen as an allwhite preserve, there is a consequent increase in the willingness of those members of groups traditionally excluded to move into that town or village.

36

If, as currently seems likely, the consent decree fails to achieve what it set out to achieve, let it not be said that the failure was a failure of a litigation-based or enforcement-based model. Let it be recognized that the failure was the failure to try to enforce compliance. VII. Conclusion Westchester’s violations of the consent decree have continued unabated. The Government and the Monitor are unwilling to enforce the consent decree as written. It falls to the Court, exercising its power to vindicate its own juridical interest in the enforcement of its order, to step in and independently examine the facts; to direct Westchester to show cause why it should not be held in contempt and why remedial obligations should not be put in place; to order Westchester to comply with its existing obligations; to create a process of effective oversight and direction for the County; to extend the term of the decree to defeat Westchester’s run-out-the-clock strategy; and to direct such other relief as is necessary to vindicate the decree.
37

Anti-Discrimination Center, Inc.
“One Community, No Exclusion “
June 13, 2013
VIA EMAIL
David J. Kennedy, Esq. Chief, Civil Rights Unit United States Attorney for the Southern District of New York 86 Chambers Street, 3rd Floor New York, New York 10007
Re: U.S. ex rel. Anti-Discrimination Center v. Westchester County
Dear David:
Enclosed please find letters sent yesterday and today to the Monitor and to HUD’s Deputy Secretary, respectively. I’d ask you to read and reflect on their contents. My question for you is whether the U.S. Attorney disagrees with any of the following propositions, and, if so, which ones.
1. The Consent Decree provides that one of Westchester’s duties is the broad and equitable distribution of affordable housing that promotes sustainable and integrated residential patterns.
2. The Consent Decree required Westchester to acknowledge the existence, and agree to the applicability of, the Berenson doctrine, established by New York’s Court of Appeals in 1975 (municipal land use policies and actions shall take into consideration the housing needs of the surrounding region).
3. The Consent Decree required Westchester to acknowledge the existence, and agree to the applicability of, the County of Monroe doctrine, established by New York’s Court of Appeals in 1988 (the interests of a county can outweigh a locality’s interest in zoning restrictions).
4. The Consent Decree required Westchester to acknowledge and agree that it was “appropriate for the County to take legal action to compel compliance” if municipalities hindered or impeded the County in the performance of duties such as the providing for the broad and equitable distribution of affordable housing that promotes sustainable and integrated residential patterns.
1745 Broadway, 17th Floor, New York, New York 10019 212-537-5824

5. The zoning of many Westchester municipalities was exclusionary at the time of the Consent Decree and remains exclusionary today.1
6. A principal objective of the Consent Decree ⎯ independent of any unitspecific requirements ⎯ is to affirmatively further fair housing (AFFH). See, e.g., paragraph (7)(j) (referencing “the purpose” of the Consent Decree “to AFFH”; paragraph 15(a)(3) (again referencing “the purpose” of the Consent Decree “to AFFH”);
7. By failing to remove exclusionary zoning, many Westchester municipalities have failed to take the actions needed to promote the objectives of constructing Affordable AFFH units pursuant to paragraph 7 of the Consent Decree.
8. By failing to remove exclusionary zoning, many Westchester municipalities have left standing barriers to fair housing choice (that is, have impeded action to AFFH).
9. Paragraph (7)(j) of the Consent Decree obligated Westchester to use all available means to redress the circumstances described in paragraph 7, above, including pursuing legal action against offending municipalities.2
10. Paragraph (7)(j) of the Consent Decree obligated Westchester to initiate such legal action as appropriate to redress the circumstances describe in paragraph 8, above, and thereby accomplish the purpose of the Consent Decree to AFFH.3
11. Westchester has not taken any legal action against any municipality, and has an across-the-board policy of refusing to do so.
12. Westchester has violated both of its paragraph (7)(j) obligations.
13. As reflected in its conduct, Westchester does not have the elimination of de facto residential segregation as a goal of its housing policies and programs.
14. Westchester has violated its paragraph (31)(a) obligations.
1 In this connection, note that 2010 Census data show that 19 Westchester municipalities have non-Latino, African-American populations of less than 2 percent. In contrast, 16.4 percent of households with income of $75,000 or more in Westchester and New York City combined were non-Latino, African-American.
2	   Unlike the analysis requirement set out by paragraph 32 of the Consent Decree, this paragraph (7)(j) obligation is an action requirement.
3 Unlike the analysis requirement set out by paragraph 32 of the Consent Decree, this second paragraph (7)(j) obligation is also an action requirement.	  
2

15. Westchester has not completed an Analysis of Impediments (AI) deemed acceptable by HUD.4
16. Westchester has violated its paragraph 32 obligations.
17. All development under the Consent Decree was intended to proceed pursuant to an Implementation Plan (IP) that met the objective of the Consent Decree to AFFH.
18. Westchester did not submit such a plan.
19. Westchester has violated its paragraph 18 obligations.5
20. As discussed in some detail in the letter to HUD Deputy Secretary Jones, most of the units that have been “counted” for paragraph (7) purposes are either anti-AFFH or non-AFFH units that should not be counted.
21. Pursuant to 2010 Census data, there is significant overbuilding in paragraph (7)(b) and (7)(c) jurisdictions.
22. None or virtually none of the housing developments have included a marketrate component.
23. Westchester is behind in meeting the “interim benchmarks” set forth in paragraph 23 of the Consent Decree.
24. The Consent Decree contemplated the promulgation of additional benchmarks, incorporating AFFH elements of a Decree-compliant IP.
25. No additional benchmarks have been adopted.
* * *
This is not a pretty picture. It’s a result of an excessively passive and accomodationist posture on the part of HUD, the Monitor, and the U.S. Attorney. It’s exactly what we warned about in 2009 ⎯ just two weeks after the entry of the Decree ⎯ when we said “appeasement only emboldens resistance. It’s exactly what we warned about when we issued a report in 2010 entitled “Prescription for Failure.” It’s exactly
4 As you pointed out in court on April 26th, the County was supposed to complete an acceptable AI within 120 days; as of that court appearance, 1,200 days had elapsed without an acceptable AI. 5 In the face of two non-compliant submissions, the Consent Decree provided that “the Monitor shall specify revisions or additional items” that “the County shall incorporate into its implementation plan.” Consent Decree ¶ 20(d). The Monitor has failed to meet his mandatory obligations pursuant to ¶ 20(d).
3

why, independent of whether ADC was permitted to intervene, we made the 2011 motion to enforce the Decree that your office opposed.6
U.S. Attorney Bharara must surely appreciate the fact that Westchester’s resistance to the rule of law has very serious consequences for civil rights both here in the New York region and throughout the country. Nearly four years after the entry of the Consent Decree, the process of holding Westchester to account for all of its violations of all elements of the Consent Decree should be delayed no longer.
Very truly yours,
Craig Gurian
6 At the June 7, 2011 conference on ADC motions to intervene and enforce, the representative from your office confirmed that the U.S. Attorney was not itself going to move to enforce the Decree “at the moment,” and noted the following: “I will say that the premise of much of ADC's papers are essentially that the County has failed to meet certain obligations, the government and monitor together has failed to enforce that. I would anticipate by the middle of July, both because of the AI and I believe because of the progress of the implementation plan, that those premises may be undercut.” Two years later, there is no acceptable AI and no Decree-compliant implementation plan, there is not the slightest hint that Westchester would ever comply with its paragraph (7)(j) obligations, and Westchester’s failure to have the ending of segregation as a goal remain tucked firmly out of view of Judge Cote.
4

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[Signed] Craig Gurian

WESTCHESTER COUNTY, NEW YORK

Peach Lake

N

T

Y

C

O

U

M

A

N

T

Baldwin Place

U

P

Croton Falls

HUDSON HIGHLANDS GATEWAY PARK
TOLL HOUSE VISITOR CENTER
ANN SVILL E PAD DL ESPORT CEN TE R

Mohegan Lake

Shrub Oak

Jeffers on Val le y

COU NT Y

TR AILWAY

Lincolnd ale Shenorock

Gra nit e Sprin gs

S

O

M

E ANGLE FLY

R

S

PRESE RVE

Ama wal k

ANGLE FLY PRESERVE

Purdys

N OR TH

SA L EM
Salem Center
MOUNTAIN LAKES PARK

Goldens Bridge

Waccabuc

T U C I T C E N N O C

PEEKSKILL

Buchanan
Verplanck

BLUE MOUNTAIN RESERVATION
C O RT L A ND T

BRIAR C LIFF -

Montros e

GE ORGE' S ISLAND PARK

Crugers

PEEKSKIL L TR AILWAY

Cromp ond N

YORKTOWN

MOHA NSIC PARK &
GOLF COURSE

York town Hei ghts

LASDON BIRD SANCT.

LASDON PARK

MUS COOT FARM

HILLTOP HANOVER

O RTH

Kat ona h
Bedford Hills

OLD FIELD PRESE RVE
LEW ISBO RO Sout h Salem

Cross Riv er

WARD POUND RIDGE RESERVATION

OSCAWANA ISLAND PARK

Croton on
Hudson

CROTON GORGE
PARK
CROTON GORGE PARK

CROTON GORGE STATE
UNIQUE AREA
PARADI SE ISLAND PARK

BR IARCLIF F-

P EEKSKI LL

JOHN E. HAND AT BALD MOUNTAIN
SHADOW LAKE
HUDSON HILLS GOLF COURSE

CO U N TY

KITC H AWA N PRESE RVE Mil lwood

TR AILWA Y

T RAILWAY

NO RT H

CROTON POINT PARK

O SS ININ G

NEW

CASTLE

B

E

D

F

O

R

D

MOUNT KISCO

Bedford Village

MERESTEAD

POUND

RIDGE

Vista

Sc ott s Corners

Ossining

U D S O N

H
Briarcliff Manor
Scarbo ro ugh

Pleasantville

Chappaqua

WA MPUS POND PARK

N O RT H

CASTLE

T

U

C

I

Ba nksvi lle

T

C

E

N N

Land Use Categories

O

C
Agricultural Uses - Farms, Stables, Large Nurseries

AY T TY SOUT H
R I V E R

POCANTICO LAKE PARK
MOUNT

Thornwood
GRAHAM HILLS PARK Hawt horne
PLEASANT

Arm onk

Sleepy

KINGSLAND POINT
PARK

Hollow
Philips e Manor

Pocantico Hills

Tarrytown

TARRYTOWN Eas tview LAKES
PARK/
BUTTERMILK RIDGE
GL ENV ILLE WOODS

COUN R AILW

V. EV ERIT MACY PK. Y

COUNTY WATERFRONT
PARK
WESTWOOD

TAXTER RIDGE

Elmsford
TRAILW A

Irvington Dobbs Ferry

GRE EN BUR GH

V. EVERIT MACY PK.
Ardsley

RIDGE ROAD PARK
HARTSB ROOK PRESE RVE

Harts dale

B RO NX

Val hal la

CRANBE RRY LAKE

KENSI CO DAM PLAZA
ION

PRESE RVE

R ESERVAT

Nort h WHWhDAitQeSHSINGTON
PlainMs ILLER HILL

SILV ER LAKE PARK

Sil ve r Lake

Purchase

HARRISON

RI V ER
WHITE PLAINS

MAPLE MOOR
GOLF COURSE

T
U C I T C E
N N
O C

Rye Brook
Port RYE
Chester

COU NTY

SO UT H

HILLSIDE WOODS
Hastings on
Hudson
GRAHAM WINDHAM
LENOI R PRES.
Gre yst one

Glenwood HABIRSHAW
PARK
Getty Square

GODLUFNCWOOUORDSIEE

YONKERS
Bryn M awr

T IBBETT S BR OO K PARK

CITY

OF

SPR AIN RIDG E PARK

BRO NX
Pelham

G

OSLPFR

AC IONUL ARKS

E E

Edgemont

SC ARSD ALE

SAXON WOODS GOLF COURSE

EASTCHESTER

Crestwood

RESERVAT ION

SAXON
WOODS PARK

RYE

RIVER

Tuck aho e

MALCOLM WILSON
Bronxville
Fleetwood
MOUNT
WILLS ONS
VERNON WOODS PARK

TWI N LAKES
PARK

Wy kag l
NEW

RYE MA MA RO N EC K
Mamaroneck

ROCHELLE
NATURE STUDY WOODS

MARSHLANDS CONSERVANCY
Hen Is land

GLENWOOD LAKE

Larchmont
LIBRARY GREEN

SOUND

PLAY LAND PARK

EDITH G. READ
WILDLIFE SANCTUARY

Single Family Residential Two & Three Family and Multi-Structure Properties Condominiums, Apartments & Multi-Family Residential Use Common Land, Homeowners Association Lands Vacant Properties Commercial and Retail Manufacturing, Industrial and Warehousing Office and Research (including Campus Office Parks) Mixed Use Institutional and Public Assembly Transportation, Communication and Utilties Cemeteries Public Parks and Parkway Lands Private Recreation Nature Preserves Water Supply Lands Interior Water Bodies
This map is a composite of over 250,000 properties, comprising all the municipal tax parcels of Westchester County. Parcel land use categories were originally derived from town assessment data containing ORPS (Office of Real Property Services) codes which define specific land use as assigned by local assessors. For this map, land uses were condensed and grouped into 18 categories. The data was reviewed in-house and selectively edited for completeness, consistency and currency. Land use proof maps were provided to municipal officials for review and comment. Other data sources include Westchester County 2007 aerial photography and 2009 online oblique aerail photography provided by Microsoft and Pictometry International Corps.
Map Produced by Paul Gisondo, Associate Planner, GISP Westchester County Department of Planning
148 Martine Avenue White Plains, NY 10601 pxg3@westchestergov.com www.westchestergov.com/planning

0

1

2

Miles 4

LONG ISLAN D

NEW

Pelham Manor
YORK

Glen Is land
GLEN ISLAND PARK

Davi ds Is land

Huck leberry Is land

WCDP December 2009

Parcel Based Land Use

432 Michaelian Office Building 148 Martine Avenue
White Plains, New York 10601 www.westchestergov.com/planning

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 2 of 39

Chart of Zoning Data for Berenson Test Prong 11

Municipality Ardsley

2
Comprehensive Plan

3
Housing Types

4
Land Use: Quantity of Presently Available/Developed Housing

5
Ability to Meet Future Need

Has a Whether Comp. Adopted Plan & Year
Yes Yes
1964

Recognizes Affordable Housing
Need7
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

As-ofRight

As-ofRight None,

1 dis-

but if

As-of-

No

trict; 1 overlay district
SP

qualifies as af-
fordable then

None

Right 1 comcommercial

1 district permit-

9

Clus- ted in

district

ters single-

1 district family districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

413.35 49.55% 4.23

1%

6.01

1.5%

2.7

0.3%

19

2

1 Under this prong, the municipality must “provide[] a properly balanced and well-ordered plan for the community.” Berenson v. Town of New Castle, 38 N.Y.2d 102, 110 (1975). 2 The plan need not be written, but if it is, it may be considered by the court. See Asian Ams. for Equality v. Koch, 72 N.Y.2d 121, 131 (1988). 3 The adequacy of municipal plans is examined by: (1) identifying the types of housing in each municipality; (2) specifying both quantity and quality of the available housing; (3) determining whether the housing meets the current
local need for affordable housing; and (4) determining whether and what type of new construction is necessary to fulfill future needs in each municipality. See Berenson, 38 N.Y.2d at 110. SP = Special permit. 4 Id. See also Cont’l Bldg. Co. v. Town of N. Salem, 211 A.D.2d 88, 92-93 (N.Y. App. Div. 3d Dep’t 1995). The source of this data does not account for residential uses within mixed-use developments. Ex. J, Table 2 Residential
Land Use Acreage by Municipality, Land Use in Westchester, at 17, 2010. The analysis of this prong also requires that the court analyze the quality of the available housing, however, the data collected thus far does not provide
a means of doing so. 5 Berenson, 38 N.Y.2d at 110. These columns refer to points (e) and (h) in the data sheets found in each municipal-specific report. See Ex. E, Methodology II-D(1) Table August 2012 (submitted Sep. 6, 2012); id. at Methodology II-
C and II-D Map August 2012 (submitted Sep. 6, 2012). There is a lack of data to confirm that each municipality individually has a need for affordable housing development. 6 Category 1 = Not exclusionary because the municipality provides a well-ordered plan for its community. Category 2 = Not exclusionary, but warrants improvement. Category 3 = Exclusionary because the municipality does not
provide a well-ordered plan for its community. 7 This column gives credit to those municipal plans that explicitly state that there is a need for affordable housing within the municipality or regionally. 8 This column acknowledges municipal plans that address affordable housing, whether by way of mention that such housing should be considered or by more specific means amounting to detailed recommendations of how to develop
affordable housing within the municipality. 9 The County Planning Department’s February 29, 2012, analysis of zoning in the County’s municipalities is silent on the issue of mixed-use development in Ardsley, but a review of the Village’s zoning ordinance reveals that upper
floor residential use is permitted in the B-1 district. Compare Ex. F, Village of Ardsley Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012), with VILLAGE OF ARDSLEY
CODE § 200-65.B(8).

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 3 of 39

Chart of Zoning Data for Berenson Test Prong 1

Municipality
Bedford
Briarcliff Manor

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Has a Whether Comp. Adopted Plan & Year
Yes Yes
2002
Yes Yes
2007

Recognizes Affordable Housing
Need7
Yes
Yes

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

As-of- As-of-

Right Right

12

12 dis-

districts tricts

SP

SP

1 district 1 district

and

and

else-

else-

where where

As-of-

Yes

by con- by conversion version

SP 9 districts

Right 3 dis-

in resi- in resi-

tricts

dences dences

existing existing

prior to prior to

Sep.1, Sep.1,

1985, 1985,

on lots on lots

<

<

20,000 20,000

sq. ft. sq. ft.

As-of-

Right

2 dis-

As-of-

tricts; 1

SP

Right

com-

Yes

all resimercial

None

1 com-

dential

com-

district

districts SP

mercial

district

all resi-

dential

districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

13966.

108.4

54.92% 68.43 0.5%

0.8%

2.7 0.01%

45

2

46

1

1937.1

50.62% 88.05 4.6%

4.98

0.3%

0.2 0.01%

0

2

6

2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 4 of 39

Chart of Zoning Data for Berenson Test Prong 1

Municipality Bronxville Buchanan Cortlandt

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Has a Whether Comp. Adopted Plan & Year
Yes Yes
2009
Yes Yes
2005
Yes Yes
2004

Recognizes Affordable Housing
Need7
No
No
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

No but 2002 plan did
Yes
Yes

As-ofRight 3 districts; 1 commercial district
As-ofRight 2 commercial districts
SP 2 commercial districts
As-ofRight 1 district, 2 special districts
SP 1 district Cluster 1 district

None
SP 2 commercial districts
None

None although existing accessory apartments are grandfathered, permitted
nonconforming
uses.
SP in residen-
tial and commercial
districts
SP 9 districts

As-ofRight all retail districts
As-ofRight 2 comcommercial districts
SP 2 comcommercial districts
As-ofRight 1 dis-
trict

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

387.37 62% 33.67 8.7%

2.14

0.5%

0

0%

0

2

225.29 24.17% 3.18

1.4% 24.32 10.8%

3.6

0.4%

7

2

8064.3

412.3

36.41%

5.1% 243.9

3%

15.7 0.1%

60

1

1

5

3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 5 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality

Has a Whether Comp. Adopted Plan & Year

Croton-onYes
Hudson

Yes 2003

Dobbs Ferry Yes

Yes 2010

Eastchester Yes

Yes 1997

Harrison

No Yes
2012

Hastings-onYes
Hudson

Yes 2011

Recognizes Affordable Housing
Need7
No
No
Yes
Yes
Yes

Addresses
Affordable Housing8

MultiFamily

Two Family

As-of-

Right

2 districts; 1 As-of-

Yes

overlay Right

district 4 dis-

SP

tricts

1 over-

lay

district

As-of-

As-of- Right

11

Yes

Right districts

13

SP

districts

2

districts

As-of-

Right As-of-

Yes

9 dis- Right

tricts

10

SP districts

1 district

As-of-

Right As-of-

Yes

3

Right

districts 3 dis-

SP

tricts

1 district

Yes

As-ofRight
6 districts
SP 2 districts

As-ofRight
6 districts

Accessory Mixed Apartment Use

SP all but 1 residential district

As-ofRight 1 over-
lay district
SP 2 comcommercial districts

None

As-ofRight
6 districts

None

As-ofRight
3 districts

None

As-ofRight 1 dis-
trict SP 4 districts

As-ofRight 11 districts
SP 1 district

As-ofRight in all retail districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

1097.5

36.13% 51.88 4.7% 37.95 3.5%

0

0%

3

0

2

596.44 38.57% 83.27

14%

38.62

6.5%

7.2 0.46%

273

1

927.31 42.51% 79.13 8.5% 38.15 4.1%

1.6

0.1%

84

1

4283.7

203.9

38.43% 32.32 0.8%

4.8%

0.9 0.01%

45

2

2

1

504.39 39.91% 34.71 6.9% 35.13

7%

6.4

0.5%

71

1

4

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 6 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality

Has a Whether Comp. Adopted Plan & Year

Yes Irvington Yes
2003

Yes

1966

Larchmont Yes

and

update

1987

Lewisboro Yes

Yes 1985

Mamaroneck Yes

N/A

Recognizes Affordable Housing
Need7 No
N/A
No
N/A

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

Yes
N/A
Yes but states multifamily housing
for regional need is “not imperative”
N/A

As-ofRight 1 district
SP 1 district As-ofRight
1 district; 2 commercial districts
SP 1 district
As-ofRight 1 district
As-ofRight
4 districts
SP 1 district

As-ofRight
2 districts
SP 1 district As-ofRight
1 district; 2 commercial districts
SP 1 district
As-ofRight
2 districts
As-ofRight 1 district

As-ofRight all singlefamily districts
None
SP apartment on single family lots
min. ½ acre; accessory residence dwellings on lots of at least 20
acres Only buildings or trailers for domestic employee in singlefamily districts

As-ofRight
2 districts
As-ofRight 2 comcommercial districts
As-ofRight 2 comcommercial districts
As-ofRight
2 districts
SP 1 district

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

121.8

831.67 45.93%

14.6% 22.51 2.77%

0.3 0.01%

0

2

2

393.09 57.22% 4.05 1.03% 3.18 0.81%

1.9

0.3%

53

2

9590.1

51.39% 24.42 0.25% 37.44 0.4%

4.5 0.02%

18

3

1

1074.1

47.32% 28.69 2.7% 16.43 1.5%

0

0%

5

0

3

5

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 7 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality Mount
Pleasant
New Castle
North Castle

Has a Whether Comp. Adopted Plan & Year
Yes Yes
1970
Yes Yes
1989
Yes Yes
1996

Recognizes Affordable Housing
Need7
No
No
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

As-of-

Right As-of-

As-of-

10

Right

SP

Right

Yes

districts

28

14

11

SP

districts

dis-

districts

10

3

tricts

districts

As-of-

As-of-

Right

Right

5

all districts;

As-of-

Yes

1

single-

SP

Right

family

floating

8 districts

9

district11 districts

districts

but only

SP

if af-

9

fordable

districts

As-of-

As-of- As-of-

Right

As-of-

Yes

Right Right 4 districts Right

8 1 district

SP

6

districts

districts

8 districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

4647.4

30.19% 55.29 1.2% 70.46 1.5%

5.2 0.03%

5

2

5

8306.1

302.1

139.8

55.38%

3.6%

1.7%

5

0.03%

32

1

2

3

9

7125.5

42.47% 3.06 0.04% 79.43 1.1%

6.3 0.04%

82

2

6

10 Based on the data submitted by the County, it is unclear exactly how many districts permit mixed-use development as-of-right. We have given Mount Pleasant credit for the largest number of districts. Ex. F, Town of Mount Pleasant Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012).
11 There is some confusion about which zoning districts were identified by the County Planning Department as allowing multifamily housing as-of-right. In its Feb. 29, 2012, analysis of the zoning ordinances of Westchester municipalities, it identifies only the MFR-C, MFR-M and MFPD districts as allowing the use “as of right,” but it identifies the B-D, B-R, B-RP and I-G districts as allowing multifamily housing upon site plan review rather than as a special use., and the Planning Department has identified potential multifamily housing development sites in the B-D and B-R districts. Ex. F, Town of New Castle Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012; Ex. E, Methodology II-D(2) Table August 2012 (submitted Sep. 6, 2012). The acreage figure that the Planning Department has provided for districts allowing multifamily housing as-of-right does not appear, however, to include the I-G district, and a review of the zoning ordinance clearly indicates that residential use is allowed in the I-G district only by special permit. Schedule of regulations for business and industrial districts, TOWN OF NEW CASTLE CODE § 60 Attachment 4 (July 1, 2012).
6

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 8 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality

Has a Whether Comp. Adopted Plan & Year

North Salem Yes

Yes 2011

Yes Ossining Yes
2002

Pelham

Yes Yes
2008

Pelham Manor

N/A

N/A

Pleasantville Yes

Yes 1996

Recognizes Affordable Housing
Need7
Yes
Yes Yes N/A
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

Yes
Yes Yes N/A
Yes in 2007 addendum

As-ofRight 5 districts12
SP 5 districts
SP 3 districts
As-ofRight
4 districts As-ofRight 1 district As-ofRight
3 districts
SP 3 districts

As-ofRight 3 districts13
SP 4 districts
SP 5 districts
As-ofRight
8 districts As-ofRight 1 district As-ofRight
7 districts
SP 3 districts

As-ofRight 1 district
SP 10 districts
SP 8 districts
None
None
SP 6 districts

None
14
SP 1 district As-ofRight
3 districts
None
As-ofRight
2 districts
SP 3 districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

5642.0

37.96% 7.88 0.14% 46.53 0.82% 77.3 0.5%

307

1

7

158.0

989.14 50.87%

16%

28.96

2.9%

0

0%

3

0

2

285.72 53.85% 4.73

1.7% 34.93 12.2%

1.1

0.2%

54

2

455.11 52.66% 10.31 2.3%

1.89

0.4%

0

0%

0

3

551.68 48.07% 42.78 7.8% 39.12

7%

0.8

0.1%

10

1

12 In Figure 7 of the County’s Eighth Zoning Submission regarding North Salem, the County lists additional districts as permitting multifamily housing as-of-right: the NB, PO and RO districts, all of which are listed as not permitting multifamily housing in the County’s February submission. Compare Ex. I, Town of North Salem, at 19-22, Eighth Zoning Submission, dated July 23, 2013, with Ex. F, Town of North Salem Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). A review of the Town’s zoning code reveals that residential uses are not permitted in the NB and RO districts and that only single-family detached dwellings are permitted in the PO district. Table of General Use Requirements, TOWN OF NORTH SALEM CODE § 250 Attachment 9, Nov. 1, 2011; Table of General Use Requirements, TOWN OF NORTH SALEM CODE § 250 Attachment 11, Nov. 1, 2011; Table of General Use Requirements, TOWN OF NORTH SALEM CODE § 250 Attachment 12, Nov. 1, 2011.
13 In a letter dated April 18, 2013, Supervisor Warren J. Lucas stated that, contrary to the County Planning Department’s February 29, 2012 analysis of zoning districts in the County’s municipalities, two-family dwellings are also allowed as-of-right in R-MF/4 and R-MF/6. Ex. H.
14 In a letter dated April 18, 2013, Supervisor Warren J. Lucas stated that, contrary to the County Planning Department’s February 29, 2012, analysis of zoning districts in the County’s municipalities, mixed-use development is allowed in the GB, PO, RO, NB, PD and PD-CCRC districts, but this is not supported by a reading of the zoning ordinance. Ex. H.
7

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 9 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality

Has a Whether Comp. Adopted Plan & Year

Pound Ridge Yes

Yes 2010

Yes

Rye

Yes

1985

Has

Rye Brook

Vision No
Plan

2000

Recognizes Affordable Housing
Need7
No
No
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

As-of-

Right

As-of-

3 com-

As-of- Right

Yes

mercial None

Right

3 com-

districts

com-

SP

2 districts mercial

4

districts

districts

As-of-

Right As-of- As-of- As-of-

9 dis-

Yes

tricts

Right

Right

Right

SP

10

15

4

districts districts districts

2

districts

As-of-

Right

4

districts; As-of-

2 float- Right

SP

ing

Yes

districts

5

None

1 float-

districts

ing

SP

SP

district

1

1 district

district;

1

floating

district

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

6930.9

46.92% 0

0%

0

0%

3.6 0.02%

23

2

7

1809.4

48.43% 137.5 7.6% 38.22 2.1%

1.6 0.04%

38

1

4

841.27 19.66% 10.88 1.3% 39.68 4.7%

1.2

0.1%

38

2

8

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 10 of 39

Chart of Zoning Data for Berenson Test Prong 1

Municipality Scarsdale
Somers

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Has a Whether Comp. Adopted Plan & Year
Yes Yes
1994
No Yes
2005

Recognizes Affordable Housing
Need7
No
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

Yes and in 2010
update
Yes

As-of-
Right
7
15
districts

As-of-
Right
up to 5
16
districts

As-ofRight 1 district, 3 floating districts; 3 commercial districts

None

None17
As-ofRight 10 districts

As-ofRight
up to 8 dis-
18
tricts
As-ofRight
4 districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

2377.8 55.58%

2

19

6.08 0.26%

0

0%

020

0%

0

2

8274.3

40.2% 75.91 0.9% 91.81 1.1%

73.9 0.4%

260

2

9

15 In its February 2012 analysis, the County Planning Department stated that multifamily housing is allowed as-of-right in only three zoning districts: Res C, PUD-1 and PUD-.8. Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). This appeared to be an uncharacteristically narrow reading of the zoning ordinance. For other municipalities, if a business district allows “residences” (without further elaboration) as a principal use, even if confined to the upper floors of a mixed-use development, the County Planning Department indicates that they permit multifamily housing as-of-right. The Scarsdale zoning ordinance states that “residences” are among the permitted uses in the VCO-2.0 district. See VILLAGE OF SCARSDALE CODE § 310-12.B(4)(b)(1). It also states that residences are permitted upper floor uses in the Business A, VCR-2.0 and VCR-1.0 districts. The County’s most recent zoning submission corrects the prior omission of the Business A, VCR-2.0 and VCR-1.0 districts but not the omission of the VCO-2.0 district. Ex. I, Town/Village of Scarsdale Zoning Analysis, at Figure 7, Eighth Zoning Submission, dated July 23, 2013. The July 2013 submission also states incorrectly that the VCR-.8 district also allows multifamily housing as-ofright. Id. A review of the zoning code reveals that the VCR-.8 district does not permit residential uses. VILLAGE OF SCARSDALE CODE § 310-12.B(3)(b). All analyses of the acreage zoned for multifamily residential development, the number of available sites in those districts and the potential number of housing units that could be developed on those sites were based on the County’s earlier conclusion that only three districts permit multifamily housing as-of-right.
16 In its February 2012 submission, the County Planning Department identified three zoning districts that allow for two-family housing development as-of-right (Res C, PUD 1 and PUD8-1.4). Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). The July 2013 submission also identifies the VCR-2.0 and VCR-1.0 districts as allowing two-family housing as-of-right; however, two of those districts allow residences only above the ground floor in a mixed-use development, and thus exclude what is generally thought of as two-family homes. Ex. I, Town/Village of Scarsdale Zoning Analysis, at Figure 7, Eighth Zoning Submission, dated July 23, 2013; VILLAGE OF SCARSDALE CODE §§ 310-12.B(1)(b)(2), 12.B(2)(b)(2).,
17 In its February 2012 analysis, the County Planning Department erroneously stated that accessory apartments are allowed as-of-right in five nonresidential zoning districts, but it has corrected this error in its July 2013 analysis. Compare Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012), with Ex. I, Town/Village of Scarsdale Zoning Analysis, at Figure 7, Eighth Zoning Submission, dated July 23, 2013.
18 In its analysis, the County Planning Department identifies 8 districts as permitting mixed-use development as-of-right, which includes the VCO-0.8 district. Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). However, the zoning ordinance does not mention residential use of any kind as a permitted use in the VCO-0.8 district. VILLAGE OF SCARSDALE CODE § 310-12.B(5)(b).
19 The data provided by the County indicates that 106.92% of the land in Scarsdale is residential. Ex. J, Table 2 Residential Land Use Acreage by Municipality, Land Use in Westchester, at 17, 2010. Due to this unclear figure, and for the purposes of this analysis, this percentage figure was changed to 55.58% after dividing the total acreage of Scarsdale (point a on the data sheet) by the number of acres currently subject to residential use. Id.; Ex. E, Methodology III-C-2 Table August 2012 (submitted Sep. 6, 2012).
20 The analysis has been performed only on the areas zoned Res C, PUD-1 and PUD8-1.4, the districts identified by the County as allowing multifamily housing as-of-right in Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012).
9

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 11 of 39

Chart of Zoning Data for Berenson Test Prong 1

Municipality Tarrytown Tuckahoe Yorktown

Has a Comp. Plan
Yes
Yes
Yes

Comprehensive Plan2

Whether Adopted & Year

Recognizes
Affordable
Housing Need7

Addresses
Affordable Housing8

Yes

No

Yes

2007

Yes

No

Yes

2008

Yes

No

Yes

2010

MultiFamily
As-ofRight
8 districts As-ofRight 2 districts21 As-ofRight 3 districts22
SP 9 districts

Housing Types3

Two Accessory Mixed Family Apartment Use

As-ofRight
10 districts As-ofRight
2 districts As-ofRight
3 districts
SP 8 districts

None
None
SP in all residential districts23

As-ofRight
3 districts As-ofRight
5 districts
As-ofRight
1 district

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

216.8

679.30 34.45%

32%

39.99

6%

2.3

0.1%

50

1

6

169.27 44.25% 29.51

17.4%

32.93

19.5%

0.7

0.2%

17

1

9317.9

617.0

37%

6.6% 57.91 0.6%

40

0.2%

479

1

9

1

21 The data provided by the County only credits the AP-3 district as permitting multifamily housing as-of-right. Ex. F, Village of Tuckahoe Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). However, under the Village code and consistent with the Village’s response letter, the B/R district should also be included. VILLAGE OF TUCKAHOE CODE § 4-5.1; Ex. H, Village of Tuckahoe Response Letter from John D. Cavallaro, Village of Tuckahoe Attorney, at 3, dated May 16, 2013.
22 The table provided by the County identifies R-3, R-3A and RSP-3 as districts permitting multifamily housing as-of-right. Ex. F, Town of Yorktown Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). Yet, the County’s Methodology II-C and II-D tables and maps provide information about sites and acreage in RSP-1 rather than RSP-3, indicating that the descriptions of the two districts may have been inadvertently reversed in the review and analysis table. Compare Ex. F, Town of Yorktown Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012), with Ex. E, Town of Yorktown Methodology II-C and II-D Map August 2012 (submitted Sep. 6, 2012). Based on the zoning code, it does indeed appear that RSP-1, rather than RSP-3, permits multifamily as-of-right. TOWN OF YORKTOWN CODE §§ 300-124.C, 300-160.
23 Although the data submitted by the County credits 9 zoning districts as permitting accessory apartments as-of-right, the County also provides an explanatory note stating that these accessory dwelling units are limited to one dwelling unit for the owner, operator or janitor of the establishment, and the zoning ordinance does indeed contain this restriction.. Compare Ex. F, Town of Yorktown Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012), with TOWN OF YORKTOWN CODE §§ 300-21.C(7)(b)(1), 300-21.C(8)(c)(4), 300-21.C(9)(c)(6), 300-21.C(10)(c)(1), 300-21.C(11)(c)(6), 300-21.C(12)(c)(1), 30021.A(13)(c)(1), 300-21(15)(c)(5).
10

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 12 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 21

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily
As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

Ardsley

100

19

19%

12

19

38

38%

1 MF district is an

Yes overlay district. MF SP 834

5.7

only allowed in

2.7

0.3% Insufficient

2

1 Under this prong, municipalities must consider, weigh and balance both local and regional housing needs, due to the ripple effects zoning may have on areas outside a municipality’s boundaries. Berenson v. Town of New Castle, 38 N.Y.2d 102, 110 (1975) (“There must be a balancing of the local desire to maintain the status quo within the community and the greater public interest that regional needs be met.”); Triglia v. Town of Cortlandt, No. 17976/96,
1998 WL 35394393, at *4 (N.Y. Sup. Ct. Westchester Cnty. Jan. 6, 1998). 2 A party challenging a municipal zoning ordinance must first demonstrate that there is an identifiable regional need for affordable housing. See, e.g., Land Master Montg I, LLC v. Town of Montgomery, 821 N.Y.S.2d 432, 439 (N.Y.
Sup. Orange Cnty. 2006); Triglia, No. 17976/96, 1998 WL 35394393, at *4. Westchester County has not submitted evidence of regional need. The only available assessment is a study that was commissioned by the County in 2005. The study was conducted by the Center for Urban Policy Research of Rutgers University (CUPR), which estimated that Westchester municipalities must collectively build 10,768 new affordable housing units by 2015 to meet the County’s growing regional need for affordable housing. See Westchester County Affordable Housing Needs Assessment, Rutgers University Center for Urban Policy Research, at 67 (2004) (available at http://homes.westchestergov.com/images/stories/pdfs/HOUSING_RutgersReport033004.pdf) (last accessed July 31, 2013). The Westchester Housing Opportunity Commission (“HOC”), a body commissioned by the County,
has issued recommendations that allocate a share of the regional affordable housing needs to each municipality. See HOC, Affordable Housing Allocation Plan 2000-2015 (2005) (available at http://homes.westchestergov.com/images/stories/pdfs/HOUSING_HOCallocation05.pdf) (last accessed July 31, 2013). This allocation plan has been cited by the County in many of its AI submissions, the County relies on it in distributing funds from the County’s Legacy Program, and it is the only needs assessment that has been prepared to date. See, e.g., Ex. D, Westchester County, Analysis of Impediments to Fair Housing Choice (updated April
2013), p. 59-60. See also Ex. 10, Letter from James E. Johnson to Robert P. Astorino, dated June 12, 2013. Accordingly, this analysis goes forward with the best, indeed, only available relevant evidence. 3 Once the regional need is established, the next step in the analysis requires addressing the question whether, on its face, the zoning ordinance fails to allow for “the construction of sufficient housing to meet the [municipality’s] share
of the region’s housing needs.” Blitz v. Town of New Castle, 94 A.D.2d 92, 99 (N.Y. App. Div. 2d Dep’t 1983). 4 Municipal zoning ordinances that fail to provide a provision for multifamily housing as-of-right or significantly reduce or limit such housing are facially exclusionary. Id. at 94; Land Master Montg I, LLC, 821 N.Y.S.2d at 439;
Triglia, No. 17976/96, 1998 WL 35394393, at *6. 5 Municipalities commonly facilitate this by identifying, through zoning, areas of a municipality where multifamily housing may be built as-of-right. See Cont’l Bldg. Co. v. Town of N. Salem, 211 A.D.2d 88, 93 (N.Y. App. Div. 3d
Dep’t 1995). (“[M]ultifamily housing, given the nature of its construction and function as a whole, is one of the most affordable types of housing.”). These columns refer to points (a), (b) and (e) on the data sheets included in each municipality’s report. 6 Since a zoning ordinance merely determines “what may or may not be built” as opposed to deciding “what will actually be built, in the absence of government subsidies,” the question is not simply whether the zoning ordinance provides for the legal possibility of multifamily housing. Blitz, 94 A.D.2d at 99 (emphasis in original). Rather, the analysis must address the question of whether it is both “physically and economically feasible” that affordable
housing could be built under the present zoning regime. See id.; Cont’l Bldg. Co., 211 A.D.2d at 94 (citation and quotation omitted). This column indicates whether the market conditions within the municipality are such that condo sale prices are sufficient, meaning above the county-wide average of $375,000, or insufficient, meaning below that average. Municipalities that have insufficient market conditions will likely need a subsidy to aid in new
development of affordable housing. 7 Category 1 = Not exclusionary because the municipality has considered and has the potential to satisfy regional need. Category 2 = Not exclusionary, but warrants improvement. Category 3 = Exclusionary because the municipality
has not considered and does not have the potential to satisfy its fair share of regional need. 8 Despite being given multiple opportunities to respond to a survey conducted by the County Planning Department, some municipalities have not reported the construction or approval of any affordable housing units since 2000.
Ex. C, Table, Status of Allocation per Affordable Housing Allocation Plan 2000-2012 – As of November 20, 2012 (submitted Nov. 20, 2012). For the purposes of this analysis, these municipalities are assumed to have built or approved zero units and can be identified by an entry of “0*”. 9 This column provides a ranking of the municipalities based on the percentage of affordable units that have been reported as built or approved since 2000. The lowest rank is 24, as more than one municipality has built or approved zero units since 2000. Ex. C, Table, Status of Allocation per Affordable Housing Allocation Plan 2000-2012 – As of November 20, 2012 (submitted Nov. 20, 2012). 10 This column provides data from point b on the data sheets of the Housing Consultant Reports: Total acreage in zoning districts where multifamily housing is permitted as-of-right.

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 13 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

connection with

conversion of former

school (not available

anymore); Cluster

district only allows

apartment development

of only 6 units attached,

semidetached or

clustered with assisted

living facilities. No more

than 25% of the units

may contain more than

3 bedrooms in the

cluster district.

1 district requires min.

lot size of 2 acres. For

MF by SP, can develop

in 1 district or elsewhere

Bedford

396

95

24%

10

45

140

35.4%

Yes

by conversion in

25,444

221

residences existing prior

to Sep.1, 1985, on lots

of less than 20,000 sq.

ft.

1 MF district is

commercial and only

allows mixed-use

development, where

Briarcliff

141

4911

34.8%

9

0

Manor

residential use must not

49

34.8%

Yes

exceed 80% of the

3808

48.7

gross floor area, and no

ground floor dwelling

units shall front any

public right-of-way. 1

MF district is intended

2.7

0.01% Insufficient

2

0.2

0.01% Sufficient

2

11 A developer is seeking approvals for a proposed affordable housing development that would contain 14 affordable units. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013).
2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 14 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

for elderly communities. SP only allowed for conversion of an existing house on a parcel of 10 or more acres.

Bronxville

101

0*

0%

24

0

0

0%

Yes

None

622

79.5

0

0

Sufficient

2

MF as-of-right is only in

2 commercial districts

and is limited to mixed-

use development; the

residential use must be

in the back of or above

a commercial

establishment w a max.

of 4 dwellings per acre.

SP may be granted in 2

commercial districts for

Buchanan

56

0*12

0%

24

7

multifamily dwellings

7

12.5%

Yes

932

42.3

3.6

0.4% Insufficient

2

without commercial use

but the districts require

parcels of land not less

than 40,000 sq.ft., each

dwelling unit contains a

min. of 750 sq.ft., the

max. density is 5

dwelling units per

40,000 sq.ft., and the

parcel must adjoin a

residentially zoned

district.

12 The County has reported that there is currently a proposal to rehabilitate one three-bedroom affordable housing unit, pursuant to the County’s obligations under the Settlement. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013).
3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 15 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

MF district restricted to

3- and 4- family dwelling

w max. of 2 bedrooms

per unit; 1 special

district is not mapped; 1

special district is limited

to senior housing. Some

Cortlandt

403

201

49.9%

3

60

261

64.8%

Yes

22147 171.9

15.7

0.1% Insufficient

2

of the multifamily

housing is only allowed

at very low densities,

less than 3 units per

acre in 1 case, and up

to 10 bedrooms per acre

in another case.

1 MF district is an

overlay district intended

to simplify the

development of large

tracts of 10 or more

contiguous acres and

permits as-of-right

Croton-on-

multifamily housing

115

17

14.8%

14

0

17

14.8%

Yes

3034

58.5

0

0%

Sufficient

3

Hudson

consistent with the

underlying districts. SP

district is also an overlay

district dependent on

underlying districts

permitted uses, unless

in 1 of 3 residential

districts.

All but 1 MF district

Dobbs Ferry

105

0*13

0%

24

273

273

260%

requires min. lot size per

Yes

1580

263.8

7.2

0.46% Sufficient

2

unit ranging from low of

800 sq.ft. to a high of

13 A developer is seeking approvals for a 202-unit mixed-income development at Rivertowns Square that would contain 10 affordable housing units. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013).
4

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 16 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

6,000 sq.ft., and min. lot area of 5,000 sq.ft.

SP district is limited to

senior housing with

max. 2 occupants in

efficiency and 1

bedroom units and 3

occupants in 2 bedroom

units and has

Eastchester

104

214

1.9%

22

84

86

82.7%

Yes

preferences for

2184

224.6

1.6

0.1% Insufficient

2

Eastchester residents

and relatives. The max.

density for senior

housing is 1 unit per 700

sq.ft., which yields

approximately 60 units

per acre.

Harrison

756

0*

0%

24

45

45

6%

Yes

None

11147

32.9

0.9

0.01% Sufficient

3

1 of the 6 MF districts

Hastings-on97

2115

21.6%

11

71

92

94.8%

allows only 3-family

Yes

1264

84.9

6.4

0.5%

Sufficient

1

Hudson

homes as-of-right but

more with SP

Irvington

156

4

2.6%

21

0

4

2.6%

Yes

None

1809

56.4

0.3

0.01% Sufficient

2

14 Despite being given multiple opportunities to respond to a survey conducted by the County Planning Department, Eastchester has not reported the construction or approval of any affordable housing units since 2000. Ex. C, Table, Status of Allocation per Affordable Housing Allocation Plan 2000-2012 – As of November 20, 2012 (submitted Nov. 20, 2012). However, based on a recent submission by the County, Eastchester has approved 2 affordable units. Ex. N, Funding Advisory to Monitor, No. 19, (submitted June 27, 2013).
15 Developers are seeking approvals for two proposed affordable housing projects that would contain a combined total of 14 affordable units. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). Additionally, the County has reported that there is currently a proposal to rehabilitate one three-family home and convert it to three condominium affordable housing units, pursuant to the County’s obligations under the Settlement. Id.
5

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 17 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

2 MF districts are

commercial allowing

mixed-use development

only. MF buildings

cannot be larger than 20

unit or taller than 2.5

Larchmont

105

5116

48.6%

5

53

104

99%

Yes stories. SP district is for 687

66.3

1.9

0.3%

Sufficient

2

townhouse

developments restricted

to cites of 6 or more

acres, w no more than 2

bedrooms per

townhouse dwelling.

Only MF district requires

min. lot size for

developments served by

public water and sewer

infrastructure of 15,000

sq.ft. If a development

Lewisboro

239

0*

0%

24

18

18

7.5%

Yes

18648 142.7

4.5

0.02% Insufficient

3

will not be served by

public water and sewer,

the min. lot size is 15

acres. The max.

permitted density is 2

density units per acre.

1 MF district limits MF

development to 1 3

bedroom unit for every

Mamaroneck

125

10

8%

16

0

10

8%

Yes

25 dwelling units, and 2315

39.7

0

0%

Sufficient

3

has a min. lot size of

80,000 sq.ft. 1 MF

district may have no

more than an average of

16 A 149-unit development on Byron Place that would contain 10 affordable housing units also appears to be under construction. See Ex. O, Westchester County 2013 2Q Report, at App’x I-1, 2Q 2013 AFFH Sites Progress List (submitted July 19, 2013).
6

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 18 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

2 bedrooms per unit,

and no unit may have

more than 3 bedrooms.

SP district is for new,

large mixed-use

developments.

1 MF district is

commercial, is not

mapped and requires

min. site size of 100

acres; 1 MF district

converted a school to

dwelling units for

seniors over 62 or

families under 29

provided the

development averages

750 sq.ft. The units

were set aside for

Mount

residents or parents or

975

0*

0%

24

5

5

0.5%

Yes

15392 1014.8

5.2

0.03% Sufficient

2

Pleasant

children of residents on

the basis of economic

and social need –

criteria set by Town

Board. 6 transitional

districts restrict to

average of 2 bedrooms

with no more than 3 and

no less than 1 bedroom.

The 3 MF SP districts

only allows multifamily

housing if it is part of a

conversion of an

existing building.

7

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 19 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

1 MF district is an

unmapped floating

district. Min. lot area for

New Castle

255

317

1.2%

23

32

35

MF developments

13.7%

Yes

14999 303.6

5

0.03% Sufficient

2

ranges from 1 to 5

acres, though they may

be reduced for

affordable units.

5 MF districts allow

stand-alone multiple

housing developments.

In 3 MF districts, the

multifamily

developments must be

apartments on the

North Castle

712

46

6.5%

18

82

128

18%

second floor as part of a

Yes

16763

mixed-use development.

312.4

6.3

0.04% Insufficient

2

1 district the max.

density is restricted to 1

density unit per 25,000

sq.ft. of net lot area; 1

district requires a max.

density of 1 density unit

per 14,000 sq.ft.

MF developments must

be on lots of at least 5

North Salem

152

7418

48.7%

4

307

381

250.7%

Yes acres. In 2 MF districts, 14864 142.7

77.3

0.5% Insufficient

1

the max. density is 4

units per acre or 6

17 A developer is seeking approvals as part of the pending Chappaqua Crossing development, which will include 20 affordable units. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). Another developer is seeking approvals for a proposed 28-unit affordable housing development on Hunts Place. Id.
18 A developer is currently seeking approvals to build 102 units of affordable housing on a site on Route 22. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). Another developer is seeking approvals to build 2 affordable units on a different site on Route 22. See Ex. O, Westchester County 2013 2Q Report, at App’x I-1, 2Q 2013 AFFH Sites Progress List (submitted July, 19, 2013).

8

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 20 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

multifamily units per

acre. 1 of the MF districts is for senior

housing with assisted living only; 1 of the MF

districts is limited to lots

of 160,000 sq. ft., but is

reduced to 5,000 sq.ft.

for affordable units.

Only allow for MF

housing by SP and must

Ossining

113

5

4.4%

19

0

5

4.4%

No

1945

0

be in lots of at least

0

0%

Insufficient

3

40,000 sq.ft.

Pelham

74

3

4.1%

20

54

57

77%

3 MF districts are

Yes

531

32.8

commercial districts.

1.1

0.2%

Sufficient

2

Only 1 district of 10. No

Pelham Manor 101

0*

0%

24

0

0

0%

Yes

871

24.4

0

0%

Insufficient

3

MF by SP.

SP districts are limited

Pleasantville

129

5619

43.4%

7

10

66

51.2%

Yes

to 2 bedrooms per

1148

114.2

1

0.1% Insufficient

2

dwelling unit.

MF development as-of-

right only allowed in

commercial districts as mixed-use

developments limited to 2,500 sq.ft. max.

Pound Ridge

184

12

6.5%

17

23

35

19%

coverage per building

Yes

14771

43.8

and max. height of 2 or

3.6

0.02% Insufficient

3

3 stories. SP districts are restricted to senior

housing or residential care facilities w min. lot

sizes ranging from 1 to 3 acres, precluding

19 Developers are seeking approvals to construct another nine affordable housing units (seven within a 70-unit mixed-income multifamily housing development on Washington Avenue, plus a proposed two-family home). See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013).
9

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 21 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

development of small

multifamily

developments. Senior

housing may not contain

more than 50 dwelling

units.

1 district is for senior

and handicapped

housing only. 1 district is

restricted to 2 historic

properties and cannot

contain more than 9

Rye

167

27

16.2%

13

38

65

38.9%

Yes

multifamily dwelling

3738

201.2

1.6

0.04% Sufficient

2

units. MF buildings may

contain no more than 6

dwelling units per floor

and cannot exceed 120

feet in maximum

horizontal dimension.

1 MF district limits MF

to existing parcels of 15

Rye Brook

171

6420

37.4%

8

38

102

59.6%

Yes

to 20 acres. 2 MF

2224

344.2

1.2

0.1% Insufficient

2

districts are floating

districts. 1 SP district is

for MF senior housing.

Scarsdale

160

0*21

0%

24

0

0

0%

Yes

None

4278

15.622

023

0%

Sufficient

2

20 A developer is seeking approvals for 13 units of affordable housing at a site on North Ridge Street. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). 21 Developers are currently seeking approvals to construct five affordable housing units in Scarsdale: four affordable SROs as part of a 138-unit development on Saxon Woods Road and one affordable unit as part of an 11-unit
development on Weaver Street. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). 22 The Methodology III-C-2 Table included only three districts as permitting multifamily housing as-of-right, which are mapped over 15.6 acres, or 0.4% of Scarsdale’s land area. See Ex. E. The County’s July 2013 zoning analysis
adds four additional districts. Ex. I, Town/Village of Scarsdale Zoning Analysis, at Figure 7, Eighth Zoning Submission, dated July 23, 2013. The estimates of acreage by zoning district in the Racial Composition Table indicate that the Business A, VCR-2.0, VCR-1.0 and VCO-2.0 districts contain another 6.7 acres, bringing the total to 22.5 acres, or 0.5% of the Village’s land area. Ex. K, Racial Composition Table, Village of Scarsdale – 2000 & 2010
Census Data (submitted Aug. 15, 2012). 23 The analysis has been performed only on the areas zoned Res C, PUD-1 and PUD8-1.4, the districts identified by the County as allowing multifamily housing as-of-right in Ex. F, Town/Village of Scarsdale Table, Review and
Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012).
10

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 22 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

1 MF district requires

500 acre min. site size;

2 MF districts min. lot of

10 acres; 1 MF has

Somers

224

14924

66.5%

1

260

409

182.6%

Yes max. 3 density units per 20583 1,499

73.9

0.4% Insufficient

1

acre; 1 MF has max. 2

density units per acres;

2 districts limit to 2

bedrooms

1 MF district is for

mixed-use only with

Tarrytown

111

66

59.5%

2

50

116

104.5%

Yes

1972

363.8

2.3

0.1%

Sufficient

1

max. 55% of floor area

for residential use.

MF development as-of-

right only in 2 districts.

In 1 district, MF must be

Tuckahoe

56

apartments w min of 7

6

10.7%

15

17

23

41.1%

Yes

383

42

units or townhouses w

0.7

0.2%

Sufficient

2

max of 7 units and must

be on lots of at least

12,000 sq.ft.

1 MF district is for senior

housing; 1 SP district is

for either senior housing

Yorktown

378

169

44.7%

6

479

648

171.4%

Yes or conversion of existing 25186 386.5

40

0.2% Insufficient

1

homes constructed prior

to 1930 and restricts the

min. lot size to 15 acres.

24 A developer is seeking approvals for 72 units of affordable housing on Route 6, which would be known as the Green at Somers. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). After the Monitor sent the Town of Somers a supplemental information request on September 6, 2013 regarding the status of this proposed development, see Ex. T, Letter from James E. Johnson to the Town of Somers Supervisor Mary Beth Murphy, dated Sep. 6, 2013, the Town responded that it has not adopted an amendment to its zoning code that would be required for this development to move forward. Ex. U, Letter from Town of Somers Supervisor to James E. Johnson, at 2, dated Sep. 10, 2013. In its letter, the Town did note, however, that a developer has applied to build a 60 unit development in the Somers Hamlet on Route 100 and 202, in which “the Town Board will require a percentage of the units [to] be affordable.” Id. Another developer has applied to build 45 town homes near Mahopac Avenue and Route 6, which would include “eight affordable town homes with an additional affordable apartment attached for a total of 16 affordable units.” Id.
11

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 23 of 39

Municipality Ardsley

Chart of Municipal Rebuttal Factors under Berenson Test1

Model Ordinance2

Incentives

Mandates

[Score: 1] The otherwise applicable min.
lot area requirement for a single-family home is reduced
by 25% for an affordable housing unit. Although 2-
family homes are not otherwise permitted in single-
family zoning districts, an affordable 2-family home may be located on a lot that meets the otherwise applicable min.
lot area requirement for a single-family home. In the MF

[Score: 1] In all districts, all residential developments of 10 or more units must have at least 10% of the units be affordable. In residential developments of 5 to 9 units, at least 1 unit must be affordable. The MF overlay district mandates that 20% of units must be workforce housing for emergency service, public service, and quality of life occupations workers, and another 20% of units must be
affordable housing.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 3] Accessory apartments are not allowed in any district.
Preferences for Ardsley residents etc. in workforce housing developments. 1
MF district is an overlay district. MF SP only
allowed in connection with conversion of former school (not available
anymore); Cluster district only allows apartment development of only 6

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Yes

No

but only 1

district

Resident Preferences
11
Yes workforce housing

Reach Limited to One or Few Districts12
No

Prong 1
Rank4
2

Prong 2
Rank5
2

Rebuttal Rank6
2

Berenson Test
Result7
2

1 If a municipality’s zoning ordinance is exclusionary under either or both prongs of the Berenson test, there must be a showing that the zoning practices are, in actuality, not exclusionary. Robert E. Kurzius, Inc. v. Incorporated Vil.
of Upper Brookville, 51 N.Y.2d 338, 345 (N.Y. 1980); Allen v. Town of N. Hempstead, 103 A.D.2d 144, 147 (N.Y. App. Div. 2d Dep’t 1984). 2 Score of 1 = The zoning ordinance has provisions that are equal to or better than the model ordinance. See Ex. B, Westchester County Implementation Plan, Appendix D-1(i): Model Ordinance Provisions. Score of 2 = The zoning
ordinance has provisions that are similar to the model ordinance, but the provisions are not as inclusive. Score of 3 = The zoning ordinance does not provide the relevant provisions. 3 Although incentives such as density bonuses or provisions allowing accessory apartments or multifamily housing development may suggest that a zoning ordinance is not exclusionary, these provisions must not be “intrinsically
narrow in scope [such that they] do very little to genuinely address the established need for multifamily housing.” Cont’l Bldg. Co. v. Town of N. Salem, 211 A.D.2d 88, 94 (N.Y. App. Div. 3d Dep’t 1995); Land Master Montg I,
LLC v. Town of Montgomery, 821 N.Y.S.2d 432, 440 (N.Y. Sup. Ct. Orange Cnty. 2006) (citation omitted). 4 Category 1 = Not exclusionary because the municipality provides a well-ordered plan for its community. Category 2 = Not exclusionary, but warrants improvement. Category 3 = Exclusionary because the municipality does not
provide a well-ordered plan for its community. 5 Category 1 = Not exclusionary because the municipality has considered and has the potential to satisfy regional need. Category 2 = Not exclusionary, but warrants improvement. Category 3 = Exclusionary because the municipality
has not considered and does not have the potential to satisfy its fair share of regional need. 6 Category 1 = Rebuttal successful because the zoning ordinance provides a wide array of affordable housing opportunities sufficient to meet local and regional need. Category 2 = Rebuttal may be sufficient, but the zoning ordinance
warrants improvement. Category 3 = Rebuttal unsuccessful because the zoning ordinance, though it may have provisions addressing affordable housing opportunities, is too narrow in scope to provide genuine opportunities
sufficient to meet local and regional need. 7 Category 1 = Municipalities whose zoning ordinances meet prong one and prong two of the Berenson analysis and are therefore not exclusionary. Category 2 = Municipalities whose zoning ordinances do not necessarily meet either
prong of the Berenson analysis, but certain other factors provide a rebuttal to the presumption that their ordinances are exclusionary. Category 3 = Municipalities whose zoning ordinances fail either prong one or two of the
Berenson analysis and where there are insufficient factors to provide for a viable rebuttal against a finding of exclusionary zoning. 8 This column examines other ordinance provisions such as prohibitions on accessory uses and special permit restrictions. If the municipality receives a score of 1, the provisions are some of the least restrictive practices. A score of 3
means the municipality has some of the most restrictive practices. 9 Zoning ordinances that provide a wide array of affordable housing opportunities via special permits “create[] the illusion of affordable housing availability,” but vest a large amount of discretion in municipal officials and are
therefore insufficient. Land Master Montg I, LLC, 821 N.Y.S.2d at 440. 10 Cont’l Bldg. Co., 211 A.D.2d at 94. 11 Allen, 103 A.D.2d at 148; Triglia v. Town of Cortlandt, No. 17976/96, 1998 WL 35394393, at *6 (N.Y. Sup. Ct. Westchester Cnty. Jan. 6, 1998). 12 Cont’l Bldg. Co., 211 A.D.2d at 94.

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 24 of 39

Municipality Bedford

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives
overlay district, the Village may waive fees or provide
assistance in obtaining additional local, state or federal funds for a multifamily development that includes 20% or more of workforce and/or affordable housing
units.

Mandates

[Score: 1] In a development where at least 20% of residential units are affordable, the Planning Board may waive or reduce fees, provide local assistance or actively assist in procuring federal, state or other agency support for affordable housing. In these affordable or mixedincome developments, the Town allows a reduction of dimensional requirements of
not more than 25%, and shared parking to reduce
infrastructure costs.

[Score: 1] At least 20% of any multifamily development in any multifamily residential zoning district must be affordable units. In all residential developments of 5 or more units in single-family districts, at least 10% of all units must be affordable.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
units attached, semidetached or clustered
with assisted living facilities. No more than
25% of the units may contain more than 3 bedrooms in the cluster
district.

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

[Score: 2]

Accessory units are not

allowed as-of-right. By

special permit they may

only be in existing homes,

not in accessory buildings.

The accessory apartment

shall contain at least 400

sq.ft. but not more than

800 sq.ft. of gross floor

area and shall not exceed

25% of the total floor area

of the principal residence

No

No

No

No

structure. There can be no

more than 1 accessory

apartment per lot and no

more than 5 residents per

lot. 1 MF district requires

min. lot size of 2 acres.

For MF by SP, can

develop in 1 district or

elsewhere only by

conversion in residences

existing prior to Sep.1,

1985, on lots of less than

20,000 sq. ft.

Prong 1
Rank4
2

Prong 2
Rank5
2

Rebuttal Rank6
1

Berenson Test
Result7
2

2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 25 of 39

Municipality Briarcliff Manor
Bronxville

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives
[Score: 2] 1 district provides a 50%
increase in the usually applicable max. dwelling-units-
per-acre density if at least 50% of the units are moderate income dwelling units, but has preference given to employees
of the Village or the school district, residents of the
Village, members of the fire department, former residents
who still own residential property in the Village, other
persons employed in the Village, relatives of Village
residents and other Westchester residents

Mandates
[Score: 3] None

[Score: 3] None

[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

Prong
1 Rank4

Prong
2 Rank5

Rebuttal Rank6

Berenson
Test Result7

[Score: 2]

1 MF district is commercial

and only allows mixed-use

development, where

residential use must not

exceed 80% of the gross

floor area, and no ground

floor dwelling units shall

front any public right-of-

Yes

Yes

Yes

Yes

2

2

3

2

way. 1 MF district is

intended for elderly

communities. SP for MF

and 2-family homes are

only allowed for

conversion of an existing

house on a parcel of 10 or

more acres.

[Score: 3]

No specific reference to

affordable housing in the

zoning code. New

accessory apartments are

not listed as a permitted

use as-of-right or by SP in

any district, contrary to

No

No

No

No

2

2

3

2

what is indicated in the

County’s Municipal Zoning

Analysis Appendix Table,

although existing

accessory apartments are

grandfathered, permitted

non-conforming uses.

3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 26 of 39

Municipality Buchanan

Incentives
[Score: 3] None

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates
[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 2] Accessory apartments limited to only 1 bedroom units, between 300 and 600 sq.ft. in size and not to exceed 33% of the gross area of the building. MF as-of-right is only in 2 commercial districts and is
limited to mixed-use development; the
residential use must be in the back of or above a
commercial establishment w a max. of 4 dwellings per acre. SP may be granted in 2 commercial districts for multifamily or
2-family dwellings without commercial use but the
districts require parcels of land not less than 40,000 sq.ft., each dwelling unit
contains a min. of 750 sq.ft., the max. density is 5 dwelling units per 40,000 sq.ft., and the parcel must
adjoin a residentially zoned district.

Discretion Overly
Vested in Municipal Officials9
No

Age Restrictions
10
No

Resident Preferences
11
No

Reach Limited to One or Few Districts12
Yes

Prong 1
Rank4
2

Prong 2
Rank5
2

Rebuttal Rank6
3

Berenson Test
Result7
2

4

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 27 of 39

Municipality
Cortlandt
Croton-onHudson

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

[Score: 2] In 1 special district, if higher
than 10% of affordable housing is provided, density may be increased by 66% (from 3 units / 6 bedrooms per acre to 5 units / 10 bedrooms per acre). In RRSP district, the
new housing may be developed at a density of up to 20% greater than the existing
development.

[Score: 2] In 1 special district, at least 10% of
the final unit count must be affordable. All senior housing units in 1 special district must meet the Westchester County definition of
affordability. In a RRSP development, all new units above the existing number of units must
be affordable.

[Score: 2] 1 district permits an increase in density of 5% of the number
of market-rate units if the additional units are affordable;
1 overlay district permits a 10% increase in density over
the underlying residential districts requirements.

[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 2] Accessory units require SP approval. Although
accessory units are permitted by special permit
in 9 zoning districts (representing all but one
multifamily district), in some districts a 1-
bedroom / 2-occupant restriction forestalls the ability of families of three or more persons to be potential residents. The
only MF district is restricted to 3- and 4family dwelling w max. of 2 bedrooms per unit; 1 special MF district is not mapped; 1 special MF district is limited to senior housing. Some of the multifamily housing is only
allowed at very low densities, less than 3 units per acre in one case, and
up to 10 bedrooms per acre in another case.
[Score: 2] Accessory apartments may only be in existing buildings and the owner or lessee must be at least 55
years old. Only 1 accessory apartment is allowed per unit and it must be at least 400 sq.ft. but not greater than the lesser of 750 sq.ft. or 1/3 of the habitable floor area

Discretion Overly
Vested in Municipal Officials9
Yes
No

Age Restrictions
10
Yes But only 1
district
Yes accessory
units

Resident Preferences
11
No
No

Reach Limited to One or Few Districts12
Yes
Yes incentives

5

Prong 1
Rank4
1
2

Prong 2
Rank5
2
3

Rebuttal Rank6
3
3

Berenson Test
Result7
2
3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 28 of 39

Municipality
Dobbs Ferry Eastchester

Incentives
[Score: 3] None
[Score: 3] None

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates
[Score: 1] At least 10% of all residential developments of more than 10 units must be affordable. Offers alternative to meet requirement either off-site or through payment.
[Score: 2] 15% of units must be affordable in
the SP district limited to senior housing

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
of the dwelling. 1 MF district is an overlay district
intended to simplify the development of large tracts of 10 or more contiguous acres and
permits as-of-right multifamily housing consistent with the underlying districts. SP district is also an overlay district dependent on underlying districts permitted uses, unless in 1 of 3 residential districts.
[Score: 3] Village Code explicitly states that accessory dwelling units are illegal in the Village. All but 1 MF district requires min. lot size per unit ranging from low of 800 sq.ft. to a high of 6,000 sq.ft., and min. lot
area of 5,000 sq.ft. [Score: 3]
Accessory dwelling units are not permitted. In 1 mixed-use district, the commercial use may not take up more than 50% of the total floor area, and may only be located on the ground floor. SP district is limited to senior housing with max. 2 occupants in efficiency and 1 bedroom units and 3 occupants in 2 bedroom units and has
preferences for

Discretion Overly
Vested in Municipal Officials9
No
No

Age Restrictions
10
No
Yes but only 1
district

Resident Preferences
11
No
Yes but only 1
district

Reach Limited to One or Few Districts12
No
Yes mandate only for 1
district

6

Prong 1
Rank4
1
1

Prong 2
Rank5
2
2

Rebuttal Rank6
2 3

Berenson Test
Result7
2
2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 29 of 39

Chart of Municipal Rebuttal Factors under Berenson Test

Municipality
Harrison Hastings-on-
Hudson
Irvington

Model Ordinance2

Incentives

Mandates

[Score: 3] None

[Score: 3] None

[Score: 1] If a single-family home is to be an affordable housing unit, the minimum lot size is reduced by
25%. Planning Board may increase density requirements
by 10% if, for every market rate unit in excess of the
usually applicable max., one affordable housing unit is also
provided.

[Score: 1] At least 10% of any development
of eight or more units must be affordable and at least 5% more
must be either affordable or workforce. Alternative of meeting
mandate either off-site or by contributing to housing trust fund.

[Score: 2] Each single-family affordable housing unit may be located on a lot meeting 75% of the otherwise applicable min. lot area. Each affordable 2-family home may be located on a lot
meeting the min. lot area applicable to a single-family home. For SP below-market-
rate units developed in 1 district, Village increases the allowable number of housing units and issues a waiver of site capacity requirements.

[Score: 1] Any development of more than 10 units must include 10% affordable units, and any development of 5 to
9 units must include at least 1 affordable unit.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
Eastchester residents and relatives. The max.
density for senior housing is 1 unit per 700 sq.ft.,
which yields approximately 60 units per acre. [Score: 3]
Accessory apartments are prohibited. [Score: 1]
Accessory units are permitted in existing buildings. Only affordable accessory housing units are permitted in newly constructed single-family homes and are limited to one bedroom, while other accessory units can
include up to two bedrooms. [Score: 2]
Accessory units are permitted as-of-right in
single-family zoning districts, but only on lots of at least 60,000 sq.ft., and occupancy is restricted to the son or daughter of the primary building residents.
The zoning code has a special permit for below-
market-rate units developed in 1 district, but these units are limited to
Village employees, fire/EMS volunteers and resident senior citizens.

Discretion Overly
Vested in Municipal Officials9
N/A
No
No

Age Restrictions
10
N/A No
No

Resident Preferences
11
N/A
No
Yes but only 1
district

Reach Limited to One or Few Districts12
N/A
No
No

Prong 1
Rank4
2 1
2

Prong 2
Rank5
3 1
2

Rebuttal Rank6
3 1
2

Berenson Test
Result7
3 1
2

7

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 30 of 39

Municipality Larchmont Lewisboro

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

[Score: 3] None

[Score: 3] None

[Score: 2] In only MF district, density may be increased by up to 40% if the applicant builds at least 1/3 of the additional density as middle-income
units.

[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 3] Accessory housing is not listed as a permitted use. No single-family house can be smaller than 1,000
sq.ft. outside of the multifamily districts, and 1,400 sq.ft. in most of the Village, which forestalls cottage-style housing. 2 MF and two-family districts are commercial allowing mixed-use development only. MF buildings cannot be larger than 20 unit or taller than 2.5 stories. SP district is for townhouse developments restricted to cites of 6 or more acres, w no more than 2 bedrooms per townhouse dwelling.
[Score: 2] Accessory apartments cannot contain more than two bedrooms or four occupants and must be on lots of at least ½ acre.
Accessory dwelling residences are allowed by
SP on lots of at least 20 acres. The only MF district
requires min. lot size for developments served by public water and sewer infrastructure of 15,000 sq.ft. If a development will not be served by public water and sewer, the min. lot size is 15 acres. The max. permitted density is 2

Discretion Overly
Vested in Municipal Officials9
N/A
No

Age Restrictions
10
N/A
No

Resident Preferences
11
N/A
No

Reach Limited to One or Few Districts12
N/A
Yes

8

Prong 1
Rank4
2
3

Prong 2
Rank5
2
3

Rebuttal Rank6 3
3

Berenson Test
Result7
2
3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 31 of 39

Municipality

Incentives

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
density units per acre.

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

Prong
1 Rank4

Prong
2 Rank5

Rebuttal Rank6

Berenson
Test Result7

[Score: 3]

Accessory apartments are

prohibited, with the

exception of accessory

buildings or trailers for

Mamaroneck

[Score: 3] None

domestic employees in

[Score: 2]

single-family zoning

1 district requires that one of every

districts. 1 MF district limits

17 dwelling units must be

MF development to 1 3

workforce housing occupied

bedroom unit for every 25

permanently by individuals or

No

No

No

Yes

3

3

3

3

dwelling units, and has a

families whose household incomes

min. lot size of 80,000

do not exceed 80 percent of the

sq.ft. 1 MF district may

Westchester County area median

have no more than an

income.

average of 2 bedrooms

per unit, and no unit may

have more than 3

bedrooms. SP district is for

new, large mixed-use

developments.

[Score: 3]

Accessory apartments are

[Score: 2]

[Score: 2]

permitted only by special

5 MF districts permit a density Except for the maximum costs

permit, in existing

bonus of up to 1/3 beyond the established for certain units in a

buildings at least 10 yrs.

basic permitted density if the

single specified project, the

old, and with a maximum

applicant provides affordable residential conversion of a former

of 600 sq. ft. Transitional housing. There is no guidance school (units in the building may

Yes

Yes

districts restrict the

Yes

Mount

regarding whether all or some be set aside for seniors or those

but only 1 but only 1

number of bedrooms per

No

but only

2

2

2

2

Pleasant

percentage of the units must

under 29 years of age who are

developme developmen

unit in a development to

mandate

be affordable for the

either Town residents or their

nt

t

an average of 2, with no

development to qualify for the parents or children and that any

more than 3 and no less

bonus, nor are there any

such units must be sold at

than 1 bedroom. 1 MF

provisions regarding the specified below-market prices), the

district is commercial, is

location or quality of the

Town has established no mandate

not mapped and requires

affordable units.

for affordable housing.

min. site size of 100 acres;

1 MF district converted a

9

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 32 of 39

Municipality New Castle

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

[Score: 1] For affordable single-family homes, the usually applicable min. lot size is reduced by 25%. In a single-family home
district, a 2-family home including an affordable unit may occupy a lot meeting the specified min. lot size for a single-family home. At the discretion of the Planning Board, density bonuses of up to 100% beyond the basic permitted density may be
awarded in 1 district in exchange for the development of special features or facilities,
including affordable units. Density bonuses may be considered in 1 district, but the ordinance is silent about the

[Score: 1] In 3 MF districts, within any multifamily development of 10 or more units, at least 10% must be affordable, and within any multifamily development of 5 to 9 units, at least 1 unit must be affordable. Within subdivisions of 10 or more building lots, affordable units must occupy at least 10% of the lots. Within subdivisions of 8 or 9 building lots, an affordable unit must occupy at least 1 lot.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
school to dwelling units for seniors over 62 or families
under 29 provided the development averages 750 sq.ft. The units were set aside for residents or parents or children of residents on the basis of economic and social need – criteria set by Town
Board. 6 transitional districts restrict to average
of 2 bedrooms with no more than 3 and no less than 1 bedroom. The 3 MF SP districts only allows multifamily housing if it is part of a conversion of an
existing building. [Score: 1]
The zonig code has a provision for workforce housing, which does not
allow for multifamily developments, but is restricted to mixed-use developments. The regulations regarding workforce housing units specify that no workforce units may be built within a tenth of a mile of 5 other workforce units and that such units have a max. unit size of 2 bedrooms. 1
MF district is an unmapped floating district.
Min. lot area for MF developments ranges from 1 to 5 acres, though they

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

No

No

Resident Preferences
11
No

Reach Limited to One or Few Districts12
No

10

Prong 1
Rank4
1

Prong 2
Rank5
2

Rebuttal Rank6
1

Berenson Test
Result7
2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 33 of 39

Chart of Municipal Rebuttal Factors under Berenson Test

Municipality North Castle North Salem

Model Ordinance2

Incentives
purposes for which they may be awarded. Also has a
workforce housing provision in 3 districts by SP.

Mandates

[Score: 2] The maximum density in 1 district may be increased by up to 45% if more than 40% of the increase is built as middleincome units. In 1 district, the permitted density may be increased by not more than 40% if the applicant constructs at least 20% of the increase as middle-income dwelling units.

[Score: 2] At least 15% of permitted floor area ratio in 1 district must be set aside for middle-income units for seniors. At least 35% of units in a single structure in 1 district must be set aside for middle-income units. At least 20% of units in a single structure in 1 commercial district must be set aside for
middle-income units.

[Score: 1] 6 districts provide density
bonuses of 25% for developments that provide more than the min. required number of affordable units, or, in subdivisions of less than 10 lots, a reasonable number. Bonuses of 20% may be awarded in 2 other districts. In 1 district, the min. required lot area for multifamily housing is reduced from 160,000 sq.ft. to 5,000 sq.ft for affordable units.

[Score: 1] At least 10% of all units in subdivisions of 10 or more units must be affordable. The requirement is increased to 20% in
4 of the MF districts.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
may be reduced for affordable units.

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

[Score: 1]

Accessory units are

permitted in 4 districts up

to 1 unit as-of-right, but

need SP for more units. 5

MF districts allow stand-

alone multiple housing

developments. In 3 MF

districts, the multifamily

Yes

developments must be

No

but only 1

No

Yes

apartments on the second

district

floor as part of a mixed-

use development. 1 district

the max. density is

restricted to 1 density unit

per 25,000 sq.ft. of net lot

area; 1 district requires a

max. density of 1 density

unit per 14,000 sq.ft.

[Score: 2]

MF developments must be

on lots of at least 5 acres.

In 2 MF districts, the max.

density is 4 units per acre

or 6 multifamily units per

acre. 1 of the MF districts

Yes

is for senior housing with

but only 1

No

No

No

assisted living only; 1 of

of 5 MF

the MF districts is limited

districts

to lots of 160,000 sq. ft.,

but is reduced to 5,000

sq.ft. for affordable units.

Mixed-use development is

not permitted as-of-right in

any zoning district.

Prong 1
Rank4
2
1

Prong 2
Rank5
2
1

Rebuttal Rank6
2
1

Berenson Test
Result7
2
1

11

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 34 of 39

Municipality
Ossining
Pelham Pelham Manor

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

[Score: 2] Density bonuses are awarded
in residential districts and 1 commercial district, so long as 1/2 of the density awarded is made up of below-market rate
units.

[Score: 1] Within all residential developments of 10 or more units, 10% must be
below-market-rate units, and residential developments of 5 to 9
units must contain at least 1 below-market-rate unit.

[Score: 3] None

[Score: 3] None

[Score: 3] None

[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 3] MF housing development,
two-family homes and mixed-use development are not permitted as-of-
right. Accessory apartments are permitted by SP but with restirctions. Mixed-use development allowed by SP must be on
a lot of at least 20,000 sq.ft. w min. housing unit
size of 850 sq.ft. for a studio, efficiency or 1 bedroom unit, 1,150 sq.ft. for a 2 bedroom unit, and
1,450 sq.ft. for a 3 bedroom unit. MF housing by SP must be in lots of at
least 40,000 sq.ft. [Score: 3]
Accessory apartments are prohibited. 3 MF districts are commercial districts.
[Score: 3] Accessory apartments and mixed-use development is
prohibited. No single multifamily unit may be used to accommodate more than one family or household for each 3,000 square feet of lot area within the district, which translates into a max. density of 14 units per acre. On the min. lot size of 7,000 sq. ft., only a 2family home could be built.

Discretion Overly
Vested in Municipal Officials9
Yes
N/A
No

Age Restrictions
10
No
N/A
No

Resident Preferences
11
No
N/A
No

Reach Limited to One or Few Districts12
Yes
N/A
Yes

Prong 1
Rank4
2
2
3

Prong 2
Rank5
3
2
3

Rebuttal Rank6
3
3 3

Berenson Test
Result7
3
2
3

12

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 35 of 39

Chart of Municipal Rebuttal Factors under Berenson Test

Municipality Pleasantville
Pound Ridge

Model Ordinance2

Incentives

Mandates

[Score: 2] For affordable occupied by a household that does not earn
more than 50% of the Westchester County median
income, have at least 1 occupant over the age of 62, and have a rent that does not
exceed 30% of the annual gross household income, offstreet parking requirements are waived for dwelling units that contain no more than 2 bedrooms, are rental units, and are designated affordable
units.

[Score: 1] 10% of any development of 10 or
more units must be affordable units. 5% of assisted living facility units in 1 district must be set aside
as affordable.

[Score: 1] For affordable housing units,
the minimum lot size for a single-family home is reduced by 25%. The Planning Board, at its discretion, may waive up
to 50% of the otherwise applicable recreation fee for an affordable housing unit.

[Score: 1] Within all residential developments
of 10 or more dwellings, at least 10% of the units must be affordable.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

[Score: 2]

A max. of 50 accessory

apartments may be issued

as of date the provision of

the code was adopted, not

No

Yes

including pre-existing

ones. MF SP districts are

limited to 2 bedrooms per

dwelling unit.

Yes No
incentives

[Score: 3]

Accessory units may not

contain more than 2

bedrooms. 2 Family

homes are not permitted in

the town. MF

development as-of-right

only allowed in commercial

districts as mixed-use

developments limited to

2,500 sq.ft. max. coverage

per building and max.

Yes

Yes

No

Yes

height of 2 or 3 stories. SP

districts are restricted to

senior housing or

residential care facilities w

min. lot sizes ranging from

1 to 3 acres, precluding

development of small

multifamily developments.

Senior housing may not

contain more than 50

dwelling units.

Prong 1
Rank4
1
2

Prong 2
Rank5
2
3

Rebuttal Rank6 2
3

Berenson Test
Result7
2
3

13

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 36 of 39

Municipality Rye

Incentives
[Score: 3] None

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates
[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 2] Accessory units may only
be granted by special permit. 1 district is for senior and handicapped housing only. 1 district is restricted to 2 historic properties and cannot contain more than 9 multifamily dwelling units. MF buildings may contain no more than 6 dwelling units per floor and cannot
exceed 120 feet in maximum horizontal
dimension.

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Yes for accessory apartment s

Yes but only for
1 district

Resident Preferences
11
No

Reach Limited to One or Few Districts12
No

Prong 1
Rank4
1

Prong 2
Rank5
2

Rebuttal Rank6
3

Berenson Test
Result7
2

[Score: 3]

[Score: 1]

Accessory apartments and

In all residential districts, at least 1

mixed-use development

of each 10 units built in addition to

are prohibited throughout

the first 10 must be affordable. At

the Village, except that

[Score: 2]

least 25% of units of senior

mixed-use developments

Only in 2 floating zones that housing developments must be

Yes

are permitted in the FAH

Rye Brook allow for the Board to waive or affordable, though senior housing

No

but only 1

No

No

2

2

2

2

floating district. 1 MF

modify dimensional or bulk

needs a special permit and only

district

district limits MF to

requirements at its discretion. either immediately adjacent to or

existing parcels of 15 to 20

south of Westchester Avenue. At

acres. 2 MF districts are

least 50% of developments of 2 or

floating districts. 1 SP

more units in the FAH floating

district is for MF senior

district must be affordable.

housing

Scarsdale

[Score:3] None

[Score: 1]

All residential developments of 10

[Score: 3]

or more units must contain at least Accessory housing units

No

No

No

No

2

2

2

2

10% affordable units. In a

are not permitted.

development of from 5 to 9 units,

14

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 37 of 39

Municipality

Incentives

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates
at least 1 unit must be affordable.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

Prong
1 Rank4

Prong
2 Rank5

Rebuttal Rank6

Berenson
Test Result7

[Score: 2]

1 district allows a base

number of density units to be

increased by up to 50% if the

development includes more

[Score: 3]

than the required affordable

Preference to Somers

component. One additional

residents, municipal

market-rate unit may be

employees, volunteer

developed for each affordable

firemen, policemen, school

unit in excess of the required

district employees, and

15%, but not to exceed 20%.

former Town residents are

In 1 district, if at least 50% of

provided for affordable

units in a development are

[Score: 2]

units. 2-family dwellings

affordable, the Town Board The only Town-wide affordability are prohibited in the Town. Yes

Somers

may permit a floor area ratio mandate applies to senior housing. The minimum site size is

for

Yes

Yes

No

2

1

3

2

increase up to 50%, a

At least 15% of housing units must 500 acres in 1 district. The incentives

reduction in the number of

be affordable in 1 MF district.

MF districts require a

required parking spaces,

minimum lot area of 10

and/or an increase in building

acres, 1 of these districts

height to 3 stories or 50 ft.

allows a max. of 3 density

Density bonuses of up to 10%

units per acre, the other

may be awarded in 1 district if

allows 2 density units per

in the Town Board's judgment

acre. In 2 districts,

particular social, cultural,

residential units are limited

environmental, physical or

to a max. of 2 bedrooms.

economic needs of the

community are to be served or

substantial benefits are to be

derived.

[Score: 1]

[Score: 1]

Density bonuses of up to 50% In any residential development of

[Score: 3]

and waivers of land and

10 units or more, at least 10% of Accessory apartments are

building requirements may be all units must be affordable. In prohibited. 1 MF district is

Tarrytown

No

No

No

No

1

1

1

1

awarded to developments that residential developments of 8 or 9 for mixed-use only with

create more than the required units, at least 1 affordable unit max. 55% of floor area for

number of affordable housing must be created. In residential

residential use.

units. In 2 special waterfront

developments of 5 to 7 units,

15

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 38 of 39

Municipality Tuckahoe Yorktown

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

districts, dimensional bonuses, including larger permitted frontage, coverage, width, setback and height measurements, as well as relaxed landscaping requirements, may be
awarded to a developer that provides affordable housing.
[Score: 2] For workforce housing, for which current residents and
employees are given preferences, density bonuses are provided and the Planning Board may waive restrictions at its discretion. The workforce
housing ordinance allows between 5 and 15% of the total number of units to be affordable, subject to the Planning Boards approval. The Village Board of Trustees may increase the number of workforce units to 20% of the units where such flexibility is
needed.
[Score: 3] None

payments in lieu of affordable units must be made.
[Score: 3] None
[Score: 1] At least 10% of the units in any new residential subdivision of land in any single-family zoning district
shall be established as fair and affordable housing units. At least 10% of the units of any new multifamily residential development
of 30 units or less in any multifamily residential zoning district shall be established as affordable units, and at least 15% of the units of any new multifamily

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

[Score: 3]

Accessory apartments are

prohibited. MF

development as-of-right

only in 2 districts. In 1

district, MF must be

No

No

apartments w min of 7

units or townhouses w

max of 7 units and must

be on lots of at least

12,000 sq.ft.

Yes

Yes

[Score: 2]

Accessory housing units

are not permitted as-of-

right. 2-family housing is

restricted to conversion of

existing properties. 1 MF

Yes

Yes

district is for senior

accessory but only 1

No

No

housing. 1 MF SP district

units

district

is for either senior housing

or conversion of existing

homes constructed prior to

1930 and restricts the min.

lot size to 15 acres.

16

Prong 1
Rank4
1
1

Prong 2
Rank5
2
1

Rebuttal Rank6
3
2

Berenson Test
Result7
2
1

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 39 of 39

Municipality

Incentives

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2
Mandates
residential development of 31 units or more in any multifamily
residential zoning district shall be established as affordable.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

Prong
1 Rank4

Prong
2 Rank5

Rebuttal Rank6

Berenson
Test Result7

17

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 2 of 39

Chart of Zoning Data for Berenson Test Prong 11

Municipality Ardsley

2
Comprehensive Plan

3
Housing Types

4
Land Use: Quantity of Presently Available/Developed Housing

5
Ability to Meet Future Need

Has a Whether Comp. Adopted Plan & Year
Yes Yes
1964

Recognizes Affordable Housing
Need7
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

As-ofRight

As-ofRight None,

1 dis-

but if

As-of-

No

trict; 1 overlay district
SP

qualifies as af-
fordable then

None

Right 1 comcommercial

1 district permit-

9

Clus- ted in

district

ters single-

1 district family districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

413.35 49.55% 4.23

1%

6.01

1.5%

2.7

0.3%

19

2

1 Under this prong, the municipality must “provide[] a properly balanced and well-ordered plan for the community.” Berenson v. Town of New Castle, 38 N.Y.2d 102, 110 (1975). 2 The plan need not be written, but if it is, it may be considered by the court. See Asian Ams. for Equality v. Koch, 72 N.Y.2d 121, 131 (1988). 3 The adequacy of municipal plans is examined by: (1) identifying the types of housing in each municipality; (2) specifying both quantity and quality of the available housing; (3) determining whether the housing meets the current
local need for affordable housing; and (4) determining whether and what type of new construction is necessary to fulfill future needs in each municipality. See Berenson, 38 N.Y.2d at 110. SP = Special permit. 4 Id. See also Cont’l Bldg. Co. v. Town of N. Salem, 211 A.D.2d 88, 92-93 (N.Y. App. Div. 3d Dep’t 1995). The source of this data does not account for residential uses within mixed-use developments. Ex. J, Table 2 Residential
Land Use Acreage by Municipality, Land Use in Westchester, at 17, 2010. The analysis of this prong also requires that the court analyze the quality of the available housing, however, the data collected thus far does not provide
a means of doing so. 5 Berenson, 38 N.Y.2d at 110. These columns refer to points (e) and (h) in the data sheets found in each municipal-specific report. See Ex. E, Methodology II-D(1) Table August 2012 (submitted Sep. 6, 2012); id. at Methodology II-
C and II-D Map August 2012 (submitted Sep. 6, 2012). There is a lack of data to confirm that each municipality individually has a need for affordable housing development. 6 Category 1 = Not exclusionary because the municipality provides a well-ordered plan for its community. Category 2 = Not exclusionary, but warrants improvement. Category 3 = Exclusionary because the municipality does not
provide a well-ordered plan for its community. 7 This column gives credit to those municipal plans that explicitly state that there is a need for affordable housing within the municipality or regionally. 8 This column acknowledges municipal plans that address affordable housing, whether by way of mention that such housing should be considered or by more specific means amounting to detailed recommendations of how to develop
affordable housing within the municipality. 9 The County Planning Department’s February 29, 2012, analysis of zoning in the County’s municipalities is silent on the issue of mixed-use development in Ardsley, but a review of the Village’s zoning ordinance reveals that upper
floor residential use is permitted in the B-1 district. Compare Ex. F, Village of Ardsley Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012), with VILLAGE OF ARDSLEY
CODE § 200-65.B(8).

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 3 of 39

Chart of Zoning Data for Berenson Test Prong 1

Municipality
Bedford
Briarcliff Manor

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Has a Whether Comp. Adopted Plan & Year
Yes Yes
2002
Yes Yes
2007

Recognizes Affordable Housing
Need7
Yes
Yes

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

As-of- As-of-

Right Right

12

12 dis-

districts tricts

SP

SP

1 district 1 district

and

and

else-

else-

where where

As-of-

Yes

by con- by conversion version

SP 9 districts

Right 3 dis-

in resi- in resi-

tricts

dences dences

existing existing

prior to prior to

Sep.1, Sep.1,

1985, 1985,

on lots on lots

<

<

20,000 20,000

sq. ft. sq. ft.

As-of-

Right

2 dis-

As-of-

tricts; 1

SP

Right

com-

Yes

all resimercial

None

1 com-

dential

com-

district

districts SP

mercial

district

all resi-

dential

districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

13966.

108.4

54.92% 68.43 0.5%

0.8%

2.7 0.01%

45

2

46

1

1937.1

50.62% 88.05 4.6%

4.98

0.3%

0.2 0.01%

0

2

6

2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 4 of 39

Chart of Zoning Data for Berenson Test Prong 1

Municipality Bronxville Buchanan Cortlandt

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Has a Whether Comp. Adopted Plan & Year
Yes Yes
2009
Yes Yes
2005
Yes Yes
2004

Recognizes Affordable Housing
Need7
No
No
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

No but 2002 plan did
Yes
Yes

As-ofRight 3 districts; 1 commercial district
As-ofRight 2 commercial districts
SP 2 commercial districts
As-ofRight 1 district, 2 special districts
SP 1 district Cluster 1 district

None
SP 2 commercial districts
None

None although existing accessory apartments are grandfathered, permitted
nonconforming
uses.
SP in residen-
tial and commercial
districts
SP 9 districts

As-ofRight all retail districts
As-ofRight 2 comcommercial districts
SP 2 comcommercial districts
As-ofRight 1 dis-
trict

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

387.37 62% 33.67 8.7%

2.14

0.5%

0

0%

0

2

225.29 24.17% 3.18

1.4% 24.32 10.8%

3.6

0.4%

7

2

8064.3

412.3

36.41%

5.1% 243.9

3%

15.7 0.1%

60

1

1

5

3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 5 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality

Has a Whether Comp. Adopted Plan & Year

Croton-onYes
Hudson

Yes 2003

Dobbs Ferry Yes

Yes 2010

Eastchester Yes

Yes 1997

Harrison

No Yes
2012

Hastings-onYes
Hudson

Yes 2011

Recognizes Affordable Housing
Need7
No
No
Yes
Yes
Yes

Addresses
Affordable Housing8

MultiFamily

Two Family

As-of-

Right

2 districts; 1 As-of-

Yes

overlay Right

district 4 dis-

SP

tricts

1 over-

lay

district

As-of-

As-of- Right

11

Yes

Right districts

13

SP

districts

2

districts

As-of-

Right As-of-

Yes

9 dis- Right

tricts

10

SP districts

1 district

As-of-

Right As-of-

Yes

3

Right

districts 3 dis-

SP

tricts

1 district

Yes

As-ofRight
6 districts
SP 2 districts

As-ofRight
6 districts

Accessory Mixed Apartment Use

SP all but 1 residential district

As-ofRight 1 over-
lay district
SP 2 comcommercial districts

None

As-ofRight
6 districts

None

As-ofRight
3 districts

None

As-ofRight 1 dis-
trict SP 4 districts

As-ofRight 11 districts
SP 1 district

As-ofRight in all retail districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

1097.5

36.13% 51.88 4.7% 37.95 3.5%

0

0%

3

0

2

596.44 38.57% 83.27

14%

38.62

6.5%

7.2 0.46%

273

1

927.31 42.51% 79.13 8.5% 38.15 4.1%

1.6

0.1%

84

1

4283.7

203.9

38.43% 32.32 0.8%

4.8%

0.9 0.01%

45

2

2

1

504.39 39.91% 34.71 6.9% 35.13

7%

6.4

0.5%

71

1

4

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 6 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality

Has a Whether Comp. Adopted Plan & Year

Yes Irvington Yes
2003

Yes

1966

Larchmont Yes

and

update

1987

Lewisboro Yes

Yes 1985

Mamaroneck Yes

N/A

Recognizes Affordable Housing
Need7 No
N/A
No
N/A

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

Yes
N/A
Yes but states multifamily housing
for regional need is “not imperative”
N/A

As-ofRight 1 district
SP 1 district As-ofRight
1 district; 2 commercial districts
SP 1 district
As-ofRight 1 district
As-ofRight
4 districts
SP 1 district

As-ofRight
2 districts
SP 1 district As-ofRight
1 district; 2 commercial districts
SP 1 district
As-ofRight
2 districts
As-ofRight 1 district

As-ofRight all singlefamily districts
None
SP apartment on single family lots
min. ½ acre; accessory residence dwellings on lots of at least 20
acres Only buildings or trailers for domestic employee in singlefamily districts

As-ofRight
2 districts
As-ofRight 2 comcommercial districts
As-ofRight 2 comcommercial districts
As-ofRight
2 districts
SP 1 district

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

121.8

831.67 45.93%

14.6% 22.51 2.77%

0.3 0.01%

0

2

2

393.09 57.22% 4.05 1.03% 3.18 0.81%

1.9

0.3%

53

2

9590.1

51.39% 24.42 0.25% 37.44 0.4%

4.5 0.02%

18

3

1

1074.1

47.32% 28.69 2.7% 16.43 1.5%

0

0%

5

0

3

5

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 7 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality Mount
Pleasant
New Castle
North Castle

Has a Whether Comp. Adopted Plan & Year
Yes Yes
1970
Yes Yes
1989
Yes Yes
1996

Recognizes Affordable Housing
Need7
No
No
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

As-of-

Right As-of-

As-of-

10

Right

SP

Right

Yes

districts

28

14

11

SP

districts

dis-

districts

10

3

tricts

districts

As-of-

As-of-

Right

Right

5

all districts;

As-of-

Yes

1

single-

SP

Right

family

floating

8 districts

9

district11 districts

districts

but only

SP

if af-

9

fordable

districts

As-of-

As-of- As-of-

Right

As-of-

Yes

Right Right 4 districts Right

8 1 district

SP

6

districts

districts

8 districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

4647.4

30.19% 55.29 1.2% 70.46 1.5%

5.2 0.03%

5

2

5

8306.1

302.1

139.8

55.38%

3.6%

1.7%

5

0.03%

32

1

2

3

9

7125.5

42.47% 3.06 0.04% 79.43 1.1%

6.3 0.04%

82

2

6

10 Based on the data submitted by the County, it is unclear exactly how many districts permit mixed-use development as-of-right. We have given Mount Pleasant credit for the largest number of districts. Ex. F, Town of Mount Pleasant Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012).
11 There is some confusion about which zoning districts were identified by the County Planning Department as allowing multifamily housing as-of-right. In its Feb. 29, 2012, analysis of the zoning ordinances of Westchester municipalities, it identifies only the MFR-C, MFR-M and MFPD districts as allowing the use “as of right,” but it identifies the B-D, B-R, B-RP and I-G districts as allowing multifamily housing upon site plan review rather than as a special use., and the Planning Department has identified potential multifamily housing development sites in the B-D and B-R districts. Ex. F, Town of New Castle Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012; Ex. E, Methodology II-D(2) Table August 2012 (submitted Sep. 6, 2012). The acreage figure that the Planning Department has provided for districts allowing multifamily housing as-of-right does not appear, however, to include the I-G district, and a review of the zoning ordinance clearly indicates that residential use is allowed in the I-G district only by special permit. Schedule of regulations for business and industrial districts, TOWN OF NEW CASTLE CODE § 60 Attachment 4 (July 1, 2012).
6

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 8 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality

Has a Whether Comp. Adopted Plan & Year

North Salem Yes

Yes 2011

Yes Ossining Yes
2002

Pelham

Yes Yes
2008

Pelham Manor

N/A

N/A

Pleasantville Yes

Yes 1996

Recognizes Affordable Housing
Need7
Yes
Yes Yes N/A
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

Yes
Yes Yes N/A
Yes in 2007 addendum

As-ofRight 5 districts12
SP 5 districts
SP 3 districts
As-ofRight
4 districts As-ofRight 1 district As-ofRight
3 districts
SP 3 districts

As-ofRight 3 districts13
SP 4 districts
SP 5 districts
As-ofRight
8 districts As-ofRight 1 district As-ofRight
7 districts
SP 3 districts

As-ofRight 1 district
SP 10 districts
SP 8 districts
None
None
SP 6 districts

None
14
SP 1 district As-ofRight
3 districts
None
As-ofRight
2 districts
SP 3 districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

5642.0

37.96% 7.88 0.14% 46.53 0.82% 77.3 0.5%

307

1

7

158.0

989.14 50.87%

16%

28.96

2.9%

0

0%

3

0

2

285.72 53.85% 4.73

1.7% 34.93 12.2%

1.1

0.2%

54

2

455.11 52.66% 10.31 2.3%

1.89

0.4%

0

0%

0

3

551.68 48.07% 42.78 7.8% 39.12

7%

0.8

0.1%

10

1

12 In Figure 7 of the County’s Eighth Zoning Submission regarding North Salem, the County lists additional districts as permitting multifamily housing as-of-right: the NB, PO and RO districts, all of which are listed as not permitting multifamily housing in the County’s February submission. Compare Ex. I, Town of North Salem, at 19-22, Eighth Zoning Submission, dated July 23, 2013, with Ex. F, Town of North Salem Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). A review of the Town’s zoning code reveals that residential uses are not permitted in the NB and RO districts and that only single-family detached dwellings are permitted in the PO district. Table of General Use Requirements, TOWN OF NORTH SALEM CODE § 250 Attachment 9, Nov. 1, 2011; Table of General Use Requirements, TOWN OF NORTH SALEM CODE § 250 Attachment 11, Nov. 1, 2011; Table of General Use Requirements, TOWN OF NORTH SALEM CODE § 250 Attachment 12, Nov. 1, 2011.
13 In a letter dated April 18, 2013, Supervisor Warren J. Lucas stated that, contrary to the County Planning Department’s February 29, 2012 analysis of zoning districts in the County’s municipalities, two-family dwellings are also allowed as-of-right in R-MF/4 and R-MF/6. Ex. H.
14 In a letter dated April 18, 2013, Supervisor Warren J. Lucas stated that, contrary to the County Planning Department’s February 29, 2012, analysis of zoning districts in the County’s municipalities, mixed-use development is allowed in the GB, PO, RO, NB, PD and PD-CCRC districts, but this is not supported by a reading of the zoning ordinance. Ex. H.
7

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 9 of 39

Chart of Zoning Data for Berenson Test Prong 1

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Municipality

Has a Whether Comp. Adopted Plan & Year

Pound Ridge Yes

Yes 2010

Yes

Rye

Yes

1985

Has

Rye Brook

Vision No
Plan

2000

Recognizes Affordable Housing
Need7
No
No
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

As-of-

Right

As-of-

3 com-

As-of- Right

Yes

mercial None

Right

3 com-

districts

com-

SP

2 districts mercial

4

districts

districts

As-of-

Right As-of- As-of- As-of-

9 dis-

Yes

tricts

Right

Right

Right

SP

10

15

4

districts districts districts

2

districts

As-of-

Right

4

districts; As-of-

2 float- Right

SP

ing

Yes

districts

5

None

1 float-

districts

ing

SP

SP

district

1

1 district

district;

1

floating

district

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

6930.9

46.92% 0

0%

0

0%

3.6 0.02%

23

2

7

1809.4

48.43% 137.5 7.6% 38.22 2.1%

1.6 0.04%

38

1

4

841.27 19.66% 10.88 1.3% 39.68 4.7%

1.2

0.1%

38

2

8

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 10 of 39

Chart of Zoning Data for Berenson Test Prong 1

Municipality Scarsdale
Somers

Comprehensive Plan2

Housing Types3

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Has a Whether Comp. Adopted Plan & Year
Yes Yes
1994
No Yes
2005

Recognizes Affordable Housing
Need7
No
No

Addresses
Affordable Housing8

MultiFamily

Two Accessory Mixed Family Apartment Use

Yes and in 2010
update
Yes

As-of-
Right
7
15
districts

As-of-
Right
up to 5
16
districts

As-ofRight 1 district, 3 floating districts; 3 commercial districts

None

None17
As-ofRight 10 districts

As-ofRight
up to 8 dis-
18
tricts
As-ofRight
4 districts

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

2377.8 55.58%

2

19

6.08 0.26%

0

0%

020

0%

0

2

8274.3

40.2% 75.91 0.9% 91.81 1.1%

73.9 0.4%

260

2

9

15 In its February 2012 analysis, the County Planning Department stated that multifamily housing is allowed as-of-right in only three zoning districts: Res C, PUD-1 and PUD-.8. Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). This appeared to be an uncharacteristically narrow reading of the zoning ordinance. For other municipalities, if a business district allows “residences” (without further elaboration) as a principal use, even if confined to the upper floors of a mixed-use development, the County Planning Department indicates that they permit multifamily housing as-of-right. The Scarsdale zoning ordinance states that “residences” are among the permitted uses in the VCO-2.0 district. See VILLAGE OF SCARSDALE CODE § 310-12.B(4)(b)(1). It also states that residences are permitted upper floor uses in the Business A, VCR-2.0 and VCR-1.0 districts. The County’s most recent zoning submission corrects the prior omission of the Business A, VCR-2.0 and VCR-1.0 districts but not the omission of the VCO-2.0 district. Ex. I, Town/Village of Scarsdale Zoning Analysis, at Figure 7, Eighth Zoning Submission, dated July 23, 2013. The July 2013 submission also states incorrectly that the VCR-.8 district also allows multifamily housing as-ofright. Id. A review of the zoning code reveals that the VCR-.8 district does not permit residential uses. VILLAGE OF SCARSDALE CODE § 310-12.B(3)(b). All analyses of the acreage zoned for multifamily residential development, the number of available sites in those districts and the potential number of housing units that could be developed on those sites were based on the County’s earlier conclusion that only three districts permit multifamily housing as-of-right.
16 In its February 2012 submission, the County Planning Department identified three zoning districts that allow for two-family housing development as-of-right (Res C, PUD 1 and PUD8-1.4). Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). The July 2013 submission also identifies the VCR-2.0 and VCR-1.0 districts as allowing two-family housing as-of-right; however, two of those districts allow residences only above the ground floor in a mixed-use development, and thus exclude what is generally thought of as two-family homes. Ex. I, Town/Village of Scarsdale Zoning Analysis, at Figure 7, Eighth Zoning Submission, dated July 23, 2013; VILLAGE OF SCARSDALE CODE §§ 310-12.B(1)(b)(2), 12.B(2)(b)(2).,
17 In its February 2012 analysis, the County Planning Department erroneously stated that accessory apartments are allowed as-of-right in five nonresidential zoning districts, but it has corrected this error in its July 2013 analysis. Compare Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012), with Ex. I, Town/Village of Scarsdale Zoning Analysis, at Figure 7, Eighth Zoning Submission, dated July 23, 2013.
18 In its analysis, the County Planning Department identifies 8 districts as permitting mixed-use development as-of-right, which includes the VCO-0.8 district. Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). However, the zoning ordinance does not mention residential use of any kind as a permitted use in the VCO-0.8 district. VILLAGE OF SCARSDALE CODE § 310-12.B(5)(b).
19 The data provided by the County indicates that 106.92% of the land in Scarsdale is residential. Ex. J, Table 2 Residential Land Use Acreage by Municipality, Land Use in Westchester, at 17, 2010. Due to this unclear figure, and for the purposes of this analysis, this percentage figure was changed to 55.58% after dividing the total acreage of Scarsdale (point a on the data sheet) by the number of acres currently subject to residential use. Id.; Ex. E, Methodology III-C-2 Table August 2012 (submitted Sep. 6, 2012).
20 The analysis has been performed only on the areas zoned Res C, PUD-1 and PUD8-1.4, the districts identified by the County as allowing multifamily housing as-of-right in Ex. F, Town/Village of Scarsdale Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012).
9

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 11 of 39

Chart of Zoning Data for Berenson Test Prong 1

Municipality Tarrytown Tuckahoe Yorktown

Has a Comp. Plan
Yes
Yes
Yes

Comprehensive Plan2

Whether Adopted & Year

Recognizes
Affordable
Housing Need7

Addresses
Affordable Housing8

Yes

No

Yes

2007

Yes

No

Yes

2008

Yes

No

Yes

2010

MultiFamily
As-ofRight
8 districts As-ofRight 2 districts21 As-ofRight 3 districts22
SP 9 districts

Housing Types3

Two Accessory Mixed Family Apartment Use

As-ofRight
10 districts As-ofRight
2 districts As-ofRight
3 districts
SP 8 districts

None
None
SP in all residential districts23

As-ofRight
3 districts As-ofRight
5 districts
As-ofRight
1 district

Land Use: Quantity of Presently Available/Developed Housing4

Ability to Meet Future Need5

Residential Use

Acres

% of Total Acreage

Multifamily Use % of Resi-
Acres dential Use

Two or Three Family Undeveloped Land

Use

Zoned Multifamily

% of Resi-

% of Multi-

Acres

Acres

dential Use

family

Potential Units

Prong
1 Rank6

216.8

679.30 34.45%

32%

39.99

6%

2.3

0.1%

50

1

6

169.27 44.25% 29.51

17.4%

32.93

19.5%

0.7

0.2%

17

1

9317.9

617.0

37%

6.6% 57.91 0.6%

40

0.2%

479

1

9

1

21 The data provided by the County only credits the AP-3 district as permitting multifamily housing as-of-right. Ex. F, Village of Tuckahoe Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). However, under the Village code and consistent with the Village’s response letter, the B/R district should also be included. VILLAGE OF TUCKAHOE CODE § 4-5.1; Ex. H, Village of Tuckahoe Response Letter from John D. Cavallaro, Village of Tuckahoe Attorney, at 3, dated May 16, 2013.
22 The table provided by the County identifies R-3, R-3A and RSP-3 as districts permitting multifamily housing as-of-right. Ex. F, Town of Yorktown Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012). Yet, the County’s Methodology II-C and II-D tables and maps provide information about sites and acreage in RSP-1 rather than RSP-3, indicating that the descriptions of the two districts may have been inadvertently reversed in the review and analysis table. Compare Ex. F, Town of Yorktown Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012), with Ex. E, Town of Yorktown Methodology II-C and II-D Map August 2012 (submitted Sep. 6, 2012). Based on the zoning code, it does indeed appear that RSP-1, rather than RSP-3, permits multifamily as-of-right. TOWN OF YORKTOWN CODE §§ 300-124.C, 300-160.
23 Although the data submitted by the County credits 9 zoning districts as permitting accessory apartments as-of-right, the County also provides an explanatory note stating that these accessory dwelling units are limited to one dwelling unit for the owner, operator or janitor of the establishment, and the zoning ordinance does indeed contain this restriction.. Compare Ex. F, Town of Yorktown Table, Review and Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012), with TOWN OF YORKTOWN CODE §§ 300-21.C(7)(b)(1), 300-21.C(8)(c)(4), 300-21.C(9)(c)(6), 300-21.C(10)(c)(1), 300-21.C(11)(c)(6), 300-21.C(12)(c)(1), 30021.A(13)(c)(1), 300-21(15)(c)(5).
10

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 12 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 21

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily
As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

Ardsley

100

19

19%

12

19

38

38%

1 MF district is an

Yes overlay district. MF SP 834

5.7

only allowed in

2.7

0.3% Insufficient

2

1 Under this prong, municipalities must consider, weigh and balance both local and regional housing needs, due to the ripple effects zoning may have on areas outside a municipality’s boundaries. Berenson v. Town of New Castle, 38 N.Y.2d 102, 110 (1975) (“There must be a balancing of the local desire to maintain the status quo within the community and the greater public interest that regional needs be met.”); Triglia v. Town of Cortlandt, No. 17976/96,
1998 WL 35394393, at *4 (N.Y. Sup. Ct. Westchester Cnty. Jan. 6, 1998). 2 A party challenging a municipal zoning ordinance must first demonstrate that there is an identifiable regional need for affordable housing. See, e.g., Land Master Montg I, LLC v. Town of Montgomery, 821 N.Y.S.2d 432, 439 (N.Y.
Sup. Orange Cnty. 2006); Triglia, No. 17976/96, 1998 WL 35394393, at *4. Westchester County has not submitted evidence of regional need. The only available assessment is a study that was commissioned by the County in 2005. The study was conducted by the Center for Urban Policy Research of Rutgers University (CUPR), which estimated that Westchester municipalities must collectively build 10,768 new affordable housing units by 2015 to meet the County’s growing regional need for affordable housing. See Westchester County Affordable Housing Needs Assessment, Rutgers University Center for Urban Policy Research, at 67 (2004) (available at http://homes.westchestergov.com/images/stories/pdfs/HOUSING_RutgersReport033004.pdf) (last accessed July 31, 2013). The Westchester Housing Opportunity Commission (“HOC”), a body commissioned by the County,
has issued recommendations that allocate a share of the regional affordable housing needs to each municipality. See HOC, Affordable Housing Allocation Plan 2000-2015 (2005) (available at http://homes.westchestergov.com/images/stories/pdfs/HOUSING_HOCallocation05.pdf) (last accessed July 31, 2013). This allocation plan has been cited by the County in many of its AI submissions, the County relies on it in distributing funds from the County’s Legacy Program, and it is the only needs assessment that has been prepared to date. See, e.g., Ex. D, Westchester County, Analysis of Impediments to Fair Housing Choice (updated April
2013), p. 59-60. See also Ex. 10, Letter from James E. Johnson to Robert P. Astorino, dated June 12, 2013. Accordingly, this analysis goes forward with the best, indeed, only available relevant evidence. 3 Once the regional need is established, the next step in the analysis requires addressing the question whether, on its face, the zoning ordinance fails to allow for “the construction of sufficient housing to meet the [municipality’s] share
of the region’s housing needs.” Blitz v. Town of New Castle, 94 A.D.2d 92, 99 (N.Y. App. Div. 2d Dep’t 1983). 4 Municipal zoning ordinances that fail to provide a provision for multifamily housing as-of-right or significantly reduce or limit such housing are facially exclusionary. Id. at 94; Land Master Montg I, LLC, 821 N.Y.S.2d at 439;
Triglia, No. 17976/96, 1998 WL 35394393, at *6. 5 Municipalities commonly facilitate this by identifying, through zoning, areas of a municipality where multifamily housing may be built as-of-right. See Cont’l Bldg. Co. v. Town of N. Salem, 211 A.D.2d 88, 93 (N.Y. App. Div. 3d
Dep’t 1995). (“[M]ultifamily housing, given the nature of its construction and function as a whole, is one of the most affordable types of housing.”). These columns refer to points (a), (b) and (e) on the data sheets included in each municipality’s report. 6 Since a zoning ordinance merely determines “what may or may not be built” as opposed to deciding “what will actually be built, in the absence of government subsidies,” the question is not simply whether the zoning ordinance provides for the legal possibility of multifamily housing. Blitz, 94 A.D.2d at 99 (emphasis in original). Rather, the analysis must address the question of whether it is both “physically and economically feasible” that affordable
housing could be built under the present zoning regime. See id.; Cont’l Bldg. Co., 211 A.D.2d at 94 (citation and quotation omitted). This column indicates whether the market conditions within the municipality are such that condo sale prices are sufficient, meaning above the county-wide average of $375,000, or insufficient, meaning below that average. Municipalities that have insufficient market conditions will likely need a subsidy to aid in new
development of affordable housing. 7 Category 1 = Not exclusionary because the municipality has considered and has the potential to satisfy regional need. Category 2 = Not exclusionary, but warrants improvement. Category 3 = Exclusionary because the municipality
has not considered and does not have the potential to satisfy its fair share of regional need. 8 Despite being given multiple opportunities to respond to a survey conducted by the County Planning Department, some municipalities have not reported the construction or approval of any affordable housing units since 2000.
Ex. C, Table, Status of Allocation per Affordable Housing Allocation Plan 2000-2012 – As of November 20, 2012 (submitted Nov. 20, 2012). For the purposes of this analysis, these municipalities are assumed to have built or approved zero units and can be identified by an entry of “0*”. 9 This column provides a ranking of the municipalities based on the percentage of affordable units that have been reported as built or approved since 2000. The lowest rank is 24, as more than one municipality has built or approved zero units since 2000. Ex. C, Table, Status of Allocation per Affordable Housing Allocation Plan 2000-2012 – As of November 20, 2012 (submitted Nov. 20, 2012). 10 This column provides data from point b on the data sheets of the Housing Consultant Reports: Total acreage in zoning districts where multifamily housing is permitted as-of-right.

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 13 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

connection with

conversion of former

school (not available

anymore); Cluster

district only allows

apartment development

of only 6 units attached,

semidetached or

clustered with assisted

living facilities. No more

than 25% of the units

may contain more than

3 bedrooms in the

cluster district.

1 district requires min.

lot size of 2 acres. For

MF by SP, can develop

in 1 district or elsewhere

Bedford

396

95

24%

10

45

140

35.4%

Yes

by conversion in

25,444

221

residences existing prior

to Sep.1, 1985, on lots

of less than 20,000 sq.

ft.

1 MF district is

commercial and only

allows mixed-use

development, where

Briarcliff

141

4911

34.8%

9

0

Manor

residential use must not

49

34.8%

Yes

exceed 80% of the

3808

48.7

gross floor area, and no

ground floor dwelling

units shall front any

public right-of-way. 1

MF district is intended

2.7

0.01% Insufficient

2

0.2

0.01% Sufficient

2

11 A developer is seeking approvals for a proposed affordable housing development that would contain 14 affordable units. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013).
2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 14 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

for elderly communities. SP only allowed for conversion of an existing house on a parcel of 10 or more acres.

Bronxville

101

0*

0%

24

0

0

0%

Yes

None

622

79.5

0

0

Sufficient

2

MF as-of-right is only in

2 commercial districts

and is limited to mixed-

use development; the

residential use must be

in the back of or above

a commercial

establishment w a max.

of 4 dwellings per acre.

SP may be granted in 2

commercial districts for

Buchanan

56

0*12

0%

24

7

multifamily dwellings

7

12.5%

Yes

932

42.3

3.6

0.4% Insufficient

2

without commercial use

but the districts require

parcels of land not less

than 40,000 sq.ft., each

dwelling unit contains a

min. of 750 sq.ft., the

max. density is 5

dwelling units per

40,000 sq.ft., and the

parcel must adjoin a

residentially zoned

district.

12 The County has reported that there is currently a proposal to rehabilitate one three-bedroom affordable housing unit, pursuant to the County’s obligations under the Settlement. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013).
3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 15 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

MF district restricted to

3- and 4- family dwelling

w max. of 2 bedrooms

per unit; 1 special

district is not mapped; 1

special district is limited

to senior housing. Some

Cortlandt

403

201

49.9%

3

60

261

64.8%

Yes

22147 171.9

15.7

0.1% Insufficient

2

of the multifamily

housing is only allowed

at very low densities,

less than 3 units per

acre in 1 case, and up

to 10 bedrooms per acre

in another case.

1 MF district is an

overlay district intended

to simplify the

development of large

tracts of 10 or more

contiguous acres and

permits as-of-right

Croton-on-

multifamily housing

115

17

14.8%

14

0

17

14.8%

Yes

3034

58.5

0

0%

Sufficient

3

Hudson

consistent with the

underlying districts. SP

district is also an overlay

district dependent on

underlying districts

permitted uses, unless

in 1 of 3 residential

districts.

All but 1 MF district

Dobbs Ferry

105

0*13

0%

24

273

273

260%

requires min. lot size per

Yes

1580

263.8

7.2

0.46% Sufficient

2

unit ranging from low of

800 sq.ft. to a high of

13 A developer is seeking approvals for a 202-unit mixed-income development at Rivertowns Square that would contain 10 affordable housing units. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013).
4

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 16 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

6,000 sq.ft., and min. lot area of 5,000 sq.ft.

SP district is limited to

senior housing with

max. 2 occupants in

efficiency and 1

bedroom units and 3

occupants in 2 bedroom

units and has

Eastchester

104

214

1.9%

22

84

86

82.7%

Yes

preferences for

2184

224.6

1.6

0.1% Insufficient

2

Eastchester residents

and relatives. The max.

density for senior

housing is 1 unit per 700

sq.ft., which yields

approximately 60 units

per acre.

Harrison

756

0*

0%

24

45

45

6%

Yes

None

11147

32.9

0.9

0.01% Sufficient

3

1 of the 6 MF districts

Hastings-on97

2115

21.6%

11

71

92

94.8%

allows only 3-family

Yes

1264

84.9

6.4

0.5%

Sufficient

1

Hudson

homes as-of-right but

more with SP

Irvington

156

4

2.6%

21

0

4

2.6%

Yes

None

1809

56.4

0.3

0.01% Sufficient

2

14 Despite being given multiple opportunities to respond to a survey conducted by the County Planning Department, Eastchester has not reported the construction or approval of any affordable housing units since 2000. Ex. C, Table, Status of Allocation per Affordable Housing Allocation Plan 2000-2012 – As of November 20, 2012 (submitted Nov. 20, 2012). However, based on a recent submission by the County, Eastchester has approved 2 affordable units. Ex. N, Funding Advisory to Monitor, No. 19, (submitted June 27, 2013).
15 Developers are seeking approvals for two proposed affordable housing projects that would contain a combined total of 14 affordable units. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). Additionally, the County has reported that there is currently a proposal to rehabilitate one three-family home and convert it to three condominium affordable housing units, pursuant to the County’s obligations under the Settlement. Id.
5

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 17 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

2 MF districts are

commercial allowing

mixed-use development

only. MF buildings

cannot be larger than 20

unit or taller than 2.5

Larchmont

105

5116

48.6%

5

53

104

99%

Yes stories. SP district is for 687

66.3

1.9

0.3%

Sufficient

2

townhouse

developments restricted

to cites of 6 or more

acres, w no more than 2

bedrooms per

townhouse dwelling.

Only MF district requires

min. lot size for

developments served by

public water and sewer

infrastructure of 15,000

sq.ft. If a development

Lewisboro

239

0*

0%

24

18

18

7.5%

Yes

18648 142.7

4.5

0.02% Insufficient

3

will not be served by

public water and sewer,

the min. lot size is 15

acres. The max.

permitted density is 2

density units per acre.

1 MF district limits MF

development to 1 3

bedroom unit for every

Mamaroneck

125

10

8%

16

0

10

8%

Yes

25 dwelling units, and 2315

39.7

0

0%

Sufficient

3

has a min. lot size of

80,000 sq.ft. 1 MF

district may have no

more than an average of

16 A 149-unit development on Byron Place that would contain 10 affordable housing units also appears to be under construction. See Ex. O, Westchester County 2013 2Q Report, at App’x I-1, 2Q 2013 AFFH Sites Progress List (submitted July 19, 2013).
6

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 18 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

2 bedrooms per unit,

and no unit may have

more than 3 bedrooms.

SP district is for new,

large mixed-use

developments.

1 MF district is

commercial, is not

mapped and requires

min. site size of 100

acres; 1 MF district

converted a school to

dwelling units for

seniors over 62 or

families under 29

provided the

development averages

750 sq.ft. The units

were set aside for

Mount

residents or parents or

975

0*

0%

24

5

5

0.5%

Yes

15392 1014.8

5.2

0.03% Sufficient

2

Pleasant

children of residents on

the basis of economic

and social need –

criteria set by Town

Board. 6 transitional

districts restrict to

average of 2 bedrooms

with no more than 3 and

no less than 1 bedroom.

The 3 MF SP districts

only allows multifamily

housing if it is part of a

conversion of an

existing building.

7

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 19 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

1 MF district is an

unmapped floating

district. Min. lot area for

New Castle

255

317

1.2%

23

32

35

MF developments

13.7%

Yes

14999 303.6

5

0.03% Sufficient

2

ranges from 1 to 5

acres, though they may

be reduced for

affordable units.

5 MF districts allow

stand-alone multiple

housing developments.

In 3 MF districts, the

multifamily

developments must be

apartments on the

North Castle

712

46

6.5%

18

82

128

18%

second floor as part of a

Yes

16763

mixed-use development.

312.4

6.3

0.04% Insufficient

2

1 district the max.

density is restricted to 1

density unit per 25,000

sq.ft. of net lot area; 1

district requires a max.

density of 1 density unit

per 14,000 sq.ft.

MF developments must

be on lots of at least 5

North Salem

152

7418

48.7%

4

307

381

250.7%

Yes acres. In 2 MF districts, 14864 142.7

77.3

0.5% Insufficient

1

the max. density is 4

units per acre or 6

17 A developer is seeking approvals as part of the pending Chappaqua Crossing development, which will include 20 affordable units. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). Another developer is seeking approvals for a proposed 28-unit affordable housing development on Hunts Place. Id.
18 A developer is currently seeking approvals to build 102 units of affordable housing on a site on Route 22. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). Another developer is seeking approvals to build 2 affordable units on a different site on Route 22. See Ex. O, Westchester County 2013 2Q Report, at App’x I-1, 2Q 2013 AFFH Sites Progress List (submitted July, 19, 2013).

8

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 20 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

multifamily units per

acre. 1 of the MF districts is for senior

housing with assisted living only; 1 of the MF

districts is limited to lots

of 160,000 sq. ft., but is

reduced to 5,000 sq.ft.

for affordable units.

Only allow for MF

housing by SP and must

Ossining

113

5

4.4%

19

0

5

4.4%

No

1945

0

be in lots of at least

0

0%

Insufficient

3

40,000 sq.ft.

Pelham

74

3

4.1%

20

54

57

77%

3 MF districts are

Yes

531

32.8

commercial districts.

1.1

0.2%

Sufficient

2

Only 1 district of 10. No

Pelham Manor 101

0*

0%

24

0

0

0%

Yes

871

24.4

0

0%

Insufficient

3

MF by SP.

SP districts are limited

Pleasantville

129

5619

43.4%

7

10

66

51.2%

Yes

to 2 bedrooms per

1148

114.2

1

0.1% Insufficient

2

dwelling unit.

MF development as-of-

right only allowed in

commercial districts as mixed-use

developments limited to 2,500 sq.ft. max.

Pound Ridge

184

12

6.5%

17

23

35

19%

coverage per building

Yes

14771

43.8

and max. height of 2 or

3.6

0.02% Insufficient

3

3 stories. SP districts are restricted to senior

housing or residential care facilities w min. lot

sizes ranging from 1 to 3 acres, precluding

19 Developers are seeking approvals to construct another nine affordable housing units (seven within a 70-unit mixed-income multifamily housing development on Washington Avenue, plus a proposed two-family home). See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013).
9

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 21 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

development of small

multifamily

developments. Senior

housing may not contain

more than 50 dwelling

units.

1 district is for senior

and handicapped

housing only. 1 district is

restricted to 2 historic

properties and cannot

contain more than 9

Rye

167

27

16.2%

13

38

65

38.9%

Yes

multifamily dwelling

3738

201.2

1.6

0.04% Sufficient

2

units. MF buildings may

contain no more than 6

dwelling units per floor

and cannot exceed 120

feet in maximum

horizontal dimension.

1 MF district limits MF

to existing parcels of 15

Rye Brook

171

6420

37.4%

8

38

102

59.6%

Yes

to 20 acres. 2 MF

2224

344.2

1.2

0.1% Insufficient

2

districts are floating

districts. 1 SP district is

for MF senior housing.

Scarsdale

160

0*21

0%

24

0

0

0%

Yes

None

4278

15.622

023

0%

Sufficient

2

20 A developer is seeking approvals for 13 units of affordable housing at a site on North Ridge Street. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). 21 Developers are currently seeking approvals to construct five affordable housing units in Scarsdale: four affordable SROs as part of a 138-unit development on Saxon Woods Road and one affordable unit as part of an 11-unit
development on Weaver Street. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). 22 The Methodology III-C-2 Table included only three districts as permitting multifamily housing as-of-right, which are mapped over 15.6 acres, or 0.4% of Scarsdale’s land area. See Ex. E. The County’s July 2013 zoning analysis
adds four additional districts. Ex. I, Town/Village of Scarsdale Zoning Analysis, at Figure 7, Eighth Zoning Submission, dated July 23, 2013. The estimates of acreage by zoning district in the Racial Composition Table indicate that the Business A, VCR-2.0, VCR-1.0 and VCO-2.0 districts contain another 6.7 acres, bringing the total to 22.5 acres, or 0.5% of the Village’s land area. Ex. K, Racial Composition Table, Village of Scarsdale – 2000 & 2010
Census Data (submitted Aug. 15, 2012). 23 The analysis has been performed only on the areas zoned Res C, PUD-1 and PUD8-1.4, the districts identified by the County as allowing multifamily housing as-of-right in Ex. F, Town/Village of Scarsdale Table, Review and
Analysis of Municipal Zoning Ordinances in Westchester County (submitted Feb. 29, 2012).
10

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 22 of 39

Municipality

Chart of Zoning Data for Berenson Test Prong 2

Share of Regional Need2

Ability to Meet Regional Need
through Multifamily Development3

Zoning Provision Permitting
Multifamily Housing (As-of-Right & SP)4

Allocation of Units

Number
Built or
Approved
8

% of Built or
Approved

Rank9

Number of
Potential Units

Total Built Approved and Potential

% of Benchmark
Built, Approved and Potential

Provided

Limitations

Zoning and Mapping: Multifamily Housing As-of-Right5

Total Acres

Acres Zoned
Multifamily As-ofRight10

Undeveloped Acres Zoned Multifamily As-of-Right

% of Multifamily
Acreage Undevelop
ed

Market Condition6

Prong
2 Rank7

1 MF district requires

500 acre min. site size;

2 MF districts min. lot of

10 acres; 1 MF has

Somers

224

14924

66.5%

1

260

409

182.6%

Yes max. 3 density units per 20583 1,499

73.9

0.4% Insufficient

1

acre; 1 MF has max. 2

density units per acres;

2 districts limit to 2

bedrooms

1 MF district is for

mixed-use only with

Tarrytown

111

66

59.5%

2

50

116

104.5%

Yes

1972

363.8

2.3

0.1%

Sufficient

1

max. 55% of floor area

for residential use.

MF development as-of-

right only in 2 districts.

In 1 district, MF must be

Tuckahoe

56

apartments w min of 7

6

10.7%

15

17

23

41.1%

Yes

383

42

units or townhouses w

0.7

0.2%

Sufficient

2

max of 7 units and must

be on lots of at least

12,000 sq.ft.

1 MF district is for senior

housing; 1 SP district is

for either senior housing

Yorktown

378

169

44.7%

6

479

648

171.4%

Yes or conversion of existing 25186 386.5

40

0.2% Insufficient

1

homes constructed prior

to 1930 and restricts the

min. lot size to 15 acres.

24 A developer is seeking approvals for 72 units of affordable housing on Route 6, which would be known as the Green at Somers. See Ex. G, Westchester County 2013 1Q Report, at App’x I-1, 1Q 2013 AFFH Sites Progress List (submitted May 10, 2013). After the Monitor sent the Town of Somers a supplemental information request on September 6, 2013 regarding the status of this proposed development, see Ex. T, Letter from James E. Johnson to the Town of Somers Supervisor Mary Beth Murphy, dated Sep. 6, 2013, the Town responded that it has not adopted an amendment to its zoning code that would be required for this development to move forward. Ex. U, Letter from Town of Somers Supervisor to James E. Johnson, at 2, dated Sep. 10, 2013. In its letter, the Town did note, however, that a developer has applied to build a 60 unit development in the Somers Hamlet on Route 100 and 202, in which “the Town Board will require a percentage of the units [to] be affordable.” Id. Another developer has applied to build 45 town homes near Mahopac Avenue and Route 6, which would include “eight affordable town homes with an additional affordable apartment attached for a total of 16 affordable units.” Id.
11

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 23 of 39

Municipality Ardsley

Chart of Municipal Rebuttal Factors under Berenson Test1

Model Ordinance2

Incentives

Mandates

[Score: 1] The otherwise applicable min.
lot area requirement for a single-family home is reduced
by 25% for an affordable housing unit. Although 2-
family homes are not otherwise permitted in single-
family zoning districts, an affordable 2-family home may be located on a lot that meets the otherwise applicable min.
lot area requirement for a single-family home. In the MF

[Score: 1] In all districts, all residential developments of 10 or more units must have at least 10% of the units be affordable. In residential developments of 5 to 9 units, at least 1 unit must be affordable. The MF overlay district mandates that 20% of units must be workforce housing for emergency service, public service, and quality of life occupations workers, and another 20% of units must be
affordable housing.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 3] Accessory apartments are not allowed in any district.
Preferences for Ardsley residents etc. in workforce housing developments. 1
MF district is an overlay district. MF SP only
allowed in connection with conversion of former school (not available
anymore); Cluster district only allows apartment development of only 6

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Yes

No

but only 1

district

Resident Preferences
11
Yes workforce housing

Reach Limited to One or Few Districts12
No

Prong 1
Rank4
2

Prong 2
Rank5
2

Rebuttal Rank6
2

Berenson Test
Result7
2

1 If a municipality’s zoning ordinance is exclusionary under either or both prongs of the Berenson test, there must be a showing that the zoning practices are, in actuality, not exclusionary. Robert E. Kurzius, Inc. v. Incorporated Vil.
of Upper Brookville, 51 N.Y.2d 338, 345 (N.Y. 1980); Allen v. Town of N. Hempstead, 103 A.D.2d 144, 147 (N.Y. App. Div. 2d Dep’t 1984). 2 Score of 1 = The zoning ordinance has provisions that are equal to or better than the model ordinance. See Ex. B, Westchester County Implementation Plan, Appendix D-1(i): Model Ordinance Provisions. Score of 2 = The zoning
ordinance has provisions that are similar to the model ordinance, but the provisions are not as inclusive. Score of 3 = The zoning ordinance does not provide the relevant provisions. 3 Although incentives such as density bonuses or provisions allowing accessory apartments or multifamily housing development may suggest that a zoning ordinance is not exclusionary, these provisions must not be “intrinsically
narrow in scope [such that they] do very little to genuinely address the established need for multifamily housing.” Cont’l Bldg. Co. v. Town of N. Salem, 211 A.D.2d 88, 94 (N.Y. App. Div. 3d Dep’t 1995); Land Master Montg I,
LLC v. Town of Montgomery, 821 N.Y.S.2d 432, 440 (N.Y. Sup. Ct. Orange Cnty. 2006) (citation omitted). 4 Category 1 = Not exclusionary because the municipality provides a well-ordered plan for its community. Category 2 = Not exclusionary, but warrants improvement. Category 3 = Exclusionary because the municipality does not
provide a well-ordered plan for its community. 5 Category 1 = Not exclusionary because the municipality has considered and has the potential to satisfy regional need. Category 2 = Not exclusionary, but warrants improvement. Category 3 = Exclusionary because the municipality
has not considered and does not have the potential to satisfy its fair share of regional need. 6 Category 1 = Rebuttal successful because the zoning ordinance provides a wide array of affordable housing opportunities sufficient to meet local and regional need. Category 2 = Rebuttal may be sufficient, but the zoning ordinance
warrants improvement. Category 3 = Rebuttal unsuccessful because the zoning ordinance, though it may have provisions addressing affordable housing opportunities, is too narrow in scope to provide genuine opportunities
sufficient to meet local and regional need. 7 Category 1 = Municipalities whose zoning ordinances meet prong one and prong two of the Berenson analysis and are therefore not exclusionary. Category 2 = Municipalities whose zoning ordinances do not necessarily meet either
prong of the Berenson analysis, but certain other factors provide a rebuttal to the presumption that their ordinances are exclusionary. Category 3 = Municipalities whose zoning ordinances fail either prong one or two of the
Berenson analysis and where there are insufficient factors to provide for a viable rebuttal against a finding of exclusionary zoning. 8 This column examines other ordinance provisions such as prohibitions on accessory uses and special permit restrictions. If the municipality receives a score of 1, the provisions are some of the least restrictive practices. A score of 3
means the municipality has some of the most restrictive practices. 9 Zoning ordinances that provide a wide array of affordable housing opportunities via special permits “create[] the illusion of affordable housing availability,” but vest a large amount of discretion in municipal officials and are
therefore insufficient. Land Master Montg I, LLC, 821 N.Y.S.2d at 440. 10 Cont’l Bldg. Co., 211 A.D.2d at 94. 11 Allen, 103 A.D.2d at 148; Triglia v. Town of Cortlandt, No. 17976/96, 1998 WL 35394393, at *6 (N.Y. Sup. Ct. Westchester Cnty. Jan. 6, 1998). 12 Cont’l Bldg. Co., 211 A.D.2d at 94.

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 24 of 39

Municipality Bedford

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives
overlay district, the Village may waive fees or provide
assistance in obtaining additional local, state or federal funds for a multifamily development that includes 20% or more of workforce and/or affordable housing
units.

Mandates

[Score: 1] In a development where at least 20% of residential units are affordable, the Planning Board may waive or reduce fees, provide local assistance or actively assist in procuring federal, state or other agency support for affordable housing. In these affordable or mixedincome developments, the Town allows a reduction of dimensional requirements of
not more than 25%, and shared parking to reduce
infrastructure costs.

[Score: 1] At least 20% of any multifamily development in any multifamily residential zoning district must be affordable units. In all residential developments of 5 or more units in single-family districts, at least 10% of all units must be affordable.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
units attached, semidetached or clustered
with assisted living facilities. No more than
25% of the units may contain more than 3 bedrooms in the cluster
district.

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

[Score: 2]

Accessory units are not

allowed as-of-right. By

special permit they may

only be in existing homes,

not in accessory buildings.

The accessory apartment

shall contain at least 400

sq.ft. but not more than

800 sq.ft. of gross floor

area and shall not exceed

25% of the total floor area

of the principal residence

No

No

No

No

structure. There can be no

more than 1 accessory

apartment per lot and no

more than 5 residents per

lot. 1 MF district requires

min. lot size of 2 acres.

For MF by SP, can

develop in 1 district or

elsewhere only by

conversion in residences

existing prior to Sep.1,

1985, on lots of less than

20,000 sq. ft.

Prong 1
Rank4
2

Prong 2
Rank5
2

Rebuttal Rank6
1

Berenson Test
Result7
2

2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 25 of 39

Municipality Briarcliff Manor
Bronxville

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives
[Score: 2] 1 district provides a 50%
increase in the usually applicable max. dwelling-units-
per-acre density if at least 50% of the units are moderate income dwelling units, but has preference given to employees
of the Village or the school district, residents of the
Village, members of the fire department, former residents
who still own residential property in the Village, other
persons employed in the Village, relatives of Village
residents and other Westchester residents

Mandates
[Score: 3] None

[Score: 3] None

[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

Prong
1 Rank4

Prong
2 Rank5

Rebuttal Rank6

Berenson
Test Result7

[Score: 2]

1 MF district is commercial

and only allows mixed-use

development, where

residential use must not

exceed 80% of the gross

floor area, and no ground

floor dwelling units shall

front any public right-of-

Yes

Yes

Yes

Yes

2

2

3

2

way. 1 MF district is

intended for elderly

communities. SP for MF

and 2-family homes are

only allowed for

conversion of an existing

house on a parcel of 10 or

more acres.

[Score: 3]

No specific reference to

affordable housing in the

zoning code. New

accessory apartments are

not listed as a permitted

use as-of-right or by SP in

any district, contrary to

No

No

No

No

2

2

3

2

what is indicated in the

County’s Municipal Zoning

Analysis Appendix Table,

although existing

accessory apartments are

grandfathered, permitted

non-conforming uses.

3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 26 of 39

Municipality Buchanan

Incentives
[Score: 3] None

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates
[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 2] Accessory apartments limited to only 1 bedroom units, between 300 and 600 sq.ft. in size and not to exceed 33% of the gross area of the building. MF as-of-right is only in 2 commercial districts and is
limited to mixed-use development; the
residential use must be in the back of or above a
commercial establishment w a max. of 4 dwellings per acre. SP may be granted in 2 commercial districts for multifamily or
2-family dwellings without commercial use but the
districts require parcels of land not less than 40,000 sq.ft., each dwelling unit
contains a min. of 750 sq.ft., the max. density is 5 dwelling units per 40,000 sq.ft., and the parcel must
adjoin a residentially zoned district.

Discretion Overly
Vested in Municipal Officials9
No

Age Restrictions
10
No

Resident Preferences
11
No

Reach Limited to One or Few Districts12
Yes

Prong 1
Rank4
2

Prong 2
Rank5
2

Rebuttal Rank6
3

Berenson Test
Result7
2

4

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 27 of 39

Municipality
Cortlandt
Croton-onHudson

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

[Score: 2] In 1 special district, if higher
than 10% of affordable housing is provided, density may be increased by 66% (from 3 units / 6 bedrooms per acre to 5 units / 10 bedrooms per acre). In RRSP district, the
new housing may be developed at a density of up to 20% greater than the existing
development.

[Score: 2] In 1 special district, at least 10% of
the final unit count must be affordable. All senior housing units in 1 special district must meet the Westchester County definition of
affordability. In a RRSP development, all new units above the existing number of units must
be affordable.

[Score: 2] 1 district permits an increase in density of 5% of the number
of market-rate units if the additional units are affordable;
1 overlay district permits a 10% increase in density over
the underlying residential districts requirements.

[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 2] Accessory units require SP approval. Although
accessory units are permitted by special permit
in 9 zoning districts (representing all but one
multifamily district), in some districts a 1-
bedroom / 2-occupant restriction forestalls the ability of families of three or more persons to be potential residents. The
only MF district is restricted to 3- and 4family dwelling w max. of 2 bedrooms per unit; 1 special MF district is not mapped; 1 special MF district is limited to senior housing. Some of the multifamily housing is only
allowed at very low densities, less than 3 units per acre in one case, and
up to 10 bedrooms per acre in another case.
[Score: 2] Accessory apartments may only be in existing buildings and the owner or lessee must be at least 55
years old. Only 1 accessory apartment is allowed per unit and it must be at least 400 sq.ft. but not greater than the lesser of 750 sq.ft. or 1/3 of the habitable floor area

Discretion Overly
Vested in Municipal Officials9
Yes
No

Age Restrictions
10
Yes But only 1
district
Yes accessory
units

Resident Preferences
11
No
No

Reach Limited to One or Few Districts12
Yes
Yes incentives

5

Prong 1
Rank4
1
2

Prong 2
Rank5
2
3

Rebuttal Rank6
3
3

Berenson Test
Result7
2
3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 28 of 39

Municipality
Dobbs Ferry Eastchester

Incentives
[Score: 3] None
[Score: 3] None

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates
[Score: 1] At least 10% of all residential developments of more than 10 units must be affordable. Offers alternative to meet requirement either off-site or through payment.
[Score: 2] 15% of units must be affordable in
the SP district limited to senior housing

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
of the dwelling. 1 MF district is an overlay district
intended to simplify the development of large tracts of 10 or more contiguous acres and
permits as-of-right multifamily housing consistent with the underlying districts. SP district is also an overlay district dependent on underlying districts permitted uses, unless in 1 of 3 residential districts.
[Score: 3] Village Code explicitly states that accessory dwelling units are illegal in the Village. All but 1 MF district requires min. lot size per unit ranging from low of 800 sq.ft. to a high of 6,000 sq.ft., and min. lot
area of 5,000 sq.ft. [Score: 3]
Accessory dwelling units are not permitted. In 1 mixed-use district, the commercial use may not take up more than 50% of the total floor area, and may only be located on the ground floor. SP district is limited to senior housing with max. 2 occupants in efficiency and 1 bedroom units and 3 occupants in 2 bedroom units and has
preferences for

Discretion Overly
Vested in Municipal Officials9
No
No

Age Restrictions
10
No
Yes but only 1
district

Resident Preferences
11
No
Yes but only 1
district

Reach Limited to One or Few Districts12
No
Yes mandate only for 1
district

6

Prong 1
Rank4
1
1

Prong 2
Rank5
2
2

Rebuttal Rank6
2 3

Berenson Test
Result7
2
2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 29 of 39

Chart of Municipal Rebuttal Factors under Berenson Test

Municipality
Harrison Hastings-on-
Hudson
Irvington

Model Ordinance2

Incentives

Mandates

[Score: 3] None

[Score: 3] None

[Score: 1] If a single-family home is to be an affordable housing unit, the minimum lot size is reduced by
25%. Planning Board may increase density requirements
by 10% if, for every market rate unit in excess of the
usually applicable max., one affordable housing unit is also
provided.

[Score: 1] At least 10% of any development
of eight or more units must be affordable and at least 5% more
must be either affordable or workforce. Alternative of meeting
mandate either off-site or by contributing to housing trust fund.

[Score: 2] Each single-family affordable housing unit may be located on a lot meeting 75% of the otherwise applicable min. lot area. Each affordable 2-family home may be located on a lot
meeting the min. lot area applicable to a single-family home. For SP below-market-
rate units developed in 1 district, Village increases the allowable number of housing units and issues a waiver of site capacity requirements.

[Score: 1] Any development of more than 10 units must include 10% affordable units, and any development of 5 to
9 units must include at least 1 affordable unit.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
Eastchester residents and relatives. The max.
density for senior housing is 1 unit per 700 sq.ft.,
which yields approximately 60 units per acre. [Score: 3]
Accessory apartments are prohibited. [Score: 1]
Accessory units are permitted in existing buildings. Only affordable accessory housing units are permitted in newly constructed single-family homes and are limited to one bedroom, while other accessory units can
include up to two bedrooms. [Score: 2]
Accessory units are permitted as-of-right in
single-family zoning districts, but only on lots of at least 60,000 sq.ft., and occupancy is restricted to the son or daughter of the primary building residents.
The zoning code has a special permit for below-
market-rate units developed in 1 district, but these units are limited to
Village employees, fire/EMS volunteers and resident senior citizens.

Discretion Overly
Vested in Municipal Officials9
N/A
No
No

Age Restrictions
10
N/A No
No

Resident Preferences
11
N/A
No
Yes but only 1
district

Reach Limited to One or Few Districts12
N/A
No
No

Prong 1
Rank4
2 1
2

Prong 2
Rank5
3 1
2

Rebuttal Rank6
3 1
2

Berenson Test
Result7
3 1
2

7

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 30 of 39

Municipality Larchmont Lewisboro

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

[Score: 3] None

[Score: 3] None

[Score: 2] In only MF district, density may be increased by up to 40% if the applicant builds at least 1/3 of the additional density as middle-income
units.

[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 3] Accessory housing is not listed as a permitted use. No single-family house can be smaller than 1,000
sq.ft. outside of the multifamily districts, and 1,400 sq.ft. in most of the Village, which forestalls cottage-style housing. 2 MF and two-family districts are commercial allowing mixed-use development only. MF buildings cannot be larger than 20 unit or taller than 2.5 stories. SP district is for townhouse developments restricted to cites of 6 or more acres, w no more than 2 bedrooms per townhouse dwelling.
[Score: 2] Accessory apartments cannot contain more than two bedrooms or four occupants and must be on lots of at least ½ acre.
Accessory dwelling residences are allowed by
SP on lots of at least 20 acres. The only MF district
requires min. lot size for developments served by public water and sewer infrastructure of 15,000 sq.ft. If a development will not be served by public water and sewer, the min. lot size is 15 acres. The max. permitted density is 2

Discretion Overly
Vested in Municipal Officials9
N/A
No

Age Restrictions
10
N/A
No

Resident Preferences
11
N/A
No

Reach Limited to One or Few Districts12
N/A
Yes

8

Prong 1
Rank4
2
3

Prong 2
Rank5
2
3

Rebuttal Rank6 3
3

Berenson Test
Result7
2
3

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 31 of 39

Municipality

Incentives

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
density units per acre.

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

Prong
1 Rank4

Prong
2 Rank5

Rebuttal Rank6

Berenson
Test Result7

[Score: 3]

Accessory apartments are

prohibited, with the

exception of accessory

buildings or trailers for

Mamaroneck

[Score: 3] None

domestic employees in

[Score: 2]

single-family zoning

1 district requires that one of every

districts. 1 MF district limits

17 dwelling units must be

MF development to 1 3

workforce housing occupied

bedroom unit for every 25

permanently by individuals or

No

No

No

Yes

3

3

3

3

dwelling units, and has a

families whose household incomes

min. lot size of 80,000

do not exceed 80 percent of the

sq.ft. 1 MF district may

Westchester County area median

have no more than an

income.

average of 2 bedrooms

per unit, and no unit may

have more than 3

bedrooms. SP district is for

new, large mixed-use

developments.

[Score: 3]

Accessory apartments are

[Score: 2]

[Score: 2]

permitted only by special

5 MF districts permit a density Except for the maximum costs

permit, in existing

bonus of up to 1/3 beyond the established for certain units in a

buildings at least 10 yrs.

basic permitted density if the

single specified project, the

old, and with a maximum

applicant provides affordable residential conversion of a former

of 600 sq. ft. Transitional housing. There is no guidance school (units in the building may

Yes

Yes

districts restrict the

Yes

Mount

regarding whether all or some be set aside for seniors or those

but only 1 but only 1

number of bedrooms per

No

but only

2

2

2

2

Pleasant

percentage of the units must

under 29 years of age who are

developme developmen

unit in a development to

mandate

be affordable for the

either Town residents or their

nt

t

an average of 2, with no

development to qualify for the parents or children and that any

more than 3 and no less

bonus, nor are there any

such units must be sold at

than 1 bedroom. 1 MF

provisions regarding the specified below-market prices), the

district is commercial, is

location or quality of the

Town has established no mandate

not mapped and requires

affordable units.

for affordable housing.

min. site size of 100 acres;

1 MF district converted a

9

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 32 of 39

Municipality New Castle

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

[Score: 1] For affordable single-family homes, the usually applicable min. lot size is reduced by 25%. In a single-family home
district, a 2-family home including an affordable unit may occupy a lot meeting the specified min. lot size for a single-family home. At the discretion of the Planning Board, density bonuses of up to 100% beyond the basic permitted density may be
awarded in 1 district in exchange for the development of special features or facilities,
including affordable units. Density bonuses may be considered in 1 district, but the ordinance is silent about the

[Score: 1] In 3 MF districts, within any multifamily development of 10 or more units, at least 10% must be affordable, and within any multifamily development of 5 to 9 units, at least 1 unit must be affordable. Within subdivisions of 10 or more building lots, affordable units must occupy at least 10% of the lots. Within subdivisions of 8 or 9 building lots, an affordable unit must occupy at least 1 lot.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
school to dwelling units for seniors over 62 or families
under 29 provided the development averages 750 sq.ft. The units were set aside for residents or parents or children of residents on the basis of economic and social need – criteria set by Town
Board. 6 transitional districts restrict to average
of 2 bedrooms with no more than 3 and no less than 1 bedroom. The 3 MF SP districts only allows multifamily housing if it is part of a conversion of an
existing building. [Score: 1]
The zonig code has a provision for workforce housing, which does not
allow for multifamily developments, but is restricted to mixed-use developments. The regulations regarding workforce housing units specify that no workforce units may be built within a tenth of a mile of 5 other workforce units and that such units have a max. unit size of 2 bedrooms. 1
MF district is an unmapped floating district.
Min. lot area for MF developments ranges from 1 to 5 acres, though they

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

No

No

Resident Preferences
11
No

Reach Limited to One or Few Districts12
No

10

Prong 1
Rank4
1

Prong 2
Rank5
2

Rebuttal Rank6
1

Berenson Test
Result7
2

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 33 of 39

Chart of Municipal Rebuttal Factors under Berenson Test

Municipality North Castle North Salem

Model Ordinance2

Incentives
purposes for which they may be awarded. Also has a
workforce housing provision in 3 districts by SP.

Mandates

[Score: 2] The maximum density in 1 district may be increased by up to 45% if more than 40% of the increase is built as middleincome units. In 1 district, the permitted density may be increased by not more than 40% if the applicant constructs at least 20% of the increase as middle-income dwelling units.

[Score: 2] At least 15% of permitted floor area ratio in 1 district must be set aside for middle-income units for seniors. At least 35% of units in a single structure in 1 district must be set aside for middle-income units. At least 20% of units in a single structure in 1 commercial district must be set aside for
middle-income units.

[Score: 1] 6 districts provide density
bonuses of 25% for developments that provide more than the min. required number of affordable units, or, in subdivisions of less than 10 lots, a reasonable number. Bonuses of 20% may be awarded in 2 other districts. In 1 district, the min. required lot area for multifamily housing is reduced from 160,000 sq.ft. to 5,000 sq.ft for affordable units.

[Score: 1] At least 10% of all units in subdivisions of 10 or more units must be affordable. The requirement is increased to 20% in
4 of the MF districts.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
may be reduced for affordable units.

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

[Score: 1]

Accessory units are

permitted in 4 districts up

to 1 unit as-of-right, but

need SP for more units. 5

MF districts allow stand-

alone multiple housing

developments. In 3 MF

districts, the multifamily

Yes

developments must be

No

but only 1

No

Yes

apartments on the second

district

floor as part of a mixed-

use development. 1 district

the max. density is

restricted to 1 density unit

per 25,000 sq.ft. of net lot

area; 1 district requires a

max. density of 1 density

unit per 14,000 sq.ft.

[Score: 2]

MF developments must be

on lots of at least 5 acres.

In 2 MF districts, the max.

density is 4 units per acre

or 6 multifamily units per

acre. 1 of the MF districts

Yes

is for senior housing with

but only 1

No

No

No

assisted living only; 1 of

of 5 MF

the MF districts is limited

districts

to lots of 160,000 sq. ft.,

but is reduced to 5,000

sq.ft. for affordable units.

Mixed-use development is

not permitted as-of-right in

any zoning district.

Prong 1
Rank4
2
1

Prong 2
Rank5
2
1

Rebuttal Rank6
2
1

Berenson Test
Result7
2
1

11

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 34 of 39

Municipality
Ossining
Pelham Pelham Manor

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

[Score: 2] Density bonuses are awarded
in residential districts and 1 commercial district, so long as 1/2 of the density awarded is made up of below-market rate
units.

[Score: 1] Within all residential developments of 10 or more units, 10% must be
below-market-rate units, and residential developments of 5 to 9
units must contain at least 1 below-market-rate unit.

[Score: 3] None

[Score: 3] None

[Score: 3] None

[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 3] MF housing development,
two-family homes and mixed-use development are not permitted as-of-
right. Accessory apartments are permitted by SP but with restirctions. Mixed-use development allowed by SP must be on
a lot of at least 20,000 sq.ft. w min. housing unit
size of 850 sq.ft. for a studio, efficiency or 1 bedroom unit, 1,150 sq.ft. for a 2 bedroom unit, and
1,450 sq.ft. for a 3 bedroom unit. MF housing by SP must be in lots of at
least 40,000 sq.ft. [Score: 3]
Accessory apartments are prohibited. 3 MF districts are commercial districts.
[Score: 3] Accessory apartments and mixed-use development is
prohibited. No single multifamily unit may be used to accommodate more than one family or household for each 3,000 square feet of lot area within the district, which translates into a max. density of 14 units per acre. On the min. lot size of 7,000 sq. ft., only a 2family home could be built.

Discretion Overly
Vested in Municipal Officials9
Yes
N/A
No

Age Restrictions
10
No
N/A
No

Resident Preferences
11
No
N/A
No

Reach Limited to One or Few Districts12
Yes
N/A
Yes

Prong 1
Rank4
2
2
3

Prong 2
Rank5
3
2
3

Rebuttal Rank6
3
3 3

Berenson Test
Result7
3
2
3

12

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 35 of 39

Chart of Municipal Rebuttal Factors under Berenson Test

Municipality Pleasantville
Pound Ridge

Model Ordinance2

Incentives

Mandates

[Score: 2] For affordable occupied by a household that does not earn
more than 50% of the Westchester County median
income, have at least 1 occupant over the age of 62, and have a rent that does not
exceed 30% of the annual gross household income, offstreet parking requirements are waived for dwelling units that contain no more than 2 bedrooms, are rental units, and are designated affordable
units.

[Score: 1] 10% of any development of 10 or
more units must be affordable units. 5% of assisted living facility units in 1 district must be set aside
as affordable.

[Score: 1] For affordable housing units,
the minimum lot size for a single-family home is reduced by 25%. The Planning Board, at its discretion, may waive up
to 50% of the otherwise applicable recreation fee for an affordable housing unit.

[Score: 1] Within all residential developments
of 10 or more dwellings, at least 10% of the units must be affordable.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

[Score: 2]

A max. of 50 accessory

apartments may be issued

as of date the provision of

the code was adopted, not

No

Yes

including pre-existing

ones. MF SP districts are

limited to 2 bedrooms per

dwelling unit.

Yes No
incentives

[Score: 3]

Accessory units may not

contain more than 2

bedrooms. 2 Family

homes are not permitted in

the town. MF

development as-of-right

only allowed in commercial

districts as mixed-use

developments limited to

2,500 sq.ft. max. coverage

per building and max.

Yes

Yes

No

Yes

height of 2 or 3 stories. SP

districts are restricted to

senior housing or

residential care facilities w

min. lot sizes ranging from

1 to 3 acres, precluding

development of small

multifamily developments.

Senior housing may not

contain more than 50

dwelling units.

Prong 1
Rank4
1
2

Prong 2
Rank5
2
3

Rebuttal Rank6 2
3

Berenson Test
Result7
2
3

13

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 36 of 39

Municipality Rye

Incentives
[Score: 3] None

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates
[Score: 3] None

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8
[Score: 2] Accessory units may only
be granted by special permit. 1 district is for senior and handicapped housing only. 1 district is restricted to 2 historic properties and cannot contain more than 9 multifamily dwelling units. MF buildings may contain no more than 6 dwelling units per floor and cannot
exceed 120 feet in maximum horizontal
dimension.

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Yes for accessory apartment s

Yes but only for
1 district

Resident Preferences
11
No

Reach Limited to One or Few Districts12
No

Prong 1
Rank4
1

Prong 2
Rank5
2

Rebuttal Rank6
3

Berenson Test
Result7
2

[Score: 3]

[Score: 1]

Accessory apartments and

In all residential districts, at least 1

mixed-use development

of each 10 units built in addition to

are prohibited throughout

the first 10 must be affordable. At

the Village, except that

[Score: 2]

least 25% of units of senior

mixed-use developments

Only in 2 floating zones that housing developments must be

Yes

are permitted in the FAH

Rye Brook allow for the Board to waive or affordable, though senior housing

No

but only 1

No

No

2

2

2

2

floating district. 1 MF

modify dimensional or bulk

needs a special permit and only

district

district limits MF to

requirements at its discretion. either immediately adjacent to or

existing parcels of 15 to 20

south of Westchester Avenue. At

acres. 2 MF districts are

least 50% of developments of 2 or

floating districts. 1 SP

more units in the FAH floating

district is for MF senior

district must be affordable.

housing

Scarsdale

[Score:3] None

[Score: 1]

All residential developments of 10

[Score: 3]

or more units must contain at least Accessory housing units

No

No

No

No

2

2

2

2

10% affordable units. In a

are not permitted.

development of from 5 to 9 units,

14

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 37 of 39

Municipality

Incentives

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2 Mandates
at least 1 unit must be affordable.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

Prong
1 Rank4

Prong
2 Rank5

Rebuttal Rank6

Berenson
Test Result7

[Score: 2]

1 district allows a base

number of density units to be

increased by up to 50% if the

development includes more

[Score: 3]

than the required affordable

Preference to Somers

component. One additional

residents, municipal

market-rate unit may be

employees, volunteer

developed for each affordable

firemen, policemen, school

unit in excess of the required

district employees, and

15%, but not to exceed 20%.

former Town residents are

In 1 district, if at least 50% of

provided for affordable

units in a development are

[Score: 2]

units. 2-family dwellings

affordable, the Town Board The only Town-wide affordability are prohibited in the Town. Yes

Somers

may permit a floor area ratio mandate applies to senior housing. The minimum site size is

for

Yes

Yes

No

2

1

3

2

increase up to 50%, a

At least 15% of housing units must 500 acres in 1 district. The incentives

reduction in the number of

be affordable in 1 MF district.

MF districts require a

required parking spaces,

minimum lot area of 10

and/or an increase in building

acres, 1 of these districts

height to 3 stories or 50 ft.

allows a max. of 3 density

Density bonuses of up to 10%

units per acre, the other

may be awarded in 1 district if

allows 2 density units per

in the Town Board's judgment

acre. In 2 districts,

particular social, cultural,

residential units are limited

environmental, physical or

to a max. of 2 bedrooms.

economic needs of the

community are to be served or

substantial benefits are to be

derived.

[Score: 1]

[Score: 1]

Density bonuses of up to 50% In any residential development of

[Score: 3]

and waivers of land and

10 units or more, at least 10% of Accessory apartments are

building requirements may be all units must be affordable. In prohibited. 1 MF district is

Tarrytown

No

No

No

No

1

1

1

1

awarded to developments that residential developments of 8 or 9 for mixed-use only with

create more than the required units, at least 1 affordable unit max. 55% of floor area for

number of affordable housing must be created. In residential

residential use.

units. In 2 special waterfront

developments of 5 to 7 units,

15

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 38 of 39

Municipality Tuckahoe Yorktown

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2

Incentives

Mandates

districts, dimensional bonuses, including larger permitted frontage, coverage, width, setback and height measurements, as well as relaxed landscaping requirements, may be
awarded to a developer that provides affordable housing.
[Score: 2] For workforce housing, for which current residents and
employees are given preferences, density bonuses are provided and the Planning Board may waive restrictions at its discretion. The workforce
housing ordinance allows between 5 and 15% of the total number of units to be affordable, subject to the Planning Boards approval. The Village Board of Trustees may increase the number of workforce units to 20% of the units where such flexibility is
needed.
[Score: 3] None

payments in lieu of affordable units must be made.
[Score: 3] None
[Score: 1] At least 10% of the units in any new residential subdivision of land in any single-family zoning district
shall be established as fair and affordable housing units. At least 10% of the units of any new multifamily residential development
of 30 units or less in any multifamily residential zoning district shall be established as affordable units, and at least 15% of the units of any new multifamily

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

[Score: 3]

Accessory apartments are

prohibited. MF

development as-of-right

only in 2 districts. In 1

district, MF must be

No

No

apartments w min of 7

units or townhouses w

max of 7 units and must

be on lots of at least

12,000 sq.ft.

Yes

Yes

[Score: 2]

Accessory housing units

are not permitted as-of-

right. 2-family housing is

restricted to conversion of

existing properties. 1 MF

Yes

Yes

district is for senior

accessory but only 1

No

No

housing. 1 MF SP district

units

district

is for either senior housing

or conversion of existing

homes constructed prior to

1930 and restricts the min.

lot size to 15 acres.

16

Prong 1
Rank4
1
1

Prong 2
Rank5
2
1

Rebuttal Rank6
3
2

Berenson Test
Result7
2
1

Case 1:06-cv-02860-DLC Document 452-2 Filed 09/13/13 Page 39 of 39

Municipality

Incentives

Chart of Municipal Rebuttal Factors under Berenson Test

Model Ordinance2
Mandates
residential development of 31 units or more in any multifamily
residential zoning district shall be established as affordable.

Restrictions Narrowing Scope of Affordable Housing Zoning Provisions3

Example/Other Restrictive Provisions8

Discretion Overly
Vested in Municipal Officials9

Age
Restrictions
10

Resident
Preferences
11

Reach
Limited to
One or Few Districts12

Prong
1 Rank4

Prong
2 Rank5

Rebuttal Rank6

Berenson
Test Result7

17

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 Case 1:06-cv-02860-DLC Document 659 Filed 07/18/16 Page 1 of 39

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------X

UNITED STATES OF AMERICA ex rel. ANTI- :

DISCRIMINATION CENTER OF METRO NEW

:

YORK, INC.,

:

Plaintiff,

:

:

-v-

:

:

WESTCHESTER COUNTY, NEW YORK,

:

Defendant.

:

----------------------------------------X

06 Civ. 2860 (DLC) OPINION AND ORDER

APPEARANCES:

For the United States: David J. Kennedy United States Attorney’s Office 86 Chambers Street New York, NY 10007

For Westchester County, New York:

Robert F. Meehan Westchester County Attorney’s Office 138 Martine Avenue, 6th Floor White Plains, NY 10601

DENISE COTE, District Judge:

This dispute arises from the Third Biennial Assessment of

Westchester County’s Compliance, prepared by James E. Johnson

(“Monitor”) of April 28, 2016 (“Report”). The Report found that

Westchester County, New York (“County”) has violated certain

provisions of the August 10, 2009 Consent Decree (“Consent

Decree” or “Settlement”) between the County and the United

States Department of Justice (“DOJ” or “Government”). The

Monitor found two principal failures: (1) the County has not

Case 1:06-cv-02860-DLC Document 659 Filed 07/18/16 Page 2 of 39
completed an analysis of impediments to fair housing choice within its jurisdiction (“AI”) as required by ¶ 32 of the Settlement; and (2) the County has failed to promote the model zoning ordinance described in ¶ 25(a) of the Consent Decree by providing municipalities with incentives or engaging in litigation.
This Opinion finds that the County breached ¶ 32 of the Consent Decree. Decision is reserved regarding the County’s alleged breach of ¶ 25(a). As the Monitor and Government request, the County is ordered to retain a consultant to prepare an AI acceptable to the U.S. Department of Housing and Urban Development (“HUD”).
Background The procedural history giving rise to this dispute has been described in several previous opinions issued by this Court and the Second Circuit Court of Appeals. Of particular significance to the issues addressed in this Opinion are: United States ex rel. Anti–Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 495 F. Supp. 2d 375 (S.D.N.Y. 2007) (“2007 Opinion”) (denying motion to dismiss False Claims Act lawsuit against the County and discussing the AI requirement in detail); United States ex rel. Anti–Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 668 F. Supp. 2d 548 (S.D.N.Y. 2009) (“2009 Opinion”) (finding that County’s certifications to obtain
2

Case 1:06-cv-02860-DLC Document 659 Filed 07/18/16 Page 3 of 39
certain HUD funds were false but reserving on County’s scienter); Cty. of Westchester v. U.S. Dep’t of Hous. & Urban Dev., 116 F. Supp. 3d 251 (S.D.N.Y. 2015) (“2015 Opinion”) (holding that HUD lawfully rejected the County’s AI submissions); Cty. of Westchester v. U.S. Dep’t of Hous. & Urban Dev., 802 F.3d 413, 418 (2d Cir. 2015) (“2015 Appeal Opinion”) (affirming this Court’s finding that HUD did not violate federal administrative law); United States ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester Cty., No. 06cv2860 (DLC), 2016 WL 3566236 (S.D.N.Y. June 27, 2016) (“33(c) Opinion”) (finding that the County breached its duty to create and fund public education campaigns). The Court assumes familiarity with these Opinions. Only the facts necessary to resolve the present dispute are described below.
A. False Claims Act Litigation, the 2009 Consent Decree, and the Analysis of Impediments Requirement This litigation began in 2006 when the Anti-Discrimination
Center of Metro New York, Inc. (“ADC”) sued the County as a qui tam relator under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. ADC claimed that the County received more than $52 million from the federal government for housing and community development after falsely certifying that it affirmatively furthered fair housing (“AFFH”). The County moved to dismiss the action by arguing that it had no duty to consider race or
3

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race discrimination when identifying impediments to fair housing choice, and therefore that its certifications that it would “affirmatively further fair housing” were not false. The Court rejected that argument and denied the County’s motion to dismiss. 2007 Opinion, 495 F. Supp. 2d at 377.
Following discovery, the Court granted partial summary judgment to ADC and ruled that the County’s AFFH certifications to HUD were false as a matter of law. 2009 Opinion, 668 F. Supp. 2d at 571. As explained in the Opinion, to receive certain federal funding, the County was required to certify that it would AFFH, among other things. To AFFH, the law required the County to conduct an analysis of impediments (or “AI”) to fair housing choice within its jurisdiction, to take appropriate actions to overcome the effects of any impediments identified through that analysis, and to maintain records reflecting its analysis and actions. Id. at 551. For the period at issue, the County presented two AIs to HUD to support its certifications. In those AIs the County focused on affordable housing in the County rather than fair housing. Id. at 559. As a consequence, it did not undertake an analysis of whether the production of affordable housing “had the effect of increasing or decreasing racial diversity in the neighborhood in which the housing was built.” Id. And “[w]ithout a targeted analysis of race as a potential impediment to fair housing, the County was unprepared
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to grapple with the second component of its AFFH duty to take appropriate action to overcome the effects of any racial discrimination or segregation it might identify as an impediment.” Id. at 562. Finally, “[b]ecause the County never did the required analysis of race-based impediments, it never created a contemporaneous record of how its management of the HUD-acquired funds or any other ‘appropriate’ steps it could take would overcome the effects of those impediments.” Id. at 565.
The Government intervened after the 2009 Opinion was issued but before the remaining issues in the case were tried, and the County entered into a Consent Decree with the Government on August 10, 2009. Had the County lost at trial, it risked paying over $150 million in damages for its violation of the FCA.
The Consent Decree consists of thirty-eight pages and imposes many obligations on the County. For example, the County was required to spend $51,600,000 as a remedy for violating the FCA. The Consent Decree also requires the County to ensure the development of 750 new affordable housing units. Settlement ¶¶ 7, 23. Paragraph 7 contains detailed demographic and other criteria for determining which municipalities are “eligible” for the development of the 750 new units. See 33(c) Opinion, 2016 WL 3566236 at *2. As explained in the 33(c) Opinion, ¶ 7(a)(i) makes it clear that decreasing racial segregation is a core goal
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of constructing the new units. For example, ¶ 7(a)(i) provides that at least 630 of the 750 new units must be in municipalities that have a “single race African-American only” population of less than 3% and a Hispanic population of less than 7% after undertaking certain calculations. Paragraph 7(a)(ii) also prohibits any of those 630 units from being developed in a census block that had an African-American population of more than 10% or a Hispanic population of more than 10%. The Monitor and the parties refer to communities eligible for the new affordable housing units as “eligible communities,” and they include 31 municipalities throughout the County.
Another provision of the Consent Decree is one that is central to the current dispute. It is the requirement that the County submit an acceptable AI. Until 2015, any municipality or government unit seeking federal funds under the Community Development Block Grant (“CDBG”) and certain other programs administered by HUD was required to submit an AI to HUD. 2007 Opinion, 495 F. Supp. 2d at 386. An AI “involves an assessment of conditions, both public and private, affecting fair housing choice for all protected classes.” Id. at 387 (citation omitted). Impediments to be analyzed included “actions, omissions or decisions” that “restrict housing choices or the availability of housing choices” based on “race, color, religion, sex, disability, familial status, or national origin.”
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Id. (citation omitted). According to HUD’s Fair Housing Planning Guide, which is specifically referenced in the Settlement, an AI provides “essential and detailed information to policy makers, administrative staff, housing providers, lenders and fair housing advocates” and it “[a]ssists in building public support for fair housing efforts both within the [jurisdiction’s] boundaries and beyond.” HUD, Fair Housing Planning Guide at 2-8 (1996), available at http://www.hud.gov/offices/fheo/images/fhpg.pdf.
Paragraph 32 of the Settlement provides that the “County shall complete, within one hundred twenty (120) calendar days of the entry of this [Consent Decree], an AI within its jurisdiction that complies with the guidance in HUD’s Fair Housing Planning Guide.” Further, the “AI must be deemed acceptable by HUD. The County shall take all actions identified in the AI.” Settlement ¶ 32. The County was required to include the following in the AI:
(1) A commitment “to collecting data and undertaking other actions necessary to facilitate the implementation of this [Consent Decree] (¶ 32(a));
(2) Identify and analyze, inter alia: a. “the impediments to fair housing within its jurisdiction, including impediments based on race or municipal resistance to the development of affordable housing” (¶ 32(b)(i)); and b. “the appropriate actions the County will take to address and overcome the effects of those impediments” (¶ 32(b)(ii)).
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See 2015 Appeal Opinion, 802 F.3d at 419 (discussing the AI
requirement in ¶ 32).
The second key provision of the Consent Decree at issue
here is ¶ 25(a)’s requirement that the County include a model
zoning ordinance (“Model Zoning Ordinance” or “Ordinance”) in its implementation plan.1 Specifically, the County was to
include a “model ordinance” that the “County will promote to
municipalities to advance fair housing.” Settlement ¶ 25(a).
Paragraph 25(a)(i)-(iv) of the Decree further provides that the
“model ordinance shall include, inter alia:”
1. “a model inclusionary housing ordinance that requires new development projects to include a certain percentage of affordable units, including criteria and standards for the affordable housing units and definitions of who is eligible for affordable housing;”
2. “standards for affirmative marketing of new housing developments to ensure outreach to racially and ethnically diverse households;”
3. “standards for expedited review of proposals for affordable housing that AFFH including procedures for streamlining the approval process for the design, permitting, and development of these units;” and
4. “standards for legal mechanisms to ensure continued affordability of new affordable units.”
1 According to ¶ 18 of the Settlement, the County was to submit, within 120 days, an implementation plan “setting forth with specificity the manner in which the County plans to implement the provisions of” ¶ 7 of the Consent Decree. Paragraphs 19-26 of the Settlement enumerate the detailed requirements for this implementation plan.
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Paragraph 15 of the Consent Decree requires the Monitor to “conduct an assessment of the County’s efforts and progress related to the obligations” in the Settlement “every two years” until the Settlement expires. That same paragraph also provides that the Monitor must assess “whether the County has taken all possible actions to meet its obligations, . . . including . . . promoting inclusionary and other appropriate zoning by municipalities by offering incentives, and, if necessary, taking legal action.” Finally, ¶ 39 gives the Monitor the authority to submit reports that contain “recommended steps or activities to improve the County’s performance” of its duties under the Settlement.
B. Litigation Over the Consent Decree In the years since the County executed the Consent Decree,
the Government and the County have frequently engaged in litigation regarding the County’s obligations under the Consent Decree. The litigation has principally implicated four aspects of the Decree and has resulted in findings that the County breached the Consent Decree by failing to promote source-ofincome discrimination, U.S. ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester Cty., N.Y., 712 F.3d 761, 771 (2d Cir. 2013) (“2013 Appeal Opinion”); that it was reasonable for HUD to reject the County’s proposed AI and to reallocate approximately $25 million to other communities
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because of that failure, 2015 Appeal Opinion, 802 F.3d at 436; that the County failed to use all available means to promote the development of at least 750 new affordable housing units and to address municipal resistance to those developments, United States ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester Cty., No. 06 CIV. 2860 (DLC), 2016 WL 3004662, at *16-*18 (S.D.N.Y. May 24, 2016); and that the County breached its duty to create and fund public information campaigns, 33(c) Opinion, 2016 WL 3566236 at *6-*7. The litigation over the County’s proposed AI is described in more detail below.
C. 2010-2016: Creating and Promoting the Model Zoning Ordinance As noted, the Monitor contends in its Report that the
County has failed to comply with the duty under ¶ 25(a) of the Consent Decree to promote the Ordinance. In 2010, the County created a Model Zoning Ordinance, as required by ¶ 25(a) of the Consent Decree. In 2011, six communities adopted the Ordinance, including New Castle, Ossining, Scarsdale, Yorktown, Rye Brook, and Tarrytown. Five more municipalities adopted the Ordinance in 2012: Irvington, Bedford, Pleasantville, North Salem, and Ardsley. In 2013, three municipalities adopted the Ordinance: Hastings on Hudson, Pound Ridge, and the Town of Mamaroneck. In 2014, North Castle was the only municipality to adopt the Ordinance. No town or village adopted the Ordinance in 2015,
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but Lewisboro adopted certain provisions informed by the Ordinance. The remaining municipalities in the County have not adopted the Ordinance; indeed, in April 2016, Yorktown announced that it is considering repealing its version of the Ordinance.
D. 2011-2015: Litigation Surrounding the AI Dispute The County’s ¶ 32 AI was initially due on December 8, 2009.
2015 Appeal Opinion, 802 F.3d at 420. HUD granted several extensions to the County, and the County submitted its first post-settlement AI on July 23, 2010. Id. On December 21, 2010, HUD rejected that AI in a “six-page letter . . . in which HUD described actions the County could take to make its AI acceptable.” Id. at 420-21. These actions included “identifying the steps it would take to ban ‘source-of-income’ discrimination and to overcome ‘exclusionary zoning practices.’” Id. at 421 (quoting HUD’s letter). The County submitted another AI on April 13, 2011, which HUD rejected in a letter of April 28. 2015 Opinion, 116 F. Supp. 3d at 263. On May 13, 2011, HUD wrote a nine-page letter and “explained the reasons for the April 28 rejection of the AI, which it characterized as ‘substantially incomplete and unacceptable to HUD.’” Id. The AI’s deficiencies were numerous and principally included the County’s’ failure to examine the availability of family rental housing and exclusionary zoning. Id. at 263-64.
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On July 11, 2011, the County submitted another AI that HUD rejected in a July 13, 2011 letter. 2015 Appeal Opinion, 802 F.3d at 421. HUD wrote to the County that “it did not incorporate the Corrective Actions that HUD had earlier specified,” including “plans to overcome exclusionary zoning practices.” Id. In February 2012, the County submitted the first in “a series of zoning analyses to HUD, all of which were rejected.” Id. at 423. These submissions were rejected because they contained “flawed data analysis, failed to address whether zoning practices were exclusionary under state and federal law, and lacked adequate strategies for bringing about changes to problematic zoning practices.” Id.
The County made an additional AI submission on April 24, 2013, and its eighth zoning submission on July 23. On August 9, 2013, HUD wrote that the July 23 zoning analysis “demonstrated meaningful progress” but that it “continued to fail in critical aspects previously identified by HUD.” 2015 Opinion, 116 F. Supp. 3d at 270. On May 9, 2014, the County informed HUD that it would not be seeking additional HUD funds in the future. 2015 Appeal Opinion, 802 F.3d at 427. In 2015, the Second Circuit held that HUD was within its statutory authority to reject the County’s post-2009 AI submissions for their failure adequately to analyze the impediments that municipal zoning laws presented to fair housing choice. Id. at 428.
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E. 2013-2014: Monitor’s Assessments of Local Zoning The County’s flawed 2013 analysis of local zoning codes,
created as part of the Settlement’s AI process, prompted HUD and the Chair of the County’s Board of Legislators to request that the Monitor conduct his own analysis of local zoning regulations in light of Berenson v. Town of New Castle, 38 N.Y.2d 102 (1975), and Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988). The “state-law Berenson standard considers whether zoning practices are ‘exclusionary’ based on socioeconomic status.” 2015 Appeal Opinion, 802 F.3d at 424. The “federal Huntington standard considers whether facially neutral zoning laws have a discriminatory impact on racial and ethnic minorities.” Id. at 424-25. The hope was that the County would adopt the Monitor’s analyses, incorporate them into an AI, and submit the AI to satisfy ¶ 32 of the Settlement.
The Monitor therefore prepared two reports: the September 2013 “Berenson Report” and the September 2014 “Huntington Report.” The Monitor worked with a team of housing consultants in connection with these reports.2 The reports together found that ten communities had some form of exclusionary zoning.
In the Berenson Report, the Monitor found that seven eligible municipalities had zoning ordinances that limited
2 In performing these and other tasks, the Monitor’s law firm has absorbed more than $4 million in pro bono fees and expenses.
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affordable housing access or made the development of affordable housing “practically infeasible.” Those communities were: Croton-on-Hudson, Harrison, Lewisboro, Mamaroneck, Ossining, Pelham Manor, and Pound Ridge.
The Monitor also analyzed data provided by the County pursuant to the Huntington methodology. The Huntington Report is 125 pages long and it analyzes the discriminatory impact each municipality’s zoning code has on the County’s minority residents; it does not make findings with respect to whether the discrimination was intentional, it focuses only on disparate impact. The Huntington Report ultimately found a prima facie violation of Huntington in six municipalities: Harrison, Larchmont, North Castle, Rye Brook, Lewisboro, and Pelham Manor. The report found that these municipalities had zoning regulations that either perpetuated clustering by restricting multifamily housing to districts that have disproportionately high minority household populations or disparately impacted minority populations by restricting the development of housing types most often occupied by minority residents.
The Monitor invited comment on the Huntington Report. On September 24, 2014, HUD identified what it deemed to be errors in the Huntington Report and requested that certain portions of the report be withdrawn. That letter operated on the assumption that the Monitor’s report would “replace portions of the [AI]
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prepared and submitted by the County to HUD that pertained to exclusionary zoning.” On October 24, the DOJ suggested nine changes to the Huntington Report. Like HUD, the DOJ expressed its view that the Huntington Report is “a proposed analysis of zoning impediments that could be incorporated into the County’s [AI].” DOJ further wrote that, if its suggested changes were made, “the County’s inclusion of the Report would be deemed acceptable by HUD to satisfy the County’s obligation to identify and analyze local zoning impediments” in the County. Despite assurances that the Monitor’s analyses would satisfy the zoning portion of the Consent Decree’s AI requirement, the “County declined to adopt the [M]onitor’s reports or to incorporate any of the findings of the reports into its own future AIs.” 2015 Appeal Opinion, 802 F.3d at 426-27.
Since releasing these two reports, the Monitor has worked directly with municipalities on zoning and fair housing issues. As described below, the Monitor believes some progress has been made.
F. 2016: Monitor’s April 28 Report The Monitor’s April 28 report is his third biennial
assessment, as required under ¶ 15 of the Settlement. The Report describes the County’s “mixed” record of compliance with the Consent Decree over the past two years. The Report addresses, among other things, the County’s progress in meeting
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its interim benchmarks for new affordable housing units under ¶ 23 of the Settlement. See also United States ex rel. AntiDiscrimination Ctr. of Metro New York, Inc., 2016 WL 3004662, at *3-*4 (explaining the benchmark requirements). The Report emphasizes that the completed ¶ 7 affordable housing units have increased racial and ethnic diversity in the County.
The Report also describes two provisions of the Consent Decree that the Monitor claims that the County has breached. The first is ¶ 32, which contains the County’s obligation to submit an AI that is acceptable to HUD. The second is ¶ 25(a), which requires the County to take certain actions to create and promote a model zoning ordinance to municipalities. According to the Monitor, the County has not provided economic incentives or brought necessary litigation to encourage eligible municipalities to adopt the Ordinance. Moreover, this breach is connected with the County’s refusal to analyze municipal zoning with appropriate rigor. See 2015 Appeal Opinion, 802 F.3d at 433. The Monitor contends that the County “essentially informed the municipalities that the zoning currently in place should not be challenged.” Indeed, as described in the 33(c) Opinion, 2016 WL 3566236, at *8, County Executive Robert Astorino (“Astorino”) falsely stated on multiple occasions that HUD sought to dismantle local zoning entirely. The Monitor posits that these
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public statements have slowed progress in municipalities that were considering adopting the Model Zoning Ordinance.3
In a letter of July 7, as well as in his Report, the Monitor provides an update regarding the ten municipalities he originally identified as violating either Berenson or Huntington. Mamaroneck revised its land use regulations in 2013, and the Monitor determined in 2014 that these revisions provided adequate opportunities for development of affordable housing that will AFFH. Ossining and Pound Ridge have also revised their zoning codes in a way that conforms to the Ordinance; in April 2015, the Monitor removed those communities from the list of localities found to have exclusionary zoning. The Monitor believes that North Castle and Rye Brook have also made significant strides recently in improving their zoning codes. As a consequence, in the Monitor’s view, five municipalities still have zoning ordinances that violate either Berenson or Huntington, or both: Croton-on-Hudson, Harrison, Lewisboro, Pelham Manor, and Larchmont.
The Monitor proposes four core remedies to address the breaches of ¶¶ 32 and 25(a).4 The County submitted its opening
3 The Monitor describes the negative effect that he believes Astorino’s statements have had on the local government in Yorktown, which adopted the Ordinance in 2011, but now appears to believe that it does not have the legal authority to adopt or enforce a central provision of the Ordinance.
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brief regarding the Report on June 17. The County contends that
it has not breached ¶¶ 32 or 25(a), and it opposes each of the
Monitor’s proposed remedies. The Government and the Monitor
filed their briefs on June 24. The County’s reply was filed on
July 1.5
At a conference on July 8, the Court observed that the
County had failed to produce an AI acceptable to HUD and
4 In response to the Court’s Order, the Monitor’s specific requests are contained in a separate document of May 25, 2016. The four requests are that (1) the County be required to select, with the Monitor’s approval, and retain a consultant to prepare an AI to submit to HUD; (2) the Court require the AI to contain certain elements, including a determination of affordable housing needs in the County, an analysis of whether local zoning violate either Berenson or Huntington, and a detailed strategy to overcome the identified impediments; (3) the Court order the County to implement the strategy to overcome the impediments identified in the AI; and (4) that the County bear the costs incurred by the Monitor in overseeing this remedial plan. The Report also contained recommendations for actions by the DOJ that were not included in the May 25 submission: (1) The DOJ is encouraged to bring litigation against municipalities that have been identified as having zoning that imposes impediments to fair and affordable housing in violation of federal law; and (2) the DOJ should give serious consideration to bringing legal action against one or more of seven municipalities that specifically violate the Berenson or Huntington analysis.
5On May 11, ADC filed a proposed amicus submission that the Court rejected on July 6. The Court reserved decision concerning whether to accept an expert report attached to ADC’s proposed amicus brief. Also on July 6, the Court rejected an amicus submission from ten other entities that perform work related to affordable housing. As required in the Court’s May 13 Order, the parties’ briefs concerning the Report also addressed ADC’s submission. The Government, the County, and the Monitor all agreed that the ADC submission should not be accepted and that its requests for relief should not be granted.
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proposed that, as of now, it adopt only some of the Monitor’s requests for relief. The Court explained that its primary goal would be the completion of an AI acceptable to HUD.6 That would require the selection of a consultant to prepare the AI, with the County involved as fully as it is willing to be (so long as it does not delay the process of preparing the AI) and with HUD sharing its expertise. The parties and Monitor were each given an opportunity to be heard at the conference. HUD represented that it was willing to engage in an interactive process with the consultant and the County to assist in the completion of the AI. The Court declined to require the AI to include any specific content.
This Opinion addresses each of the arguments the parties have made regarding the use of a consultant to prepare the County’s AI. The parties cooperated after the conference to prepare a proposed order addressing the selection of the consultant, and that order is also being issued today.
Discussion The standards on which this Court has relied in determining whether there has been a breach of the Consent Decree as well as the appropriate relief for any breach have recently been described, and those legal standards are incorporated by
6 As described at the conference, the Monitor will also supplement the record to describe the actions the Monitor and the County each took to promote the Model Ordinance.
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reference here. 33(c) Opinion, 2016 WL 3566236, at *6. In brief, the ordinary rules of contract interpretation are generally applicable when determining whether the Consent Decree has been breached. But, where there has been a breach, a court has the inherent power to enforce consent judgments since a consent decree reflects judicial interests as well as the interests of the litigants. Id. (citing E.E.O.C. v. Local 580, Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, Joint Apprentice-Journeyman Educ. Fund, 925 F.2d 588, 593 (2d Cir. 1991)). A court’s interest “in protecting the integrity of a consent decree justifies any reasonable action taken by the court to secure compliance.” CBS Broad. Inc. v. FilmOn.com, Inc., 814 F.3d 91, 101 (2d Cir. 2016) (citation omitted). Nonetheless, a court must exercise its power with restraint since it may not supplement the terms of the Consent Decree. E.g., Pandora Media, Inc. v. Am. Soc. of Composers, Authors & Publishers, 785 F.3d 73, 77 (2d Cir. 2015) (“A court may not replace the terms of a consent decree with its own.” (citation omitted)).
I. County Breached ¶ 32 As outlined above, ¶ 32 of the Settlement requires the
County to “complete, within [120] calendar days . . . an AI within its jurisdiction that complies with the guidance in HUD’s
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Fair Housing Planning Guide.” The Settlement specifically provides that the “AI must be deemed acceptable by HUD.”
There is no dispute that HUD has not accepted any AI that the County has submitted since it entered the Consent Decree. The 2015 Opinion and the 2015 Appeal Opinion explain that failed process in the context of HUD’s legal authority to reject those submissions under the Administrative Procedure Act. In sum, nearly seven years after the parties and the Court signed the Consent Decree, the County has not fulfilled an explicit obligation that was to be met by December of 2009. This breach is clear and cannot credibly be questioned.
The County argues that it has not breached ¶ 32 for two principal reasons. The first is that the County has actually satisfied ¶ 32 by submitting an AI that complies with HUD’s 1996 Fair Housing Planning Guide and the Monitor’s earlier guidance. The second is that, even if its AI did not comply with ¶ 32, it should be relieved of its ¶ 32 duties because the AI requirement is now “academic” due to changed circumstances. Neither of these arguments has merit.
First, the County claims that its efforts have satisfied the requirements of the Settlement. The County relies principally on its claim that it followed HUD’s 1996 Fair Housing Planning Guide and the specific requirements for its AI described in ¶ 32(a)-(b) of the Consent Decree. The County’s
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argument that it has fulfilled the Settlement’s AI requirement misses a critical point: in order to satisfy ¶ 32, the County’s AI “must be deemed acceptable by HUD.” The County’s lengthy description of its attempts to draft an AI wholly ignores this explicit provision of the Consent Decree. It also ignores the fact that ¶ 32 states that the AI must “identify and analyze, inter alia,” certain impediments and local needs. The use of the phrase “inter alia” acknowledges that ¶ 32 is not an exclusive list, and therefore an acceptable AI is not limited to ¶ 32’s subparagraphs. It must also be acceptable to HUD.
In concluding that HUD’s rejection of the County’s AI was neither arbitrary nor capricious, the Court of Appeals observed that “it was reasonable for HUD to require the County to include in its AI an analysis of its municipalities’ zoning laws.” 2015 Appeal Opinion, 802 F.3d at 432. Moreover, “HUD reasonably relied on detailed reports from the monitor, which examined the relevant laws and analyzed empirical data, and which refuted the County’s conclusion that no municipality had ordinances that were exclusionary under state or federal law.” Id. HUD was therefore within its legal authority to reject the County’s AIs as resting on “inaccurate data” and on “flawed analysis,” and as
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inappropriately reaching “boilerplate conclusion[s]” concerning each municipality’s zoning.7 Id. at 426, 433.
In its reply brief, the County does not dispute that the Consent Decree required the County to submit an AI acceptable to HUD and that HUD was entitled to require the County to analyze the impediments that local zoning laws may present to fair housing. Instead, it raises a new argument. This new argument, albeit untimely, may be swiftly rejected. The County contends that the goal of the Monitor and Government is to force the County to declare certain local zoning ordinances “illegal under the Fair Housing Act” and to pursue legal action against those localities. There is no such application by either the County or the Government before this Court at this time. Nor has the County shown that HUD’s rejection of its prior AI submissions was for the County’s failure to make such declarations or promise such corrective action. As explained by the Court of Appeals, those submissions were rejected because they were
7 In its reply, the County seeks to undermine the relevance of the Court of Appeals’ decision by emphasizing that the appellate court was reviewing whether HUD had acted arbitrarily and not whether it had acted unreasonably or in bad faith when it rejected the County’s AI. The County’s attempt to distinguish the decision is unavailing. The County does not attempt to show how it was either unreasonable or an act taken in bad faith for HUD to decline to accept an AI resting on inaccurate data, flawed analyses, and boilerplate conclusions.
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incomplete and not conducted with sufficient integrity and rigor. 2015 Appeal Opinion, 802 F.3d at 426.
The County’s next argument is that the requirement that it submit an AI acceptable to HUD is “academic” for two reasons: (1) since the County no longer plans to seek Community Planning and Development funds from HUD, preparing an AI serves no purpose and is no longer a “material” provision of the Settlement;8 and (2) HUD regulations have dispensed with the AI requirement and now require submission of an Assessment of Fair Housing (“AFH”) in connection with grant applications. Again, neither argument carries the day.
The AI requirement remains an enforceable provision of the Settlement even though the County currently takes the position that it will no longer seek the federal funds that required an AI. The continued relevance of ¶ 32 is demonstrated at least in part by the fact that the Government -- the other party to the Consent Decree -- asks the Court to find that the County has
8 The law on which the County relies in making its materiality argument is inapposite. Under New York law, when “a party has breached a contract, that breach may excuse the nonbreaching party from further performance if the breach is ‘material.’” New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 117 (2d Cir. 2006) (citation omitted). In other words, rescission is permitted only for a breach that is “material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract.” Id. (citation omitted). Here, the Government is not seeking to rescind the Consent Decree based on the County’s breach.
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breached ¶ 32 and to order the County to remedy that breach. Equally importantly, the Consent Decree does not condition preparation of an AI on the County’s future applications for federal funding. Quite the contrary. The Consent Decree explicitly links the AI to the County’s earlier deficient AIs and to other independent and ongoing commitments it made in the Decree.
The Decree’s preface recites how the County was obligated as a recipient of certain HUD funds to certify that it would AFFH and to conduct an analysis of impediments to fair housing choice within its jurisdiction (the AI), and the qui tam relator’s allegations that the “County had failed to conduct a meaningful AI and failed to take appropriate steps to overcome existing and known impediments to fair housing arising from racial discrimination and segregation.” As a result of these failures, the relator asserted that “the County’s certifications to the United States to receive CDBG and other federal funds were false.”
Paragraph 32’s requirement that the County submit within 120 days an AI acceptable to HUD is directly linked to this recitation. It is a remedy for the prior false AFFH certifications that the County filed from 2000 through 2006 and the two flawed AIs that accompanied those certifications. Those AIs omitted any analysis of the impediments to fair housing
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presented by racial discrimination and segregation. 2009 Opinion, 668 F. Supp. 2d at 557-58. Thus, a breach of ¶ 32 occurs even if the County does not presently intend to seek further federal funding related to an AI. As the Court of Appeals recently observed, “[t]he County also promised to submit an adequate AI within 120 days of the consent decree, and failure to do so could, therefore, constitute both a breach of the consent decree and grounds for rejection of its future” grant applications. 2015 Appeal Opinion, 802 F.3d at 431.
Moreover, completion of an “acceptable” AI serves a more forward-looking purpose that is entirely divorced from any grant applications that the County may choose to submit in the future to HUD. Roughly halfway through the Decree, there is a general heading: “The County’s Implementation Plan, Benchmarks, Additional Obligations to AFFH, and AI;” this heading includes ¶ 32. None of these four categories of obligations depends upon future applications for federal funds. Indeed, the duty to create an AI that is acceptable to HUD is presented as one of several interlocking obligations. For instance, the County was required to develop, within 120 days, an “implementation plan” setting forth how the County would implement provisions of Decree. That implementation plan was to be incorporated into the County’s AI. Settlement ¶¶ 18, 21. The AI was also supposed to include a commitment to “collecting data and
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undertaking other actions necessary to facilitate the implementation of this” Settlement. This implementation plan and an “acceptable” AI would, in turn, assist the County to take the several other remedial actions to which the County obligated itself, such as the duty to ensure the development of 750 new affordable housing units (¶ 7), to create and fund public campaigns to educate County residents about the benefits of diversity (¶ 33(c)), and to market affordable housing in nonwhite areas (¶ 33(e)). Again, none of these duties hinges on the County’s future applications for federal funds, nor do they assume that such applications will be made.
Finally, as described above, every AI has the potential to inform and improve local decision-making, wholly apart from any benefit the locality may receive in the form of federal funds. See HUD, Fair Housing Planning Guide at 2-8 (1996), available at http://www.hud.gov/offices/fheo/images/fhpg.pdf. These other purposes will be served even if the County abandons all future efforts to obtain HUD funds. Thus, as a remedy for its past inadequate AIs and false certifications, in support for its ongoing commitments in the Settlement to further fair housing through a variety of means, and in recognition of the many uses and virtues of an AI, the County’s commitment in the Consent Decree to submit an AI acceptable to HUD stands entirely
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independent from the County’s current decision to refrain from submitting HUD grant applications.
The County’s next assertion is that, without the AI, the Government has received the central benefit of the Settlement it bargained for in 2009. The County rests this claim on its belief that it is on track to meet its benchmark to develop the 750 new ¶ 7 units by the end of this calendar year. It contends that the submission of an adequate AI is simply a promise that is “peripheral” to the development of those housing units. This interpretation of the Consent Decree ignores both the scope and plain meaning of the Decree. While the development of hundreds of new housing units is an important feature of the Decree, it is only one of several important features.
This argument also fails to recognize the extensive litigation that has already taken place to enforce many provisions of the Decree that are entirely unrelated to ¶ 7’s 750 units, including source-of-income legislation and the creation of public education campaigns. And, as emphasized above, the materially flawed AIs that the County submitted to HUD in 2000 and 2004 were central to this litigation when it was filed. See 2009 Opinion, 668 F. Supp. 2d at 557. The Consent Decree cannot be cabined in the way the County proposes.
The County’s second principal argument is that HUD’s elimination of the AI requirement constitutes “changed
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circumstances” that warrant erasing ¶ 32 of the Consent Decree. The County is correct that, as of 2015, HUD no longer required grant applicants to submit an AI. Instead, grant applicants submit an AFH. In replacing the AI, HUD commented that the AI “has not been as effective as originally envisioned.” Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272 (July 16, 2015). Thus, HUD’s new rule “refines the prior approach by replacing the [AI] with a fair housing assessment that should better inform program participants’ planning processes with a view toward better aiding HUD program participants” to certify that they AFFH. Id. HUD recognized that the “AFH process will be a substantial change from the current AI process,” but it plans to provide more support to grant applicants in order to assist with preparing a comprehensive AFH. Id. at 42,348.
HUD’s new AFFH regulations “[r]eplace the AI with a more effective and standardized [AFH] through which program participants identify and evaluate fair housing issues, and factors contributing to fair housing issues.” Id. at 42,273. In connection with submitting the AFH, grant applicants are still required to “certify that they will affirmatively further fair housing” when the “statutes and regulations governing HUD programs” so require. 24 C.F.R. § 5.166(a); see 24 C.F.R. § 91.225(a)(1) (“Each jurisdiction is required to submit a certification that it will affirmatively further fair housing,
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which means it will take meaningful actions to further the goals identified in the AFH.”).
The AFH is defined in 24 C.F.R. § 5.152 as “an analysis of fair housing data, an assessment of fair housing issues and contributing factors, and an identification of fair housing priorities and goals.” As a general matter, the “AFH’s analysis, goals, and priorities will address integration and segregation; racially or ethnically concentrated areas of poverty; disparities in access to opportunity; and disproportionate housing needs based on” a series of characteristics, including race and sex. Id. § 5.154(d). The regulations further require that the AFH contain (1) a summary of fair housing issues and capacity; and (2) an analysis of data that identifies patterns in integration, segregation, and other disparities in access to opportunity for protected classes. Id. § 5.154(d)(1)-(2). The AFH must also “identify the contributing factors for segregation, racially or ethnically concentrated areas of poverty, disparities in access to opportunity, and disproportionate housing needs.” Id. § 5.154(d)(3). In its explanation of these new regulations, HUD states that: “Zoning and land use laws that are barriers to fair housing choice and access to opportunity can be quite varied and often depend on the factual circumstances in specific cases.” 80 Fed. Reg. at 42,272.
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This change in the regulatory scheme does not relieve the County of its duty to comply with its commitments in the Consent Decree. Of course, “a court has the authority to alter the prospective effect of an injunction in light of changes in the law or the circumstances.” Benjamin v. Jacobson, 172 F.3d 144, 161 (2d Cir. 1999) (en banc). The Supreme Court has held that, in general, “courts should apply a flexible standard” when “deciding whether a significant change in facts or law warrants revision of a consent decree.” 2015 Appeal Opinion, 802 F.3d at 436 (citation omitted); see Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 381 (1992).
The law governing “changed circumstances” and consent decrees, on which the County relies, largely arises in the context of adjudicating a motion under Rule 60(b)(5)-(6), Fed. R. Civ. P.9 Rule 60(b) “provides a means by which a party can ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest.” Horne v. Flores, 557 U.S. 433, 447 (2009) (citation omitted). The “changed circumstances” doctrine is particularly pertinent where the injunction at issue “remain[s] in force for
9 Notably, the County has not made a Rule 60(b) motion for relief from any provision of the Consent Decree. It instead relies on the “changed circumstances” doctrine to excuse its breach of ¶ 32.
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many years,” because “the passage of time frequently brings about changed circumstances -- changes in the nature of the underlying problem, changes in governing law or its interpretation by the courts, and new policy insights,” which “warrant reexamination of the original judgment.” Id. at 448.
The party “seeking relief bears the burden of establishing that changed circumstances warrant relief.” Id. at 447; United States v. Apple, Inc., 791 F.3d 290, 336 (2d Cir. 2015), cert. denied 136 S. Ct. 1376 (2016) (same). If the party meets this burden, “the court must then consider whether the modification proposed is suitably tailored to the changed circumstance.” Barcia v. Sitkin, 367 F.3d 87, 99 (2d Cir. 2004) (citation omitted). Ultimately, if a party “establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.” 2015 Appeal Opinion, 802 F.3d at 436 n.118 (citation omitted).
The County has not shown that the changed circumstances doctrine relieves it of its obligation to submit an acceptable AI to HUD. To begin with, the revision in the regulations -HUD’s replacement of the AI requirement with an AFH -- is simply irrelevant.10 The County announced in 2014 that it would no
10 Were the County using the ¶ 32 AI to apply for federal money in the future, it could seek to renegotiate that provision of
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longer seek federal funding. 2015 Appeal Opinion, 802 F.3d at 427. This announcement preceded the regulatory change in 2015 on which the County’s changed circumstances doctrine argument hinges.11
Second, despite this significant amendment to the grant application process, it is important to recognize that the broad purposes of the AI and the AFH are identical: both involve analyzing and addressing barriers to fair housing choice with a focus on protected characteristics including race and ethnicity. HUD, Fair Housing Planning Guide at 2-7 (1996), available at http://www.hud.gov/offices/fheo/images/fhpg.pdf. HUD regulations make it clear that assessing barriers to fair housing using rigorous data analysis remains essential to a truthful AFFH certification. This AFFH certification was at the core of the 2006 qui tam litigation and remains an important aspect of HUD’s review of grant applications. Accordingly, the contents of a successful AFH are sufficiently similar to those of an AI that the ¶ 32 requirement is not rendered academic by the change in HUD’s regulatory regime. Even more significantly, virtually the only piece of the County’s AI that has not been
the Consent Decree to require an AFH instead. This it has not done. 11 Of course, if the County had submitted an acceptable AI to HUD in 2009, which was the schedule to which it agreed in the Settlement, that obligation would have been met years before HUD adopted the AFH framework.
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accepted by HUD is its analysis of local zoning. That very analysis would have to be done for an AFH as well.
Helpfully, at the July 8 conference, the Government represented that HUD remains willing to work with the County to prepare its AI, that HUD will review the AI under the standards that applied to AIs, and that preparing an AI will constitute a step towards preparing a robust AFH. Accordingly, the revision in HUD regulations will not impede the County’s compliance with its obligations under the Consent Decree or be a waste of resources in the event the County alters its posture and applies for HUD funds in the future.
Finally, as discussed above, the Consent Decree’s requirement that the County prepare an AI is not dependent on the County choosing to seek further HUD funding. It is a remedy for the County’s prior false certifications to HUD, which were false because of the County’s flawed AIs, among other things. An adequately prepared AI also supports and promotes several of the other commitments that the County made in the Consent Decree. The County chose to enter the Consent Decree rather than go to trial and risk facing a judgment of over $150 million. It has not shown that changed circumstances justify erasing this key provision of the Settlement.
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II. Monitor’s Requests for Relief The Monitor requests that the County be required to retain
a consultant to prepare and submit an acceptable AI to HUD on behalf of the County. The Consent Decree explicitly gives the Monitor authority to recommend additional steps the County should take to improve its performance in implementing the Settlement. See 2015 Appeal Opinion, 802 F.3d at 420 (discussing the Monitor’s authority to “recommend additional actions needed to ensure compliance”).
After nearly seven years, the County failed to submit an AI that complies with its obligations under the Consent Decree. This failure occurred despite the receipt of significant assistance from the Monitor and detailed guidance from HUD. The County’s argument that it has complied with ¶ 32, or alternatively that it no longer must do so, reveals that it does not plan to fulfill its obligations under ¶ 32. Thus, the use of a consultant to prepare an acceptable AI is an appropriate remedy for the County’s breach of ¶ 32.12 Ordering the County to retain a consultant is also within the scope of the Court’s equitable discretion. Requiring that the County take steps to
12 Indeed, the Court recently required the County to retain a consultant to assist the County in developing the One Community Campaign to fulfill its obligations under ¶ 33(c). The County did not object to hiring the consultant, and it appears that the parties are making progress towards development of an improved public campaign. 33(c) Opinion, 2016 WL 3566236 at *5 n.6.
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fulfill its plain ¶ 32 obligations is both appropriate and necessary.
The County observes that the Settlement does not require the County to hire a consultant to complete the AI, and thus argues that an order to do so is “outside the scope” of the Settlement. In making this argument, the County fails to acknowledge the provisions of the Consent Decree that give the Monitor the authority to recommend additional steps the County should take to improve its compliance with the Settlement. Settlement ¶¶ 13(c), (e), and 39. Moreover, the County does not address the Court’s equitable discretion to take reasonable steps to ensure compliance with its orders. Thus, as a general matter, the County’s objection that the requested relief is not explicitly enumerated in the Settlement is without merit. The relief granted here is narrowly tailored to the breach.
The County next complains that the appointment of a consultant will “strip” it of any role in the development of the AI. That need not be true. The Court has encouraged the County to be actively involved with and of assistance to the consultant in the creation of the AI. It is to be hoped that the County will seize this opportunity to engage fully and in good faith
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with the preparation of an AI that is acceptable to HUD.13 What it may not do, however, is delay or impede the creation and submission of the AI.
While it would have been preferable for the County timely to fulfill the AI requirement under ¶ 32, that did not happen either in 2009 or in any year since then. The process the Monitor has identified is reasonable in light of the County’s abdication of its contractual commitment. The County will have an opportunity to choose an appropriate consultant and participate in crafting the consultant’s AI submission.14 The County’s complaints that the Monitor has asked for “unfettered” discretion to approve or reject its selection of a consultant are unfounded. If the County and the Monitor disagree about the selection of the consultant, the parties may bring any such dispute to this Court. Thus, the Monitor is not being given unfettered discretion, nor is there any suggestion that he seeks such discretion. Indeed, the Monitor proposed that the County
13 At the July 8 conference, the Court urged the County to consider identifying a County employee to work constructively with the consultant to prepare the AI. 14 The County also objected to the Monitor’s requests that the AI contain a needs assessment and a zoning analysis under Berenson and Huntington. As explained at the July 8 conference, the Court declines to order that the AI contain any specific analysis. The adequacy of its contents is for HUD to decide. The County, the consultant, and the Monitor are encouraged to confer about the AI’s contents. HUD has promised its assistance.
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have the initial opportunity to select an appropriate consultant to prepare the AI.
Finally, the County objects to being required to pay “sight unseen” the Monitor’s expenses in supervising the remedial relief. This argument is unavailing. The fact that the Monitor does not yet know the amount of those expenses does not defeat his application for relief. As described in the accompanying order, any disputes over these expenses may be brought to either the Magistrate Judge or directly to this Court, at the County’s election.
III. The Model Zoning Ordinance In his Report, the Monitor found that the County breached
¶ 25(a) of the Settlement, and he requested that the Court order corresponding remedies. Paragraph 25(a) requires the County to “promote to municipalities” a “model ordinance” to expand the availability of affordable housing.15 In the Monitor’s assessment, the County has not “taken all possible actions to meet its obligation, including promoting inclusionary and other
15 In the context of the Settlement, “promote” means “to bring or help bring into being, to contribute to the growth, enlargement, or prosperity of, or to encourage or further.” 2013 Appeal Opinion, 712 F.3d at 768. Thus, “promotion requires affirmative action by the obligated party to help bring the object in question into being.” Id. at 769. Promotion “does not require insurance,” but it also is “not met by taking no action or taking an action that detracts from, rather than furthers, the end goal.” Id.
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appropriate zoning by municipalities by offering incentives.” ¶ 15.
Decision is reserved regarding the County’s breach of ¶ 25(a). As the AI process concludes, the Court will revisit this issue and allow supplemental submissions from the parties and the Monitor. The analysis in the AI that the consultant will submit to HUD may be of particular assistance in assessing whether a breach has occurred, the nature and extent of any such breach, and the appropriate remedies for any breach.
Conclusion The County has breached ¶ 32 of the Consent Decree by failing to submit an AI that is acceptable to HUD. Decision is reserved regarding the County’s alleged breach of ¶ 25(a). The Monitor’s requested remedies listed in his May 25 submission are granted in part, as described in a separate Order. Among other things, the County will be required to retain a consultant to prepare an AI that is acceptable to HUD.

Dated:

New York, New York July 18, 2016

__________________________________ DENISE COTE
United States District Judge

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 Anti-Discrimination Center, Inc.
“One Community, No Exclusion “
212--346-7600 center@antibiaslaw.com
Anti‐Discrimination Center Wins Unprecedented $62.5 Million Settlement In Housing De‐Segregation Case Against Westchester County
Westchester County will have to pay more than $60 million, develop at least 750 housing units in the most residentially segregated white municipalities in the County, and institute meaningful housing de‐segregation policies, all in connection with a settlement of a federal lawsuit that had been brought against the County on behalf of the United States by the Anti‐Discrimination Center (“ADC”). The settlement will have a major impact on the way federal housing and community development funds are used throughout the country.
In the lawsuit, commenced under the federal False Claims Act, ADC had charged that Westchester had received more than $50 million in federal housing and community development funds in the period 2000‐2006 by falsely certifying that the County had “affirmatively furthered fair housing.” The suit alleged that Westchester chose not to analyze impediments to fair housing choice based on race or municipal resistance, and chose not to take appropriate steps to overcome such impediments. [View the complaint.]
Earlier this year, the Court granted ADC’s motion for partial summary judgment, finding that Westchester had “utterly failed” to fulfill its obligation to affirmatively further fair housing throughout the false claims period and that each of the County’s certifications that it had or would affirmatively further fair housing was “false or fraudulent.” In the face of those developments, the County ultimately decided to resolve the case.
Craig Gurian, a civil rights attorney who is ADC’s Executive Director, litigated the case in partnership with ADC’s counsel, the law firm of Relman & Dane. “Residential segregation underlies virtually every racial disparity in America, from education to jobs to

the delivery of health care, but has been a problem that too many have ignored for too long,” Gurian commented. [View map of segregation in Westchester.] “This settlement means that Westchester can no longer hide from the ugly reality of continuing residential segregation. More broadly, the settlement reflects a new commitment by HUD to make sure that recipients of federal housing funds throughout the country recognize that token efforts to affirmatively further fair housing will not be tolerated.” Key Elements of the Settlement
 Westchester is obligated to adopt as its policy the elimination of residential segregation, and to implement the settlement in a way that develops housing on those Census blocks that currently have the lowest concentrations of African‐Americans and Latinos.
 Over $50 million is earmarked for affordable housing development designed to open fair housing opportunities in areas of Westchester where those opportunities have traditionally been lacking. Specifically, the overwhelming proportion of the minimum units (630 out of 750) must be built in municipalities that had African‐American populations of under 3% and Latino populations of under 7%.
 Westchester, belatedly acknowledging its authority to do so, is obligated to take legal action against resistant municipalities where needed to fulfill the affirmatively furthering fair housing purposes of the settlement.
 Westchester’s obligations specifically include the requirement to conduct a new analysis of impediments to fair housing choice that examines barriers based on race or on municipal resistance.
 Westchester’s performance of its obligations is to be guaranteed by the appointment of an independent Monitor, by the Court retaining jurisdiction over the case, and by penalty provisions for non‐compliance.
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ADC’s Gurian acknowledged that the ultimate effectiveness of the settlement would hinge on the extent to which the government vigorously implements the central purpose of the settlement: that is, not building affordable housing at random, but doing so in a way that opens the door to racial integration. “Given the more than 120,000 acres of land made up of census blocks where the population is less than 3% African‐American and less than 3% Latino, the Monitor should have no difficulty making sure that Westchester ends its policy of allowing affordable housing to be off‐limits in the most highly white neighborhoods in the County. We have confidence that the Monitor will do so.”
Relman & Dane’s John Relman, one of the nation’s leading fair housing attorneys said: “There is an important symmetry between the more than $50 million that Westchester got through its false claims, and the more than $50 million that Westchester now has to spend to facilitate pro‐integration affordable housing. In essence, Westchester is being required to make restitution dollar‐for‐dollar. I hope this is a message that every jurisdiction that receives community development block grant funds will hear loudly and clearly.”
Further information on the case and on the settlement is available at http://www.antibiaslaw.com/wfc.
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 was the obligation to conduct an analysis of the impediments to fair housing choice within its jurisdiction, and the obligation to take appropriate actions to overcome the effects of any impediments identified through that analysis. On multiple occasions within the preceding six years, Westchester County certified that it was in compliance with these requirements.
3. In fact, Westchester County had failed to conduct a meaningful analysis of impediments (the analysis contained within defendants’ 2004-2008 Consolidated Plan, for example, does not even mention even once either the phrase “housing discrimination” or the phrase “housing segregation”); and, to the extent that impediments identified in the analysis do bear on fair housing choice, Westchester County failed over many years to take appropriate steps to overcome such impediments.
4. Accordingly, Westchester County’s certifications were false. Through those false certifications, and through claims for payment or payment or approval which falsely presented Westchester County as being in compliance with its obligations under the Fair Housing Act, Community Development Act, and its previously-made certifications, Westchester County has improperly received more than $45 million in federal funds.
JURISDICTION AND VENUE 5. This action arises under the 31 U.S.C. §§ 3729 et seq. (“the False Claims Act”). This Court has jurisdiction over this case pursuant to 31 U.S.C. §§ 3730(b) and 3732(a). This Court also has jurisdiction pursuant to 28 US.C. §§ 1331 and 1345. 6. Venue is proper in this District pursuant to 31 U.S.C. § 3732(a), because the conduct proscribed by the False Claims Act and complained of herein took place in this District, and is also proper pursuant to 28 U.S.C. §§ 1391(b) and 1391(c), because the acts and omissions
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complained of herein occurred in this District, and because, at all times material and relevant, defendant resided in and transacted business in this District.
7. As required by 31 U.S.C. § 3130 (b)(2), Plaintiff Relator has provided to the Attorney General and to the United States Attorney for the Southern District of New York a statement of material evidence and information that Plaintiff Relator possesses regarding this complaint. Because the statement includes attorney-client communications and work product of Plaintiff Relator’s counsel, and was submitted to the Attorney General and to the United States Attorney in their capacity as potential co-counsel in this litigation, the Plaintiff Relator understands this statement to be confidential.
PARTIES 8. Plaintiff Relator Anti-Discrimination Center of Metro New York, Inc. (the “Center”) is a not-for-profit New York corporation that is tax exempt pursuant to Section 501(c) of the Internal Revenue Code. It works, collaboratively and across disciplines, to prevent and remedy discrimination and expand civil rights protections in housing, employment, education and public accommodations through advocacy, litigation, education, outreach, research, and monitoring. The Center believes that this work needs to proceed across group lines and across geographical lines. It believes that there are important ways in which all those in the New York region need to identify ourselves as all part of one community. Like any corporation, the Center is only able to act through its officers, directors, agents, and employees. 9. The United States of America (“United States”) provides housing-related funding to a variety of state and local governmental entities. Receipt of the funds relevant to this action is
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contingent on certifications that the recipient has and will meet a variety of fair housing obligations.
10. Defendant Westchester County (“Westchester”) is a municipal corporation as defined by the laws of the State of New York.
FACTS I. Background
11. There are 45 towns, villages, cities, or other municipal entities (collectively, “municipalities” in defendant Westchester).
12. With the exception of Mount Pleasant, Mount Vernon, New Rochelle, White Plains, and Yonkers, the remaining municipalities (“participating municipalities”) are part of the Westchester Urban County Consortium (“Consortium”).
13. Throughout the period April 1, 2000 to the present (the “false claims period”), Westchester has been strongly residentially segregated by race and national origin.
14. Based on 2000 Census Bureau data, for example, 40% of the municipalities in Westchester have populations which are one percent Black or less, and more than 60% have populations which are three percent Black or less.
15. In contrast, Mt. Vernon’s population is 58% Black and 10% Hispanic; Peekskill’s is 34% Black and 22% Hispanic; New Rochelle’s is 19% Black and 20% Hispanic; and Yonkers’ is 15% Black and 26% Hispanic.
16. Westchester was aware of the housing segregation reflected in these data throughout the false claims period.
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17. Throughout the false claims period, Westchester was aware that the supply of affordable housing was inadequate to its needs.
18. Throughout the false claims period, Westchester was aware that there was strong resistance in many participating municipalities to the creation of affordable housing units.
19. Throughout the false claims period, Westchester was aware that the unavailability of affordable housing contributed to the continued pattern of racial segregation in the county.
II. Seeking and Receiving Federal Funding 20. Throughout the false claims period, Westchester applied each year for federal funds
on behalf of itself and the participating municipalities. These applications for federal funding, included, but were not limited to, applications for Community Development Block Grant (“CDBG”) funds and Housing Opportunity Made Equal (“HOME”) funds.
21. A material requirement of eligibility for such funds was Westchester’s certification, on behalf of itself and the participating municipalities, that it and the participating municipalities would affirmatively furthering fair housing and comply with each and all of the provisions of the Fair Housing Act.
22. More specifically, Westchester represented that it would conduct an analysis of impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and those actions.
23. In submitting each application, Westchester renewed and incorporated the previous certifications that it had acted in compliance with the requirements set out in paragraphs 21 and 22, above.
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24. In addition, Westchester obligated itself to comply with all provisions of the Fair Housing Act, including the obligation to affirmatively further fair housing; and with analogous requirements of the CDBG program; and obligated itself to make certain that participating municipalities themselves were complying with all provisions of the Fair Housing Act, including the obligation to affirmatively further fair housing.
25. Westchester was aware of each and all of the requirements described in paragraphs 21-24, above, each time it submitted an application for federal funding during the false claims period, and was likewise aware of its authority and responsibility to refuse to disburse funds in support of any participating municipality that was not affirmatively furthering fair housing within its own jurisdiction.
26. Westchester made claims for payment of grant funds from the United States throughout the false claims period.
27. These claims included explicit and/or implicit representations that Westchester had and was complying with the obligations set forth in paragraphs 21-24, above, obligations of which it was aware each time it made such claims for payment.
28. Indeed, as the Center learned from documents provided directly to it by Westchester, Westchester knew that it was “prohibited from expending [CDBG] funding for activities in or in support of any local government that does not affirmatively further fair housing within its own jurisdiction or that impedes the county’s action to comply with its fair housing certifications.”
29. As the Center further learned from documents provided directly to it by Westchester, Westchester knew that it had the authority and responsibility to direct participating municipalities to do that what is necessary – as determined by Westchester – to affirmatively further fair housing.
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30. When Westchester made its certifications and claims for payments during the false claims period, it knew the certifications were false and that the claims for payment based on supposed compliance with its obligations were false; it also knew that it had no intention to comply with the requirements with which it had sworn to comply.
31. Westchester concealed its failure to comply from the United States throughout the false claims period.
III. Failure to Conduct an Analysis of Fair Housing Impediments 32. The “Fair Housing Plan” that Westchester prepared as part of its 2004-2008
Consolidated Plan illustrates and confirms Westchester’s stark failure to conduct anything resembling an actual fair housing impediments analysis.
33. Neither the phrase “housing discrimination” nor the phrase “housing segregation” even appears in the “analysis of impediments,” and Westchester provided literally no analysis of the role – current or historical – of either phenomenon in relation to existing impediments to fair housing.
34. These material omissions were made in the face of the fact that Westchester knew or should have known of the current and historic role of housing discrimination – public and private – and housing segregation in creating and perpetuating impediments to fair housing.
35. Westchester itself characterized its “analysis of impediments” as “an evaluation of the needs for handicapped persons[,] larger/smaller families, extended families, and tenure opportunities when planning their future development.”
36. Westchester made absolutely no reference to its “analysis of impediments” being an evaluation of anything have to do with the housing needs of different racial or ethnic groups.
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37. Westchester, through its employees, acknowledged to the Center (directly) that its demographic analysis for fair housing impediments analysis purposes did not encompass race, but only examined housing needs based on income.
38. Westchester, through its employees, explicitly stated to the Center (directly) that it sees discrimination as a problem of income discrimination, not racial discrimination.
39. Westchester’s identification of impediments to fair housing was entirely passive and reactive. Its policy, as admitted to the Center (directly) by its employees, was not to treat as an impediment anything that was not brought to defendant’s attention at the instigation of a consortium partner or other non-County entity. In other words, defendant was unprepared to engage in any independent analysis or exploration of impediments, and in fact did not engage in any independent analysis or exploration of impediments.
40. Westchester did not include as part of its “analysis” any account of its own role prior to and during the false claims period in failing to affirmatively further fair housing, or in failing to see that municipalities, including participating municipalities, affirmatively furthered fair housing.
41. In the period January 1, 1996 through and including June 30, 2005, the Center has learned -- from material disclosed only to the Center by Westchester (and not publicly disclosed) -- that Westchester did not perform, or cause to be performed, any investigation or analysis of regional housing need which treated (or even considered the possibility of treating) all of some of Westchester County as part of a regional housing market that includes all or some of New York City.
42. In the period January 1, 1996 through and including June 30, 2005, the Center has learned -- from material disclosed only to the Center by Westchester (and not publicly disclosed)
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-- that Westchester did not perform, or cause to be performed, any investigation or analysis of regional housing need which considered the possibility that it was necessary for participating municipalities, in connection with the obligation of those municipalities to create or modify zoning ordinances to meet regional housing need, to consider the need for affordable housing of people living in New York City.
43. The extent of Westchester’s failure to engage in a process of analysis is reflected in the extraordinary admission Westchester made, through its employees, to the Center (directly) that the reason that the supposed analysis of impediments to fair housing did not refer to housing discrimination was because the Consortium does not include Yonkers. The admission represents clear evidence that Westchester neither understands housing discrimination to be a problem throughout the County, nor understands how the demographic of different parts of the County and region are interactive.
IV. Failure to take appropriate steps to affirmatively further fair housing or to overcome the impediments identified
44. Westchester did not take appropriate steps, and, because of Westchester policy, could not have taken appropriate steps, to further fair housing.
45. Westchester did not take appropriate steps to overcome the barriers to fair housing that were identified in its analysis (barriers to affordable housing were discussed by Westchester, though not identified by Westchester as operating as barriers to fair housing). Though lack of affordable housing hurts people of all races and national origin, its absence in the participating municipalities has a disparate impact on Blacks and Hispanics (as those terms are used by the Census Bureau), and the barriers operate to perpetuate segregation.
9

46. Westchester did not take appropriate steps to overcome the barriers to fair housing that would have been identified in its analysis had its analysis been performed as contemplated by the relevant statutes and regulations. These include barriers such as housing discrimination, housing segregation, and race- and national origin-based stereotyping, The fact that discrimination, segregation, and stereotyping can act as inhibitions on the residential preferences of prospective minority residents, and can also distort the residential preferences of Whites, was neither dealt with or ever considered by Westchester.
47. Westchester, through its employees, admitted to the Center (directly) that Westchester did not and would not as a matter of policy monitor the effort (or lack of effort) of participating municipalities in respect to affirmatively furthering fair housing.
48. In the period January 1, 1996 through and including June 30, 2005, the Center has learned -- from material disclosed only to the Center by Westchester (and not publicly disclosed) -- that Westchester never informed, suggested, or referenced the possibility to any participating municipality that Westchester might withhold federal funds from such municipality if that municipality did not take steps to affirmatively further fair housing.
49. In fact, Westchester, through its employees, admitted to the Center (directly) that Westchester’s policy has never been to criticize participating municipalities for their failure to meet their responsibilities in the context of either of affirmatively further fair housing or in respect to providing affordable housing.
50. Throughout the false claims period, Westchester did not withhold federal funds from any participating municipality in connection with a failure to take steps to affirmatively further fair housing, including the failure to take steps to create affordable housing, and Westchester,
10

through its employees, admitted to the Center (directly) that even the threat of such withholding of funds was not something that Westchester would do.
51. Westchester, through its employees, admitted to the Center (directly) that it has a hands-off policy in respect to how participating municipalities plan, and stated that Westchester’s message to participating municipalities is that each participating municipality knows its municipality best.
52. Westchester, through its employees, admitted to the Center (directly) that it permits (and does not object to) the practice by which participating municipalities look only to the housing needs of existing residents, not the housing needs of persons living outside the municipality.
53. Westchester permits and does not object to the practice set forth in paragraph 52, above, even though it knows that the practice is in direct contravention of the requirements of State law, as established in the case of Berenson v. Town of New Castle, 38 N.Y.2d 102 (1975), and that the practice causes a disparate impact on based on race and national origin.
54. In the period January 1, 1996 through and including June 30, 2005, the Center has learned from material disclosed only to the Center by Westchester (and not publicly disclosed) that Westchester never required participating municipalities to document to Westchester, either in the course of a participating municipality’s application for CDBG funding or otherwise, how the participating municipality was and would affirmatively further fair housing.
55. In the period January 1, 1996 through and including June 30, 2005, the Center has learned -- from material disclosed only to the Center by Westchester (and not publicly disclosed) -- that Westchester never required participating municipalities to identify land suitable for affordable housing development.
11

56. Throughout the false claims period, Westchester never required a participating municipality to actually take any steps to increase the availability of affordable housing.
57. Throughout the false claims period, Westchester never required a participating municipality to actually take any steps to otherwise affirmatively further fair housing.
58. Westchester’s failure to analyze and failure to act appropriately occurred in the face of Westchester’s knowledge that many participating municipalities had not taken even the most modest steps to facilitate affordable housing or otherwise affirmatively further fair housing.
59. For example, Westchester knew that, of an (altogether inadequate) goal of 5,000 units of affordable housing to be constructed in the various municipalities of Westchester in the period 1990-1999, for which each municipality was encouraged – but not required – to meet a suballocation, well over half of the units set forth in the sub-allocations (3,360) were not built.
60. In Harrison, for example, the allocation for 1990-1999 was 307 units. Zero were built.
61. In Rye Brook, the allocation for 1990-1999 was 112 units. Only four were built. 62. In Eastchester, the allocation for 1990-1999 was 60 units. Zero were built. 63. In Harrison, virtually no land in the town was or is zoned for multiple family use, an insurmountable deterrent to the construction of affordable housing. 64. Eastchester, to give another illustration, also severely restricts through its zoning code the building of multiple family housing. 65. In many of the other participating municipalities, exclusionary zoning practices limit affordable housing, and consequently retard fair housing efforts. 66. Harrison was one of two municipalities which actually adopted official resolutions of non-cooperation with the goal of more affordable housing units.
12

67. Despite all of the foregoing, Westchester never deviated from a policy that excluded the possibility of requiring any participating municipalities to do anything specific to affirmatively further fair housing as a condition of receiving the federal funds to which Westchester had been entrusted, and which thereby excluded the possibility of acting in compliance with its own obligations and certifications.
V. Westchester’s performance and knowledge 68. Westchester’s performance of its statutory, regulatory, certification-based, and grant-
required obligations in respect to affirmatively furthering fair housing was so deficient or nonexistence to constitute the provision of worthless services.
69. In respect to all the certifications and requests for payment based on supposed performance of its obligations referred to herein, Westchester acted with knowledge that the certifications were false and the basis for receipt of payments was false.
70. In the alternative, it is alleged that Westchester acted in reckless disregard of the truth or falsity of the certifications it made. It is further alleged that Westchester acted in reckless disregard of the truth or falsity of the explicit and/or implicit representations it made that it had and was complying with its various affirmatively furthering fair housing obligations, representations made in order to secure payments from the United States.
VI. Damage to the Federal Government 71. As a result of Westchester’s false certifications, and as a result of seeking payments
based on the false premise that it had complied with the various fair housing obligations it had undertaken, Westchester has improperly received more than $45 million in federal funds.
13

CAUSES OF ACTION 72. Plaintiff Relator repeats and realleges the allegations set forth in paragraph 1- 71, above. 73. On each occasion that Westchester made a certification of the type described herein, the total number of which during the false claims period is not currently known to Relator, and on each occasion that Westchester otherwise requested or demanded payment from the federal government based on having supposedly complied with the Fair Housing Act, the Community Development Act, and with its certification-based obligations, it committed a separate violation of the False Claims Act, 31 U.S.C. § 3729 et seq.
DEMAND FOR JUGMENT Plaintiff Relator respectfully requests this Court to enter judgment against defendant, as follows: (a) That the United States be awarded damages in the amount of three times the damages sustained by the United States because of the false claims alleged within the Complaint, as provided by the False Claims Act, 31 U.S.C. §§ 3729 et seq. (b) That civil penalties of $10,000 be imposed for each and every false claim that defendant presented to the United States; (c) That pre- and post-judgment interest be awarded, along with reasonable attorneys’ fees, costs, and expenses which the Plaintiff Relator necessarily incurred in commencing and prosecuting this case;
14

 
 Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 1 of 78
CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:06−cv−02860−DLC

United States of America (ex rel), et al v. Westchester County, New York Assigned to: Judge Denise L. Cote Referred to: Magistrate Judge Gabriel W. Gorenstein (Settlement)
Similar Case: 1:13−cv−02741−DLC
Cause: 31:3729 False Claims Act
Special Master

Date Filed: 04/12/2006 Date Terminated: 08/10/2009 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

James E. Johnson

represented by James E Johnson Debevoise & Plimpton, LLP (NYC) 919 Third Avenue,31st Floor New York, NY 10022 (212)−909−6646 Fax: (212)−909−6836 Email: jejohnson@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ABC TERMINATED: 12/18/2006

represented by Robert H. Stroup Levy Ratner, P.C. 80 Eighth Avenue, Floor 8 New York, NY 10011 (212) 627−8100 Fax: (212) 627−8182 Email: rstroup@levyratner.com ATTORNEY TO BE NOTICED

Plaintiff
United States of America ex rel. Anti−Discrimination Center of Metro New York, Inc.

represented by Russell Marc Yankwitt Yankwitt LLP 140 Grand Street, Suite 501 White Plains, NY 10601 (914)−686−1500 Fax: (914)−801−5930 Email: russell@yankwitt.com LEAD ATTORNEY

Benjamin Henry Torrance U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 212−637−2703 Fax: 212−637−2702 Email: benjamin.torrance@usdoj.gov ATTORNEY TO BE NOTICED

Craig Gurian Anti−Discrimination Center of Metro New York, Inc 299 Broadway, Suite 1820 New york, NY 10007 (212)−346−7600 Fax: (212)−346−7667 Email: craiggurian@antibiaslaw.com

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 2 of 78
ATTORNEY TO BE NOTICED
David J Kennedy U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2200 Fax: (212) 637−2730 Email: david.kennedy2@usdoj.gov ATTORNEY TO BE NOTICED
James Lloyd Cott U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2200 Fax: 212−637−2730 Email: James.Cott@usdoj.gov ATTORNEY TO BE NOTICED
John P. Relman Relman & Associates (1225 19th St) 1225 19th Street, Nw, Suite 600 Washington, DC 20036 (202) 728−1888 Fax: (202) 728−0848 Email: jrelman@relmanlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Lara K. Eshkenazi U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2758 Fax: 212−637−2730 Email: Lara.Eshkenazi@usdoj.gov ATTORNEY TO BE NOTICED
Michael Allen Relman & Associates (1225 19th St) 1225 19th Street, Nw, Suite 600 Washington, DC 20036 (202) 728−1888 Fax: (202) 728−0848 Email: mallen@relmanlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Chance Cenawood U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2200 Fax: 212−637−2717 Email: Sean.Cenawood@usdoj.gov ATTORNEY TO BE NOTICED
Stephen M. Dane Relman & Associates (1225 19th St) 1225 19th Street, Nw, Suite 600

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 3 of 78
Washington, DC 20036 (419)−873−1814 Fax: (419)−873−1815 Email: sdane@relmanlaw.com ATTORNEY TO BE NOTICED

V. Defendant XYZ TERMINATED: 12/18/2006
Defendant Westchester County, New York

represented by Matthew Thaddeus Miklave Epstein, Becker & Green, P.C. (New York) 250 Park Avenue New York, NY 10177 212−351−4663 Fax: 212−661−0989 Email: MMiklave@ebglaw.com TERMINATED: 11/12/2010 LEAD ATTORNEY
Michael A. Kalish Epstein, Becker & Green, P.C. (New York) 250 Park Avenue New York, NY 10177 (212) 351−4500 Fax: (212) 878−8738 Email: mkalish@mtahq.org TERMINATED: 11/12/2010 LEAD ATTORNEY
Robert F. Meehan Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 (914)−995−2690 Fax: (914)−995−5858 Email: rmeehan@westchestergov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Michael Gerson Epstein, Becker & Green, P.C. (New York) 250 Park Avenue New York, NY 10177 202−861−4180 Fax: 202−296−2882 Email: sgerson@ebglaw.com TERMINATED: 11/12/2010 LEAD ATTORNEY
Adam Rodriguez Westchester County Attorney's Office 148 Martine Avenue, Room 600 White Plains, NY 10601 (914) 995−4894 Fax: (914) 995−3132 Email: arodriguez@bpslaw.com TERMINATED: 01/22/2018 ATTORNEY TO BE NOTICED

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 4 of 78
Carol Fumanti Arcuri Westchester County Attorney's Office 148 Martine Avenue, Room 600 White Plains, NY 10601 914−995−2696 Fax: 914−995−3132 Email: cfa1@westchestergov.com ATTORNEY TO BE NOTICED
Carrie Corcoran Epstein Becker & Green, P.C.(NY) 250 Park Avenue New York, NY 10177 (212)−351−4742 Fax: (212)−878−8724 Email: ccorcoran@ebglaw.com TERMINATED: 11/12/2010
James Francis Castro−Blanco Westchester County Attorney's Office 148 Martine Avenue White Plains, NY 10601 (914)−995−2673 Fax: (914)−995−4581 Email: jfc9@westchestergov.com ATTORNEY TO BE NOTICED
Justin Richard Adin Westchester County Attorney's Office 148 Martine Avenue, Room 600 White Plains, NY 10601 (914)−995−2893 Fax: (914)−995−4581 Email: jra3@westchestergov.com ATTORNEY TO BE NOTICED
Lori Ann Alesio Westchester County Attorney's Office 148 Martine Avenue, Room 600 White Plains, NY 10601 (914) 995−2683 Fax: (914) 995−3132 Email: laa2@westchestergov.com ATTORNEY TO BE NOTICED
Melissa−Jean Rotini Westchester County Attorney's Office 148 Martine Avenue, Room 600 White Plains, NY 10601 (914) 995−3630 Fax: (914) 995−3132 Email: mjr1@westchestergov.com ATTORNEY TO BE NOTICED
Shannon Sarles Brady Corporation Counsel, City of Yonkers City Hall, 40 South Broadway Yonkers, NY 10701 914 377−6229 Fax: 914 964−0563 Email: shannon.brady@putnamcountyny.gov ATTORNEY TO BE NOTICED
Intervenor Defendant

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 5 of 78

The Town of North Salem TERMINATED: 07/06/2016

represented by Brian S. Sokoloff Sokoloff Stern LLP 179 Westbury Avenue Carle Place, NY 11514 (516) 334−4500 Fax: (516) 334−4501 Email: bsokoloff@sokoloffstern.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Francisco Cardoso Sokoloff Stern LLP 179 Westbury Avenue, Carle Place, NY 11514 (516)−334−4500 Fax: (516)−334−4501 Email: acardoso@sokoloffstern.com ATTORNEY TO BE NOTICED

Intervenor Defendant
The Town Board of the Town of North Salem TERMINATED: 07/06/2016

represented by Brian S. Sokoloff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Francisco Cardoso (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant
The Planning Board of the Town of North Salem TERMINATED: 07/06/2016

represented by Brian S. Sokoloff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Francisco Cardoso (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Anti−Discrimination Center TERMINATED: 07/06/2016

represented by Craig Gurian (See above for address) ATTORNEY TO BE NOTICED

Robert H. Stroup (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
KEARNEY REALTY AND DEVELOPEMENT, INC. TERMINATED: 07/06/2016

represented by John Martin Flannery Wilson Elser Moskowitz Edelman & Dicker LLP (CT) 1010 Washington Blvd Stamford, CT 06901 (914) 323−7000 Fax: (914) 323−7001 Email: john.flannery@wilsonelser.com ATTORNEY TO BE NOTICED

Monitor Stephen C. Robinson

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 6 of 78

V. Amicus Center for Individual Rights
Amicus Town of New Castle, New York Keane & Beane, P.C. 445 Hamilton Avenue Suite 1500 White Plains, NY 10601 (914) 946−4777 Non−Party Amicus Inclusive Communities Project and 8 other amici
Amicus Enhanced Section 8 Outreach Program (ESOP), Inc.
Amicus Anti−Discrimination Center, Inc.

represented by Michael Evan Rosman Center For Individual Rights 1233 20th St. Nw, Suite 300 Washington, DC 20036 (202)−833−8400 Fax: (202)−833−8410 Email: rosman@cir−usa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mariann Meier Wang Cuti Hecker Wang, LLP (nyc) 305 Broadway, Suite 607 New York, NY 10007 212−620−2603 Fax: 212−620−2613 Email: mwang@chwllp.com ATTORNEY TO BE NOTICED
represented by Jerrold M. Levy Enhanced Section 8 Outreach Program (Esop), Inc. 20 South Broadway, Suite 1102 Yonkers, NY 10701 (914)−964−5519 Email: jerroldml@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Craig Gurian Anti−Discrimination Center 1745 Broadway, 17th Floor New York, NY 10019 212−537−5824 Fax: 212−786−3951 Email: craiggurian@antibiaslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/12/2006

# Docket Text
1 ORDER, Case sealed. (Signed by Judge Richard M. Berman on 4/12/2006) (sov, ) (Entered: 04/13/2006)

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 7 of 78

04/12/2006 12/18/2006
12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006

Magistrate Judge Gabriel W. Gorenstein is so designated. (sov, ) (Entered: 04/13/2006)
7 ORDER, that, the Complaint shall be unsealed and service upon defendant by the relator is authorized. The Government's Notice of Election to Decline Intervention shall be served by the plaintiff−relator upon service of the defendant only after service of the complaint. The seal shall be lifted as to all other matters occurring in this action after the date of this Order.The parties shall serve all pleadings and motions filed in this action, including supporting memoranda, upon the United States, as provided for in 31 U.S.C.$ 3730(c)(3). The U.S. may order any deposition transcripts and is entitled to seek to intervene in this action, for good cause, at any time. All orders of this Court shall be sent to the U.S. by the plaintiff−relator; and that, should the plaintiff−relator or the defendant propose that this action be dismissed, settled, or otherwise discontinued, the parties must solicit the written consent of the U.S. before applying for Court approval. (Signed by Judge Denise L. Cote on 12/14/2006) (kj, ) (Entered: 12/19/2006)
8 MOTION to File Under Seal − Do Not Place on Pacer − Do Not Place in Press Box. Document filed by Anti−Discrimination Center of Metro New York, Inc., United States of America. Original filed under Seal, document # 2. (db, ) (Entered: 12/20/2006)
9 ORDER granting 8 Motion to Seal Case. Original filed under Seal, document #2. (Signed by Judge Richard M. Berman, Part I on 4/12/06) (db, ) (Entered: 12/20/2006)
10 LETTER addressed to Clerk of the Court from Craig Gurian dated 4/12/06 re: request to file action under seal. Document filed by Anti−Discrimination Center of Metro New York, Inc., United States of America. Original filed under Seal, document # 2.(db, ) (Entered: 12/20/2006)
11 COMPLAINT against Westchester County, New York. (Filing Fee $ 350.00, Receipt Number 575909) Document filed by Anti−Discrimination Center of Metro New York, Inc., United States of America. Diskette Enclosed in Attached Seal Envelope. Original filed under Seal, document # 2.(db, ) (ama). (Entered: 12/20/2006)
12 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Anti−Discrimination Center of Metro New York, Inc. Original filed under Seal, document # 2.(db, ) (Entered: 12/20/2006)
13 MOTION to Withhold Issuance of Summons and 11 Complaint. Document filed by Anti−Discrimination Center of Metro New York, Inc., United States of America. Original filed under Seal, document # 2. (db, ) (Entered: 12/20/2006)
14 LETTER addressed to Judge Denise L. Cote from Craig Gurian dated 6/8/06 re: request that if Court entertains Government's (intervention) application, that only a three (3) month extension be granted. Document filed by Anti−Discrimination Center of Metro New York, Inc., United States of America. Diskette enclosed in attached seal envelope. Original filed under Seal, document # 3.(db, ) (Entered: 12/20/2006)
15 MOTION for Ex Parte Status Report and Statement in Support of Entry of Stipulation and Proposed Order (Keeping File Under Seal Until 12/16/06).Document filed by United States of America. Original filed under Seal, document # 4. (db, ) (Entered: 12/20/2006)
16 ORDER granting 15 MOTION for Ex Parte Status Report and Statement in Support of Entry of Stipulation and Proposed Order (Keeping File Under Seal Until 12/16/06). Original filed under seal, document # 4. (Signed by Judge Denise L. Cote on 6/19/06) (db, ) (Entered: 12/20/2006)
17 MOTION for John P. Relman to Appear Pro Hac Vice. Document filed by Anti−Discrimination Center of Metro New York, Inc. Original filed under seal, document # 5. (db, ) (Entered: 12/20/2006)
18 NOTICE OF APPEARANCE by John P. Relman on behalf of Anti−Discrimination Center of Metro New York, Inc. Original filed under seal, document # 5. (db, ) (Entered: 12/20/2006)

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12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006
12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/20/2006
01/30/2007
01/30/2007 01/31/2007 02/27/2007
03/22/2007
03/22/2007 03/30/2007

19 MOTION for Michael Allen to Appear Pro Hac Vice. Document filed by Anti−Discrimination Center of Metro New York, Inc. Original filed under seal, document # 5. (db, ) (Entered: 12/20/2006)
20 NOTICE OF APPEARANCE by Michael Allen on behalf of Anti−Discrimination Center of Metro New York, Inc. Original filed under seal, document # 5. (db, ) (Entered: 12/20/2006)
21 MOTION for Stephen M. Dane to Appear Pro Hac Vice. Document filed by Anti−Discrimination Center of Metro New York, Inc. Original filed under seal, document # 5. (db, ) (Entered: 12/20/2006)
22 NOTICE OF APPEARANCE by Stephen M. Dane on behalf of Anti−Discrimination Center of Metro New York, Inc. Original filed under seal, document # 5. (db, ) (Entered: 12/20/2006)
CASHIERS OFFICE REMARK on 21 Motion to Appear Pro Hac Vice, 19 Motion to Appear Pro Hac Vice, 17 Motion to Appear Pro Hac Vice in the amount of $75.00, paid on 10/27/06, RECEIPT NUMBER 595355. Original Receipt filed INSIDE SEALED ENVELOPE, document # 5. (db, ) (Entered: 12/20/2006)
23 ORDER granting 17 Motion for John P. Relman to Appear Pro Hac Vice. Original filed under seal, document # 6. (Signed by Judge Denise L. Cote on 10/27/06) (db, ) (Entered: 12/20/2006)
24 ORDER granting 19 Motion for Michael Allen to Appear Pro Hac Vice. Original filed under seal, document # 6. (Signed by Judge Denise L. Cote on 10/27/06) (db, ) (Entered: 12/20/2006)
25 ORDER granting 21 Motion for Stephen M. Dane to Appear Pro Hac Vice. Original filed under seal, document # 6. (Signed by Judge Denise L. Cote on 10/27/06) (db, ) (Entered: 12/20/2006)
Case Designated ECF. (jar) (Entered: 10/01/2008)
26 NOTICE OF CHANGE OF ADDRESS by Craig Gurian on behalf of Anti−Discrimination Center of Metro New York, Inc.. New Address: Anti−Discrimination Center, 377 Broadway, Ninth Floor, New York, NY, US 10013, 212−655−5790. (Gurian, Craig) (Entered: 12/20/2006)
27 ENDORSED LETTER addressed to Judge Denise Cote from Hillary J. Raimondi dated 1/26/07 re: Counsel writes to request that this Court grant it an extension until 3/31/07 to enter an appearance and to answer the complaint. Granted. The parties shall appear for a conference May 11 at 10:00 a.m. (Signed by Judge Denise L. Cote on 1/30/07) (jco) (Entered: 01/31/2007)
Set Answer Due Date purs. to 27 Endorsed Letter, as to Westchester County, New York answer due on 3/31/2007. (jco) (Entered: 01/31/2007)
28 ORDER RE SCHEDULING AND INITIAL PRETRIAL CONFERENCE: Initial Conference set for 5/11/2007 10:00 AM before Judge Denise L. Cote. (Signed by Judge Denise L. Cote on 1/31/07) (db) (Entered: 02/01/2007)
29 SUMMONS RETURNED EXECUTED. Westchester County, New York served on 1/8/2007, answer due 3/31/2007. Service was accepted by Donna Dixon, Legal Clerk. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 02/27/2007)
30 STIPULATION EXTENDING TIME TO RESPOND TO COMPLAINT; that dfts time to answer, move or otherwise respond to the complaint is hereby extended to and including 4/16/07. (Signed by Judge Denise L. Cote on 3/22/07) (pl) (Entered: 03/23/2007)
Set Answer Due Date purs. to 30 Stipulation and Order as to Westchester County, New York answer due on 3/22/2007. (pl) (Entered: 03/23/2007)
31 NOTICE OF APPEARANCE by Michael A. Kalish on behalf of Westchester County, New York (Kalish, Michael) (Entered: 03/30/2007)

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 9 of 78

03/30/2007 03/30/2007 04/16/2007 04/16/2007
04/17/2007 04/17/2007
04/17/2007 05/02/2007 05/07/2007 05/10/2007 05/25/2007 05/25/2007 06/15/2007 06/15/2007 06/15/2007

32 NOTICE OF APPEARANCE by Matthew Thaddeus Miklave on behalf of Westchester County, New York (Miklave, Matthew) (Entered: 03/30/2007)
33 NOTICE OF APPEARANCE by Carrie Corcoran on behalf of Westchester County, New York (Corcoran, Carrie) (Entered: 03/30/2007)
34 FILING ERROR − WRONG DOCUMENT TYPE SELECTED FROM MENU − MOTION to Dismiss the Complaint (MEMORANDUM OF LAW IN SUPPORT OF MOTION). Document filed by Westchester County, New York.(Gerson, Stuart) Modified on 4/17/2007 (KA). (Entered: 04/16/2007)
35 AFFIDAVIT of Michael A. Kalish in Support re: 34 MOTION to Dismiss the Complaint.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit Ex. A (1 of 2)# 2 Exhibit Ex. A (pt. 2 of 2)# 3 Exhibit Ex. B# 4 Exhibit Ex. C# 5 Exhibit Ex. D (pt. 1 of 4)# 6 Exhibit Ex. D (pt. 2 of 4)# 7 Exhibit Ex. D (pt. 3 of 4)# 8 Exhibit Ex. D (pt. 4 of 4)# 9 Exhibit Ex. E# 10 Exhibit Ex. F (pt. 1 of 2)# 11 Exhibit Ex. F (pt. 2 of 2)# 12 Exhibit Ex. G# 13 Exhibit Ex. H# 14 Exhibit Ex. I# 15 Exhibit Ex. J# 16 Exhibit Ex. K# 17 Exhibit Ex. L# 18 Exhibit Ex. M# 19 Exhibit Ex. N# 20 Exhibit Ex. O# 21 Exhibit Ex. P)(Gerson, Stuart) (Entered: 04/17/2007)
36 MOTION to Dismiss the Complaint. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/17/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DOCUMENT TYPE ERROR. Note to Attorney Stuart Michael Gerson to RE−FILE Document 34 MOTION to Dismiss the Complaint. Use the document type Memorandum of Law in Support of Moton found under the document list Replies, Opposition and Supporting Documents. (KA) (Entered: 04/17/2007)
37 MEMORANDUM OF LAW in Support re: 36 MOTION to Dismiss the Complaint.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2007)
38 STIPULATION AND ORDER WITH RESPECT TO BRIEFING OF MOTION TO DISMISS AND PROPOSED REVISED SCHEDULING ORDER that defendant shall file ant reply brief on or before June 15, 2007. Replies due by 5/15/2007. (Signed by Judge Denise L. Cote on 5/2/2007) (jmi) (Entered: 05/03/2007)
39 ENDORSED LETTER addressed to Judge Denise Cote from Michael Allen dated 5/4/07 re: plaintiff request an continuance of the initial conference currently scheduled for 10:00 a.m. on Friday, 5/11/07. So Ordered. The conference is adjourned to 6/15/07 @11:30 a.m.. (Signed by Judge Denise L. Cote on 5/7/07) (pl) (Entered: 05/08/2007)
40 AFFIDAVIT of Michael A. Kalish in Support re: 36 MOTION to Dismiss the Complaint.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit Exhibit F (pt. 1 of 2)# 2 Exhibit Exhibit N)(Kalish, Michael) (Entered: 05/10/2007)
41 RESPONSE in Opposition re: 36 MOTION to Dismiss the Complaint.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 05/25/2007)
42 ENDORSED LETTER addressed to Judge Denise L. Cote from Michael Allen dated 5/25/07 re: Application GRANTED. This letter is construed as a request to file an opposition to the defendants Motion to Dismiss that exceeds the page limit. (Signed by Judge Denise L. Cote on 5/25/07) (db) (Entered: 05/29/2007)
43 REPLY MEMORANDUM OF LAW in Support re: 36 MOTION to Dismiss the Complaint.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 06/15/2007)
44 REPLY AFFIRMATION of Michael A. Kalish in Support re: 36 MOTION to Dismiss the Complaint.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Gerson, Stuart) (Entered: 06/15/2007)
45 CERTIFICATE OF SERVICE of Reply Brief and Reply Affirmation in Further Support of Defendant's Motion to Dismiss the Complaint served on Anti−Discrimination Law Center of Metro New York on June 15, 2007. Document

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 10 of 78

06/22/2007 06/27/2007 07/13/2007 07/13/2007 07/27/2007 07/30/2007 07/30/2007 07/30/2007 08/08/2007 08/09/2007 08/13/2007 08/13/2007 08/13/2007 08/15/2007 08/15/2007 08/22/2007

filed by Westchester County, New York. (Gerson, Stuart) (Entered: 06/15/2007)
46 RESPONSE in Opposition re: 36 MOTION to Dismiss the Complaint. Letter request for permission to respond to Defendant's reply. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 06/22/2007)
47 RESPONSE in Support re: 36 MOTION to Dismiss the Complaint. Letter request to strike Relator's unauthorized 6/22/07 filing. Document filed by Westchester County, New York. (Corcoran, Carrie) (Entered: 06/27/2007)
48 OPINION & ORDER # 94905 re: 36 MOTION to Dismiss the Complaint. filed by Westchester County, New York. The defendant's April 17, 2007 motion to dismiss is denied. So Ordered. (Signed by Judge Denise L. Cote on 7/13/07) (jco) Modified on 7/17/2007 (rw). (Entered: 07/16/2007)
49 ORDER Initial Pretrial Conference set for 8/10/2007 at 02:00 PM before Judge Denise L. Cote, in courtroom 11B, 500 Pearl Street. So Ordered. (Signed by Judge Denise L. Cote on 7/13/07) (jco) (Entered: 07/16/2007)
50 STIPULATION EXTENDING TIME TO RESPOND TO COMPLAINT: the time for defendant Westchester County, New York to answer the complaint is extended to 8/13/07. Westchester County, New York answer due 8/13/2007. (Signed by Judge Denise L. Cote on 7/27/07) (db) Modified on 8/9/2007 (db). (Entered: 07/30/2007)
51 MOTION for Leave to Appeal and to Stay Discovery Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 07/30/2007)
52 MEMORANDUM OF LAW in Support re: 51 MOTION for Leave to Appeal and to Stay Discovery. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 07/30/2007)
53 AFFIDAVIT of Michael A. Kalish in Support re: 51 MOTION for Leave to Appeal and to Stay Discovery. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Gerson, Stuart) (Entered: 07/30/2007)
54 RESPONSE in Opposition re: 51 MOTION for Leave to Appeal and to Stay Discovery. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 08/08/2007)
55 ENDORSED LETTER addressed to Judge Cote from Carrie Corcoran dated August 6, 2007 re: Adjournment of the August 10, 2007 initial pretrial conference. ENDORSEMENT: Request denied. (Signed by Judge Denise L. Cote on August 8, 2007) (gr) (Entered: 08/09/2007)
56 ANSWER to Complaint. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 08/13/2007)
57 SCHEDULING ORDER:Amended Pleadings due by 9/28/2007.,Joinder of Parties due by 9/28/2007.,Discovery due by 3/28/2008.,Pretrial Order due by 7/25/2008. (Signed by Judge Denise L. Cote on 8/10/2007) (jmi) (Entered: 08/14/2007)
58 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Gabriel W. Gorenstein. (Signed by Judge Denise L. Cote on 8/10/2007) (jmi) (Entered: 08/14/2007)
59 REPLY MEMORANDUM OF LAW in Support re: 51 MOTION for Leave to Appeal and to Stay Discovery. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 08/15/2007)
60 ORDER SCHEDULING SETTLEMENT CONFERENCE: Settlement Conference set for 10/3/2007 at 2:30 PM in Courtroom 17A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Gabriel W. Gorenstein. (Signed by Judge Gabriel W. Gorenstein on 8/15/07) (kco) (Entered: 08/16/2007)
61 MEMORANDUM OPINION AND ORDER # 95092: The defendant's July 30 motion for certification of an immediate appeal pursuant to 28 U.S.C. 1992 (b) is denied. SO

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 11 of 78

10/10/2007 11/27/2007 03/05/2008 03/12/2008 03/17/2008 03/19/2008
05/16/2008 06/12/2008 06/30/2008
07/02/2008 07/03/2008 07/16/2008

ORDERED. (Signed by Judge Denise L. Cote on 8/22/2007) (jmi) Modified on 8/24/2007 (rw). (Entered: 08/23/2007)
Minute Entry for proceedings held before Judge Gabriel W. Gorenstein : Telephone Conference held on 10/10/07. (kco) (Entered: 10/16/2007)
62 CONFIDENTIALITY STIPULATION AND ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Denise L. Cote on 11/26/07) (cd) (Entered: 11/27/2007)
Minute Entry for proceedings held before Judge Denise L. Cote: Telephone Conference held on 3/5/2008. (Court Reporter Paula Speer) (gr) (Entered: 03/07/2008)
63 TRANSCRIPT of proceedings held on 1/24/2008 before Judge Denise L. Cote. (ama) (Entered: 03/12/2008)
64 TRANSCRIPT of proceedings held on 3/05/2008 before Judge Denise L. Cote. (ama) (Entered: 03/17/2008)
65 ENDORSED LETTER addressed to Judge Denise L. Cote from Michael Allen dated 3/18/08 re: Counsel requests an extension of certain deadlines set forth in the Court's Pretrial Scheduling Order of 8/10/07 to as follows: Fact Discovery due by 6/27/08. Plaintiff's identification of experts and disclosures of expert testimony conforming to the requirements of Rule 26(a(2)(B) must occur by 6/16/08. Defendant's identification of experts and disclosure of expert testimony must occur by 7/14/08. Plaintiff's disclosure of rebuttal expert testimony must occur by 7/28/08. Expert Discovery due by 8/18/08. Any motion for summary judgment must be filed by 9/19/08; Opposition must be served by 10/10/08; reply must be served by 10/24/08. In the event no motion is filed, the Joint Pretrial Order must be filed by 9/19/08. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 3/19/08) (tro) (Entered: 03/19/2008)
66 TRANSCRIPT of proceedings held on 5/13/2008 before Judge Denise L. Cote. (ama) (Entered: 05/16/2008)
67 TRANSCRIPT of proceedings held on 5/13/2008 before Judge Denise L. Cote. (ama) (Entered: 06/12/2008)
68 ENDORSED LETTER addressed to Judge Denise L. Cote from Michael A. Kalish dated 6/27/08 re: Counsel for Defendant Westchester County, New York write to request that the current deadline for defendant to identify experts and disclose expert testimony be extended by thirty days to 8/13/08. Defendant recognizes that such a 30−day extension would require that similar 30−day extensions would be required for relator's rebuttal expert testimony (to 8/27/08); the close of expert discovery (to 9/17/08); the time by which to make a summary judgment motion (to 10/19/08); the time by which to oppose a summary judgment motion (to 11/9/08); and the time by which to submit reply papers in connection with a summary judgment motion (to 11/23/08). ENDORSEMENT: The pretrial order or summary judgment motion remains due September 19. The parties may adjust the expert discovery schedule on consent. Without such consent, the March 19 Order remains in effect. (Signed by Judge Denise L. Cote on 6/30/08) (tro) (Entered: 07/01/2008)
69 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DEFICIENT DOCKET ENTRYJOINT MOTION for Extension of Time to Complete Discovery and Expert Disclosure (STIPULATION). Document filed by Anti−Discrimination Center of Metro New York, Inc.. Return Date set for 8/27/2008 at 12:00 AM.(Allen, Michael) Modified on 7/3/2008 (jar). (Entered: 07/02/2008)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 69 HAS BEEN REJECTED. Note to Attorney Michael Allen : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (jar) (Entered: 07/03/2008)
70 ENDORSED LETTER addressed to Judge Denise L. Cote from Michael Allen dated 7/15/2008 re: Counsel writes to seek a pre−motion conference on discovery in advance of a motion to compel. ENDORSEMENT: No letter may be longer than 2 pages. This letter is rejected. (Signed by Judge Denise L. Cote on 7/16/2008) (tve) (Entered: 07/16/2008)

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 12 of 78

08/05/2008 08/12/2008
09/03/2008
09/19/2008
09/19/2008 09/30/2008 09/30/2008 09/30/2008 09/30/2008
09/30/2008 09/30/2008

71 TRANSCRIPT of proceedings held on 7/23/08 before Judge Denise L. Cote. (ama) (Entered: 08/05/2008)
72 SCHEDULING ORDER: It is hereby ordered that the case is placed on the October 6, 2008 trial ready calendar. You must be ready to proceed on 24 hours notice. You may contact the Deputy Clerk Gloria Rojas, to learn where your case stands on the calendar. It is further ordered that the following procedures set forth in this order shall govern the conduct of the trial So Ordered. (Signed by Judge Denise L. Cote on 8/11/08) (js) (Entered: 08/12/2008)
73 ENDORSED LETTER addressed to Judge Denise L. Cote from Michael Allen dated 8/28/08 re: Counsel for both parties jointly request extension of the current scheduled, as follows: Dispositive motions due 9/30/08; Oppositions due 10/28/08; and reply briefs due 11/11/08. ENDORSEMENT: Granted. The case is removed from the trial ready calendar., (Signed by Judge Denise L. Cote on 9/3/08) (tro) (Entered: 09/04/2008)
74 ENDORSED LETTER addressed to Judge Denise L. Cote from Michael Allen dated 9/18/08 re: Counsel for Relator and Defendants write to express the parties' joint request to increase the length of briefs related to dispositive motions, the deadline for which is 9/30/08. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 9/19/08) (tro) (Entered: 09/19/2008)
***DELETED DOCUMENT. Deleted document number 75 ENDORSED LETTER. The document was incorrectly filed in this case. (djc) (Entered: 09/19/2008)
75 MOTION for Summary Judgment. Document filed by Anti−Discrimination Center of Metro New York, Inc.. Responses due by 10/28/2008(Allen, Michael) (Entered: 09/30/2008)
76 MEMORANDUM OF LAW in Support re: 75 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 09/30/2008)
77 RULE 56.1 STATEMENT. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 09/30/2008)
78 NOTICE of Request for Judicial Notice re: 75 MOTION for Summary Judgment. Document filed by Anti−Discrimination Center of Metro New York, Inc. (Attachments: # 1 Exhibit 1 − Code of the Town of Lewisboro, # 2 Exhibit 2 − Code of the Village of Briarcliff Manor, # 3 Exhibit 3 − Code of the Town of North Salem, # 4 Exhibit 4 − Code of the Town of North Castle, # 5 Exhibit 5 − Code of the Village of Hastings−on−Hudson, # 6 Exhibit 6 − Code of the Town of Somers, # 7 Exhibit 7 − Municipal Code of Westchester County)(Allen, Michael) Modified on 10/1/2008 (db). Modified on 10/1/2008 (jar). (Entered: 09/30/2008)
79 MOTION for Summary Judgment. Document filed by Westchester County, New York. Responses due by 10/28/2008(Gerson, Stuart) (Entered: 09/30/2008)
80 DECLARATION of Michael Allen in Support re: 75 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Appendix III, Tab 28 − Excerpts from Drummond Deposition, Vol. II, # 2 Appendix III, Tab 28a − Excerpts from Drummond Deposition, Vol. II, # 3 Appendix III, Tab 28b − Excerpts from Drummond Deposition, Vol II, # 4 Appendix III, Tab 29 − Excerpts from Spano Deposition, # 5 Appendix III, Tab 30 − Excerpts from Mulligan Deposition, # 6 Appendix III, Tab 31 − Excerpts from Drummond Deposition, Vol. I, # 7 Appendix III, Tab 32 − Excerpts from Brathwaite Deposition, # 8 Appendix III, Tab 33 − Excerpts from Lipkin Deposition, # 9 Appendix III, Tab 34 − Excerpts from Lacefield Deposition, # 10 Appendix III, Tab 35 − Excerpts from Welch Deposition, # 11 Appendix III, Tab 36 − Excerpts from Clark Deposition, # 12 Appendix III, Tab 37 − Excerpts from Levy Deposition, # 13 Appendix III, Tab 38 − Excerpts from Sanchez Deposition, # 14 Appendix III, Tab 39 − Excerpts from Massari Deposition, # 15 Appendix III, Tab 39a − Excerpts from Massari Deposition, # 16 Appendix III, Tab 39b − Excerpts from Massari Deposition, # 17 Appendix III, Tab 39c − Excerpts from Massari Deposition, # 18 Appendix III, Tab 40 − Excerpts from Gurian Deposition, # 19 Appendix III, Tab 41 − Excerpts from Bellman Deposition, # 20 Appendix III, Tab 42 − Excerpts from Raymond Deposition)(Allen, Michael) (Entered: 09/30/2008)

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 13 of 78

09/30/2008 09/30/2008
09/30/2008 09/30/2008 09/30/2008

81 DECLARATION of Michael Allen in Support re: 75 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Appendix II, Tab 21 − Beveridge Expert Report, # 2 Appendix II, Tab 21a − Beveridge Expert Report, # 3 Appendix II, Tab 21b − Beveridge Expert Report, # 4 Appendix II, Tab 21c − Beveridge Expert Report, # 5 Appendix II, Tab 22 − Beveridge Rebuttal Report, # 6 Appendix II, Tab 23 − Pratt Expert Report, # 7 Appendix II, Tab 24 − Pratt Rebuttal Report, # 8 Appendix II, Tab 25 − Logan Expert Report, # 9 Appendix II, Tab 26 − Logan Rebuttal Report, # 10 Appendix II, Tab 27 − Bradford Expert Report)(Allen, Michael) (Entered: 09/30/2008)
82 DECLARATION of Michael Allen in Support re: 75 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Appendix I, Tab 1 − Defendant's Responses to First Requests for Admission, # 2 Appendix I, Tab 2 − Excerpts from the Fair Housing Planning Guide, # 3 Appendix I, Tab 3 − Defendant's Responses to Revised Second Requests for Admission, # 4 Appendix I, Tab 4 − J. D'Agosta 1996 letter to A. O'Rourke, # 5 Appendix I, Tab 5 − March 11, 2005 Application for Federal Assistance, # 6 Appendix I, Tab 6 − Funding Approval/Agreement Forms, # 7 Appendix I, Tab 7 − 1996 Analysis of Impediments, # 8 Appendix I, Tab 8 − 2000 Analysis of Impediments, # 9 Appendix I, Tab 9 − Annual Action Plans, # 10 Appendix I, Tab 9a − Annual Action Plans, # 11 Appendix I, Tab 10 − Guide to Affordable Housing Development (1997), # 12 Appendix I, Tab 11 − End of Decade Report (2000), # 13 Appendix I, Tab 12 − Affordable Housing Action Plan (2004), # 14 Appendix I, Tab 13 − Affordable Housing Allocation Plan (2005), # 15 Appendix I, Tab 14 − Do Real Estate Agents Treat Minorities Differently than Whites? (2005), # 16 Appendix I, Tab 15 − Westchester County's Brief in Response to Plaintiff's Motion for a Prelminary Injunction (Westhab, Inc. v. The Village of Elmsford), # 17 Appendix I, Tab 16 − Instructions for Urban County Qualification for Participation in CDBG Program, # 18 Appendix I,Tab 17 − Excerpts from Patterns for Westchester, # 19 Appendix I, Tab 18a − Defendant's Response to First Request for Production, # 20 Appendix I, Tab 18b − Defendant's Responses to Revised Second Request for Production, # 21 Appendix I, Tab 19 − Defendant's Amended Response to Revised Contention Interrogatories, # 22 Appendix I, Tab 20 − Excerpts from Rockland County's Analysis of Impediments)(Allen, Michael) (Entered: 09/30/2008)
83 FILING ERROR − DEFICIENT DOCKET ENTRY − AFFIRMATION of Michael A. Kalish in Support re: 79 MOTION for Summary Judgment.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1 (of 2), # 2 Exhibit 1 (part 2 of 2), # 3 Exhibit 2, # 4 Exhibit 3 (part 1 of 2), # 5 Exhibit 3 (part 2 of 2), # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Errata 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Errata 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Errata 33, # 36 Errata 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44)(Gerson, Stuart) Modified on 10/2/2008 (jar). (Entered: 09/30/2008)
84 FILING ERROR − DEFICIENT DOCKET ENTRY − AFFIRMATION of Michael A. Kalish (with Exhibits 45−76) in Support re: 79 MOTION for Summary Judgment.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 45, # 2 Exhibit 46, # 3 Exhibit 49, # 4 Exhibit 50, # 5 Exhibit 51, # 6 Exhibit 52, # 7 Exhibit 53, # 8 Exhibit 54, # 9 Exhibit 55, # 10 Exhibit 56, # 11 Exhibit 57, # 12 Exhibit 58, # 13 Exhibit 59, # 14 Exhibit 60, # 15 Exhibit 62, # 16 Exhibit 63, # 17 Exhibit 64, # 18 Exhibit 65, # 19 Exhibit 66, # 20 Exhibit 67, # 21 Exhibit 68 (part 1 of 2), # 22 Errata 68 (part 2 of 2), # 23 Exhibit 69, # 24 Exhibit 70, # 25 Exhibit 72, # 26 Exhibit 73, # 27 Errata 74, # 28 Exhibit 75, # 29 Exhibit 76, # 30 Exhibit 47, # 31 Exhibit 48, # 32 Exhibit 61, # 33 Exhibit 71)(Gerson, Stuart) Modified on 10/2/2008 (jar). (Entered: 09/30/2008)
85 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for Summary Judgment (Rule 56.1 Statement). Document filed by Westchester County, New York. Responses due by 10/28/2008(Gerson, Stuart) Modified on 10/1/2008 (jar). (Entered: 09/30/2008)

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 14 of 78

09/30/2008 09/30/2008 09/30/2008 09/30/2008 09/30/2008 10/01/2008 10/02/2008
10/10/2008 10/17/2008 10/17/2008 10/20/2008

86 MEMORANDUM OF LAW in Support re: 79 MOTION for Summary Judgment.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 09/30/2008)
***DELETED DOCKET ENTRY. Deleted docket entry Note to Attorney re: Electronic Filing in Non−ECF Case. The entry was incorrectly filed in this case. (jar) (Entered: 10/01/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Stuart Gerson to RE−FILE Document 85 MOTION for Summary Judgment Rule 56.1 Statement. Use the event type Rule 56.1 Statement found under the event list Other Answer. (jar) (Entered: 10/01/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Stuart Gerson to RE−FILE Document 83 Affirmation in Support of Motion. ERROR(S): Duplicate filing of document to accommodate exhibits. See Section 15.4 of Electronic Case Filing Rules & Instructions. (jar) (Entered: 10/02/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Stuart Gerson to RE−FILE Document 84 Affirmation in Support of Motion. ERROR(S): Duplicate filing of document to accommodate exhibits. See Section 15.4 of Electronic Case Filing Rules & Instructions. (jar) (Entered: 10/02/2008)
87 RULE 56.1 STATEMENT. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 10/01/2008)
88 AFFIRMATION of Michael A. Kalish in Support re: 79 MOTION for Summary Judgment.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1 (part 1 of 2), # 2 Exhibit Exh. 1 (part 2), # 3 Exhibit Exh. 2, # 4 Exhibit Exh. 3 (part 1), # 5 Exhibit 3 (part 2), # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11 (part 1), # 14 Exhibit 11 (part 2), # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Exhibit 31, # 35 Exhibit 32, # 36 Exhibit 33, # 37 Exhibit 34, # 38 Exhibit 35, # 39 Exhibit 36, # 40 Exhibit 37, # 41 Exhibit 38, # 42 Exhibit 39, # 43 Exhibit 40, # 44 Exhibit 41, # 45 Exhibit 42, # 46 Exhibit 43, # 47 Exhibit 44, # 48 Exhibit 45, # 49 Exhibit 46, # 50 Exhibit 47, # 51 Exhibit 48, # 52 Exhibit 49, # 53 Exhibit 50, # 54 Exhibit 51, # 55 Exhibit 52, # 56 Exhibit 53, # 57 Exhibit 54, # 58 Exhibit 55, # 59 Exhibit 56, # 60 Exhibit 57, # 61 Exhibit 58, # 62 Exhibit 59, # 63 Errata 60, # 64 Exhibit 61, # 65 Exhibit 62, # 66 Exhibit 63, # 67 Exhibit 64, # 68 Exhibit 65, # 69 Exhibit 66, # 70 Exhibit 67, # 71 Exhibit 68 (part 1), # 72 Exhibit 68 (part 2), # 73 Exhibit 69, # 74 Exhibit 70, # 75 Exhibit 71, # 76 Exhibit 72, # 77 Exhibit 73, # 78 Exhibit 74, # 79 Exhibit 75, # 80 Exhibit 76)(Gerson, Stuart) (Entered: 10/02/2008)
89 ORDER SCHEDULING SETTLEMENT CONFERENCE Settlement Conference set for 12/3/2008 at 10:00 AM in Courtroom 17A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Gabriel W. Gorenstein. (Signed by Magistrate Judge Gabriel W. Gorenstein on 10/10/2008) (tve) (Entered: 10/10/2008)
90 AMENDED MEMORANDUM OF LAW in Support re: 75 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 10/17/2008)
91 RULE 56.1 STATEMENT. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 10/17/2008)
92 STIPULATION TO AMEND DISPOSITIVE MOTION BRIEFING DEADLINES: It is hereby stipulated and agreed that the deadlines with respect to the further briefing of dispositive motions are extended as follows: All response in opposition to dispositive motions are now on Friday, October 31, 2008. All replies in support of dispositive motions are now due on Friday, November 14, 2008. (Signed by Judge Denise L. Cote on 10/20/2008) (jfe) (Entered: 10/20/2008)

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10/27/2008
10/31/2008 10/31/2008
10/31/2008 10/31/2008 10/31/2008
10/31/2008 10/31/2008 11/07/2008 11/13/2008 11/14/2008 11/14/2008

93 LETTER: addressed to Judge Denise L. Cote from Michael Allen dated 10/17/08 re: Pursuant tot he instructions of your Clerk, I write to confirm our recent submission of a Corrected Memorandum of Law in Support of Plaintiff/Relator's Motion for Partial Summary Judgment [Doc. 90] and a corrected Rule 56.1 Statement [Doc. 91]. The corrected submissions are not substantively different from the original submissions. Rather the submissions correct citations to the record that were previously incorrect. We submit these corrected versions in order to assist the Court and all parties in referencing the appropriate exhibits. Counsel for Defendant Westchester County, New York consents to the submission of the corrected briefs. (js) (Entered: 10/27/2008)
94 COUNTER STATEMENT TO 91 Rule 56.1 Statement. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 10/31/2008)
95 AFFIRMATION of Michael A. Kalish in Opposition re: 75 MOTION for Summary Judgment.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1 (Part 1), # 2 Exhibit 1 (part 2), # 3 Exhibit 1 (Part 3), # 4 Exhibit 2, # 5 Exhibit 3 (Part 1), # 6 Exhibit 3 (Part 2), # 7 Exhibit 3 (Part 3), # 8 Exhibit 4, # 9 Exhibit 5 (Part 1), # 10 Exhibit 5 (Part 2), # 11 Exhibit 5 (Part 3), # 12 Exhibit 5 (Part 4), # 13 Exhibit 6, # 14 Exhibit 7, # 15 Exhibit 8, # 16 Exhibit 9−10, # 17 Exhibit 11−12, # 18 Exhibit 13, # 19 Exhibit 14−15, # 20 Exhibit 16−18, # 21 Exhibit 19−21, # 22 Exhibit 23−29, # 23 Exhibit 30−32, # 24 Exhibit 33−34, # 25 Exhibit 35 (Part 1), # 26 Exhibit 35 (Part 2), # 27 Exhibit 36−38, # 28 Exhibit 39, # 29 Exhibit 40−41, # 30 Exhibit 42, # 31 Exhibit 43−45, # 32 Errata 46 (Part 1), # 33 Exhibit 46 (Part 2), # 34 Exhibit 47−49, # 35 Exhibit 50−52, # 36 Exhibit 22, # 37 Exhibit 53−54, # 38 Exhibit 55, # 39 Exhibit 56−62, # 40 Exhibit 63)(Gerson, Stuart) (Entered: 10/31/2008)
96 MEMORANDUM OF LAW in Opposition re: 75 MOTION for Summary Judgment.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 10/31/2008)
97 MEMORANDUM OF LAW in Opposition re: 79 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 10/31/2008)
98 DECLARATION of Michael Allen in Opposition re: 79 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D (part 1), # 5 Exhibit D (part 2), # 6 Exhibit D (part 3), # 7 Exhibit D (part 4), # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Exhibit Q, # 21 Exhibit R, # 22 Exhibit S, # 23 Exhibit T, # 24 Exhibit U, # 25 Exhibit V, # 26 Exhibit W)(Allen, Michael) (Entered: 10/31/2008)
99 DECLARATION of Ann Seligsohn in Opposition re: 79 MOTION for Summary Judgment.. Document filed by Westchester County, New York. (Allen, Michael) (Entered: 10/31/2008)
100 COUNTER STATEMENT TO 87 Rule 56.1 Statement. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 10/31/2008)
101 ENDORSED LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from Michael Allen dated 11/7/08 re: Request for an adjournment of the scheduled 12/3/08 Settlement Conference until 1/12/09 at 10:00 a.m. ENDORSEMENT: Granted. Letters due 1/9/09. SO ORDERED. (Settlement Conference set for 1/12/2009 at 10:00 AM before Magistrate Judge Gabriel W. Gorenstein.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 11/7/08) (db) (Entered: 11/07/2008)
102 COUNTER STATEMENT TO 91 Rule 56.1 Statement. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 11/13/2008)
103 REPLY MEMORANDUM OF LAW in Support re: 79 MOTION for Summary Judgment.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 11/14/2008)
104 REPLY AFFIRMATION of Michael A. Kalish in Support re: 79 MOTION for Summary Judgment.. Document filed by Westchester County, New York.

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 16 of 78

11/14/2008 11/14/2008
11/19/2008 11/19/2008 11/19/2008 12/04/2008 12/08/2008 12/08/2008
12/08/2008 12/15/2008 12/15/2008 01/12/2009 01/21/2009
01/23/2009

(Attachments: # 1 Exhibit 64, # 2 Exhibit 65, # 3 Exhibit 66, # 4 Exhibit 67, # 5 Exhibit 68, # 6 Exhibit 69, # 7 Exhibit 70, # 8 Exhibit 71)(Gerson, Stuart) (Entered: 11/14/2008)
105 REPLY MEMORANDUM OF LAW in Support re: 75 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 11/14/2008)
106 DECLARATION of Michael Allen in Support re: 75 MOTION for Summary Judgment.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1 − Exhibit R−2 to Beveridge Expert Report, # 2 Exhibit 2 − Spano Deposition Excerpts, # 3 Exhibit 3 − Mulligan Deposition Excerpts, # 4 Exhibit 4 − Drummond Deposition Excerpts)(Allen, Michael) (Entered: 11/14/2008)
107 MOTION to Strike Document No. 102 . Document filed by Anti−Discrimination Center of Metro New York, Inc.. Responses due by 12/8/2008(Allen, Michael) (Entered: 11/19/2008)
108 MEMORANDUM OF LAW in Support re: 107 MOTION to Strike Document No. 102 .. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 11/19/2008)
109 DECLARATION of Michael Allen in Support re: 107 MOTION to Strike Document No. 102 .. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit A)(Allen, Michael) (Entered: 11/19/2008)
110 ORDER: It is hereby ordered that defendant's opposition to the motion is due December 8, 2008; any reply is due December 15, 2008, as set forth herein. (Signed by Judge Denise L. Cote on 12/4/2008) (jpo) (Entered: 12/04/2008)
111 AFFIRMATION of Michael A. Kalish in Opposition re: 107 MOTION to Strike Document No. 102 .. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 12/08/2008)
112 AFFIRMATION of Michael A. Kalish in Opposition re: 107 MOTION to Strike Document No. 102 .. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Errata D, # 5 Exhibit E, # 6 Exhibit F, # 7 Errata G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Gerson, Stuart) (Entered: 12/08/2008)
113 MEMORANDUM OF LAW in Opposition re: 107 MOTION to Strike Document No. 102 .. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 12/08/2008)
114 REPLY MEMORANDUM OF LAW in Support re: 107 MOTION to Strike Document No. 102 .. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 12/15/2008)
115 DECLARATION of Michael Allen in Support re: 107 MOTION to Strike Document No. 102 .. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit A)(Allen, Michael) (Entered: 12/15/2008)
Minute Entry for proceedings held before Magistrate Judge Gabriel W. Gorenstein: Settlement Conference held on 1/12/2009. (mro) (Entered: 01/13/2009)
116 ENDORSED LETTER addressed to Judge Denise L. Cote from Stuart M. Gerson dated 1/16/2009 re: Counsel respectfully ask that the Court permit the County a reasonable time to pursue these efforts set forth within before issuing its decision on the parties' cross−motions for summary judgment. ENDORSEMENT: The U.S. declined to intervene in 2006. This action has been actively litigated in the interim without any apparent effort by the defendant to obtain a reconsideration of the Government's decision. The application for a stay is denied. So Ordered. (Signed by Judge Denise L. Cote on 1/21/2009) (jfe) Modified on 1/23/2009 (ae). Modified on 2/2/2009 (jfe). (Entered: 01/22/2009)
117 LETTER addressed to Judge Denise L. Cote from Michael Allen dated 1/16/2009 re: I write in response to Stuart Gerson's of January 16, 2009, and to object strenuously to his request that the Court suspend its consideration of the pending cross−motions for

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summary judgment, motions which have been fully briefed since November 14, 2008. Document filed by Anti−Discrimination Center of Metro New York, Inc..(jmi) (Entered: 01/29/2009)
118 OPINION AND ORDER #97120: The ADC's September 30, 2008 partial motion for summary judgment is granted in part and denied in part. The motion is granted as to the following elements of FCA liability: that the defendant made a claim, to the United States government, that was false or fraudulent, seeking payment from the Federal treasury. The ADC's motion is denied as to the knowledge element of an FCA claim. The County's September 30, 2008 motion for summary judgment is denied in full. The ADC's November 19, 2008 motion to strike is denied as moot. (Signed by Judge Denise L. Cote on 2/24/2009) (jfe) Modified on 2/25/2009 (mro). (Entered: 02/24/2009)
119 ORDER that the parties contact Magistrate Judge Gorenstein immediately to arrange for settlement discussions under his supervision. The joint Pretrial Order must be filed by 4/10/09. The case is placed on the 5/4 trial ready calendar, on 24 hours notice. You may contact the Deputy Clerk, Gloria Rojas, to learn where your case stands on the calendar. ( Pretrial Order due by 4/10/2009. Ready for Trial by 5/4/2009.) (Signed by Judge Denise L. Cote on 2/25/09) n.(cd) (Entered: 02/25/2009)
120 MOTION to Reassign Case to White Plains Courthouse. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 03/09/2009)
121 AFFIRMATION of Stuart M. Gerson in Support re: 120 MOTION to Reassign Case to White Plains Courthouse.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 03/09/2009)
122 MEMORANDUM OF LAW in Support re: 120 MOTION to Reassign Case to White Plains Courthouse.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 03/09/2009)
123 ORDER: that plaintiff's opposition to the motion is due March 13, 2009; any reply is due March 17, 2009. At the time any reply is filed, defendant shall provide two courtesy copies of all motion papers to Chambers by delivering them to the Courthouse Mailroom, 8th Floor, United States Courthouse, 500 Pearl Street, New York, New York. SO ORDERED. (Signed by Judge Denise L. Cote on 3/10/2009) (tve) (Entered: 03/10/2009)
124 MOTION for Leave to Appeal and to Postpone Trial Pending Appeal Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 03/10/2009)
125 AFFIRMATION of Michael A. Kalish in Support re: 124 MOTION for Leave to Appeal and to Postpone Trial Pending Appeal. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit February 24, 2009 Opinion & Order)(Gerson, Stuart) (Entered: 03/10/2009)
126 MEMORANDUM OF LAW in Support re: 124 MOTION for Leave to Appeal and to Postpone Trial Pending Appeal. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 03/10/2009)
127 RESPONSE in Opposition re: 120 MOTION to Reassign Case to White Plains Courthouse.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 03/13/2009)
128 DECLARATION of Michael Allen in Opposition re: 120 MOTION to Reassign Case to White Plains Courthouse.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit A − Deposition of Andrew Spano, # 2 Exhibit B − Deposition of Norma Drummond, # 3 Exhibit C − Deposition of Gerard Mulligan)(Allen, Michael) (Entered: 03/13/2009)
129 REPLY MEMORANDUM OF LAW in Support re: 120 MOTION to Reassign Case to White Plains Courthouse.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 03/17/2009)
130 ORDER: Accordingly, it is hereby ORDERED that defendant's March 9, 2009 motion to reassign this case to the White Plains Courthouse is denied. (Signed by Judge Denise L. Cote on 3/19/2009) (jfe) (Entered: 03/20/2009)

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131 MEMORANDUM OF LAW in Opposition re: 124 MOTION for Leave to Appeal and to Postpone Trial Pending Appeal. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 03/23/2009)
132 DECLARATION of Michael Allen in Opposition re: 124 MOTION for Leave to Appeal and to Postpone Trial Pending Appeal. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit A − Deposition of Gary Lacefield, # 2 Exhibit B − Deposition of Andrew Spano, # 3 Exhibit C − S. Gerson's March 20, 2009 letter)(Allen, Michael) (Entered: 03/23/2009)
Minute Entry for proceedings held before Judge Denise L. Cote: Pretrial Conference held on 3/30/2009. Jury Trial set for 5/4/2009 at 09:30 AM before Judge Denise L. Cote. (mro) Modified on 3/31/2009 (ad). (Entered: 03/31/2009)
133 SCHEDULING ORDER: any motion in limine shall be served by 4/10/09; opposition shall be served by 4/17/09; and the reply shall be served by 4/21/09. The final pretrial conference is scheduled for 4/28/09 at 10 am. Final Pretrial Conference set for 4/28/2009 at 10:00 AM in Courtroom 11B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. (Signed by Judge Denise L. Cote on 4/2/09) (cd) (Entered: 04/02/2009)
134 REPLY MEMORANDUM OF LAW in Support re: 124 MOTION for Leave to Appeal and to Postpone Trial Pending Appeal. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/02/2009)
135 ORDER For the reasons stated on the record, it is hereby ordered that defendant's application to reopen discovery is denied. (Signed by Judge Denise L. Cote on 4/2/09) (mme) (Entered: 04/03/2009)
136 LETTER addressed to Judge Denise L. Cote from Benjamin H. Torrance dated 3/30/09 re: Counsel writes to address a number of misstatements and misapprehensions that appear in the March 27, 2009 letter. (mme) (Entered: 04/09/2009)
206 LETTER addressed to Judge Denise L. Cote from Banjamin H. Torrance dated 3/30/09 Document filed by United States of America.(djc) (Entered: 04/16/2009)
290 TRANSCRIPT of proceedings held on April 2, 2009 at 3:30 p.m. before Judge Denise L. Cote. (js) (Entered: 04/23/2009)
137 MEMORANDUM OPINION & ORDER #97402 re: 124 MOTION for Leave to Appeal and to Postpone Trial Pending Appeal filed by Westchester County, New York. The defendant's March 10, 2009 motion for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is denied. SO ORDERED. (Signed by Judge Denise L. Cote on 4/9/2009) (tve) Modified on 4/13/2009 (mro). (Entered: 04/09/2009)
138 PROPOSED VOIR DIRE QUESTIONS. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/09/2009)
139 PROPOSED JURY INSTRUCTIONS. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/09/2009)
140 MOTION in Limine to Exclude Testimony of Defedant's Expert Witness Finis Welch. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
141 DECLARATION of Michael Allen in Support re: 140 MOTION in Limine to Exclude Testimony of Defedant's Expert Witness Finis Welch.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Allen, Michael) (Entered: 04/10/2009)
142 MEMORANDUM OF LAW in Support re: 140 MOTION in Limine to Exclude Testimony of Defedant's Expert Witness Finis Welch.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
143 MOTION in Limine Request for Judicial Notice of New York State Case Law and for an Order Excluding Evidence and Precluding Argument Inconsistent with Such State

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Law. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
144 DECLARATION of Michael Allen in Support re: 143 MOTION in Limine Request for Judicial Notice of New York State Case Law and for an Order Excluding Evidence and Precluding Argument Inconsistent with Such State Law.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/10/2009)
145 MEMORANDUM OF LAW in Support re: 143 MOTION in Limine Request for Judicial Notice of New York State Case Law and for an Order Excluding Evidence and Precluding Argument Inconsistent with Such State Law.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
146 MOTION in Limine for an Order Excluding Evidence or Argument Suggesting Defendant's Reliance on "Advice of Counsel". Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
147 DECLARATION of Michael Allen in Support re: 146 MOTION in Limine for an Order Excluding Evidence or Argument Suggesting Defendant's Reliance on "Advice of Counsel".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Allen, Michael) (Entered: 04/10/2009)
148 MEMORANDUM OF LAW in Support re: 146 MOTION in Limine for an Order Excluding Evidence or Argument Suggesting Defendant's Reliance on "Advice of Counsel".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
149 MOTION in Limine for a Ruling Limiting the Questions and Subjects on Which Witnesses from the Federal Government May Testify. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
150 DECLARATION of Michael Allen in Support re: 149 MOTION in Limine for a Ruling Limiting the Questions and Subjects on Which Witnesses from the Federal Government May Testify.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Allen, Michael) (Entered: 04/10/2009)
151 MEMORANDUM OF LAW in Support re: 149 MOTION in Limine for a Ruling Limiting the Questions and Subjects on Which Witnesses from the Federal Government May Testify.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
152 MOTION in Limine for a Limited Instruction to the Jury and Prohibitions on Comment or Challenge by Counsel Regarding the "Falsity" of Westchester County's Certifications. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
153 DECLARATION of Michael Allen in Support re: 152 MOTION in Limine for a Limited Instruction to the Jury and Prohibitions on Comment or Challenge by Counsel Regarding the "Falsity" of Westchester County's Certifications.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/10/2009)
154 MEMORANDUM OF LAW in Support re: 152 MOTION in Limine for a Limited Instruction to the Jury and Prohibitions on Comment or Challenge by Counsel Regarding the "Falsity" of Westchester County's Certifications.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
155 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff/Relator in General, its Motive in Filing Suit, or its Intentions Regarding the Use of Any Monetary Recovery. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)

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156 DECLARATION of Michael Allen in Support re: 155 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff/Relator in General, its Motive in Filing Suit, or its Intentions Regarding the Use of Any Monetary Recovery.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
157 MEMORANDUM OF LAW in Support re: 155 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff/Relator in General, its Motive in Filing Suit, or its Intentions Regarding the Use of Any Monetary Recovery.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
158 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Sensitivity to Issues Concerning African Americans and Members of Other Protected Classes". Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
159 MEMORANDUM OF LAW in Support re: 158 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Sensitivity to Issues Concerning African Americans and Members of Other Protected Classes".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
160 MOTION in Limine to Prohibit Comment or Reference to the Court's Statutory Duties to Award Treble Damages and Attorneys' Fees and Assess Civil Penalties. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
161 MEMORANDUM OF LAW in Support re: 160 MOTION in Limine to Prohibit Comment or Reference to the Court's Statutory Duties to Award Treble Damages and Attorneys' Fees and Assess Civil Penalties.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
162 MOTION in Limine for an Order Excluding Westchester County Legislators from Testifying at Trial. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
163 DECLARATION of Michael Allen in Support re: 162 MOTION in Limine for an Order Excluding Westchester County Legislators from Testifying at Trial.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Allen, Michael) (Entered: 04/10/2009)
164 MEMORANDUM OF LAW in Support re: 162 MOTION in Limine for an Order Excluding Westchester County Legislators from Testifying at Trial.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
165 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Understanding of the Underlying Causes of Population Patterns within the County". Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
166 DECLARATION of Michael Allen in Support re: 165 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Understanding of the Underlying Causes of Population Patterns within the County".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Allen, Michael) (Entered: 04/10/2009)
167 MEMORANDUM OF LAW in Support re: 165 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Understanding of the Underlying Causes of Population Patterns within the County".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
168 MOTION in Limine to Exclude Defendant's Untimely Disclosed Witnesses. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)

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169 DECLARATION of Michael Allen in Support re: 168 MOTION in Limine to Exclude Defendant's Untimely Disclosed Witnesses.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Allen, Michael) (Entered: 04/10/2009)
170 MEMORANDUM OF LAW in Support re: 168 MOTION in Limine to Exclude Defendant's Untimely Disclosed Witnesses.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
171 MOTION in Limine to Exclude Evidence on the Subject of the "Benefit HUD Received" from the County's Administration of CDBG Funds. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
172 MEMORANDUM OF LAW in Support re: 171 MOTION in Limine to Exclude Evidence on the Subject of the "Benefit HUD Received" from the County's Administration of CDBG Funds.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
173 MOTION in Limine for a Pretrial Order that Defendant's AFFH Certifications During the False Claims Period Were Material as a Matter of Law, or, in the Alternative, to Exclude the Issue of Materiality from Decision by the Jury. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
174 MEMORANDUM OF LAW in Support re: 173 MOTION in Limine for a Pretrial Order that Defendant's AFFH Certifications During the False Claims Period Were Material as a Matter of Law, or, in the Alternative, to Exclude the Issue of Materiality from Decision by the Jury.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
175 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Commitment to Fair and Affordable Housing". Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
176 MEMORANDUM OF LAW in Support re: 175 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Commitment to Fair and Affordable Housing".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
177 MOTION in Limine to Exclude Testimoy of Defendant's Expert Witness William Clark. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
178 MOTION in Limine to Allow the Introduction of Certain Evidence at Trial. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/10/2009)
179 MEMORANDUM OF LAW in Support re: 178 MOTION in Limine to Allow the Introduction of Certain Evidence at Trial.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/10/2009)
180 DECLARATION of Michael Allen in Support re: 177 MOTION in Limine to Exclude Testimoy of Defendant's Expert Witness William Clark.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Allen, Michael) (Entered: 04/10/2009)
181 MEMORANDUM OF LAW in Support re: 177 MOTION in Limine to Exclude Testimoy of Defendant's Expert Witness William Clark.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
182 PROPOSED VOIR DIRE QUESTIONS. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/10/2009)
183 PROPOSED JURY INSTRUCTIONS. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/10/2009)

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184 MOTION in Limine for a Pretrial Order to Exclude the Issue of Damages From Decision by the Jury. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
185 PROPOSED JURY INSTRUCTIONS. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/10/2009)
186 FILING ERROR − DEFICIENT DOCKET ENTRY − (SEE DOCUMENT # 204) − TRIAL BRIEF. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1−6)(Gerson, Stuart) Modified on 4/15/2009 (gp). (Entered: 04/10/2009)
187 DECLARATION of Michael Allen in Support re: 184 MOTION in Limine for a Pretrial Order to Exclude the Issue of Damages From Decision by the Jury.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1A, # 2 Exhibit 1B, # 3 Exhibit 1C, # 4 Exhibit 2)(Allen, Michael) (Entered: 04/10/2009)
188 MEMORANDUM OF LAW in Support re: 184 MOTION in Limine for a Pretrial Order to Exclude the Issue of Damages From Decision by the Jury.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False Claims Period. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
190 FILING ERROR − DEFICIENT DOCKET ENTRY (See Document #205) − DECLARATION of Michael Allen in Support re: 189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False C. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7A, # 8 Exhibit 7B, # 9 Exhibit 7C, # 10 Exhibit 8)(Allen, Michael) Modified on 4/13/2009 (jar). (Entered: 04/10/2009)
191 MEMORANDUM OF LAW in Support re: 189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False C. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/10/2009)
193 DECLARATION of Michael Allen in Support re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Allen, Michael) (Entered: 04/10/2009)
194 MEMORANDUM OF LAW in Support re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/10/2009)
195 FILING ERROR − DEFICIENT DOCKET ENTRY (See document #198) − MOTION in Limine to Exclude From Trial Relator's Expert Evidence. Document filed by United States of America.(Gerson, Stuart) Modified on 4/13/2009 (jar). (Entered: 04/10/2009)
196 FILING ERROR − DEFICIENT DOCKET ENTRY (See document #199) − MEMORANDUM OF LAW in Support re: 195 MOTION in Limine to Exclude From Trial Relator's Expert Evidence.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Gerson, Stuart) Modified on 4/13/2009 (jar). (Entered: 04/10/2009)

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197 FILING ERROR − DEFICIENT DOCKET ENTRY (See document #200) − AFFIRMATION of Stuart M. Gerson in Support re: 195 MOTION in Limine to Exclude From Trial Relator's Expert Evidence.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1 Part A, # 2 Exhibit 1 Part B, # 3 Exhibit 2 Part A, # 4 Exhibit 2 Part B, # 5 Exhibit 2 Part C, # 6 Exhibit 3 Part A, # 7 Exhibit 3 Part B, # 8 Exhibit 4 Part A, # 9 Exhibit 4 Part B, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8)(Gerson, Stuart) Modified on 4/13/2009 (jar). (Entered: 04/10/2009)
198 MOTION in Limine To Exclude From Trial Relator's Expert Evidence. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/10/2009)
199 MEMORANDUM OF LAW in Support re: 198 MOTION in Limine To Exclude From Trial Relator's Expert Evidence.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/10/2009)
200 AFFIRMATION of Stuart M. Gerson in Support re: 198 MOTION in Limine To Exclude From Trial Relator's Expert Evidence.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1 Part A, # 2 Exhibit 1 Part B, # 3 Exhibit 2 Part A, # 4 Exhibit 2 Part B, # 5 Exhibit 2 Part C, # 6 Exhibit 3 Part A, # 7 Exhibit 3 Part B, # 8 Exhibit 4 Part A, # 9 Exhibit 4 Part B, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8)(Gerson, Stuart) (Entered: 04/10/2009)
201 MOTION in Limine to Preclude Relator From Offering Certain Evidence at Trial. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/10/2009)
202 MEMORANDUM OF LAW in Support re: 201 MOTION in Limine to Preclude Relator From Offering Certain Evidence at Trial.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/10/2009)
203 AFFIRMATION of Stuart M. Gerson in Support re: 201 MOTION in Limine to Preclude Relator From Offering Certain Evidence at Trial.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1 Part A, # 2 Exhibit 1 Part B, # 3 Exhibit 2, # 4 Exhibit 3 Part A, # 5 Exhibit 3 Part B, # 6 Exhibit 4 Part A, # 7 Exhibit 4 Part B, # 8 Exhibit 4 Part C, # 9 Exhibit 4 Part D, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8, # 14 Exhibit 9, # 15 Exhibit 10)(Gerson, Stuart) (Entered: 04/10/2009)
204 TRIAL BRIEF CORRECTED WITH SIGNATURE. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1−6)(Gerson, Stuart) (Entered: 04/10/2009)
205 DECLARATION of Michael Allen in Support re: 189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False C. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7A, # 8 Exhibit 7B, # 9 Exhibit 7C, # 10 Exhibit 8)(Allen, Michael) (Entered: 04/10/2009)
286 TRANSCRIPT of proceedings held on 4/2/2009 before Judge Denise L. Cote. (tve) (Entered: 04/22/2009)
291 TRANSCRIPT of proceedings held on 3/30/09 before Judge Denise L. Cote. (dle) (Entered: 04/23/2009)
292 TRANSCRIPT of proceedings held on 4/1/09 before Judge Denise L. Cote. (dle) (Entered: 04/23/2009)
207 MEMORANDUM OF LAW in Opposition re: 178 MOTION in Limine to Allow the Introduction of Certain Evidence at Trial.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/17/2009)
208 DECLARATION of Michael Allen in Opposition re: 178 MOTION in Limine to Allow the Introduction of Certain Evidence at Trial.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8

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04/17/2009 04/17/2009
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Exhibit 8)(Allen, Michael) (Entered: 04/17/2009)
209 MEMORANDUM OF LAW in Opposition re: 201 MOTION in Limine to Preclude Relator From Offering Certain Evidence at Trial.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/17/2009)
210 DECLARATION of Michael Allen in Opposition re: 201 MOTION in Limine to Preclude Relator From Offering Certain Evidence at Trial.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14A, # 15 Exhibit 14B, # 16 Exhibit 14C, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21)(Allen, Michael) (Entered: 04/17/2009)
211 Objection re: 183 Proposed Jury Instructions, 185 Proposed Jury Instructions. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/17/2009)
212 Objection re: 182 Proposed Voir Dire Questions. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/17/2009)
213 MEMORANDUM OF LAW in Opposition re: 198 MOTION in Limine To Exclude From Trial Relator's Expert Evidence.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/17/2009)
214 DECLARATION of Michael Allen in Opposition re: 198 MOTION in Limine To Exclude From Trial Relator's Expert Evidence.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Allen, Michael) (Entered: 04/17/2009)
215 Objection re: 204 Trial Brief. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/17/2009)
216 DECLARATION of Michael Allen in Opposition re: 204 Trial Brief. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Allen, Michael) (Entered: 04/17/2009)
217 RESPONSE in Opposition re: 177 MOTION in Limine to Exclude Testimoy of Defendant's Expert Witness William Clark.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
218 RESPONSE in Opposition re: 140 MOTION in Limine to Exclude Testimony of Defedant's Expert Witness Finis Welch.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
219 MEMORANDUM OF LAW in Opposition re: 160 MOTION in Limine to Prohibit Comment or Reference to the Court's Statutory Duties to Award Treble Damages and Attorneys' Fees and Assess Civil Penalties.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
220 MEMORANDUM OF LAW in Opposition re: 143 MOTION in Limine Request for Judicial Notice of New York State Case Law and for an Order Excluding Evidence and Precluding Argument Inconsistent with Such State Law.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
221 MEMORANDUM OF LAW in Opposition re: 171 MOTION in Limine to Exclude Evidence on the Subject of the "Benefit HUD Received" from the County's Administration of CDBG Funds.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
222 MEMORANDUM OF LAW in Opposition re: 152 MOTION in Limine for a Limited Instruction to the Jury and Prohibitions on Comment or Challenge by Counsel Regarding the "Falsity" of Westchester County's Certifications.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)

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04/17/2009

223 AFFIRMATION of Stuart M. Gerson in Opposition re: 149 MOTION in Limine for a Ruling Limiting the Questions and Subjects on Which Witnesses from the Federal Government May Testify.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
224 MEMORANDUM OF LAW in Opposition re: 149 MOTION in Limine for a Ruling Limiting the Questions and Subjects on Which Witnesses from the Federal Government May Testify.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
225 AFFIRMATION of Stuart M. Gerson in Opposition re: 155 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff/Relator in General, its Motive in Filing Suit, or its Intentions Regarding the Use of Any Monetary Recovery.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
226 MEMORANDUM OF LAW in Opposition re: 155 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff/Relator in General, its Motive in Filing Suit, or its Intentions Regarding the Use of Any Monetary Recovery.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
227 AFFIRMATION of Stuart M. gerson in Opposition re: 158 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Sensitivity to Issues Concerning African Americans and Members of Other Protected Classes".. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
228 MEMORANDUM OF LAW in Opposition re: 158 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Sensitivity to Issues Concerning African Americans and Members of Other Protected Classes".. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
229 AFFIRMATION of Stuart M. Gerson in Opposition re: 162 MOTION in Limine for an Order Excluding Westchester County Legislators from Testifying at Trial.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
230 MEMORANDUM OF LAW in Opposition re: 162 MOTION in Limine for an Order Excluding Westchester County Legislators from Testifying at Trial.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
231 AFFIRMATION of Stuart M. Gerson in Opposition re: 165 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Understanding of the Underlying Causes of Population Patterns within the County".. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
232 MEMORANDUM OF LAW in Opposition re: 165 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Understanding of the Underlying Causes of Population Patterns within the County".. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
233 AFFIRMATION of Stuart M. Gerson in Opposition re: 168 MOTION in Limine to Exclude Defendant's Untimely Disclosed Witnesses.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
234 MEMORANDUM OF LAW in Opposition re: 168 MOTION in Limine to Exclude Defendant's Untimely Disclosed Witnesses.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
235 AFFIRMATION of Stuart M. Gerson in Opposition re: 173 MOTION in Limine for a Pretrial Order that Defendant's AFFH Certifications During the False Claims Period Were Material as a Matter of Law, or, in the Alternative, to Exclude the Issue of Materiality from Decision by the Jury.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
236 MEMORANDUM OF LAW in Opposition re: 173 MOTION in Limine for a Pretrial Order that Defendant's AFFH Certifications During the False Claims Period Were Material as a Matter of Law, or, in the Alternative, to Exclude the Issue of Materiality from Decision by the Jury.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)

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04/21/2009

237 AFFIRMATION of Stuart M. Gerson in Opposition re: 175 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Commitment to Fair and Affordable Housing".. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
238 MEMORANDUM OF LAW in Opposition re: 175 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Commitment to Fair and Affordable Housing".. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
239 AFFIRMATION of Stuart M. Gerson in Opposition re: 184 MOTION in Limine for a Pretrial Order to Exclude the Issue of Damages From Decision by the Jury.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
240 MEMORANDUM OF LAW in Opposition re: 184 MOTION in Limine for a Pretrial Order to Exclude the Issue of Damages From Decision by the Jury.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
241 AFFIRMATION of Stuart M. Gerson in Opposition re: 189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False C. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
242 MEMORANDUM OF LAW in Opposition re: 189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False C. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
243 AFFIRMATION of Stuart M. Gerson in Opposition re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
244 MEMORANDUM OF LAW in Opposition re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
245 WITNESS LIST. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/17/2009)
246 Objection re: 138 Proposed Voir Dire Questions. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
247 Objection re: 139 Proposed Jury Instructions. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/17/2009)
248 WITNESS LIST. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/20/2009)
249 REPLY MEMORANDUM OF LAW in Support re: 162 MOTION in Limine for an Order Excluding Westchester County Legislators from Testifying at Trial.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
250 REPLY AFFIRMATION of Michael Allen in Support re: 162 MOTION in Limine for an Order Excluding Westchester County Legislators from Testifying at Trial.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Allen, Michael) (Entered: 04/21/2009)
251 REPLY MEMORANDUM OF LAW in Support re: 155 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff/Relator in General, its Motive in Filing Suit, or its Intentions Regarding the Use of Any Monetary Recovery.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)

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252 REPLY AFFIRMATION of Michael Allen in Support re: 155 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff/Relator in General, its Motive in Filing Suit, or its Intentions Regarding the Use of Any Monetary Recovery.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/21/2009)
253 REPLY MEMORANDUM OF LAW in Support re: 140 MOTION in Limine to Exclude Testimony of Defedant's Expert Witness Finis Welch.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
254 REPLY AFFIRMATION of Michael Allen in Support re: 140 MOTION in Limine to Exclude Testimony of Defedant's Expert Witness Finis Welch.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/21/2009)
255 REPLY MEMORANDUM OF LAW in Support re: 149 MOTION in Limine for a Ruling Limiting the Questions and Subjects on Which Witnesses from the Federal Government May Testify.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
256 REPLY MEMORANDUM OF LAW in Support re: 168 MOTION in Limine to Exclude Defendant's Untimely Disclosed Witnesses.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
257 REPLY AFFIRMATION of Michael Allen in Support re: 168 MOTION in Limine to Exclude Defendant's Untimely Disclosed Witnesses.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Allen, Michael) (Entered: 04/21/2009)
258 REPLY MEMORANDUM OF LAW in Support re: 171 MOTION in Limine to Exclude Evidence on the Subject of the "Benefit HUD Received" from the County's Administration of CDBG Funds.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
259 REPLY AFFIRMATION of Michael Allen in Support re: 171 MOTION in Limine to Exclude Evidence on the Subject of the "Benefit HUD Received" from the County's Administration of CDBG Funds.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/21/2009)
260 REPLY MEMORANDUM OF LAW in Support re: 175 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Commitment to Fair and Affordable Housing".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
261 REPLY MEMORANDUM OF LAW in Support re: 177 MOTION in Limine to Exclude Testimoy of Defendant's Expert Witness William Clark.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
262 REPLY AFFIRMATION of Michael Allen in Support re: 177 MOTION in Limine to Exclude Testimoy of Defendant's Expert Witness William Clark.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/21/2009)
263 REPLY MEMORANDUM OF LAW in Support re: 152 MOTION in Limine for a Limited Instruction to the Jury and Prohibitions on Comment or Challenge by Counsel Regarding the "Falsity" of Westchester County's Certifications.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
264 REPLY MEMORANDUM OF LAW in Support re: 189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False C. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael)

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(Entered: 04/21/2009)
265 REPLY AFFIRMATION of Michael Allen in Support re: 189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False C. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/21/2009)
266 REPLY MEMORANDUM OF LAW in Support re: 160 MOTION in Limine to Prohibit Comment or Reference to the Court's Statutory Duties to Award Treble Damages and Attorneys' Fees and Assess Civil Penalties.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
267 REPLY MEMORANDUM OF LAW in Support re: 165 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Understanding of the Underlying Causes of Population Patterns within the County".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
268 REPLY AFFIRMATION of Michael Allen in Support re: 165 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Understanding of the Underlying Causes of Population Patterns within the County".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/21/2009)
269 ORDER: that the parties shall draft a proposed instruction for the Court to give to the jury immediately prior to opening statements that will describe the statutory and regulatory framework for the claims in this case, the falsity of the certifications, and the issue of knowledge which the jury must resolve. The parties shall submit two courtesy copies of this proposed instruction (or separate instructions if the parties are unable to prepare a joint instruction) to the Court by noon on Monday, April 27, 2009. SO ORDERED. (Signed by Judge Denise L. Cote on 4/21/2009) (tve) (Entered: 04/21/2009)
270 REPLY MEMORANDUM OF LAW in Support re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
271 REPLY AFFIRMATION of Michael Allen in Support re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Allen, Michael) (Entered: 04/21/2009)
272 REPLY MEMORANDUM OF LAW in Support re: 184 MOTION in Limine for a Pretrial Order to Exclude the Issue of Damages From Decision by the Jury.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
273 REPLY AFFIRMATION of Michael Allen in Support re: 184 MOTION in Limine for a Pretrial Order to Exclude the Issue of Damages From Decision by the Jury.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/21/2009)
274 REPLY MEMORANDUM OF LAW in Support re: 158 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Sensitivity to Issues Concerning African Americans and Members of Other Protected Classes".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
275 REPLY AFFIRMATION of Michael Allen in Support re: 158 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Sensitivity to Issues Concerning African Americans and Members of Other Protected Classes".. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1)(Allen, Michael) (Entered: 04/21/2009)

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276 REPLY MEMORANDUM OF LAW in Support re: 143 MOTION in Limine Request for Judicial Notice of New York State Case Law and for an Order Excluding Evidence and Precluding Argument Inconsistent with Such State Law.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
277 REPLY AFFIRMATION of Michael Allen in Support re: 143 MOTION in Limine Request for Judicial Notice of New York State Case Law and for an Order Excluding Evidence and Precluding Argument Inconsistent with Such State Law.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Allen, Michael) (Entered: 04/21/2009)
278 REPLY re: 139 Proposed Jury Instructions. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
279 REPLY MEMORANDUM OF LAW in Support re: 198 MOTION in Limine To Exclude From Trial Relator's Expert Evidence.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/21/2009)
280 REPLY AFFIRMATION of Stuart M. Gerson in Support re: 201 MOTION in Limine to Preclude Relator From Offering Certain Evidence at Trial.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1)(Gerson, Stuart) (Entered: 04/21/2009)
281 REPLY MEMORANDUM OF LAW in Support re: 201 MOTION in Limine to Preclude Relator From Offering Certain Evidence at Trial.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/21/2009)
282 REPLY MEMORANDUM OF LAW in Support re: 178 MOTION in Limine to Allow the Introduction of Certain Evidence at Trial.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/21/2009)
283 REPLY MEMORANDUM OF LAW in Support re: 173 MOTION in Limine for a Pretrial Order that Defendant's AFFH Certifications During the False Claims Period Were Material as a Matter of Law, or, in the Alternative, to Exclude the Issue of Materiality from Decision by the Jury.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/21/2009)
284 REPLY AFFIRMATION of Michael Allen in Support re: 173 MOTION in Limine for a Pretrial Order that Defendant's AFFH Certifications During the False Claims Period Were Material as a Matter of Law, or, in the Alternative, to Exclude the Issue of Materiality from Decision by the Jury.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Allen, Michael) (Entered: 04/21/2009)
285 TRIAL BRIEF (Reply in Further Support). Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1)(Gerson, Stuart) (Entered: 04/21/2009)
287 OPINION & ORDER #97437: The plaintiffs April 10, 2009 motions [Docket Nos. 177 and 140] to preclude the testimony of defendants experts Clark and Welch are granted. The defendants April 10, 2009 motion [Docket No. 198] to preclude the testimony of plaintiffs experts is granted in part; specifically, the motion as to Bradford is granted, and the motion as to Beveridge, Pratt, and Logan is granted in part. 140 MOTION in Limine to Exclude Testimony of Defedant's Expert Witness Finis Welch filed by Anti−Discrimination Center of Metro New York, Inc. 198 MOTION in Limine To Exclude From Trial Relator's Expert Evidence filed by Westchester County, New York, 177 MOTION in Limine to Exclude Testimoy of Defendant's Expert Witness William Clark filed by Anti−Discrimination Center of Metro New York, Inc. (Signed by Judge Denise L. Cote on 4/22/09) (db) Modified on 4/24/2009 (mro). (Entered: 04/22/2009)
288 ORDER: Plaintiff has moved to exclude defendant's documents produced in April 2009. Defendant responded, inter alia, that during discovery plaintiff "never sought the exhibits it seeks to exclude." It is hereby ORDERED that by April 24, 2009, defendant shall respond to the plaintiff's argument that these documents should have been produced in response to plaintiff's Request No. 65 of September 17, 2007. IT IS FURTHER ORDERED that any response by plaintiff to the April 24 submission is due

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04/22/2009
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by April 27, 2009 at noon. IT IS FURTHER ORDERED that counsel bring courtesy copies of all documents in dispute to the Final Pretrial Conference. (Signed by Judge Denise L. Cote on 4/22/2009) (rw) (Entered: 04/22/2009)
289 OPINION & ORDER #97436 granting 173 Motion in Limine. Plaintiff's April 10, 2009 motion [Docket No. 173] for a pretrial order that defendant's AFFH certifications during the false claims period were material as a matter of law is granted. (Signed by Judge Denise L. Cote on 4/22/2009) (rw) Modified on 4/24/2009 (mro). (Entered: 04/22/2009)
293 ORDER granting 162 Motion in Limine To Exclude Westchester County legislators form testifying, for the reasons that will be placed on the record at the Final Pretrial Conference. (Signed by Judge Denise L. Cote on 4/23/09) (cd) (Entered: 04/23/2009)
294 ORDER granting, for the reasons that will be placed on the record at the final pretrial conference, 168 Motion in Limine To Exclude Defendant's Untimely disclosed Witnesses.. (Signed by Judge Denise L. Cote on 4/23/09) (cd) (Entered: 04/23/2009)
295 MOTION for Reed Colfax to Appear Pro Hac Vice. Document filed by Anti−Discrimination Center of Metro New York, Inc.(dle) (dle). (Entered: 04/24/2009)
296 MOTION for Brook Hopkins to Appear Pro Hac Vice. Document filed by Anti−Discrimination Center of Metro New York, Inc.(dle) (Entered: 04/24/2009)
297 RESPONSE to Motion re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents. −− Court Ordered Response to Relator's Reply. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/24/2009)
298 AFFIRMATION of Stuart M. Gerson in Opposition re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents.. Document filed by Westchester County, New York. (Gerson, Stuart) (Entered: 04/24/2009)
299 OPINION & ORDER #97444: For the reasons set forth in this order, Plaintiffs April 10, 2009 motion [Docket No. 184] excluding the issue of damages from decision by the jury is granted to the extent that the defendant will be precluded from arguing to the jury that its damages should be reduced by the benefit HUD received from the Countys administration of its housing and community development funds. (Signed by Judge Denise L. Cote on 4/24/09) (mme) Modified on 4/27/2009 (mro). (Entered: 04/24/2009)
300 ORDER It is hereby ordered that the May 4, 2009 trial is adjourned to May 11, 2009. (Signed by Judge Denise L. Cote on 4/24/09) (mme) (Entered: 04/24/2009)
301 RESPONSE in Support re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents. Response to Defendant's Court−Ordered Supplemental Briefing. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Allen, Michael) (Entered: 04/27/2009)
302 DECLARATION of Michael Allen in Support re: 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents.. Document filed by Anti−Discrimination Center of Metro New York, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Allen, Michael) (Entered: 04/27/2009)
303 PROPOSED JURY INSTRUCTIONS. Document filed by Anti−Discrimination Center of Metro New York, Inc..(Allen, Michael) (Entered: 04/27/2009)
304 PROPOSED JURY INSTRUCTIONS. Document filed by Westchester County, New York.(Gerson, Stuart) (Entered: 04/27/2009)
305 MEMO ENDORSEMENT re: 295 Motion for Reed Colfax to Appear Pro Hac Vice. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 4/27/2009) (tve) (Entered: 04/27/2009)
306 MEMO ENDORSEMENT re: granting 296 Motion for Brook Hopkins to Appear Pro Hac Vice. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 4/27/2009) (tve) (Entered: 04/27/2009)
Transmission to Attorney Admissions Clerk. Transmitted re: 306 Order on Motion to Appear Pro Hac Vice, 305 Order on Motion to Appear Pro Hac Vice, to the Attorney

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04/28/2009 04/28/2009 05/01/2009 05/01/2009
05/01/2009
05/05/2009 05/08/2009
05/12/2009 05/12/2009 05/12/2009 07/02/2009 07/02/2009
08/10/2009

Admissions Clerk for updating of Attorney Information. (tve) (Entered: 04/27/2009)
CASHIERS OFFICE REMARK on 296 Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 04/23/2009, Receipt Number 686154. (jd) (Entered: 04/28/2009)
Minute Entry for proceedings held before Judge Denise L. Cote: Final Pretrial Conference held on 4/28/2009. The final pretrial conference will continue on May 5, 2009 at 10 a.m., Courtroom 11B (Court Reporter Denise Richards) (gr) (Entered: 04/28/2009)
307 ORDER: For the reasons stated on the record at a conference with the parties held on April 28, 2009, it is hereby ordered that the April 10, 2009 motion [docket no. 146] by the plaintiff for an order excluding evidence or argument suggesting defendant's reliance on "Advice of Counsel" is granted. (Signed by Judge Denise L. Cote on 5/1/2009) (jpo) (Entered: 05/01/2009)
308 ORDER: For the reasons stated on the record at a conference with the parties held on April 28, 2009, it is hereby ordered that the April 10, 2009 motion [docket no. 171] by the plaintiff for an order to exclude evidence on the subject of the "Benefit HUD Received" from the County's administration of CDBG funds is granted with respect to the issue of damages. (Signed by Judge Denise L. Cote on 5/1/2009) (jpo) (Entered: 05/01/2009)
309 ORDER: For the reasons stated on the record at a conference with the parties held on April 28, 2009, it is hereby ORDERED that the April 10, 2009 motion [Docket No. 178] by the defendant for an Order to allow the introduction of certain evidence is denied with respect to the federal government's failure to intervene in this action and the federal government's reaction to this lawsuit, as explained more fully on the record. (Signed by Judge Denise L. Cote on 5/1/2009) (jpo) (Entered: 05/01/2009)
310 ORDER: It is hereby ordered that the trial in this case is adjourned to July 6, 2009. (Signed by Judge Denise L. Cote on 5/5/2009) (jpo) (Entered: 05/05/2009)
311 ORDER that relator's counsel, defendant's counsel, counsel for the Government, and counsel for the City of Peekskill appear before this Court for a conference on Wednesday, May 13, 2009, at 10:30 A.M. at the United States Courthouse, 500 Pearl Street, New York, New York, in Courtroom 11B. SO ORDERED ( Status Conference set for 5/13/2009 at 10:30 AM in Courtroom 11B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 5/8/2009) (jmi) (Entered: 05/08/2009)
312 ORDER: The conference set for Wednesday, 5/13/09, at 10:30 A.M. is adjourned sine die. (Signed by Judge Denise L. Cote on 5/12/09) (tro) (Entered: 05/12/2009)
313 TRANSCRIPT of proceedings held on April 24, 2009 @ 10:45 a.m. before Judge Denise L. Cote. (jab) (Entered: 05/14/2009)
314 TRANSCRIPT of proceedings held on April 28, 2009 @ 10:00 a.m. before Judge Denise L. Cote. (jab) (Entered: 05/14/2009)
315 ENDORSED LETTER addressed to Judge Denise L. Cote from James Cott dated 6/26/09 re: Request for a 30 day extension of the 7/6 trial date. ENDORSEMENT: Trial is adjourned to 8/10/09. (Signed by Judge Denise L. Cote on 7/2/09) (cd) (Entered: 07/02/2009)
316 LETTER addressed to Judge Denise L. Cote from Joseph A. Stargiotti dated 6/9/2009 re: The City of Peekskill is in receipt of a letter dated May 12, 2009 from Jerry Mulligan, Westchester County's Commissioner of Planning advising that Westchester County will now be processing payment of vouchers under pre 2008 CDBG Grants. Based on that advice from the Commissioner of Planning the City of Peekskill's application for an Order to Show Cause is moot. The City of Peekskill hereby withdraws its application. Document filed by Westchester County, New York.(mbe) (Entered: 07/10/2009)
317 NOTICE of Election to Intervene. Document filed by United States of America. (Torrance, Benjamin) (Entered: 08/10/2009)

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318 MEMORANDUM OF LAW re: 317 Notice (Other) in Support of United States' Application to Intervene. Document filed by United States of America. (Torrance, Benjamin) (Entered: 08/10/2009)
319 ORDER GRANTING APPLICATION OF UNITED STATES TO INTERVENE: The United States having notified the Court of its election to intervene and proceed with this action, and having filed its application with respect thereto; IT IS HEREBY ORDERED that the application is GRANTED. (Signed by Judge Denise L. Cote on 8/10/2009) (jfe) (Entered: 08/10/2009)
320 STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: NOW, THEREFORE, in consideration of the mutual promises, undertakings, obligations and commitments set forth below, the parties hereto covenant and agree as follows: 1. The parties hereto consent to this Court's exercise of subject matter jurisdiction over this action and personal jurisdiction over each of them. 2. The County shall pay twenty−one million, six hundred thousand ($21,600,000) into the County's account with HUD in accordance with HUD's administrative procedures. Such payment is for settlement of the claims brought pursuant to this action and not for the financing of a capital improvement. The County shall make such payment by electronic funds transfer pursuant to written instructions that the United States Attorney's Office for the Southern District of New York or HUD will provide to counsel for the County. HUD shall make those funds available to the County for the development of new affordable housing units that will AFFH in the County, provided that the County's use and expenditure of the funds, and any program income earned from the use of the funds, as defined by 24 C.F.R. 570.500(a), shall be subject to the requirements of the CDBG program and the terms and conditions set forth in paragraph 7. 3. The County shall pay to the United States the sum of thirty million dollars ($30,000,000) (the "Settlement Amount"), in full compromise and satisfaction of the False Claims Act allegations in this action. This Settlement Amount shall constitute a debt due and owing upon entry of this Stipulation and Order by the Court, and shall be discharged upon payment to the United States, no later than ninety (90) calendar days after the Court's entry of this Stipulation and Order. With respect to such payment, the County shall receive a credit of twenty−one million, six hundred thousand ($21,600,000) for the payment to HUD set forth in paragraph 2. The County shall pay the remaining eight million, four hundred thousand ($8,400,000) to the United States by electronic funds transfer pursuant to written instructions that the United States Attorney's Office for the Southern District of New York will provide to counsel for the County. (Signed by Judge Denise L. Cote on 8/10/2009) (jfe) (Entered: 08/10/2009)
321 ORDER APPOINTING MONITOR: The United States having selected James E. Johnson as the Monitor pursuant to paragraph 9 of the Stipulation and Order of Settlement and Dismissal (the "Stipulation") entered in the above−captioned case, and the Court having approved the Government's selection, it is hereby ORDERED that James E. Johnson is hereby appointed to the position of Monitor, as described in the Stipulation. (Signed by Judge Denise L. Cote on 8/10/2009) (jfe) (Entered: 08/10/2009)
322 STIPULATION AND ORDER OF SETTLEMENT OF RELATOR'S SHARE AND RELEASE: NOW, THEREFORE, the parties hereto, in consideration of the mutual promises, covenants, and obligations hereinafter set forth, and for good and valuable consideration, receipt of which is hereby acknowledged, agree as follows: 1. In a separate Stipulation and Order of Settlement and Dismissal between the Government and the County (the "Settlement Stipulation and Order"), which is being submitted to the Court contemporaneously with this Stipulation and Order, the County has agreed to pay the United States, in full compromise and satisfaction of the False Claims Act allegations in this action, the sum of thirty million dollars ($30,000,000.00) (the "Settlement Proceeds"). The Relator agrees that this settlement is fair, adequate, and reasonable under all the circumstances under 31 U.S.C. 3730(c)(2)(B). 2. Contingent upon the United States receiving the Settlement Proceeds from the County and as soon as feasible after receipt, the United States agrees to pay the Relator, c/o its attorney Relman & Dane, PLLC, pursuant to 31 U.S.C. 3730(d)(l), the sum of seven million, five hundred thousand dollars ($7,500,000.00) (the "Relator's Share"). (Signed by Judge Denise L. Cote on 8/10/2009) (jfe) (Entered: 08/10/2009)
323 ORDER: It is hereby ORDERED that a pre−trial conference in Courtroom 11B is set for October 16, 2009, at 2:30 p.m.; the trial shall begin on November 2, 2009. (Signed

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10/08/2010 10/08/2010

by Judge Denise L. Cote on 8/10/2009) (jfe) (Entered: 08/10/2009)
Set/Reset Deadlines: Ready for Trial by 11/2/2009. (jfe) (Entered: 08/10/2009)
324 INTERVENOR COMPLAINT against Westchester County, New York.Document filed by United States of America.(laq) (laq). (Entered: 08/12/2009)
SUMMONS ISSUED as to Westchester County, New York. (laq) (Entered: 08/12/2009)
326 ORDER, that having been notified that the Westchester County Board of Legislators has approved the August 10, 2009 stipulation of settlement and has authorized a Bond Act conforming to the terms of paragraph 55 of the stipulation, it is hereby ORDERED that the Clerk of the Court shall close the case. (Signed by Judge Denise L. Cote on 9/24/09) (pl) (Entered: 09/25/2009)
325 LETTER addressed to Judge Denise L. Cote from Stuart M. Gerson dated 9/23/09 re: Counsel is pleased to report that, the Board of Legislators of Westchester County enacted resolutions approving the settlement agreement in this matter as well as the bonding necessary to support the activities encompassed in the agreement. Document filed by Westchester County, New York.(tro) (Entered: 09/25/2009)
327 SPECIAL MASTER'S REPORT. Covering Activities for dates of / Monitor's Report Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the Period of August 10, 2009 Through February 10, 2010. Document filed by James E. Johnson. (Attachments: # 1 Exhibit A − Implementation Plan, # 2 Appendix A, # 3 Appendix B, # 4 Appendix C, # 5 Appendix D, # 6 Appendix E, # 7 Appendix F, # 8 Appendix G (Part 1 of 2), # 9 Appendix G (Part 2 of 2), # 10 Appendix H (Part 1 of 2), # 11 Appendix H (Part 2 of 2), # 12 Exhibit B − Comments on IP)(Johnson, James) (Entered: 02/10/2010)
328 SPECIAL MASTER'S REPORT. / Amended Monitor's Report Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the Period of August 10, 2009 Through February 10, 2010 Covering Activities for dates of August 10, 2009 Through February 10, 2010. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1 − Implementation Plan, # 2 IP Appendix A, # 3 IP Appendix B, # 4 IP Appendix C, # 5 IP Appendix D, # 6 IP Appendix E, # 7 IP Appendix F, # 8 IP Appendix G (Part 1 of 2), # 9 IP Appendix G (Part 2 of 2), # 10 IP Appendix H (Part 1 of 2), # 11 IP Appendix H (Part 2 of 2), # 12 Exhibit 2 − Comments on IP)(Johnson, James) (Entered: 02/11/2010)
329 SPECIAL MASTER'S REPORT. / MONITOR'S REPORT Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the Period of February 11, 2010 Through July 6, 2010 − (Includes Exhibits − PART 1 of 2) Covering Activities for dates of February 11, 2010 through July 6, 2010. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5 − IP (1 of 12), # 6 Exhibit 5 − IP Appendix A (2 of 12), # 7 Exhibit 5 − IP Appendix B (3 of 12), # 8 Exhibit 5 − IP Appendix C (4 of 12), # 9 Exhibit 5 − IP Appendix D (5 of 12), # 10 Exhibit 5 − IP Appendix E (1of2) (6 of 12), # 11 Exhibit 5 − IP Appendix E (2of2) (7 of 12), # 12 Exhibit 5 − IP Appendix F (8 of 12), # 13 Exhibit IP Appendix G (9 of 12), # 14 Exhibit IP Appendix H (10 of 12), # 15 Exhibit 5 − IP Appendix I (11 of 12), # 16 Exhibit 5 − IP Appendix I−Part 2 (12 of 12))(Johnson, James) (Entered: 07/07/2010)
330 SPECIAL MASTER'S REPORT. / (Continued) MONITOR'S REPORT Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the Period of February 11, 2010 Through July 6, 2010 − (Includes Exhibits − PART 2 of 2) Covering Activities for dates of February 11, 2010 through July 6, 2010. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8 (1 of 2), # 4 Exhibit 8 (2 of 2), # 5 Exhibit 9 (1 of 2), # 6 Exhibit 9 (2 of 2), # 7 Exhibit 10, # 8 Exhibit 11, # 9 Exhibit 12)(Johnson, James) (Entered: 07/07/2010)
331 NOTICE OF APPEARANCE by Robert F. Meehan on behalf of Westchester County, New York (Meehan, Robert) (Entered: 10/08/2010)
332 NOTICE OF APPEARANCE by Lori Ann Alesio on behalf of Westchester County, New York (Alesio, Lori) (Entered: 10/08/2010)

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333 NOTICE OF APPEARANCE by Shannon Sarles Brady on behalf of Westchester County, New York (Brady, Shannon) (Entered: 10/08/2010)
334 SPECIAL MASTER'S REPORT. re Implementation of the Stipulation and Order of Settlement and Dismissal for the Period of July 7, 2010 through October 25, 2010 Covering Activities for dates of July 7, 2010 to October 25, 2010. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1 (part 1 of 2), # 2 Exhibit 1 (part 2 of 2), # 3 Exhibit 2 − IP, # 4 Exhibit 2 − IP Appendix A, # 5 Exhibit 2 − IP Appendix B, # 6 Exhibit 2 − IP Appendix C, # 7 Exhibit 2 − IP Appendix D (part 1 of 2), # 8 Exhibit 2 − IP Appendix D (part 2 of 2), # 9 Exhibit 2 − IP Appendix E (part 1 of 7), # 10 Exhibit 2 − IP Appendix E (part 2 of 7), # 11 Exhibit 2 − IP Appendix E (part 3 of 7), # 12 Exhibit 2 − IP Appendix E (part 4 of 7), # 13 Exhibit 2 − IP Appendix E (part 5 of 7), # 14 Exhibit 2 − IP Appendix E (part 6 of 7), # 15 Exhibit 2 − IP Appendix E (part 7 of 7), # 16 Exhibit 2 − IP Appendix F, # 17 Exhibit 2 − IP Appendix G, # 18 Exhibit 2 − IP Appendix H, # 19 Exhibit 2 − IP Appendix I (part 1 of 3), # 20 Exhibit 2 − IP Appendix I (part 2 of 3), # 21 Exhibit 2 − IP Appendix I (part 3 of 3), # 22 Exhibit 2 − IP Appendix K, # 23 Exhibit 3 − BOL Comments on IP, # 24 Exhibit 4 − June 2010 Inquiries, # 25 Exhibit 5 − October 2010 Advisories, # 26 Exhibit 6− Combined Submission on Unit Issue, # 27 Exhibit 7 − 10/15/10 Letter from County to Monitor)(Johnson, James) (Entered: 10/25/2010)
335 ORDER TERMINATING APPEARANCE OF EPSTEIN BECKER & GREEN, P.C. AS COUNSEL FOR DEFENDANT Epstein Becker & Green, P.C. ("RBG"), respectfully requests, pursuant to Local Civil Rule 1.4, that the appearances of Stuart M. Gerson, Matthew T. Miklave, Michael A. Kalish and Carrie B. Corcoran ("BBG attorneys") as counsel for Defendant Westchester County,New York (hereinafter "WCNY"), be terminated. SO ORDERED. (Signed by Judge Denise L. Cote on 11/12/2010) (jmi) (Entered: 11/12/2010)
336 SPECIAL MASTER'S REPORT. / Monitor's Report Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the Period of October 25, 2010 Through April 25, 2011 Covering Activities for dates of October 25, 2010 Through April 25, 2011. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1 (Part 1 of 3), # 2 Exhibit 1 (Part 2 of 3), # 3 Exhibit 1 (Part 3 of 3), # 4 Exhibit 2, # 5 Exhibit 3 (Part 1 of 2), # 6 Exhibit 3 (Part 2 of 2))(Johnson, James) (Entered: 04/25/2011)
337 NOTICE OF APPEARANCE by Carol Fumanti Arcuri on behalf of Westchester County, New York (Arcuri, Carol) (Entered: 05/16/2011)
338 NOTICE OF APPEARANCE by James Francis Castro−Blanco on behalf of Westchester County, New York (Castro−Blanco, James) (Entered: 05/16/2011)
339 NOTICE OF APPEARANCE by Robert H. Stroup on behalf of ABC (Stroup, Robert) (Entered: 05/31/2011)
340 NOTICE OF CHANGE OF ADDRESS by Robert H. Stroup on behalf of ABC. New Address: Craig Gurian, Anti−Discrimination Center, Inc., 54 West 21st Street, Suite 707, New York, New York, USA 10010, (212) 346−201. (Stroup, Robert) (Entered: 05/31/2011)
341 NOTICE OF APPEARANCE by Robert H. Stroup on behalf of Anti−Discrimination Center (Stroup, Robert) (Entered: 05/31/2011)
342 NOTICE of Motion to Enforce Consent Decree Pursuant to Consent Decree 58. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 05/31/2011)
343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58. Document filed by Anti−Discrimination Center.(Stroup, Robert) (Entered: 05/31/2011)
344 NOTICE OF APPEARANCE by Craig Gurian on behalf of Anti−Discrimination Center (Gurian, Craig) (Entered: 05/31/2011)
345 MEMORANDUM OF LAW in Support re: 343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58.. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 05/31/2011)

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05/31/2011
05/31/2011
05/31/2011
05/31/2011 06/01/2011 06/01/2011 06/01/2011

346 DECLARATION of Andrew A. Beveridge in Support re: 343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58.. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 05/31/2011)
347 NOTICE of Motion to Intervene. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 05/31/2011)
348 MOTION to Intervene. Document filed by Anti−Discrimination Center.(Stroup, Robert) (Entered: 05/31/2011)
349 MEMORANDUM OF LAW in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 05/31/2011)
350 DECLARATION of Craig Gurian in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19)(Stroup, Robert) (Entered: 05/31/2011)
351 DECLARATION of Craig Gurian in Support re: 343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58.. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 05/31/2011)
352 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Craig Gurian in Support re: 343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit 3 Part 1, # 2 Exhibit 3 Part 2, # 3 Exhibit 4)(Stroup, Robert) Modified on 6/1/2011 (db). (Entered: 05/31/2011)
353 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Craig Gurian in Support re: 343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit Exhibits 5 − 12, 13)(Stroup, Robert) Modified on 6/1/2011 (db). (Entered: 05/31/2011)
354 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Craig Gurian in Support re: 343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit 14, 15, # 2 16)(Stroup, Robert) Modified on 6/1/2011 (db). (Entered: 05/31/2011)
355 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Craig Gurian in Support re: 343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58.. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit 17, 18, # 2 Exhibit 19)(Stroup, Robert) Modified on 6/1/2011 (db). (Entered: 05/31/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Robert H. Stroup. Document Nos. [352−355] Exhibits. These documents are not filed via ECF. Exhibits may only be filed as attachments. (db) (Entered: 06/01/2011)
356 DECLARATION of Craig Gurian re: 351 Declaration in Support of Motion (Supplemental Declaration). Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, Part 1, # 4 Exhibit 3, Part 2, # 5 Exhibit 4)(Stroup, Robert) (Entered: 06/01/2011)
357 DECLARATION of Craig Gurian re: 351 Declaration in Support of Motion (Supplemental Declaration). Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit 5− 12, # 2 Exhibit 13, # 3 Exhibit 14, # 4 Exhibit 15)(Stroup, Robert) (Entered: 06/01/2011)
358 DECLARATION of Craig Gurian re: 351 Declaration in Support of Motion (Supplemental Declaration). Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18, # 4 Exhibit 19)(Stroup, Robert) (Entered: 06/01/2011)

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359 ORDER: Status Conference set for 6/7/2011 at 10:30 AM in Courtroom 11B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. (Signed by Judge Denise L. Cote on 6/2/2011) (jpo) (Entered: 06/02/2011)
Minute Entry for proceedings held before Judge Denise L. Cote: Status Conference held on 6/7/2011. (Court Reporter Linda Fisher) (ft) (Entered: 06/07/2011)
360 ORDER re: 348 Motion to Intervene, filed by Anti−Discrimination Center and 343 Motion to Enforce Judgment − Consent Decree Pursuant to Consent Decree 58, filed by Anti−Discrimination Center. Defendant Westchester County and the United States of America's opposition briefs to the ADC's motion to intervene shall be served by July 29, 2011. ADC's reply, if any, shall be served by September 16, 2011. At the time any reply is served, the moving party shall supply Chambers with two courtesy copies of all motion papers by mailing or delivering them to the United States Courthouse, 500 Pearl Street, New York, New York. ADC's May 31 motion to enforce the consent decree is denied without prejudice to ADC refiling the motion after the Court has decided the May 31 motion to intervene. (Signed by Judge Denise L. Cote on 6/7/2011) (ab) (Entered: 06/09/2011)
361 NOTICE OF APPEARANCE by Melissa−Jean Rotini on behalf of Westchester County, New York (Rotini, Melissa−Jean) (Entered: 06/09/2011)
362 TRANSCRIPT of Proceedings re: Conference held on 6/7/2011 before Judge Denise L. Cote. Court Reporter/Transcriber: Linda Fisher, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/1/2011. Redacted Transcript Deadline set for 8/11/2011. Release of Transcript Restriction set for 10/10/2011.(McGuirk, Kelly) (Entered: 07/07/2011)
363 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 6/7/2011 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/07/2011)
364 MEMORANDUM OF LAW in Opposition re: 348 MOTION to Intervene.. Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 07/28/2011)
365 DECLARATION of Robert F. Meehan in Opposition re: 348 MOTION to Intervene.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A)(Meehan, Robert) (Entered: 07/28/2011)
366 DECLARATION of Kenneth W. Jenkins in Opposition re: 348 MOTION to Intervene.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A)(Meehan, Robert) (Entered: 07/28/2011)
367 NOTICE OF APPEARANCE by Adam Rodriguez on behalf of Westchester County, New York (Rodriguez, Adam) (Entered: 07/29/2011)
368 DECLARATION of Benjamin H. Torrance in Opposition re: 348 MOTION to Intervene.. Document filed by United States of America. (Attachments: # 1 Exhibit Ex. 1 (letter Dec. 21, 2010), # 2 Exhibit Ex. 2 (letter Apr. 28, 2011), # 3 Exhibit Ex. 3 (letter May 13, 2011), # 4 Exhibit Ex. 4 (letter Jul. 13, 2011), # 5 Exhibit Ex. 5 (letter Jul. 20, 2011))(Torrance, Benjamin) (Entered: 07/29/2011)
369 DECLARATION of James E. Johnson in Opposition re: 348 MOTION to Intervene.. Document filed by United States of America. (Torrance, Benjamin) (Entered: 07/29/2011)
370 DECLARATION of John M. Nonna in Opposition re: 348 MOTION to Intervene.. Document filed by United States of America. (Torrance, Benjamin) (Entered: 07/29/2011)
371 MEMORANDUM OF LAW in Opposition re: 348 MOTION to Intervene.. Document filed by United States of America. (Torrance, Benjamin) (Entered: 07/29/2011)

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08/01/2011 09/13/2011
09/16/2011 09/16/2011 09/16/2011 09/16/2011 09/16/2011 09/16/2011 09/16/2011
10/25/2011
10/26/2011 10/26/2011
11/14/2011 11/17/2011

372 NOTICE OF CHANGE OF ADDRESS by Adam Rodriguez on behalf of Westchester County, New York. New Address: Office of the Westchester County Attorney, 148 Martine Avenue, Room #600, White Plains, New York, 10601, 9149954894. (Rodriguez, Adam) (Entered: 08/01/2011)
373 ENDORSED LETTER addressed to Judge Denise L. Cote from Robert H. Stroup dated 9/12/2011 re: request the Court's permission for ADC to sumbit a singe, 30 page consolidated brief to reply to the briefs in opposition to ADC's Motion to Intervene. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 9/13/2011) (jar) (Entered: 09/14/2011)
374 REPLY MEMORANDUM OF LAW in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 09/16/2011)
375 DECLARATION of Jerrold M. Levy in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 09/16/2011)
376 DECLARATION of Michael L. Hanley in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 09/16/2011)
377 DECLARATION of Declaration of V. Elaine Gross in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Stroup, Robert) (Entered: 09/16/2011)
378 DECLARATION of Andrew A. Beveridge in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit A)(Stroup, Robert) (Entered: 09/16/2011)
379 DECLARATION of Kevin D. Walsh in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit A)(Stroup, Robert) (Entered: 09/16/2011)
380 DECLARATION of Craig Gurian in Support re: 348 MOTION to Intervene.. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Stroup, Robert) (Entered: 09/16/2011)
381 FILING ERROR − WRONG DOCUMENT TYPE SELECTED FROM MENU − SPECIAL MASTER'S REPORT. / Monitor's Report Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the Period of April 25, 2011 Through October 25, 2011 Covering Activities for dates of April 25, 2011 Through October 25, 2011. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Johnson, James) Modified on 10/26/2011 (ka). (Entered: 10/25/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Johnson, James to RE−FILE Document 381 Special Master's Report. Use the event type Status Report found under the event list Other Documents. (ka) (Entered: 10/26/2011)
382 STATUS REPORT. /Monitor's Report Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the period of April 25, 2011 through October 25, 2011 (refiled as instructed by the court) Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Johnson, James) (Entered: 10/26/2011)
383 SPECIAL MASTER'S REPORT. /MONITOR'S REPORT AND RECOMMENDATION REGARDING DISPUTE RESOLUTION. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Johnson, James) (Entered: 11/14/2011)
384 SPECIAL MASTER'S REPORT. //Monitor's Report and Recommendation Regarding Dispute Resolution (Amended). Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 38 of 78

11/28/2011 12/07/2011
12/21/2011 12/21/2011 12/22/2011 01/04/2012

6)(Johnson, James) (Entered: 11/17/2011)
385 ENDORSED LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from James Castro−Blanco dated 11/23/2011 re: Counsel for the defendant proposes the following schedule: The County's notice of motion, supporting affidavits, and memorandum of law shall be served on or before 12/7/2011; The Government's opposing affidavits and answering memorandum of law shall be served on or before 12/21/2011; and any reply affidavits and memorandum of law shall be served on or before 1/6/2012. Moreover, the County and the Government agree that compliance with this motion schedule is timely compliance with the provisions of paragraph 14(d) of the Stipulation. ENDORSEMENT: Granted. The filing by the County should be denominated an "Objection" (not a "notice of motion") in accordance with paragraph l4(d) of the Stipulation, which incorporates the procedures contained in Fed. R. Civ. P. 72. (Signed by Magistrate Judge Gabriel W. Gorenstein on 11/28/2011) (ft) (Entered: 11/28/2011)
386 Objection re: 384 Special Master's Report, County's Objections to the Monitor's Report and Recommendation. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F − AI Part 1, # 7 Exhibit F − AI Part 2, # 8 Exhibit F − AI Part 3, # 9 Exhibit F − AI Appendix 1, # 10 Exhibit F − AI Appendix 2, # 11 Exhibit F − AI Appendix 3, # 12 Exhibit F − AI Appendix 4, # 13 Exhibit F − AI Appendix 5, # 14 Exhibit F − AI Appendix 6, # 15 Exhibit F − AI Appendix 7, Part 1, # 16 Exhibit F − AI Appendix 7, Part 2, # 17 Exhibit F − AI Appendix 8, # 18 Exhibit F − AI Appendix 9, # 19 Exhibit F − AI Appendix 10, Part 1, # 20 Exhibit F − AI Appendix 10, Part 2, # 21 Exhibit F − AI Appendix 10, Part 3, # 22 Exhibit F − AI Appendix 10, Part 4, # 23 Exhibit F − AI Appendix 10, Part 5, # 24 Exhibit F − AI Appendix 10, Part 6, # 25 Exhibit F − AI Appendix 10, Part 7, # 26 Exhibit F − AI Appendix 10, Part 8, # 27 Exhibit F − AI Appendix 10, Part 9, # 28 Exhibit F − AI Appendix 10, Part 10, # 29 Exhibit F − AI Appendix 11, Part 1, # 30 Exhibit F − AI Appendix 11, Part 2, # 31 Exhibit F − AI Appendix 11, Part 3, # 32 Exhibit F − AI Appendix 11, Part 4, # 33 Exhibit F − AI Appendix 11, Part 5, # 34 Exhibit F − AI Appendix 11, Part 6, # 35 Exhibit F − AI Appendix 11, Part 7, # 36 Exhibit F − AI Appendix 11, Part 8, # 37 Exhibit F − AI Appendix 11, Part 9, # 38 Exhibit F − AI Appendix 11, Part 10, # 39 Exhibit F − AI Appendix 11, Part 11, # 40 Exhibit F − AI Appendix 12, # 41 Exhibit F − AI Appendix 13, # 42 Exhibit F − AI Appendix 14, # 43 Exhibit F − AI Appendix 15, # 44 Exhibit F − AI Appendix 16, Part 1, # 45 Exhibit F − AI Appendix 16, Part 2, # 46 Exhibit F − AI Appendix 16, Part 3, # 47 Exhibit F − AI Appendix 17A, Part 1, # 48 Exhibit F − AI Appendix 17A, Part 2, # 49 Exhibit F − AI Appendix 17B, Part 1, # 50 Exhibit F − AI Appendix 17B, Part 2, # 51 Exhibit G, # 52 Exhibit H, # 53 Exhibit I)(Meehan, Robert) (Entered: 12/07/2011)
387 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for Report and Recommendations Special Master Memorandum of Law in Opposition to County's Objection to Monitor's Report and Recommendation. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kennedy, David) Modified on 12/22/2011 (db). (Entered: 12/21/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney David J Kennedy to RE−FILE Document 387 MOTION for Report and Recommendations Special Master Memorandum of Law in Opposition to County's Objection to Monitor's Report and Recommendation. Use the event type Response (non−motion) found under the event list Other Answers, then link to 386 Objection. (db) (Entered: 12/22/2011)
388 RESPONSE re: 386 Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion) Memorandum of Law in Opposition to County's Objection to Monitor's Report and Recommendation. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kennedy, David) (Entered: 12/22/2011)
389 OPINION & ORDER re:#101220 348 MOTION to Intervene filed by Anti−Discrimination Center: ADC's May 31, 2011 motion to intervene is denied. (Signed by Judge Denise L. Cote on 1/4/2012) (ab) Modified on 1/5/2012 (jab).

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01/06/2012 01/06/2012
01/26/2012 01/26/2012 01/27/2012 02/03/2012 02/03/2012 02/06/2012
03/16/2012 03/30/2012 04/02/2012 04/02/2012 04/02/2012

(Entered: 01/04/2012)
390 REPLY re: 388 Response,. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A)(Meehan, Robert) (Entered: 01/06/2012)
391 SPECIAL MASTER'S REPORT. / Monitor's First Biennial Assessment of Westchester County's Efforts and Progress Related to the Obligations Set Forth in the Stipulation and Order of Settlement and Dismissal. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1A, # 2 Exhibit 1B, # 3 Exhibit 1C, # 4 Exhibit 1D, # 5 Exhibit 1E, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7)(Johnson, James) (Entered: 01/06/2012)
392 ORDER: The Court would like to hear the parties' views on the following topics set forth within. A telephone conference is scheduled for Friday, January 27, 2012, at 11:00 a.m. to discuss a schedule and the best method of presenting information, testimony, or briefing to the Court on these topics. (Signed by Magistrate Judge Gabriel W. Gorenstein on 1/26/2012) (jfe) (Entered: 01/26/2012)
Set/Reset Hearings: Telephone Conference set for 1/27/2012 at 11:00 AM before Magistrate Judge Gabriel W. Gorenstein. (jfe) (Entered: 01/26/2012)
Minute Entry for proceedings held before Magistrate Judge Gabriel W. Gorenstein: Telephone Conference held on 1/27/2012. (js) (Entered: 01/30/2012)
393 Letter addressed to Magistrate Judge Gabriel W. Gorenstein from Robert F. Meehan dated 2/3/2012 re: Pursuant to your directive and on behalf of the County of Westchester, this letter addresses the issues raised in your Honor's Order dated January 26, 2012.(djc) (Entered: 02/06/2012)
394 Letter addressed to Judge Gabriel W. Gorenstein from Benjamin H. Torrance dated 2/3/2012 re: The United States (the government), plaintiff in the above−named action, respectfully submits this letter in response to the Courts order of January 26, 2012, posing three questions to the parties as set forth herein. Document filed by United States of America.(djc) (Entered: 02/06/2012)
395 DECLARATION of Benjamin H. Torrance in Opposition re: 386 Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion), Objection (non−motion). Document filed by United States of America. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C, # 4 Exhibit Ex. D, # 5 Exhibit Ex. E, # 6 Exhibit Ex. F)(Torrance, Benjamin) (Entered: 02/06/2012)
396 OPINION AND ORDER: #101574 The Countys objections to the Monitors Report (Docket #386) are sustained in part and overruled in part. (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/16/2012) (ft) Modified on 3/20/2012 (jab). (Entered: 03/16/2012)
397 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for Report and Recommendations Objection to Magistrate Judge's Opinion and Order. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kennedy, David) Modified on 4/2/2012 (db). (Entered: 03/30/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney David J Kennedy to RE−FILE Document 397 MOTION for Report and Recommendations Objection to Magistrate Judge's Opinion and Order. Use the event type Objection (non−motion) found under the event list Other Answers. (db) (Entered: 04/02/2012)
398 Objection re: 396 Memorandum & Opinion. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kennedy, David) (Entered: 04/02/2012)
399 ORDER: It is hereby ORDERED that the County's response to the Government's March 30, objections, if any, shall be filed no later than April 13, 2012. IT IS FURTHER ORDERED that the Government shall submit two (2) courtesy copies of its objections and the County's response, if any, by mail or delivery to the United

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04/13/2012 04/17/2012
05/03/2012
05/03/2012 05/15/2012 05/16/2012 05/16/2012

States Courthouse, 500 Pearl Street, to be received no later than April 16, 2012 at 5 p.m., ( Responses due by 4/13/2012.) (Signed by Judge Denise L. Cote on 4/2/2012) (lmb) (Entered: 04/02/2012)
400 RESPONSE re: 398 Objection (non−motion). Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 04/13/2012)
401 ENDORSED LETTER addressed to Judge Denise L Cote from David J Kennedy dated 4/16/2012 re: We respectfully request that this letter be accepted and docketed as a brief response to a jurisdictional argument raised by the County that the Government could not reasonably have anticipated, and that may affect the timing of this Court's disposition of the Objection. ENDORSEMENT: The jurisdictional argument is denied. This Court will consider the Objection on the merits. (Signed by Judge Denise L. Cote on 4/17/2012) (cd) (Entered: 04/18/2012)
402 OPINION AND ORDER #101763: The Governments objection to the Magistrate Judges March 16 Opinion is sustained. The Court adopts those sections of the Monitors Report dealing with the Countys obligation to promote source−of−income legislation. The remaining sections of the March 16 Opinion are adopted. (Signed by Judge Denise L. Cote on 5/3/2012) (jfe) Modified on 5/7/2012 (ft). (Entered: 05/03/2012)
410 INTERNET CITATION NOTE: Material from decision with Internet citation re: 402 Memorandum & Opinion. (tro) (Entered: 05/31/2012)
403 NOTICE OF APPEAL from 402 Memorandum & Opinion, 401 Endorsed Letter. Document filed by Westchester County, New York. Filing fee $ 455.00, receipt number 465407003321. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (tp) (Entered: 05/16/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 403 Notice of Appeal. (tp) (Entered: 05/16/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 391 Special Master's Report, filed by James E. Johnson, 123 Order, Set Motion and R&R Deadlines/Hearings, 317 Notice (Other) filed by United States of America, 36 MOTION to Dismiss the Complaint filed by Westchester County, New York, 29 Summons Returned Executed, 372 Notice of Change of Address filed by Westchester County, New York, 383 Special Master's Report, filed by James E. Johnson, 399 Order, Set Deadlines, 395 Declaration in Opposition, filed by United States of America, 172 Memorandum of Law in Support of Motion, 281 Reply Memorandum of Law in Support of Motion filed by Westchester County, New York, 225 Affirmation in Opposition to Motion, filed by Westchester County, New York, 82 Declaration in Support of Motion, 35 Affidavit in Support of Motion,, filed by Westchester County, New York, 355 Declaration in Support of Motion, filed by Anti−Discrimination Center, 61 Memorandum & Opinion, 141 Declaration in Support of Motion, 124 MOTION for Leave to Appeal and to Postpone Trial Pending Appeal filed by Westchester County, New York, 98 Declaration in Opposition to Motion, 162 MOTION in Limine for an Order Excluding Westchester County Legislators from Testifying at Trial., 40 Affidavit in Support of Motion filed by Westchester County, New York, 324 Intervenor Complaint filed by United States of America, 153 Declaration in Support of Motion, 207 Memorandum of Law in Opposition to Motion, 241 Affirmation in Opposition to Motion, filed by Westchester County, New York, 374 Reply Memorandum of Law in Support of Motion filed by Anti−Discrimination Center, 303 Proposed Jury Instructions, 60 Order, Set Hearings, 288 Order, 52 Memorandum of Law in Support of Motion filed by Westchester County, New York, 238 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 365 Declaration in Opposition to Motion filed by Westchester County, New York, 212 Objection (non−motion), 332 Notice of Appearance filed by Westchester County, New York, 74 Endorsed Letter, 111 Affirmation in Opposition to Motion filed by Westchester County, New York, 208 Declaration in Opposition to Motion, 185 Proposed Jury Instructions filed by Westchester County, New York, 155 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff/Relator in General, its Motive in Filing Suit, or its Intentions Regarding the Use of Any Monetary Recovery., 143 MOTION in Limine Request for Judicial Notice of New York State Case Law and for an Order Excluding Evidence and Precluding Argument Inconsistent with Such State

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 41 of 78
Law., 163 Declaration in Support of Motion, 285 Trial Brief filed by Westchester County, New York, 144 Declaration in Support of Motion, 105 Reply Memorandum of Law in Support of Motion, 186 Trial Brief filed by Westchester County, New York, 279 Reply Memorandum of Law in Support of Motion filed by Westchester County, New York, 39 Endorsed Letter, Set Scheduling Order Deadlines, 232 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 388 Response, filed by United States of America, 378 Declaration in Support of Motion filed by Anti−Discrimination Center, 387 MOTION for Report and Recommendations Special Master Memorandum of Law in Opposition to County's Objection to Monitor's Report and Recommendation filed by United States of America, 255 Reply Memorandum of Law in Support of Motion, 233 Affirmation in Opposition to Motion filed by Westchester County, New York, 360 Order on Motion to Intervene, 299 Memorandum & Opinion, 56 Answer to Complaint filed by Westchester County, New York, 46 Response in Opposition to Motion, 308 Order on Motion in Limine, 44 Reply Affirmation in Support of Motion filed by Westchester County, New York, 154 Memorandum of Law in Support of Motion, 62 Protective Order, 91 Rule 56.1 Statement, 151 Memorandum of Law in Support of Motion, 73 Endorsed Letter, Set Deadlines/Hearings, 275 Reply Affirmation in Support of Motion, 282 Reply Memorandum of Law in Support of Motion filed by Westchester County, New York, 274 Reply Memorandum of Law in Support of Motion, 403 Notice of Appeal, filed by Westchester County, New York, 70 Endorsed Letter, 333 Notice of Appearance filed by Westchester County, New York, 331 Notice of Appearance filed by Westchester County, New York, 330 Special Master's Report, filed by James E. Johnson, 240 Memorandum of Law in Opposition to Motion filed by Westchester County, New York, 264 Reply Memorandum of Law in Support of Motion, 190 Declaration in Support of Motion, 92 Stipulation and Order, Set Motion and R&R Deadlines/Hearings, 58 Order Referring Case to Magistrate Judge, 370 Declaration in Opposition to Motion filed by United States of America, 210 Declaration in Opposition to Motion, 221 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 322 Stipulation and Order, 304 Proposed Jury Instructions filed by Westchester County, New York, 218 Response in Opposition to Motion filed by Westchester County, New York, 115 Declaration in Support of Motion, 76 Memorandum of Law in Support of Motion, 386 Objection (non−motion) filed by Westchester County, New York, 226 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 121 Affirmation in Support of Motion filed by Westchester County, New York, 108 Memorandum of Law in Support of Motion, 166 Declaration in Support of Motion, 145 Memorandum of Law in Support of Motion, 38 Stipulation and Order, Set Deadlines, 297 Response to Motion filed by Westchester County, New York, 401 Endorsed Letter, 265 Reply Affirmation in Support of Motion, 394 Letter, filed by United States of America, 177 MOTION in Limine to Exclude Testimoy of Defendant's Expert Witness William Clark, 267 Reply Memorandum of Law in Support of Motion, 305 Order on Motion to Appear Pro Hac Vice, 320 Stipulation and Order of Dismissal, 302 Declaration in Support of Motion, 389 Memorandum & Opinion, 366 Declaration in Opposition to Motion filed by Westchester County, New York, 77 Rule 56.1 Statement, 159 Memorandum of Law in Support of Motion, 364 Memorandum of Law in Opposition to Motion filed by Westchester County, New York, 175 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Commitment to Fair and Affordable Housing"., 214 Declaration in Opposition to Motion, 26 Notice of Change of Address, 235 Affirmation in Opposition to Motion, filed by Westchester County, New York, 103 Reply Memorandum of Law in Support of Motion filed by Westchester County, New York, 371 Memorandum of Law in Opposition to Motion filed by United States of America, 271 Reply Affirmation in Support of Motion, 99 Declaration in Opposition to Motion filed by Westchester County, New York, 294 Order on Motion in Limine, 33 Notice of Appearance filed by Westchester County, New York, 268 Reply Affirmation in Support of Motion, 81 Declaration in Support of Motion,, 171 MOTION in Limine to Exclude Evidence on the Subject of the "Benefit HUD Received" from the County's Administration of CDBG Funds., 95 Affirmation in Opposition to Motion, filed by Westchester County, New York, 109 Declaration in Support of Motion, 57 Scheduling Order, 229 Affirmation in Opposition to Motion filed by Westchester County, New York, 341 Notice of Appearance filed by Anti−Discrimination Center, 142 Memorandum of Law in Support of Motion, 250 Reply Affirmation in Support of Motion, 209 Memorandum of Law in Opposition to Motion, 133 Scheduling Order, 367 Notice of Appearance filed by Westchester

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County, New York, 393 Letter, 352 Declaration in Support of Motion, filed by Anti−Discrimination Center, 200 Affirmation in Support of Motion, filed by Westchester County, New York, 173 MOTION in Limine for a Pretrial Order that Defendant's AFFH Certifications During the False Claims Period Were Material as a Matter of Law, or, in the Alternative, to Exclude the Issue of Materiality from Decision by the Jury., 347 Notice (Other) filed by Anti−Discrimination Center, 319 Order, 181 Memorandum of Law in Support of Motion, 94 Counter Statement to Rule 56.1 filed by Westchester County, New York, 252 Reply Affirmation in Support of Motion, 356 Declaration, filed by Anti−Discrimination Center, 202 Memorandum of Law in Support of Motion filed by Westchester County, New York, 204 Trial Brief filed by Westchester County, New York, 88 Affirmation in Support of Motion, filed by Westchester County, New York, 277 Reply Affirmation in Support of Motion, 260 Reply Memorandum of Law in Support of Motion, 89 Order, Set Hearings,, 315 Endorsed Letter, Set Deadlines/Hearings, 289 Order on Motion in Limine, 231 Affirmation in Opposition to Motion, filed by Westchester County, New York, 337 Notice of Appearance filed by Westchester County, New York, 346 Declaration in Support of Motion filed by Anti−Discrimination Center, 278 Reply, 253 Reply Memorandum of Law in Support of Motion, 244 Memorandum of Law in Opposition to Motion filed by Westchester County, New York, 160 MOTION in Limine to Prohibit Comment or Reference to the Court's Statutory Duties to Award Treble Damages and Attorneys' Fees and Assess Civil Penalties., 309 Order on Motion in Limine, 32 Notice of Appearance filed by Westchester County, New York, 79 MOTION for Summary Judgment. filed by Westchester County, New York, 336 Special Master's Report, filed by James E. Johnson, 87 Rule 56.1 Statement filed by Westchester County, New York, 195 MOTION in Limine to Exclude From Trial Relator's Expert Evidence. filed by United States of America, 122 Memorandum of Law in Support of Motion filed by Westchester County, New York, 251 Reply Memorandum of Law in Support of Motion, 361 Notice of Appearance filed by Westchester County, New York, 120 MOTION to Reassign Case to White Plains Courthouse filed by Westchester County, New York, 118 Memorandum & Opinion, 135 Order, 222 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 45 Certificate of Service Other, filed by Westchester County, New York, 97 Memorandum of Law in Opposition to Motion, 269 Order, 363 Notice of Filing Transcript, 114 Reply Memorandum of Law in Support of Motion, 174 Memorandum of Law in Support of Motion, 131 Memorandum of Law in Opposition to Motion, 139 Proposed Jury Instructions, 28 Order for Initial Pretrial Conference, 113 Memorandum of Law in Opposition to Motion filed by Westchester County, New York, 234 Memorandum of Law in Opposition to Motion filed by Westchester County, New York, 83 Affirmation in Support of Motion, filed by Westchester County, New York, 329 Special Master's Report, filed by James E. Johnson, 157 Memorandum of Law in Support of Motion, 245 Witness List filed by Westchester County, New York, 280 Reply Affirmation in Support of Motion filed by Westchester County, New York, 132 Declaration in Opposition to Motion, 180 Declaration in Support of Motion, 78 Notice (Other), Notice (Other), Notice (Other), 164 Memorandum of Law in Support of Motion, 184 MOTION in Limine for a Pretrial Order to Exclude the Issue of Damages From Decision by the Jury., 197 Affirmation in Support of Motion, 400 Response filed by Westchester County, New York, 219 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 119 Order, Set Deadlines/Hearings, 301 Response in Support of Motion, 129 Reply Memorandum of Law in Support of Motion filed by Westchester County, New York, 385 Endorsed Letter, Set Deadlines, 334 Special Master's Report, filed by James E. Johnson, 276 Reply Memorandum of Law in Support of Motion, 257 Reply Affirmation in Support of Motion, 168 MOTION in Limine to Exclude Defendant's Untimely Disclosed Witnesses., 295 MOTION for Reed Colfax to Appear Pro Hac Vice., 227 Affirmation in Opposition to Motion, filed by Westchester County, New York, 130 Order on Motion to Reassign Case, 85 MOTION for Summary Judgment Rule 56.1 Statement filed by Westchester County, New York, 266 Reply Memorandum of Law in Support of Motion, 380 Declaration in Support of Motion, filed by Anti−Discrimination Center, 239 Affirmation in Opposition to Motion filed by Westchester County, New York, 402 Memorandum & Opinion, 358 Declaration, filed by Anti−Discrimination Center, 37 Memorandum of Law in Support of Motion filed by Westchester County, New York, 140 MOTION in Limine to Exclude Testimony of Defedant's Expert Witness Finis Welch., 217 Response in Opposition to Motion filed by Westchester County, New York, 312 Order, 170 Memorandum of Law in Support

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of Motion, 188 Memorandum of Law in Support of Motion, 116 Endorsed Letter, 191 Memorandum of Law in Support of Motion, 342 Notice (Other) filed by Anti−Discrimination Center, 211 Objection (non−motion), 345 Memorandum of Law in Support of Motion filed by Anti−Discrimination Center, 43 Reply Memorandum of Law in Support of Motion filed by Westchester County, New York, 377 Declaration in Support of Motion filed by Anti−Discrimination Center, 199 Memorandum of Law in Support of Motion filed by Westchester County, New York, 41 Response in Opposition to Motion, 80 Declaration in Support of Motion, 192 MOTION in Limine to Exclude Defendant's April 2009 Production of Documents., 53 Affidavit in Support of Motion filed by Westchester County, New York, 127 Response in Opposition to Motion, 392 Order, 362 Transcript, 349 Memorandum of Law in Support of Motion filed by Anti−Discrimination Center, 246 Objection (non−motion) filed by Westchester County, New York, 213 Memorandum of Law in Opposition to Motion, 112 Affirmation in Opposition to Motion, filed by Westchester County, New York, 398 Objection (non−motion) filed by United States of America, 150 Declaration in Support of Motion, 258 Reply Memorandum of Law in Support of Motion, 228 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 247 Objection (non−motion) filed by Westchester County, New York, 7 Order, 327 Special Master's Report, filed by James E. Johnson, 86 Memorandum of Law in Support of Motion filed by Westchester County, New York, 125 Affirmation in Support of Motion, filed by Westchester County, New York, 126 Memorandum of Law in Support of Motion filed by Westchester County, New York, 215 Objection (non−motion), 397 MOTION for Report and Recommendations Objection to Magistrate Judge's Opinion and Order. filed by United States of America, 359 Order, Set Deadlines/Hearings, 72 Scheduling Order, 152 MOTION in Limine for a Limited Instruction to the Jury and Prohibitions on Comment or Challenge by Counsel Regarding the "Falsity" of Westchester County's Certifications, 178 MOTION in Limine to Allow the Introduction of Certain Evidence at Trial filed by Westchester County, New York, 368 Declaration in Opposition to Motion, filed by United States of America, 30 Stipulation and Order, 68 Endorsed Letter, Set Deadlines/Hearings, 273 Reply Affirmation in Support of Motion, 128 Declaration in Opposition to Motion, 147 Declaration in Support of Motion, 318 Memorandum of Law filed by United States of America, 300 Order, Set Deadlines, 381 Special Master's Report, filed by James E. Johnson, 11 Complaint, filed by United States of America, 27 Endorsed Letter, 34 MOTION to Dismiss the Complaint filed by Westchester County, New York, 311 Order, Set Hearings, 51 MOTION for Leave to Appeal and to Stay Discovery filed by Westchester County, New York, 237 Affirmation in Opposition to Motion, filed by Westchester County, New York, 84 Affirmation in Support of Motion, filed by Westchester County, New York, 220 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 373 Endorsed Letter, Set Deadlines/Hearings, 236 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 176 Memorandum of Law in Support of Motion, 205 Declaration in Support of Motion, 137 Memorandum & Opinion, 149 MOTION in Limine for a Ruling Limiting the Questions and Subjects on Which Witnesses from the Federal Government May Testify., 262 Reply Affirmation in Support of Motion, 306 Order on Motion to Appear Pro Hac Vice, 354 Declaration in Support of Motion, filed by Anti−Discrimination Center, 110 Order, Set Motion and R&R Deadlines/Hearings, 48 Memorandum & Opinion, 194 Memorandum of Law in Support of Motion, 146 MOTION in Limine for an Order Excluding Evidence or Argument Suggesting Defendant's Reliance on "Advice of Counsel", 107 MOTION to Strike Document No. 102 ., 183 Proposed Jury Instructions filed by Westchester County, New York, 357 Declaration, filed by Anti−Discrimination Center, 353 Declaration in Support of Motion, filed by Anti−Discrimination Center, 284 Reply Affirmation in Support of Motion, 384 Special Master's Report, filed by James E. Johnson, 242 Memorandum of Law in Opposition to Motion, filed by Westchester County, New York, 31 Notice of Appearance filed by Westchester County, New York, 270 Reply Memorandum of Law in Support of Motion, 287 Memorandum & Opinion, 338 Notice of Appearance filed by Westchester County, New York, 42 Endorsed Letter, 165 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Understanding of the Underlying Causes of Population Patterns within the County"., 196 Memorandum of Law in Support of Motion, 161 Memorandum of Law in Support of Motion, 106 Declaration in Support of Motion, 248 Witness List, 369 Declaration in Opposition to Motion filed by United States of America, 343 MOTION to Enforce Judgment −Consent Decree Pursuant to Consent Decree 58. filed by Anti−Discrimination

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Center, 148 Memorandum of Law in Support of Motion, 223 Affirmation in Opposition to Motion, filed by Westchester County, New York, 376 Declaration in Support of Motion filed by Anti−Discrimination Center, 243 Affirmation in Opposition to Motion filed by Westchester County, New York, 69 JOINT MOTION for Extension of Time to Complete Discovery and Expert Disclosure., 382 Status Report, filed by James E. Johnson, 230 Memorandum of Law in Opposition to Motion filed by Westchester County, New York, 179 Memorandum of Law in Support of Motion filed by Westchester County, New York, 328 Special Master's Report, filed by James E. Johnson, 350 Declaration in Support of Motion, filed by Anti−Discrimination Center, 100 Counter Statement to Rule 56.1, 224 Memorandum of Law in Opposition to Motion filed by Westchester County, New York, 375 Declaration in Support of Motion filed by Anti−Discrimination Center, 293 Order on Motion in Limine, 59 Reply Memorandum of Law in Support of Motion filed by Westchester County, New York, 249 Reply Memorandum of Law in Support of Motion, 75 MOTION for Summary Judgment., 182 Proposed Voir Dire Questions filed by Westchester County, New York, 339 Notice of Appearance filed by ABC, 54 Response in Opposition to Motion, 254 Reply Affirmation in Support of Motion, 198 MOTION in Limine To Exclude From Trial Relator's Expert Evidence filed by Westchester County, New York, 189 MOTION in Limine Requesting that the Court Take Judicial Notice of Federal Government Documents Conclusively Establishing the Number of Defendant's False AFFH Certifications and Claims Made and the Funds Secured by Defendant During the False C, 201 MOTION in Limine to Preclude Relator From Offering Certain Evidence at Trial. filed by Westchester County, New York, 335 Order, 348 MOTION to Intervene filed by Anti−Discrimination Center, 203 Affirmation in Support of Motion, filed by Westchester County, New York, 96 Memorandum of Law in Opposition to Motion filed by Westchester County, New York, 101 Endorsed Letter, Set Hearings, 55 Endorsed Letter, 261 Reply Memorandum of Law in Support of Motion, 351 Declaration in Support of Motion filed by Anti−Discrimination Center, 272 Reply Memorandum of Law in Support of Motion, 256 Reply Memorandum of Law in Support of Motion, 344 Notice of Appearance filed by Anti−Discrimination Center, 340 Notice of Change of Address filed by ABC, 47 Response in Support of Motion filed by Westchester County, New York, 169 Declaration in Support of Motion, 326 Order, 296 MOTION for Brook Hopkins to Appear Pro Hac Vice., 390 Reply filed by Westchester County, New York, 65 Endorsed Letter, Set Deadlines/Hearings, 379 Declaration in Support of Motion filed by Anti−Discrimination Center, 283 Reply Memorandum of Law in Support of Motion, 263 Reply Memorandum of Law in Support of Motion, 321 Order, 259 Reply Affirmation in Support of Motion, 167 Memorandum of Law in Support of Motion, 90 Memorandum of Law in Support of Motion, 323 Order, Set Hearings, 158 MOTION in Limine to Exclude Evidence on the Subject of Westchester County's "Sensitivity to Issues Concerning African Americans and Members of Other Protected Classes"., 156 Declaration in Support of Motion, 310 Order, Set Deadlines/Hearings, 396 Memorandum & Opinion, 216 Declaration in Opposition, 193 Declaration in Support of Motion, 49 Order, Set Deadlines/Hearings, 298 Affirmation in Opposition to Motion filed by Westchester County, New York, 307 Order on Motion in Limine, 187 Declaration in Support of Motion, 50 Stipulation and Order, Set Deadlines/Hearings, 104 Reply Affirmation in Support of Motion, filed by Westchester County, New York, 138 Proposed Voir Dire Questions, 134 Reply Memorandum of Law in Support of Motion filed by Westchester County, New York, 102 Counter Statement to Rule 56.1 filed by Westchester County, New York were transmitted to the U.S. Court of Appeals. (tp) (Entered: 05/16/2012)
404 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − OPPOSITION BRIEF Opposition of the United States to Applications by Westchester County for a Stay. Document filed by United States of America.(Kennedy, David) Modified on 5/17/2012 (ka). (Entered: 05/16/2012)
405 ORDER TO SHOW CAUSE (UNSIGNED). It is hereby ordered that the above−named Plaintiff show cause before this Court, why an order should not be issued pursuant to Rule 62 of the Federal Rules of Civil Procedure (1) staying the Opinion and Order of the Hon. Denise Cote dated 5/3/2012 (Docket No. 402); and (2) if Defendant's motion is denied, staying the Order pending Defendant's motion in the United States Court of Appeals for the Second Circuit for a stay of the Order, and as further specified. ENDORSEMENT: Docket and File as unsigned. So ordered. (Signed by Judge Sidney H. Stein, Part I on 5/16/2012). (rjm) (laq). (Entered: 05/17/2012)

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05/17/2012 05/17/2012 05/17/2012 05/17/2012 05/17/2012 07/20/2012 07/20/2012 07/20/2012
07/25/2012 07/27/2012
08/10/2012
08/10/2012

***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney David J Kennedy to RE−FILE Document 404 Opposition Brief. Use the event type Memorandum of Law in Opposition(non−motion) found under the event list Other Answers. (ka) (Entered: 05/17/2012)
406 MEMORANDUM OF LAW in Opposition Opposition of the United States to Applications by Westchester County for a Stay. Document filed by United States of America. (Kennedy, David) (Entered: 05/17/2012)
407 DECLARATION of Robert F. Meehan in Support re: 405 Order to Show Cause − Unsigned,,. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Meehan, Robert) (Entered: 05/17/2012)
408 MEMORANDUM OF LAW in Support re: 405 Order to Show Cause − Unsigned,,. Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 05/17/2012)
409 MEMORANDUM OPINION AND ORDER # 101819 : The County's May 15 motion for a stay of the Court's May 3 Opinion pending appeal is denied. (Signed by Judge Denise L. Cote on 5/17/2012) (djc) Modified on 5/21/2012 (ft). (Entered: 05/17/2012)
411 MOTION to Compel Westchester County to to comply with Court−appointed Monitor's requests for information and procedures for future requests. Document filed by United States of America.(Eshkenazi, Lara) (Entered: 07/20/2012)
412 MEMORANDUM OF LAW in Support re: 411 MOTION to Compel Westchester County to to comply with Court−appointed Monitor's requests for information and procedures for future requests.. Document filed by United States of America. (Eshkenazi, Lara) (Entered: 07/20/2012)
413 DECLARATION of James E. Johnson in Support re: 411 MOTION to Compel Westchester County to to comply with Court−appointed Monitor's requests for information and procedures for future requests.. Document filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Eshkenazi, Lara) (Entered: 07/20/2012)
Minute Entry for proceedings held before Judge Denise L. Cote: Conference held on 7/25/2012. (Court Reporter Michael McDaniel and Toni Stanley) (gr) (Entered: 07/25/2012)
414 ORDER granting 411 Motion to Compel. IT IS HEREBY ORDERED that: The Monitor's powers pursuant to paragraph 13 of the Stipulation and Order include, among other things, the authority to inspect "all books, records, accounts, correspondence, files and other documents, and electronic records of the County and its officers, agents, and employees concerning the subject matter and implementation of the Stipulation and Order" with the exception of privileged materials. The County shall respond to the outstanding requests for information in the Monitor's May 14, 2012, letter as further set forth in this order. The following procedure shall apply to all future requests for information by the Monitor pursuant to his authority under the Stipulation and Order as further set forth in this order. (Signed by Judge Denise L. Cote on 7/26/2012) (lmb) Modified on 8/1/2012 (lmb). (Entered: 07/27/2012)
415 TRANSCRIPT of Proceedings re: CONFERNCE held on 7/25/2012 before Judge Denise L. Cote. Court Reporter/Transcriber: Michael McDaniel, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/4/2012. Redacted Transcript Deadline set for 9/13/2012. Release of Transcript Restriction set for 11/13/2012.(McGuirk, Kelly) (Entered: 08/10/2012)
416 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNCE proceeding held on 7/25/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely

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electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/10/2012)
417 ORDER: Defendant Westchester County shall make a written presentation to the Monitor and The United States Government by 8/17/2012 regarding the Country's efforts to comply with the obligations set out in the Court's May 3 Opinion and Order. It is further ordered that, if there is any dispute that remains unresolved, a conference will be held September 6, 2012. (Signed by Judge Denise L. Cote on 8/10/2012) (ago) Modified on 8/15/2012 (ago). (Entered: 08/13/2012)
Minute Entry for proceedings held before Judge Denise L. Cote: Conference held. (Court Reporter Tom Murray) (gr) (Entered: 08/13/2012)
418 Letter addressed to Judge Denise L. Cote from James E. Johnson dated 8/9/2012 re: I write to report on Westchester County's efforts to comply with the Court's Order of July 27, 2012, ECF No. 414, in the above captioned matter, and to inform the Court of a second request made concerning the Court's Opinion and Order of May 3, 2012, ECF No. 402. Document filed by James E. Johnson.(lmb) (Entered: 08/15/2012)
419 Letter addressed to Judge Denise L. Cote from David J. Kennedy dated 8/10/2012 re: This Office represents the United States in the above−referenced matter. We write in response to the County's letter of this morning. Document filed by United States of America.(lmb) (Entered: 08/15/2012)
420 Letter addressed to Judge Denise L. Cote from Robert F. Meehan dated 8/10/2012 re: Please accept this letter in response to the Government's August 9, 2012 letter regarding a conference tentatively scheduled for this afternoon at 3:30 p.m. Document filed by Westchester County, New York.(lmb) (Entered: 08/15/2012)
421 Letter addressed to Judge Denise L. Cote from David J. Kennedy dated 8/9/2012 re: This Office represents the United States in the above−referenced matter. At a conference on July 25, 2012, the Court heard from the parties regarding the United States' application to enforce the terms of the Settlement in this case with respect to the County's obligations to conduct an analysis of zoning ordinances. The Court's intervention substantially improved the communication process between the parties. While the Court scheduled a conference for August 10, 2012, at 3:30 p.m. in the event that additional discussion was necessary, we anticipate that the Monitor will advise the Court by letter that there is no need at present for an additional conference on the zoning issues. Document filed by United States of America.(lmb) (Entered: 08/15/2012)
422 TRANSCRIPT of Proceedings re: confernce held on 8/10/2012 before Judge Denise L. Cote. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/17/2012. Redacted Transcript Deadline set for 9/27/2012. Release of Transcript Restriction set for 11/26/2012.(McGuirk, Kelly) (Entered: 08/23/2012)
423 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a confernce proceeding held on 8/10/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/23/2012)
424 Letter addressed to Judge Denise L. Cote from Kenneth W. Jenkins dated 8/21/2012 re: Counsel writes in response to Deputy County Executive Plunkett's 8/17/2012 correspondence to James Johnson E. Johnson, Esq., and David J. Kennedy, Assistant U.S. Attorney, concerning the implementation of your May 3, 2012 Order. Counsel also writes concerning the County of Westchester's motion for a stay, which were denied, and the appeal of Your Honors 5/3/2012 Order.(jfe) (Entered: 08/27/2012)
***DELETED DOCUMENT. Deleted document number 427 letter. The document was incorrectly filed in this case. (laq) (Entered: 09/12/2012)

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425 Letter addressed to Judge Denise L. Cote from James Maisomo, Sheila Marcotte, et al. dated 8/27/2012 re: Counsel for Defendant writes that we apologize in advance for taking up the Court's valuable time on this issue, but the seven Republican Legislators of the Westchester County Board of Legislators believe that we were left with no choice but to inform the Court of a serious flaw in the letter that was faxed to Your Honor on August 21, 2012 by Legislator Ken Jenkins, the Chairman of our County Board, with respect to the referenced action. Document filed by Westchester County, New York. (pl) (Entered: 09/04/2012)
426 Letter addressed to Judge Denise L. Cote, from David J. Kennedy, dated 9/5/2012, re: in anticipation of the conference scheduled for 10 a.m. on September 6, 2012, to provide the Court with a status update. Document filed by United States of America.(ja) (Entered: 09/06/2012)
Minute Entry for proceedings held before Judge Denise L. Cote: Conference held on 9/6/2012. (Court Reporter Sam Mauro) (gr) (Entered: 09/28/2012)
427 TRANSCRIPT of Proceedings re: CONFERENCE held on 9/6/2012 before Judge Denise L. Cote. Court Reporter/Transcriber: Samuel Mauro, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2012. Redacted Transcript Deadline set for 10/25/2012. Release of Transcript Restriction set for 12/21/2012.(McGuirk, Kelly) (Entered: 09/19/2012)
428 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 9/6/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/19/2012)
429 STATUS REPORT. / Monitor's Report Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the 2012 Calendar Year Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1 − Part 1, # 2 Exhibit 1 − Part 2, # 3 Exhibit 1 − Part 3, # 4 Exhibit 1 − Part 4, # 5 Exhibit 1 − Part 5, # 6 Exhibit 2 − Part 1, # 7 Exhibit 2 − Part 2, # 8 Exhibit 2 − Part 3, # 9 Exhibit 2 − Part 4, # 10 Exhibit 2 − Part 5, # 11 Exhibit 3 − Part 1, # 12 Exhibit 3 − Part 2, # 13 Exhibit 3 − Part 3, # 14 Exhibit 3 − Part 4, # 15 Exhibit 3 − Part 5, # 16 Exhibit 3 − Part 6, # 17 Exhibit 3 − Part 7, # 18 Exhibit 3 − Part 8, # 19 Exhibit 3 − Part 9, # 20 Exhibit 3 − Part 10, # 21 Exhibit 3 − Part 11, # 22 Exhibit 4 − Part 1, # 23 Exhibit 4 − Part 2, # 24 Exhibit 4 − Part 3, # 25 Exhibit 4 − Part 4, # 26 Exhibit 4 − Part 5, # 27 Exhibit 4 − Part 6, # 28 Exhibit 4 − Part 7, # 29 Exhibit 5, # 30 Exhibit 6, # 31 Exhibit 7 − Part 1, # 32 Exhibit 7 − Part 2, # 33 Exhibit 7 − Part 3, # 34 Exhibit 7 − Part 4, # 35 Exhibit 7 − Part 5, # 36 Exhibit 7 − Part 6, # 37 Exhibit 7 − Part 7, # 38 Exhibit 7 − Part 8, # 39 Exhibit 7 − Part 9, # 40 Exhibit 7 − Part 10, # 41 Exhibit 7 − Part 11, # 42 Exhibit 8, # 43 Exhibit 9, # 44 Exhibit 10, # 45 Exhibit 11, # 46 Exhibit 12, # 47 Exhibit 13, # 48 Exhibit 14, # 49 Exhibit 15, # 50 Exhibit 16, # 51 Exhibit 17, # 52 Exhibit 18 − Part 1, # 53 Exhibit 18 − Part 2, # 54 Exhibit 18 − Part 3, # 55 Exhibit 18 − Part 4, # 56 Exhibit 18 − Part 5, # 57 Exhibit 18 − Part 6, # 58 Exhibit 18 − Part 7, # 59 Exhibit 18 − Part 8, # 60 Exhibit 18 − Part 9, # 61 Exhibit 18 − Part 10, # 62 Exhibit 18 − Part 11, # 63 Exhibit 18 − Part 12, # 64 Exhibit 18 − Part 13, # 65 Exhibit 19, # 66 Exhibit 20, # 67 Exhibit 21, # 68 Exhibit 22, # 69 Exhibit 23 − Part 1, # 70 Exhibit 23 − Part 2, # 71 Exhibit 23 − Part 3, # 72 Exhibit 23 − Part 4, # 73 Exhibit 23 − Part 5, # 74 Exhibit 23 − Part 6, # 75 Exhibit 23 − Part 7, # 76 Exhibit 23 − Part 8, # 77 Exhibit 23 − Part 9, # 78 Exhibit 24, # 79 Exhibit 25, # 80 Exhibit 26, # 81 Exhibit 27, # 82 Exhibit 28, # 83 Exhibit 29, # 84 Exhibit 30, # 85 Exhibit 31, # 86 Exhibit 32, # 87 Exhibit 33, # 88 Exhibit 34, # 89 Exhibit 35 − Part 1, # 90 Exhibit 35 − Part 2, # 91 Exhibit 36 − Part 1, # 92 Exhibit 36 − Part 2, # 93 Exhibit 36 − Part 3, # 94 Exhibit 36 − Part 4, # 95 Exhibit 37, # 96 Exhibit 38, # 97 Exhibit 39)(Johnson, James) (Entered: 02/25/2013)
430 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/26/2013 before Judge Denise L. Cote. Court Reporter/Transcriber: Jennifer Thun, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After

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that date it may be obtained through PACER. Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/6/2013. Release of Transcript Restriction set for 8/5/2013.Filed In Associated Cases: 1:13−cv−02741−DLC, 1:06−cv−02860−DLC(Rodriguez, Somari) (Entered: 05/02/2013)
431 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/26/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...Filed In Associated Cases: 1:13−cv−02741−DLC, 1:06−cv−02860−DLC(Rodriguez, Somari) (Entered: 05/02/2013)
432 Letter addressed to Mr. Meeham from James E. Johnson dated 5/14/2013 re: This serves to confirm our interview with County Executive Robert P. Astorino on Tuesday, May 21, 2013 from 10:30 a.m. to 12:30 pm at the Michaelian Office Building located at 148 Martine Avenue, White Plains, New York. "CC" to Honorable Denise Cote, U.S. District Judge; Honorable Gabriel W. Gorenstein, U.S. Magistrate Judge, David J. Kennedy, Assistant U.S. Attorney for the Southern District of New York; Benjamin H. Torrance, Assistant U.S. Attorney for the Souther District of New York; Lara K. Eshkenazi, Assistant U.S. Attorney for the Southern District of New York; Glenda I. Fussa, Deputy Regional Counsel, New York Office, HUD.(gr) (Entered: 05/17/2013)
433 MANDATE of USCA (Certified Copy) as to 403 Notice of Appeal, filed by Westchester County, New York USCA Case Number 12−2047. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is AFFIRMED in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 5/29/2013. (tp) (Entered: 05/29/2013)
Transmission of USCA Mandate/Order to the District Judge re: 433 USCA Mandate. (tp) (Entered: 05/29/2013)
434 Costs Taxed as to 433 USCA Mandate, USCA Case Number 12−2047. in the amount of $456.00. Docketed as Judgment #13,1169 on 6/6/2013 in favor of Appellee United States of America against Appellant Westchester County, New York. (nd) (Entered: 06/06/2013)
435 MOTION to Intervene. Document filed by KEARNEY REALTY AND DEVELOPEMENT, INC.. Return Date set for 7/24/2013 at 09:30 AM.(Flannery, John) (Entered: 07/03/2013)
436 DECLARATION of Kenneth Kearney in Support re: 435 MOTION to Intervene.. Document filed by KEARNEY REALTY AND DEVELOPEMENT, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ 1 of 3, # 37 Exhibit JJ 2 of 3, # 38 Exhibit JJ 3 of 3, # 39 Exhibit KK, # 40 Exhibit LL, # 41 Exhibit MM, # 42 Exhibit NN, # 43 Exhibit COMPLAINT)(Flannery, John) (Entered: 07/03/2013)
437 MEMORANDUM OF LAW in Support re: 435 MOTION to Intervene.. Document filed by KEARNEY REALTY AND DEVELOPEMENT, INC.. (Flannery, John) (Entered: 07/03/2013)
438 AFFIDAVIT OF SERVICE of COMPLAINT IN INTERVENTION, NOTICE OF MOTION TO INTERVENE and MEMORANDUM OF LAW IN SUPPORT THE MOTION BY KEARNEY REALTY AND DEVELOPMENT, INC. TO INTERVENE served on USA ATTORNEY for the SOUTHERN DISTRICT OF NEW YORK on July 3, 2013. Service was made by MAIL. Document filed by KEARNEY REALTY AND DEVELOPEMENT, INC.. (Flannery, John) (Entered: 07/03/2013)

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439 ORDER. On 7/3/2013, Kearney Realty and Development, Inc. ("Kearney") filed a motion to intervene in the present action. It is hereby ORDERED that the United States of America and defendant Westchester County shall serve any opposition to Kearney's motion by 7/26/2013. Kearney's reply, if any, shall be served by 8/9/2013. At the time any reply is served, the moving party shall supply Chambers with two courtesy copies of all motion papers by mailing or delivering them to the U.S. Courthouse, 500 Pearl Street, New York, New York. (Signed by Judge Denise L. Cote on 7/3/2013) (gr) (Entered: 07/03/2013)
440 AFFIDAVIT OF SERVICE of NOTICE OF MOTION TO INTERVENE AND MEMORANDUM OF LAW IN SUPPORT THE MOTION BY KEARNEY REALTY AND DEVELOPMENT, INC. TO INTERVENE, COMPLAINT IN INTERVENTION, served on Westchester County Attorney's Office on July 3, 2013. Service was accepted by Receptionist. Document filed by KEARNEY REALTY AND DEVELOPEMENT, INC.. (Flannery, John) (Entered: 07/10/2013)
441 AFFIDAVIT OF SERVICE of NOTICE OF MOTION TO INTERVENE AND MEMORANDUM OF LAW IN SUPPORT THE MOTION BY KEARNEY REALTY AND DEVELOPMENT, INC. TO INTERVENE, COMPLAINT IN INTERVENTION served on Town of North Salem on July 3, 2013. Service was accepted by Veronica Howley. Document filed by KEARNEY REALTY AND DEVELOPEMENT, INC.. (Flannery, John) (Entered: 07/10/2013)
442 ORDER: that, consistent with the July 3 Order, the United States of America, defendant Westchester County, and the proposed North Salem defendants shall serve any opposition to Kearney's motion by July 26, 2013. Kearney's reply, if any, shall be served by August 9, 2013. At the time any reply is served, the moving party shall supply Chambers with two courtesy copies of all motion papers by mailing or delivering them to the United States Courthouse, 500 Pearl Street, New York, New York. IT IS FURTHER ORDERED that if any party wishes to request an extension of the briefing schedule set by this Order, the request shall be made by letter to the Court and should state: (1) the original due date, (2) the number of previous requests for adjournment or extensions of time, (3) whether these previous requests were granted or denied, and (4) the position of the other parties regarding the requested extension. If any of the other parties do not consent to the extension, the letter shall state the reasons given by the non−consenting party for refusing consent. If the requested extension affects any other scheduled dates, a proposed Revised Scheduling Order must be attached. IT IS FURTHER ORDERED that counsel for the proposed North Salem defendants shall promptly file a notice of appearance on the Electronic Case Filing system. SO ORDERED. (Responses due by 7/26/2013, Replies due by 8/9/2013.) (Signed by Judge P. Kevin Castel, Part I for Denise Cote on 7/17/2013) (rsh) Modified on 7/22/2013 (rsh). (Entered: 07/17/2013)
443 ORDER: On July 17, 2013, the Court issued an Order advising the parties of the briefing schedule set by the Court's July 3 Order for a motion to intervene filed by Kearney Realty and Development, Inc. ("Kearney"). By letter dated July 17, counsel for proposed defendants Town of North Salem, the Town Board of the Town of North Salem, and the Planning Board of the Town of North Salem ("North Salem") requests an extension of the briefing schedule. It is hereby ORDERED that the United States of America, defendant Westchester County, and the proposed North Salem defendants shall serve any opposition to Kearney's motion by August 2, 2013. Kearney's reply, if any, shall be served by August 16, 2013. At the time any reply is served, the moving party shall supply Chambers with two courtesy copies of all motion papers by mailing or delivering them to the United States Courthouse, 500 Pearl Street, New York, New York. SO ORDERED. (Responses due by 8/2/2013, Replies due by 8/16/2013.) (Signed by Judge P. Kevin Castel, Part I. for Denise Cote on 7/18/2013) Copies Mailed By Chambers. (rsh) Modified on 7/22/2013 (rsh). (Entered: 07/18/2013)
444 NOTICE OF APPEARANCE by Brian S. Sokoloff on behalf of The Town of North Salem, The Town Board of the Town of North Salem, The Planning Board of the Town of North Salem. (Sokoloff, Brian) (Entered: 07/19/2013)
445 ENDORSED LETTER addressed to Judge Cote from Robert A. Spolzino dated 8/1/2013 re: We represent Kearney Realty and Development, Inc. ("Kearney Realty"), intervenor plaintiff...In order to further pursue a resolution, we respectfully request that the Court extend North Salem's deadline to serve its opposition to August 9, 2013, and

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allow Kearney Realty two weeks to serve its reply, by August 23, 2013. All parties consent to this proposed schedule. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 8/2/2013) (gr) (Entered: 08/02/2013)
446 DECLARATION of Robert F. Meehan in Opposition re: 435 MOTION to Intervene.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1)(Rodriguez, Adam) (Entered: 08/02/2013)
447 MEMORANDUM OF LAW in Opposition re: 435 MOTION to Intervene.. Document filed by Westchester County, New York. (Rodriguez, Adam) (Entered: 08/02/2013)
448 NOTICE OF APPEARANCE by Anthony Francisco Cardoso on behalf of The Planning Board of the Town of North Salem, The Town Board of the Town of North Salem, The Town of North Salem. (Cardoso, Anthony) (Entered: 08/05/2013)
449 LETTER addressed to Judge Cote from Lara K. Eshkenazi dated 8/2/2013 re: We write on behalf of the United States in response to the motion to intervene in thea above−titled case filed by Kearney Realty and Development, Inc. Document filed by United States of America.(gr) (Entered: 08/05/2013)
450 ENDORSED LETTER addressed to Judge Cote from Brian S. Sokoloff dated 8/8/2013 re: We write to request a three−week extension of time to respond to proposed intervenor−plaintiff Kearneyf Realty and Development, Inc....All parties consent to this request. This is the Town's second request for an adjournment. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 8/9/2013) (gr) (Entered: 08/09/2013)
451 ENDORSED LETTER addressed to Judge Denise L. Cote from Robert A. Spolzino dated 8/28/2013 re: We write, with consent of counsel for the proposed intervenor−defendant, the Town of North Salem, as well as counsel for the United States and the County of Westchester, to request that our motion be further adjourned, until November 1, 2013. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 9/3/2013) (gr) (Entered: 09/03/2013)
452 SPECIAL MASTER'S REPORT. / Monitor's Final Report on Westchester County's Analysis of Municipal Zoning. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit A to Exhibit 1, # 20 Exhibit B to Exhibit 1, # 21 Exhibit C to Exhibit 1)(Johnson, James) (Entered: 09/13/2013)
453 SPECIAL MASTER'S REPORT. / Supplemental Exhibits to the Monitor's Final Report on Westchester County's Analysis of Municipal Zoning (Part 2 of 4). Document filed by James E. Johnson. (Attachments: # 1 Exhibit D (Part 1) to Exhibit 1, # 2 Exhibit D (Part 2) to Exhibit 1, # 3 Exhibit D (Part 3) to Exhibit 1, # 4 Exhibit D (Part 4) to Exhibit 1, # 5 Exhibit D (Part 5) to Exhibit 1, # 6 Exhibit D (Part 6) to Exhibit 1, # 7 Exhibit D (Part 7) to Exhibit 1, # 8 Exhibit D (Part 8) to Exhibit 1, # 9 Exhibit D (Part 9) to Exhibit 1, # 10 Exhibit D (Part 10) to Exhibit 1, # 11 Exhibit D (Part 11) to Exhibit 1, # 12 Exhibit D (Part 12) to Exhibit 1, # 13 Exhibit D (Part 13) to Exhibit 1, # 14 Exhibit D (Part 14) to Exhibit 1, # 15 Exhibit D (Part 15) to Exhibit 1, # 16 Exhibit D (Part 16) to Exhibit 1, # 17 Exhibit D (Part 17) to Exhibit 1, # 18 Exhibit D (Part 18) to Exhibit 1, # 19 Exhibit D (Part 19) to Exhibit 1, # 20 Exhibit D (Part 20) to Exhibit 1, # 21 Exhibit D (Part 21) to Exhibit 1, # 22 Exhibit E (Part 1) to Exhibit 1, # 23 Exhibit E (Part 2) to Exhibit 1, # 24 Exhibit E (Part 3) to Exhibit 1, # 25 Exhibit E (Part 4) to Exhibit 1, # 26 Exhibit E (Part 5) to Exhibit 1, # 27 Exhibit E (Part 6) to Exhibit 1, # 28 Exhibit E (Part 7) to Exhibit 1, # 29 Exhibit E (Part 8) to Exhibit 1, # 30 Exhibit E (Part 9) to Exhibit 1)(Johnson, James) (Entered: 09/13/2013)
454 SPECIAL MASTER'S REPORT. / Supplemental Exhibits to the Monitor's Final Report on Westchester County's Analysis of Municipal Zoning (Part 3 of 4). Document filed by James E. Johnson. (Attachments: # 1 Exhibit F (Part 1) to Exhibit 1, # 2 Exhibit F (Part 2) to Exhibit 1, # 3 Exhibit F (Part 3) to Exhibit 1, # 4 Exhibit F (Part 4) to Exhibit 1, # 5 Exhibit F (Part 5) to Exhibit 1, # 6 Exhibit F (Part 6) to Exhibit 1, # 7 Exhibit F (Part 7) to Exhibit 1, # 8 Exhibit F (Part 8) to Exhibit 1, # 9 Exhibit F (Part 9) to Exhibit 1, # 10 Exhibit F (Part 10) to Exhibit 1, # 11 Exhibit F (Part 11) to Exhibit 1, # 12 Exhibit F (Part 12) to Exhibit 1, # 13 Exhibit F (Part 13) to Exhibit 1, #

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09/13/2013
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10/28/2013 10/29/2013
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14 Exhibit G (Part 1) to Exhibit 1, # 15 Exhibit G (Part 2) to Exhibit 1, # 16 Exhibit G (Part 3) to Exhibit 1, # 17 Exhibit G (Part 4) to Exhibit 1, # 18 Exhibit H (Part 1) to Exhibit 1, # 19 Exhibit H (Part 2) to Exhibit 1, # 20 Exhibit H (Part 3) to Exhibit 1, # 21 Exhibit H (Part 4) to Exhibit 1, # 22 Exhibit H (Part 5) to Exhibit 1, # 23 Exhibit I (Part 1) to Exhibit 1, # 24 Exhibit I (Part 2) to Exhibit 1, # 25 Exhibit I (Part 3) to Exhibit 1, # 26 Exhibit I (Part 4) to Exhibit 1, # 27 Exhibit I (Part 5) to Exhibit 1, # 28 Exhibit I (Part 6) to Exhibit 1, # 29 Exhibit I (Part 7) to Exhibit 1, # 30 Exhibit I (Part 8) to Exhibit 1, # 31 Exhibit I (Part 9) to Exhibit 1, # 32 Exhibit I (Part 10) to Exhibit 1, # 33 Exhibit I (Part 11) to Exhibit 1, # 34 Exhibit I (Part 12) to Exhibit 1, # 35 Exhibit I (Part 13) to Exhibit 1, # 36 Exhibit I (Part 14) to Exhibit 1, # 37 Exhibit I (Part 15) to Exhibit 1)(Johnson, James) (Entered: 09/13/2013)
455 SPECIAL MASTER'S REPORT. / Supplemental Exhibits to the Monitor's Final Report on Westchester County's Analysis of Municipal Zoning (Part 4 of 4). Document filed by James E. Johnson. (Attachments: # 1 Exhibit J to Exhibit 1, # 2 Exhibit K to Exhibit 1, # 3 Exhibit L to Exhibit 1, # 4 Exhibit M to Exhibit 1, # 5 Exhibit N to Exhibit 1, # 6 Exhibit O to Exhibit 1, # 7 Exhibit P to Exhibit 1, # 8 Exhibit Q to Exhibit 1, # 9 Exhibit R to Exhibit 1, # 10 Exhibit S to Exhibit 1, # 11 Exhibit T to Exhibit 1, # 12 Exhibit U to Exhibit 1)(Johnson, James) (Entered: 09/13/2013)
456 ENDORSED LETTER addressed to Judge Denise L. Cote from Robert A. Spolzino dated 10/18/2013 re: We represent Kearney Realty and Development, Inc., intervenor−plaintiff in the above−referenced action. We write, with the consent of counsel for the proposed intervenor−defendant, the Town of North Salem, as well as counsel for the United States and the County of Westchester, to request that our motion be further adjourned, until November 15, 2013. ENDORSEMENT: Granted. There shall be no further extension. (Signed by Judge Denise L. Cote on 10/21/2013) (gr) (Entered: 10/21/2013)
457 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated 10−28−13 re: Monitor's Fees. Document filed by James E. Johnson.(Johnson, James) (Entered: 10/28/2013)
458 FILING ERROR − ELECTRONIC FILING OF NON−ECF DOCUMENT − MOTION to Withdraw (435 in 1:06−cv−02860−DLC) MOTION to Intervene., (436 in 1:06−cv−02860−DLC) Declaration in Support of Motion,,, (437 in 1:06−cv−02860−DLC) Memorandum of Law in Support of Motion, (438 in 1:06−cv−02860−DLC) Affidavit of Service Other. Document filed by KEARNEY REALTY AND DEVELOPEMENT, INC..Filed In Associated Cases: 1:06−cv−02860−DLC, 1:13−cv−02741−DLC(Flannery, John) Modified on 10/30/2013 (db). (Entered: 10/29/2013)
459 ENDORSED LETTER addressed to Judge Denise L. Cote from James E. Johnson dated 10/28/2013 re: I write to inform the Court and the parties of the Monitor's intention to allocate a larger portion of the Monitor's current budget to the use of expert consultants, including to develop a toolkit for the design of affordable housing, as described in greater detail at pages 35 through 37 of the Monitor's Report filed on February 25, 2013. ENDORSEMENT: Any objection to this proposal must be filed by 11/4/2013. (Signed by Judge Denise L. Cote on 10/29/2013) (gr) (Entered: 10/29/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney John Martin Flannery. Document No. (458) Letter. This document is not filed via ECF. The Court permits the filing of letters including certain types of letter motions, a Motion to Withdraw must be formally filed. Filed In Associated Cases: 1:06−cv−02860−DLC, 1:13−cv−02741−DLC(db) (Entered: 10/30/2013)
***DELETED DOCUMENT. Deleted document number 460 ENDORSED LETTER. The document was incorrectly filed in this case. (djc) (Entered: 10/30/2013)
***DELETED DOCUMENT. Deleted document number 460 Order. The document was incorrectly filed in this case. (tro) (Entered: 11/01/2013)
***DELETED DOCUMENT. Deleted document number 460 ORDER. The document was incorrectly filed in this case. (djc) (Entered: 11/01/2013)

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10/30/2013
11/04/2013 11/05/2013
02/10/2014 04/17/2014 04/24/2014
04/24/2014 04/29/2014 04/29/2014
04/30/2014 05/01/2014 05/02/2014 05/09/2014

460 ENDORSED LETTER addressed to Judge Denise L. Cote from Robert A. Spolzino dated 10/29/2013 re: At this time, Kearney Realty withdraws the motion for leave to intervene and respectfully requests the Court disregard the partie's respective submissions related to the motion. ENDORSEMENT: The motion is withdrawn. (Signed by Judge Denise L. Cote on 10/30/2013) (djc) Modified on 11/4/2013 (djc). (Entered: 11/01/2013)
461 LETTER addressed to Judge Denise L. Cote from Robert F. Meehan dated November 4, 2013 re: Monitor's Intent to Pay Outside Consultants. Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 11/04/2013)
462 ENDORSED LETTER addressed to Judge Denise L. Cote from James E. Johnson dated 10/28/2013 re: I write to inform the Court and the parties of the Monitor's intention to allocate a larger portion of the Monitor's current budget to the use of expert consultants.... ENDORSEMENT: Having considered the County's 11/4/13 response, this application is granted. (Signed by Judge Denise L. Cote on 11/5/2013) (gr) (Entered: 11/05/2013)
463 SPECIAL MASTER'S REPORT. /Monitor's Report. Document filed by James E. Johnson. (Attachments: # 1 Exhibit M−1, # 2 Exhibit M−2, # 3 Exhibit M−3)(Johnson, James) (Entered: 02/10/2014)
464 LETTER addressed to Judge Denise L. Cote from Craig Gurian, Executive Director dated 4/17/2014.(gr) (Entered: 04/17/2014)
465 ORDER. The Court having received a letter of April 17, 2014, from the Anti−Discrimination Center of Metro New York, Inc. (ADC), the relator for the United States of America in the above captioned action, it is hereby ORDERED that a conference will be held on May 2, 2014 at 12:00 p.m. in the United States Courthouse, 500 Pearl Street, New York, New York, in Courtroom 15B. ADCs counsel, counsel for the defendant, and counsel for the government must attend. (Signed by Judge Denise L. Cote on 4/24/2014) (gr) (Entered: 04/24/2014)
466 LETTER addressed to Judge Denise L. Cote from Edwin Frank dated 4/21/2014. Regarding The Manhattan−based Anti−Discrimination Center's report. (gr) (Entered: 04/24/2014)
467 LETTER addressed to Robert P. Astorino, County Executive, Westchester County from Mark Johnston, Deputy Assistant Secretary for Special Needs, U.S. Department of Housing And Urban Development dated 4/23/2014 re: Westchester County's FY 2011 HUD formula grant funds...(gr) (Entered: 04/29/2014)
468 LETTER addressed to Mark Johnston from Michael B. Kaplowitz, Chairman, Westchester County Board of Legislators dated 4/24/2014 re: Letter received from the U.S. Department of Housing and Urban Development (HUD) declaring its intent to reallocate over $5.2 million of Westchester's formula grant funds for FY 2012.... (gr) (Entered: 04/29/2014)
469 LETTER addressed to Judge Denise L. Cote from David J Kennedy dated April 30, 2014 re: Report by ADC. Document filed by United States of America.(Kennedy, David) (Entered: 04/30/2014)
470 LETTER addressed to Judge Denise L. Cote from Craig Gurian dated 05/01/2014 re: Response to April 30th letter from AUSA Kennedy (Dkt 469). Document filed by Anti−Discrimination Center.(Gurian, Craig) (Entered: 05/01/2014)
Minute Entry for proceedings held before Judge Denise L. Cote: Conference held on 5/2/2014. (Court Reporter Sonia Huggins) (gr) (Entered: 05/02/2014)
471 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated May 9, 2014 re: correspondence between the Westchester County Board of Legislators and the U.S. Department of Housing and Urban Development. Document filed by James E. Johnson. (Attachments: # 1 Exhibit A: Letter of May 6, 2014 from Michael B. Kaplowitz, Chair, Westchester County Board of Legislators, # 2 Exhibit B: Letter of May 8, 2014 from Holly Leicht, Regional Administrator, U.S. Department of Housing and Urban Development)(Johnson, James) (Entered: 05/09/2014)

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472 TRANSCRIPT of Proceedings re: CONFERENCE held on 5/2/2014 before Judge Denise L. Cote. Court Reporter/Transcriber: Sonya Ketter Huggins, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/9/2014. Redacted Transcript Deadline set for 6/19/2014. Release of Transcript Restriction set for 8/18/2014.(Rodriguez, Somari) (Entered: 05/15/2014)
473 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 5/2/14 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 05/15/2014)
474 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated May 27, 2014 re: Letter addressed to Holly Leicht, Regional Administrator for U.S. Department of Housing and Urban Development, Michael Kaplowitz, Chairman, Westchester County Board of Legislators, and Robert Meehan, Westchester County Attorney, dated 5/27/2014, re: Analysis of Impediments methodology. Document filed by James E. Johnson. (Attachments: # 1 Attachment to Letter: Proposed Methodology for the Monitor's Supplement to the Westchester County AI)(Johnson, James) (Entered: 05/27/2014)
475 LETTER addressed to Judge Denise L. Cote from /Letter addressed to Craig Gurian of the Anti−Discrimination Center, Inc. dated May 29, 2014 re: Analysis Methodology. Document filed by James E. Johnson. (Attachments: # 1 Exhibit Proposed Methodology)(Johnson, James) (Entered: 05/29/2014)
476 LETTER addressed to Judge Denise L. Cote from / Letter addressed to Monitor from Craig Gurian dated May 30, 2014 re: Letter from Monitor dated May 29, 2014. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit Pages from transcript of May 2, 2014 conference, # 2 Exhibit Letter from ADC to AUSA Kennedy, dated May 6, 2014, # 3 Exhibit Letter from ADC to Monitor, dated May 6, 2014)(Gurian, Craig) (Entered: 05/30/2014)
477 LETTER addressed to Judge Denise L. Cote from Robert F. Meehan dated June 5, 2014 re: May 27, 2014 Letter from James E. Johnson. Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 06/05/2014)
478 SPECIAL MASTER'S REPORT. (Monitor's Second Biennial Assessment of Westchester County's Compliance) Covering Activities for dates of January 1, 2012 to March 31, 2014. Document filed by James E. Johnson.(Johnson, James) (Entered: 06/26/2014)
479 STATUS REPORT. SUPPLEMENTAL NOTICE #1 re Monitor's Second Biennial Assessment of Westchester County's Compliance. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 01 − Part 1, # 2 Exhibit 01 − Part 2, # 3 Exhibit 02, # 4 Exhibit 03, # 5 Exhibit 04, # 6 Exhibit 05, # 7 Exhibit 06, # 8 Exhibit 07, # 9 Exhibit 08, # 10 Exhibit 09, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12 − Part 1, # 14 Exhibit 12 − Part 2, # 15 Exhibit 12 − Part 3, # 16 Exhibit 12 − Part 4, # 17 Exhibit 12 − Part 5, # 18 Exhibit 12 − Part 6, # 19 Exhibit 12 − Part 7, # 20 Exhibit 13 − Part 1, # 21 Exhibit 13 − Part 2, # 22 Exhibit 13 − Part 3, # 23 Exhibit 13 − Part 4, # 24 Exhibit 13 − Part 5, # 25 Exhibit 13 − Part 6, # 26 Exhibit 13 − Part 7, # 27 Exhibit 13 − Part 8, # 28 Exhibit 13 − Part 9, # 29 Exhibit 13 − Part 10, # 30 Exhibit 13 − Part 11, # 31 Exhibit 13 − Part 12, # 32 Exhibit 13 − Part 13, # 33 Exhibit 13 − Part 14, # 34 Exhibit 13 − Part 15, # 35 Exhibit 13 − Part 16, # 36 Exhibit 13 − Part 17, # 37 Exhibit 13 − Part 18, # 38 Exhibit 13 − Part 19, # 39 Exhibit 13 − Part 20, # 40 Exhibit 13 − Part 21, # 41 Exhibit 13 − Part 22, # 42 Exhibit 14 − Part 1, # 43 Exhibit 14 − Part 2, # 44 Exhibit 14 − Part 3, # 45 Exhibit 14 − Part 4, # 46 Exhibit 14 − Part 5, # 47 Exhibit 15 − Part 1, # 48 Exhibit 15 − Part 2)(Johnson, James) (Entered: 06/26/2014)
480 MOTION to Compel and take sworn oral depositions of Certain Officials and Employees of the Office of the County Executive of Westchester County. Document filed by James E. Johnson.(Johnson, James) Modified on 6/27/2014 (ka). (Entered:

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481 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 489 Declaration) − DECLARATION of James E. Johnson in Support re: 480 MOTION to Compel Certain Officials and Employees of the Office of the County Executive of Westchester County to Take Sworn Oral Depositions if Authority Granted Pursuant to Settlement Paragraphs 13(g) and 58.. Document filed by James E. Johnson. (Johnson, James) Modified on 7/3/2014 (db). (Entered: 06/26/2014)
482 MEMORANDUM OF LAW in Support re: 480 MOTION to Compel Certain Officials and Employees of the Office of the County Executive of Westchester County to Take Sworn Oral Depositions if Authority Granted Pursuant to Settlement Paragraphs 13(g) and 58. . Document filed by James E. Johnson. (Johnson, James) (Entered: 06/26/2014)
483 STATUS REPORT. SUPPLEMENTAL NOTICE #2 re Monitor's Second Biennial Assessment of Westchester County's Compliance. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 16 − Part 1, # 2 Exhibit 16 − Part 2, # 3 Exhibit 16 − Part 3, # 4 Exhibit 16 − Part 4, # 5 Exhibit 16 − Part 5, # 6 Exhibit 16 − Part 6, # 7 Exhibit 16 − Part 7, # 8 Exhibit 16 − Part 8, # 9 Exhibit 16 − Part 9, # 10 Exhibit 16 − Part 10, # 11 Exhibit 16 − Part 11, # 12 Exhibit 17, # 13 Exhibit 18 − Part 1, # 14 Exhibit 18 − Part 2, # 15 Exhibit 18 − Part 3, # 16 Exhibit 19, # 17 Exhibit 20, # 18 Exhibit 21, # 19 Exhibit 22, # 20 Exhibit 23 − Part 1, # 21 Exhibit 23 − Part 2, # 22 Exhibit 24, # 23 Exhibit 25 − Part 1, # 24 Exhibit 25 − Part 2, # 25 Exhibit 26 − Part 1, # 26 Exhibit 26 − Part 2, # 27 Exhibit 27 − Part 1, # 28 Exhibit 27 − Part 2, # 29 Exhibit 28 − Part 1, # 30 Exhibit 28 − Part 2, # 31 Exhibit 29 − Part 1, # 32 Exhibit 29 − Part 2, # 33 Exhibit 29 − Part 3, # 34 Exhibit 30 − Part 1, # 35 Exhibit 30 − Part 2, # 36 Exhibit 31, # 37 Exhibit 32, # 38 Exhibit 33 − Part 1, # 39 Exhibit 33 − Part 2, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36, # 43 Exhibit 37, # 44 Exhibit 38, # 45 Exhibit 39, # 46 Exhibit 40 − Part 1, # 47 Exhibit 40 − Part 2, # 48 Exhibit 40 − Part 3)(Johnson, James) (Entered: 06/26/2014)
484 STATUS REPORT. SUPPLEMENTAL NOTICE #3 re Monitor's Second Biennial Assessment of Westchester County's Compliance. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 41 − Part 1, # 2 Exhibit 41 − Part 2, # 3 Exhibit 41 − Part 3, # 4 Exhibit 41 − Part 4, # 5 Exhibit 41 − Part 5, # 6 Exhibit 41 − Part 6, # 7 Exhibit 41 − Part 7, # 8 Exhibit 41 − Part 8, # 9 Exhibit 41 − Part 9, # 10 Exhibit 41 − Part 10, # 11 Exhibit 41 − Part 11, # 12 Exhibit 41 − Part 12, # 13 Exhibit 41 − Part 13, # 14 Exhibit 41 − Part 14, # 15 Exhibit 41 − Part 15, # 16 Exhibit 41 − Part 16, # 17 Exhibit 41 − Part 17, # 18 Exhibit 41 − Part 18, # 19 Exhibit 41 − Part 19, # 20 Exhibit 42, # 21 Exhibit 43, # 22 Exhibit 44, # 23 Exhibit 45, # 24 Exhibit 46, # 25 Exhibit 47, # 26 Exhibit 48, # 27 Exhibit 49, # 28 Exhibit 50, # 29 Exhibit 51, # 30 Exhibit 52, # 31 Exhibit 53, # 32 Exhibit 54, # 33 Exhibit 55, # 34 Exhibit 56, # 35 Exhibit 57, # 36 Exhibit 58, # 37 Exhibit 59, # 38 Exhibit 60, # 39 Exhibit 61 − Part 1, # 40 Exhibit 61 − Part 2, # 41 Exhibit 62, # 42 Exhibit 63, # 43 Exhibit 64 − Part 1, # 44 Exhibit 64 − Part 2, # 45 Exhibit 65 − Part 1, # 46 Exhibit 65 − Part 2, # 47 Exhibit 65 − Part 3, # 48 Exhibit 65 − Part 4, # 49 Exhibit 65 − Part 5, # 50 Exhibit 65 − Part 6, # 51 Exhibit 65 − Part 7, # 52 Exhibit 65 − Part 8, # 53 Exhibit 65 − Part 9, # 54 Exhibit 66, # 55 Exhibit 67 − Part 1, # 56 Exhibit 67 − Part 2, # 57 Exhibit 67 − Part 3, # 58 Exhibit 67 − Part 4, # 59 Exhibit 68 − Part 1, # 60 Exhibit 68 − Part 2, # 61 Exhibit 68 − Part 3, # 62 Exhibit 68 − Part 4, # 63 Exhibit 68 − Part 5, # 64 Exhibit 68 − Part 6, # 65 Exhibit 68 − Part 7, # 66 Exhibit 68 − Part 8, # 67 Exhibit 68 − Part 9, # 68 Exhibit 68 − Part 10, # 69 Exhibit 68 − Part 11, # 70 Exhibit 68 − Part 12, # 71 Exhibit 68 − Part 13, # 72 Exhibit 68 − Part 14, # 73 Exhibit 68 − Part 15)(Johnson, James) (Entered: 06/26/2014)
485 STATUS REPORT. SUPPLEMENTAL NOTICE #4 re Monitor's Second Biennial Assessment of Westchester County's Compliance Document filed by James E. Johnson. (Attachments: # 1 Exhibit 68 − Part 16, # 2 Exhibit 68 − Part 17, # 3 Exhibit 68 − Part 18, # 4 Exhibit 68 − Part 19, # 5 Exhibit 68 − Part 20, # 6 Exhibit 68 − Part 21, # 7 Exhibit 68 − Part 22, # 8 Exhibit 68 − Part 23, # 9 Exhibit 68 − Part 24, # 10 Exhibit 68 − Part 25, # 11 Exhibit 68 − Part 26, # 12 Exhibit 68 − Part 27, # 13 Exhibit 68 − Part 28, # 14 Exhibit 68 − Part 29, # 15 Exhibit 68 − Part 30, # 16 Exhibit 68 − Part 31, # 17 Exhibit 68 − Part 32, # 18 Exhibit 68 − Part 33, # 19 Exhibit 68 − Part 34, # 20 Exhibit 68 − Part 35, # 21 Exhibit 68 − Part 36, # 22 Exhibit 68 − Part 37, # 23 Exhibit 68 − Part 38, # 24 Exhibit 68 − Part 39, # 25 Exhibit 68 − Part 40, # 26 Exhibit

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68 − Part 41, # 27 Exhibit 68 − Part 42, # 28 Exhibit 68 − Part 43, # 29 Exhibit 68 − Part 44, # 30 Exhibit 68 − Part 45, # 31 Exhibit 68 − Part 46, # 32 Exhibit 68 − Part 47, # 33 Exhibit 68 − Part 48, # 34 Exhibit 68 − Part 49, # 35 Exhibit 68 − Part 50, # 36 Exhibit 68 − Part 51, # 37 Exhibit 68 − Part 52, # 38 Exhibit 68 − Part 53, # 39 Exhibit 68 − Part 54, # 40 Exhibit 68 − Part 55, # 41 Exhibit 68 − Part 56, # 42 Exhibit 68 − Part 57, # 43 Exhibit 68 − Part 58, # 44 Exhibit 68 − Part 59, # 45 Exhibit 68 − Part 60)(Johnson, James) (Entered: 06/26/2014)
486 STATUS REPORT. SUPPLEMENTAL NOTICE #5 re Monitor's Second Biennial Assessment of Westchester County's Compliance Document filed by James E. Johnson. (Attachments: # 1 Exhibit 68 − Part 61, # 2 Exhibit 68 − Part 62, # 3 Exhibit 68 − Part 63, # 4 Exhibit 68 − Part 64, # 5 Exhibit 68 − Part 65, # 6 Exhibit 68 − Part 66, # 7 Exhibit 68 − Part 67, # 8 Exhibit 68 − Part 68, # 9 Exhibit 68 − Part 69, # 10 Exhibit 68 − Part 70, # 11 Exhibit 68 − Part 71, # 12 Exhibit 68 − Part 72, # 13 Exhibit 68 − Part 73, # 14 Exhibit 68 − Part 74, # 15 Exhibit 68 − Part 75, # 16 Exhibit 68 − Part 76, # 17 Exhibit 68 − Part 77, # 18 Exhibit 68 − Part 78, # 19 Exhibit 68 − Part 79, # 20 Exhibit 68 − Part 80, # 21 Exhibit 68 − Part 81, # 22 Exhibit 68 − Part 82, # 23 Exhibit 68 − Part 83, # 24 Exhibit 68 − Part 84, # 25 Exhibit 68 − Part 85, # 26 Exhibit 68 − Part 86, # 27 Exhibit 68 − Part 87, # 28 Exhibit 68 − Part 88, # 29 Exhibit 68 − Part 89, # 30 Exhibit 68 − Part 90, # 31 Exhibit 68 − Part 91, # 32 Exhibit 69)(Johnson, James) (Entered: 06/26/2014)
487 STATUS REPORT. SUPPLEMENTAL NOTICE #6 re Monitor's Second Biennial Assessment of Westchester County's Compliance Document filed by James E. Johnson. (Attachments: # 1 Exhibit 70 − Part 1, # 2 Exhibit 70 − Part 2, # 3 Exhibit 70 − Part 3, # 4 Exhibit 70 − Part 4, # 5 Exhibit 70 − Part 5, # 6 Exhibit 70 − Part 6, # 7 Exhibit 70 − Part 7, # 8 Exhibit 70 − Part 8, # 9 Exhibit 70 − Part 9, # 10 Exhibit 70 − Part 10, # 11 Exhibit 70 − Part 11, # 12 Exhibit 70 − Part 12, # 13 Exhibit 70 − Part 13, # 14 Exhibit 70 − Part 14, # 15 Exhibit 70 − Part 15, # 16 Exhibit 71, # 17 Exhibit 72, # 18 Exhibit 73 − Part 1, # 19 Exhibit 73 − Part 2, # 20 Exhibit 73 − Part 3, # 21 Exhibit 73 − Part 4, # 22 Exhibit 73 − Part 5, # 23 Exhibit 73 − Part 6, # 24 Exhibit 73 − Part 7, # 25 Exhibit 74, # 26 Exhibit 75, # 27 Exhibit 76, # 28 Exhibit 77 − Part 1, # 29 Exhibit 77 − Part 2, # 30 Exhibit 77 − Part 3, # 31 Exhibit 77 − Part 4, # 32 Exhibit 77 − Part 5, # 33 Exhibit 78, # 34 Exhibit 79, # 35 Exhibit 80 − Part 1, # 36 Exhibit 80 − Part 2, # 37 Exhibit 80 − Part 3, # 38 Exhibit 80 − Part 4, # 39 Exhibit 81 − Part 1, # 40 Exhibit 81 − Part 2, # 41 Exhibit 81 − Part 3, # 42 Exhibit 81 − Part 4, # 43 Exhibit 81 − Part 5, # 44 Exhibit 81 − Part 6, # 45 Exhibit 81 − Part 7, # 46 Exhibit 82, # 47 Exhibit 83, # 48 Exhibit 84 − Part 1, # 49 Exhibit 84 − Part 2, # 50 Exhibit 84 − Part 3, # 51 Exhibit 85 − Part 1, # 52 Exhibit 85 − Part 2, # 53 Exhibit 85 − Part 3, # 54 Exhibit 85 − Part 4, # 55 Exhibit 85 − Part 5, # 56 Exhibit 86, # 57 Exhibit 87 − Part 1, # 58 Exhibit 87 − Part 2, # 59 Exhibit 87 − Part 3, # 60 Exhibit 87 − Part 4, # 61 Exhibit 88, # 62 Exhibit 89 − Part 1, # 63 Exhibit 89 − Part 2, # 64 Exhibit 89 − Part 3, # 65 Exhibit 89 − Part 4, # 66 Exhibit 90, # 67 Exhibit 91, # 68 Exhibit 92)(Johnson, James) (Entered: 06/27/2014)
488 SCHEDULING ORDER: On June 26, 2014, the Monitor James E. Johnson (Monitor) filed a motion to compel and take sworn depositions of certain officials and employees of the Office of the County Executive of Westchester County (County). It is hereby ORDERED that any opposition from the County is due July 8, 2014. Any reply from the Monitor is due July 11. At the time any reply is served, the moving party shall supply Chambers with two (2) courtesy copies of all motion papers by mailing or delivering them to the United States Courthouse, 500 Pearl Street, New York, New York. (Signed by Judge Denise L. Cote on 6/27/2014) (gr) (Entered: 06/27/2014)
489 DECLARATION of James E. Johnson [RE−FILED TO INCLUDE MISSING EXHIBITS] in Support re: 480 MOTION to Compel Certain Officials and Employees of the Office of the County Executive of Westchester County to Take Sworn Oral Depositions if Authority Granted Pursuant to Settlement Paragraphs 13(g) and 58.. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Johnson, James) (Entered: 07/02/2014)
490 LETTER MOTION for Extension of Time to File Response/Reply as to 480 MOTION to Compel Certain Officials and Employees of the Office of the County Executive of Westchester County to Take Sworn Oral Depositions if Authority Granted Pursuant to

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Settlement Paragraphs 13(g) and 58. addressed to Judge Denise L. Cote from Robert F. Meehan dated July 3, 2014. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A −− July 2, 2014 Letter from Monitor)(Meehan, Robert) (Entered: 07/03/2014)
491 ORDER granting 490 Letter Motion for Extension of Time to File Response re 480 MOTION to Compel. Granted. The reply is due 7/22/2014. Responses due by 7/14/2014. Replies due by 7/22/2014. (Signed by Judge Denise L. Cote on 7/3/2014) (cd) (Entered: 07/03/2014)
492 LETTER addressed to Judge Denise L. Cote from David J Kennedy dated July 8 2014 re: In Support of Motion by the Monitor. Document filed by United States of America.(Kennedy, David) (Entered: 07/08/2014)
493 ENDORSED LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 7/8/2014 re: In Support of Motion by the Monitor. ENDORSEMENT: The Government may reply on July 22, if it wishes to do so. (Signed by Judge Denise L. Cote on 7/8/2014) (gr) (Entered: 07/09/2014)
494 MEMORANDUM OF LAW in Opposition re: 480 MOTION to Compel Certain Officials and Employees of the Office of the County Executive of Westchester County to Take Sworn Oral Depositions if Authority Granted Pursuant to Settlement Paragraphs 13(g) and 58. . Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 07/14/2014)
495 DECLARATION of Norma V. Drummond in Opposition re: 480 MOTION to Compel Certain Officials and Employees of the Office of the County Executive of Westchester County to Take Sworn Oral Depositions if Authority Granted Pursuant to Settlement Paragraphs 13(g) and 58.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E−1, # 6 Exhibit E−2, # 7 Exhibit F−1, # 8 Exhibit F−2, # 9 Exhibit F−3, # 10 Exhibit F−4, # 11 Exhibit F−5, # 12 Exhibit F−6, # 13 Exhibit G)(Meehan, Robert) (Entered: 07/14/2014)
496 DECLARATION of Robert F. Meehan in Opposition re: 480 MOTION to Compel Certain Officials and Employees of the Office of the County Executive of Westchester County to Take Sworn Oral Depositions if Authority Granted Pursuant to Settlement Paragraphs 13(g) and 58.. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C−1, # 4 Exhibit C−2, # 5 Exhibit C−3, # 6 Exhibit D, # 7 Exhibit E)(Meehan, Robert) (Entered: 07/14/2014)
497 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated July 21, 2014 re: Reply to County's Opposition to Monitor's Motion. Document filed by United States of America.(Kennedy, David) (Entered: 07/21/2014)
498 REPLY MEMORANDUM OF LAW in Support re: 480 MOTION to Compel Certain Officials and Employees of the Office of the County Executive of Westchester County to Take Sworn Oral Depositions if Authority Granted Pursuant to Settlement Paragraphs 13(g) and 58. . Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Johnson, James) (Entered: 07/22/2014)
499 SCHEDULING ORDER...a conference with the Monitor, the County, and the United States is scheduled for July 24, 2014 at 11:30 AM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. (Signed by Judge Denise L. Cote on 7/23/2014) (gr) (Entered: 07/23/2014)
Minute Entry for proceedings held before Judge Denise L. Cote: Conference held on 7/24/2014. (Court Reporter Steve Griffing) (gr) (Entered: 07/24/2014)
500 TRANSCRIPT of Proceedings re: CONFERENCE held on 7/24/2014 before Judge Denise L. Cote. Court Reporter/Transcriber: Steven Griffing, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/25/2014. Redacted Transcript Deadline set for 9/5/2014. Release of Transcript Restriction set for 11/3/2014.(Rodriguez, Somari) (Entered: 08/01/2014)

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501 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 7/24/14 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 08/01/2014)
502 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated August 22, 2014 re: Letter addressed to Kevin J. Plunkett and Robert F. Meehan from James E. Johnson re: Huntington analysis. Document filed by James E. Johnson.(Johnson, James) (Entered: 08/22/2014)
503 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated 08/26/2014 re: Letter from James E. Johnson to Kevin J. Plunkett in response to his correspondence of August 25, 2014. Document filed by James E. Johnson.(Johnson, James) (Entered: 08/26/2014)
504 ORDER regarding 480 Motion to Compel...For the reasons stated on the record at the conference on July 24, 2014, it was ORDERED that the June 26 motion to compel and take sworn depositions was granted to the extent described on the record. (Signed by Judge Denise L. Cote on 8/27/2014) (gr) (Entered: 08/27/2014)
505 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated September 26, 2014 re: Letter addressed to Helen R. Kanovsky from James E. Johnson re: Huntington analysis. Document filed by James E. Johnson.(Johnson, James) (Entered: 09/26/2014)
506 STATUS REPORT. / Monitor's Report Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the 2014 Calendar Year Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1 (Part 1), # 2 Exhibit 1 (Part 2), # 3 Exhibit 1 (Part 3), # 4 Exhibit 1 (Part 4), # 5 Exhibit 1 (Part 5), # 6 Exhibit 1 (Part 6), # 7 Exhibit 1 (Part 7), # 8 Exhibit 1 (Part 8), # 9 Exhibit 1 (Part 9), # 10 Exhibit 1 (Part 10), # 11 Exhibit 1 (Part 11), # 12 Exhibit 2 (Part 1), # 13 Exhibit 2 (Part 2), # 14 Exhibit 2 (Part 3), # 15 Exhibit 2 (Part 4), # 16 Exhibit 3 (Part 1), # 17 Exhibit 3 (Part 2), # 18 Exhibit 3 (Part 3), # 19 Exhibit 4 (Part 1), # 20 Exhibit 4 (Part 2), # 21 Exhibit 4 (Part 3), # 22 Exhibit 5 (Part 1), # 23 Exhibit 5 (Part 2), # 24 Exhibit 6, # 25 Exhibit 7, # 26 Exhibit 8, # 27 Exhibit 9, # 28 Exhibit 10, # 29 Exhibit 11 (Part 1), # 30 Exhibit 11 (Part 2), # 31 Exhibit 11 (Part 3), # 32 Exhibit 11 (Part 4), # 33 Exhibit 11 (Part 5), # 34 Exhibit 11 (Part 6), # 35 Exhibit 11 (Part 7), # 36 Exhibit 12, # 37 Exhibit 13, # 38 Exhibit 14, # 39 Exhibit 15, # 40 Exhibit 16, # 41 Exhibit 17, # 42 Exhibit 18, # 43 Exhibit 19, # 44 Exhibit 20, # 45 Exhibit 21, # 46 Exhibit 22, # 47 Exhibit 23, # 48 Exhibit 24, # 49 Exhibit 25, # 50 Exhibit 26, # 51 Exhibit 27, # 52 Exhibit 28, # 53 Exhibit 29, # 54 Exhibit 30, # 55 Exhibit 31, # 56 Exhibit 32, # 57 Exhibit 33, # 58 Exhibit 34, # 59 Exhibit 35, # 60 Exhibit 36, # 61 Exhibit 37, # 62 Exhibit 38, # 63 Exhibit 39, # 64 Exhibit 40, # 65 Exhibit 41, # 66 Exhibit 42, # 67 Exhibit 43, # 68 Exhibit 44, # 69 Exhibit 45, # 70 Exhibit 46, # 71 Exhibit 47, # 72 Exhibit 48, # 73 Exhibit 49, # 74 Exhibit 50, # 75 Exhibit 51, # 76 Exhibit 52, # 77 Exhibit 53, # 78 Exhibit 54, # 79 Exhibit 55, # 80 Exhibit 56, # 81 Exhibit 57, # 82 Exhibit 58)(Johnson, James) (Entered: 04/01/2015)
507 STATUS REPORT. Monitors Supplemental Report Regarding Implementation of the Stipulation and Order of Settlement and Dismissal for the 2014 Calendar Year Document filed by James E. Johnson. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4 Part 1, # 5 Exhibit Exhibit 4 Part 2, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7 Part 1, # 9 Exhibit Exhibit 7 Part 2, # 10 Exhibit Exhibit 8, # 11 Exhibit Exhibit 9, # 12 Exhibit Exhibit 10, # 13 Exhibit Exhibit 11, # 14 Exhibit Exhibit 12, # 15 Exhibit Exhibit 13 Part 1, # 16 Exhibit Exhibit 13 Part 2, # 17 Exhibit Exhibit 14 Part 1, # 18 Exhibit Exhibit 14 Part 2, # 19 Exhibit Exhibit 15, # 20 Exhibit Exhibit 16, # 21 Exhibit Exhibit 17, # 22 Exhibit Exhibit 18, # 23 Exhibit Exhibit 19 Part 1, # 24 Exhibit Exhibit 19 Part 2, # 25 Exhibit Exhibit 19 Part 3, # 26 Exhibit Exhibit 20)(Johnson, James) (Entered: 05/08/2015)
508 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from Robert F. Meehan dated 5/13/15 re: Monitor's Supplemental Report (ECF No. 507). Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 05/13/2015)

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509 NOTICE OF APPEARANCE by Justin Richard Adin on behalf of Westchester County, New York. (Adin, Justin) (Entered: 05/13/2015)
510 MEMO ENDORSEMENT on re: 508 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from Robert F. Meehan dated 5/13/15 re: Monitor's Supplemental Report (ECF No. 507). Document filed by Westchester County, New York. ENDORSEMENT: Granted. So ordered. (Signed by Magistrate Judge Gabriel W. Gorenstein on 5/13/2015) (rjm) (Entered: 05/14/2015)
511 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated May 21, 2015 re: enclosing courtesy copy of design report. Document filed by James E. Johnson. (Attachments: # 1 Monitor's Design Report)(Johnson, James) (Entered: 05/21/2015)
512 LETTER MOTION for Extension of Time re: Objections to Monitor's Supplemental Report addressed to Magistrate Judge Gabriel W. Gorenstein from Adam Rodriguez, Esq. dated 6/8/15. Document filed by Westchester County, New York.(Rodriguez, Adam) (Entered: 06/08/2015)
513 ORDER granting 512 LETTER MOTION for Extension of Time re: Objections to Monitor's Supplemental Report addressed to Magistrate Judge Gabriel W. Gorenstein from Adam Rodriguez, Esq. dated 6/8/15. Document filed by Westchester County, New York. Granted. So ordered. (Signed by Magistrate Judge Gabriel W. Gorenstein on 6/8/2015) (rjm) (Entered: 06/08/2015)
514 ENDORSED LETTER addressed to Judge Denise L. Cote from James E. Johnson dated 6/11/2015 re: Requesting authorization to bring into the Courthouse the electronic equipment to conduct a deposition in the White Plains Courthouse. ENDORSEMENT: Approved. (Signed by Judge Denise L. Cote on 6/12/2015) Filed In Associated Cases: 1:06−cv−02860−DLC, 1:13−cv−02741−DLC(gr) (Entered: 06/12/2015)
515 LETTER MOTION for Conference for a Protective Order addressed to Judge Denise L. Cote from James Castro−Blanco dated June 15, 2015. Document filed by Westchester County, New York.(Castro−Blanco, James) (Entered: 06/15/2015)
516 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated June 16, 2015 re: opposition to Westchester County's June 15, 2015 letter−motion requesting pre−motion conference. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Johnson, James) (Entered: 06/16/2015)
517 LETTER addressed to Judge Denise L. Cote from James Castro−Blanco dated 6/16/15 re: County's Pre−motion Conference Letter Request. Document filed by Westchester County, New York.(Castro−Blanco, James) (Entered: 06/16/2015)
518 Objection re: 507 Status Report,,, . Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 06/16/2015)
519 DECLARATION of Robert F. Meehan in Support re: 518 Objection (non−motion). Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3_1, # 4 Exhibit 3_2, # 5 Exhibit 3_3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8)(Meehan, Robert) (Entered: 06/16/2015)
520 DECLARATION of Norma V. Drummond in Support re: 518 Objection (non−motion). Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z)(Meehan, Robert) (Entered: 06/16/2015)
521 DECLARATION of Ann Marie Berg in Support re: 518 Objection (non−motion). Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A)(Meehan, Robert) (Entered: 06/16/2015)

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07/21/2015 07/29/2015 07/30/2015
08/11/2015 08/11/2015 08/11/2015

522 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated June 17, 2015 re: County's Application to Quash. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kennedy, David) (Entered: 06/17/2015)
Minute Entry for proceedings held before Judge Denise L. Cote: Telephone Conference held on 6/17/2015. (Court Reporter Paula Speer) (gr) (Entered: 06/17/2015)
523 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated June 22, 2015 re: Letter from James E. Johnson to James Castro−Blanco in response to request to modify start time of Robert P. Astorino's deposition. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1)(Johnson, James) (Entered: 06/22/2015)
524 LETTER addressed to Judge Denise L. Cote from James Castro−Blanco dated 6/22/15 re: ECF No. 523. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit)(Castro−Blanco, James) (Entered: 06/22/2015)
525 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated 6/23/2015 re: the intended scope of the Monitor's questioning and the use of video during the deposition of County Executive Robert P. Astorino. Document filed by James E. Johnson.(Johnson, James) (Entered: 06/23/2015)
526 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from David J. Kennedy dated 7/14/15 re: Extension of Time. Document filed by United States of America.(Kennedy, David) (Entered: 07/14/2015)
527 MEMO ENDORSEMENT on re: 526 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from David J. Kennedy dated 7/14/15 re: Extension of Time. Document filed by United States of America. ENDORSEMENT: Granted. So ordered. (Responses due by 7/21/2015. Replies due by 8/4/2015.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 7/14/2015) (rjm) (Entered: 07/15/2015)
528 OPPOSITION BRIEF re: 518 Objection (non−motion) Declaration of David J. Kennedy in Opposition to County Objections. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Kennedy, David) (Entered: 07/21/2015)
529 BRIEF re: 518 Objection (non−motion) Memo of Law in Support of Monitor Report and in Opposition to County Objections. Document filed by United States of America.(Kennedy, David) (Entered: 07/21/2015)
530 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from Adam Rodriguez, Esq. dated 7/29/15 re: Monitor's Supplemental Report. Document filed by Westchester County, New York.(Rodriguez, Adam) (Entered: 07/29/2015)
531 MEMO ENDORSEMENT on re: 530 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from Adam Rodriguez, Esq. dated 7/29/15 re: Monitor's Supplemental Report. Document filed by Westchester County, New York. ENDORSEMENT: Granted. So ordered. (Replies due by 8/11/2015.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 7/30/2015) (rjm) (Entered: 07/30/2015)
532 REPLY MEMORANDUM OF LAW in Support re: 518 Objection (non−motion) . Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 08/11/2015)
533 DECLARATION of Commissioner Ann Marie Berg in Support re: 518 Objection (non−motion). Document filed by Westchester County, New York. (Attachments: # 1 Exhibit B, # 2 Exhibit C)(Meehan, Robert) (Entered: 08/11/2015)
534 DECLARATION of Dep. Commissioner Norma Drummond in Support re: 518 Objection (non−motion). Document filed by Westchester County, New York. (Attachments: # 1 Exhibit AA, # 2 Exhibit BB)(Meehan, Robert) (Entered: 08/11/2015)

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08/11/2015 08/11/2015
08/11/2015
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11/19/2015 11/19/2015 12/01/2015 12/01/2015

535 DECLARATION of Robert F. Meehan in Support re: 518 Objection (non−motion). Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 08/11/2015)
536 DECLARATION of Edward J. Phillips in Support re: 518 Objection (non−motion). Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(Meehan, Robert) (Entered: 08/11/2015)
537 LETTER MOTION for Extension of Time For Depositions addressed to Judge Denise L. Cote from James E. Johnson dated 8/11/15. Document filed by James E. Johnson. (Attachments: # 1 Exhibit (1) McCormack Depositon Transcript, # 2 Exhibit (2) McCormack Letter, # 3 Exhibit (3) Astorino Deposition Transcript, # 4 Exhibit (4) Rodriguez Letter)(Johnson, James) (Entered: 08/11/2015)
538 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 8/12/2015 re: Continuation of Depositions. Document filed by United States of America.(Kennedy, David) (Entered: 08/12/2015)
539 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from Adam Rodriguez, Esq. dated 8/13/15 re: County's Reply Memorandum of Law (ECF No. 532). Document filed by Westchester County, New York.(Rodriguez, Adam) (Entered: 08/13/2015)
540 LETTER addressed to Judge Denise L. Cote from Adam Rodriguez, Esq. dated 8/13/2015 re: Monitor's Request To Continue Depositions (ECF No. 537). Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1 (Monitor's June 2014 RFI), # 2 Exhibit 2 (October 2014 Meehan Letter), # 3 Exhibit 3 (September 2014 Monitor Letter))(Rodriguez, Adam) (Entered: 08/13/2015)
541 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated August 13, 2015 re: additional time for depositions. Document filed by James E. Johnson.(Johnson, James) (Entered: 08/13/2015)
542 LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from David J. Kennedy dated 8/14/2015 re: New Argument in County's Reply Brief. Document filed by United States of America.(Kennedy, David) (Entered: 08/14/2015)
Minute Entry for proceedings held before Judge Denise L. Cote: Telephone Conference held on 8/14/2015. (Court Reporter Raquel Robles) (gr) (Entered: 08/17/2015)
543 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated September 14, 2015 re: advising the Court of deposition dates. Document filed by James E. Johnson.(Johnson, James) (Entered: 09/14/2015)
544 REPORT AND RECOMMENDATION. For the forgoing reasons, the County's objections should be overruled in part (as to its complaint regarding the alleged failure to meet prior to the issuance of the Report) and sustained as to the remaining objections. Objections to R&R due by 12/7/2015. (Signed by Magistrate Judge Gabriel W. Gorenstein on 11/19/2015) (rjm) (Entered: 11/19/2015)
Terminate Transcript Deadlines. (rjm) (Entered: 11/19/2015)
549 INTERNET CITATION NOTE: Material from decision with Internet citation re: 544 Report and Recommendations. (Attachments: # 1 Citation, # 2 Citation, # 3 Citation, # 4 Citation) (vf) (Entered: 12/07/2015)
545 LETTER MOTION for Extension of Time addressed to Judge Denise L. Cote from David J. Kennedy dated 12/1/2015. Document filed by United States of America.(Kennedy, David) (Entered: 12/01/2015)
546 MEMO ENDORSEMENT APPROVING Letter Motion for Extension of Time to file any objections to the Report & Recommendation by no later than 1/15/2016; oppositions filed on 3/1/2016; and replies (if any) filed 3/15/2016. The United States further requests leave to conduct discovery described on Exhibit A. (Signed by Judge Denise L. Cote on 12/1/2015) (gr) (Entered: 12/01/2015)

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547 SUPPLEMENTAL LETTER MOTION for Extension of Time and to Modify the Briefing Schedule Ordered in Doc. 546 addressed to Judge Denise L. Cote from Justin R. Adin dated December 1, 2015. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 12/01/2015)
548 MEMO ENDORSEMENT approving Letter Motion regarding the 12/1/2015 schedule. The United States' time to file any objections to the Report & Recommendation is due 1/15/2016; the County's opposition, and any application the County might make related to the Report & Recommendation, shall be due 3/1/2016, with any reply due 3/15/2016. (Signed by Judge Denise L. Cote on 12/2/2015) (gr) (Entered: 12/02/2015)
550 LETTER MOTION for Extension of Time addressed to Judge Denise L. Cote from David J Kennedy dated 1/13/2016. Document filed by United States of America.(Kennedy, David) (Entered: 01/13/2016)
551 ENDORSED LETTER granting 550 Letter Motion for Extension of Time. (Signed by Judge Denise Cote on 1/13/2016) (gf) (Entered: 01/13/2016)
552 OBJECTION to 544 Report and Recommendations Document filed by United States of America. (Kennedy, David) (Entered: 01/22/2016)
553 DECLARATION of David J. Kennedy in Support re: 550 LETTER MOTION for Extension of Time addressed to Judge Denise L. Cote from David J Kennedy dated 1/13/2016.. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Kennedy, David) (Entered: 01/22/2016)
554 LETTER MOTION for Leave to File Excess Pages addressed to Judge Denise L. Cote from Justin R. Adin dated March 3, 2016. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 03/03/2016)
555 MEMO ENDORSEMENT granting 554 Letter Motion for Leave to File Excess Pages by Justin R. Adin, Senior Assistant Country Attorney. (Signed by Judge Denise L. Cote on 3/3/2016) (gr) (Entered: 03/03/2016)
556 MEMORANDUM OF LAW in Opposition re: 552 Objection to Report and Recommendations . Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 03/08/2016)
557 DECLARATION of Justin R. Adin in Opposition re: 552 Objection to Report and Recommendations. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Meehan, Robert) (Entered: 03/08/2016)
558 DECLARATION of Norma V. Drummond in Opposition re: 552 Objection to Report and Recommendations. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Meehan, Robert) (Entered: 03/08/2016)
559 DECLARATION of Edward J. Phillips in Opposition re: 552 Objection to Report and Recommendations. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C (1 of 3), # 4 Exhibit C (2 of 3), # 5 Exhibit C (3 of 3), # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K)(Meehan, Robert) (Entered: 03/08/2016)
560 DECLARATION of David Vutera in Opposition re: 552 Objection to Report and Recommendations. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Meehan, Robert) (Entered: 03/08/2016)

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561 DECLARATION of Antonio Zaino in Opposition re: 552 Objection to Report and Recommendations. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Meehan, Robert) (Entered: 03/08/2016)
562 STATUS REPORT. //MONITORS REPORT REGARDING WESTCHESTER COUNTYS COMPLIANCE WITH PARAGRAPH 33(c) OF THE STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10 (part 1), # 11 Exhibit 10 (part 2), # 12 Exhibit 10 (part 3), # 13 Exhibit 10 (part 4), # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13 (part 1), # 17 Exhibit 13 (part 2), # 18 Exhibit 13 (part 3), # 19 Exhibit 13 (part 4), # 20 Exhibit 13 (part 5), # 21 Exhibit 13 (part 6), # 22 Exhibit 13 (part 7), # 23 Exhibit 13 (part 8), # 24 Exhibit 13 (part 9), # 25 Exhibit 13 (part 10), # 26 Exhibit 13 (part 11), # 27 Exhibit 14 (part 1), # 28 Exhibit 14 (part 2), # 29 Exhibit 14 (part 3), # 30 Exhibit 15 (part 1), # 31 Exhibit 15 (part 2), # 32 Exhibit 15 (part 3), # 33 Exhibit 16 (part 1), # 34 Exhibit 16 (part 2), # 35 Exhibit 16 (part 3), # 36 Exhibit 16 (part 4), # 37 Exhibit 17 (part 1), # 38 Exhibit 17 (part 2), # 39 Exhibit 17 (part 3), # 40 Exhibit 17 (part 4), # 41 Exhibit 17 (part 5), # 42 Exhibit 18, # 43 Exhibit 19, # 44 Exhibit 20, # 45 Exhibit 21, # 46 Exhibit 22, # 47 Exhibit 23, # 48 Exhibit 24, # 49 Exhibit 25, # 50 Exhibit 26, # 51 Exhibit 27, # 52 Exhibit 28, # 53 Exhibit 29, # 54 Exhibit 30, # 55 Exhibit 31, # 56 Exhibit 32, # 57 Exhibit 33, # 58 Exhibit 34, # 59 Exhibit 35 (part 1), # 60 Exhibit 35 (part 2), # 61 Exhibit 36, # 62 Exhibit 37, # 63 Exhibit 38, # 64 Exhibit 39, # 65 Exhibit 40, # 66 Exhibit 41, # 67 Exhibit 42, # 68 Exhibit 43, # 69 Exhibit 44, # 70 Exhibit 45 (part 1), # 71 Exhibit 45 (part 2), # 72 Exhibit 45 (part 3), # 73 Exhibit 46, # 74 Exhibit 47, # 75 Exhibit 48, # 76 Exhibit 49, # 77 Exhibit 50, # 78 Exhibit 51, # 79 Exhibit 52, # 80 Exhibit 53, # 81 Exhibit 54, # 82 Exhibit 55, # 83 Exhibit 56, # 84 Exhibit 57, # 85 Exhibit 58, # 86 Exhibit 59, # 87 Exhibit 60, # 88 Exhibit 61, # 89 Exhibit 62, # 90 Exhibit 63, # 91 Exhibit 64, # 92 Exhibit 65, # 93 Exhibit 66, # 94 Exhibit 67, # 95 Exhibit 68, # 96 Exhibit 69, # 97 Exhibit 70, # 98 Exhibit 71, # 99 Exhibit 72 (part 1), # 100 Exhibit 72 (part 2), # 101 Exhibit 72 (part 3), # 102 Exhibit 72 (part 4), # 103 Exhibit 72 (part 5), # 104 Exhibit 72 (part 6), # 105 Exhibit 72 (part 7), # 106 Exhibit 72 (part 8), # 107 Exhibit 72 (part 9), # 108 Exhibit 72 (part 10), # 109 Exhibit 72 (part 11), # 110 Exhibit 72 (part 12), # 111 Exhibit 73 (part 1), # 112 Exhibit 73 (part 2), # 113 Exhibit 73 (part 3), # 114 Exhibit 73 (part 4), # 115 Exhibit 73 (part 5), # 116 Exhibit 73 (part 6), # 117 Exhibit 73 (part 7), # 118 Exhibit 73 (part 8), # 119 Exhibit 73 (part 9), # 120 Exhibit 73 (part 10))(Johnson, James) (Entered: 03/17/2016)
563 ORDER: In a report of March 17, 2016, the Monitor recommends five steps to be taken to ensure that the public is accurately informed about the terms of the Settlement and that the public receives an education campaign that honors the letter and spirit of Paragraph 33(c) of the Settlement. Accordingly, it is hereby ORDERED that Westchester County and the United States shall each respond to the report and its recommendation of five steps by April 8. IT IS FURTHER ORDERED that a conference will be held on April 20 at 2:00 p.m. in Courtroom 15B to address the Monitors recommendations. (Signed by Judge Denise L. Cote on 3/18/2016) (gr) (Entered: 03/18/2016)
Set Hearing: Pretrial Conference set for 4/20/2016 at 02:00 PM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. (gr) (Entered: 03/18/2016)
564 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 3/22/2016 re: Extension of Time and Enlargement of Page Limit. Document filed by United States of America.(Kennedy, David) (Entered: 03/22/2016)
565 ENDORSED LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 3/22/2016 re: Extension of Time to March 25, 2016 for the United States to file its responsive paper and Enlargement of Page Limit. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 3/22/2016) (gr) (Entered: 03/22/2016)
566 LETTER MOTION for Conference / Letter from James E. Johnson to Judge Cote Informing the Court of Potential Conflicts of Interest Arising Among County Witnesses addressed to Judge Denise L. Cote from James E. Johnson dated March 22, 2016. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3

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04/28/2016

Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Johnson, James) (Entered: 03/22/2016)
567 ENDORSED LETTER from James E. Johnson to Judge Cote Informing the Court of Potential Conflicts of Interest Arising Among County Witnesses addressed to Judge Denise L. Cote from James E. Johnson dated March 22, 2016. ENDORSEMENT: The April 8 submissions should address this issue as well. (Signed by Judge Denise L. Cote on 3/23/2016) (gr) (Entered: 03/23/2016)
568 OBJECTION to 544 Report and Recommendations Reply Memorandum of Law Document filed by United States of America. (Kennedy, David) (Entered: 03/25/2016)
569 OBJECTION to 544 Report and Recommendations Reply Declaration of David J. Kennedy Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Kennedy, David) (Entered: 03/25/2016)
570 LETTER MOTION for Extension of Time to File Response/Reply as to Set/Reset Hearings, 562 Status Report,,,,,,,,,,,, 563 Order,, addressed to Judge Denise L. Cote from Robert F. Meehan dated March 30, 2016. Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 03/30/2016)
571 MEMO ENDORSED Letter addressed to Judge Cote from Robert F. Meehan dated 3/30/16. re: Requesting an extension of time for the parties to file their responses to the Monitor's March March 17, 2016 report by 5/9/2016. ENDORSEMENT: Granted. The conference will be held on May 23 at 2:00 p.m. (Signed by Judge Denise L. Cote on 4/1/2016) (gr) (Entered: 04/01/2016)
Reset Hearing: Conference set for 5/23/2016 at 02:00 PM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. (gr) (Entered: 04/01/2016)
572 LETTER addressed to Judge Denise L. Cote from Robert F. Meehan dated April 6, 2016 re: Town of New Castle resolutions relating to the Chappaqua Station development. Document filed by Westchester County, New York. (Attachments: # 1 Supplement Town of New Castle Resolutions)(Meehan, Robert) (Entered: 04/06/2016)
573 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 4/12/2016 re: County's Letter of April 6, 2016. Document filed by United States of America.(Kennedy, David) (Entered: 04/12/2016)
574 LETTER addressed to Judge Denise L. Cote from Robert F. Meehan dated April 13, 2013 re: United States' letter of April 12, 2016. Document filed by Westchester County, New York. (Attachments: # 1 Supplement Attachment 1, # 2 Supplement Attachment 2)(Meehan, Robert) (Entered: 04/13/2016)
575 ORDER....in addition to the issues related to 33(c) of the Settlement, the parties shall be prepared to provide evidence regarding the following topics at the hearing scheduled for May 23, 2016 at 2:00 p.m.: (1) The specific steps that must be completed for the Town to issue the remaining three building permits listed above; (2) Any municipal or other variances that Conifer will need to obtain before these other building permits will be granted; (3)An estimated timeline for completing the building permit approval process and issuing the remaining three permits; and (4) The steps that the County plans to take to address the Towns opposition to the development, and to ensure the development of at least 750 new affordable housing units. IT IS FURTHER ORDERED that the County shall file any written submissions related to these issues by Friday, May 6. The Government and Monitor shall file any submission by May 13, and the Countys reply submission is due on May 19. IT IS FURTHER ORDERED that the Monitor shall provide counsel for the Town with a copy of this Order and invite the Town to attend the hearing and provide additional evidence. If the Town would like to make any written submissions it shall do so by May 13. (Signed by Judge Denise L. Cote on 4/26/2016) (gr) (Entered: 04/26/2016)
576 SPECIAL MASTER'S REPORT. / Monitor's Third Biennial Assessment of Westchester County's Compliance Covering Activities for dates of January 1, 2014 to December 31, 2015. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1 − Part 1, # 2 Exhibit 1 − Part 2, # 3 Exhibit 1 − Part 3, # 4 Exhibit 1 − Part 4, # 5 Exhibit 1 − Part 5, # 6 Exhibit 1 − Part 6, # 7 Exhibit 1 − Part 7, # 8 Exhibit 1 − Part 8,

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# 9 Exhibit 1 − Part 9, # 10 Exhibit 1 − Part 10, # 11 Exhibit 1 − Part 11, # 12 Exhibit 2 − Part 1, # 13 Exhibit 2 − Part 2, # 14 Exhibit 2 − Part 3, # 15 Exhibit 2 − Part 4, # 16 Exhibit 3 − Part 1, # 17 Exhibit 3 − Part 2, # 18 Exhibit 3 − Part 3, # 19 Exhibit 4 − Part 1, # 20 Exhibit 4 − Part 2, # 21 Exhibit 4 − Part 3, # 22 Exhibit 5 − Part 1, # 23 Exhibit 5 − Part 2, # 24 Exhibit 5 − Part 3, # 25 Exhibit 5 − Part 4, # 26 Exhibit 5 − Part 5, # 27 Exhibit 5 − Part 6, # 28 Exhibit 5 − Part 7, # 29 Exhibit 5 − Part 8, # 30 Exhibit 5 − Part 9, # 31 Exhibit 5 − Part 10, # 32 Exhibit 5 − Part 11, # 33 Exhibit 5 − Part 12, # 34 Exhibit 6 − Part 1, # 35 Exhibit 6 − Part 2, # 36 Exhibit 6 − Part 3, # 37 Exhibit 6 − Part 4, # 38 Exhibit 6 − Part 5, # 39 Exhibit 6 − Part 6, # 40 Exhibit 6 − Part 7, # 41 Exhibit 6 − Part 8, # 42 Exhibit 6 − Part 9, # 43 Exhibit 6 − Part 10, # 44 Exhibit 7 − Part 1, # 45 Exhibit 7 − Part 2, # 46 Exhibit 7 − Part 3, # 47 Exhibit 7 − Part 4, # 48 Exhibit 8 − Part 1, # 49 Exhibit 8 − Part 2, # 50 Exhibit 8 − Part 3, # 51 Exhibit 8 − Part 4, # 52 Exhibit 8 − Part 5, # 53 Exhibit 9, # 54 Exhibit 10)(Johnson, James) (Entered: 04/28/2016)
577 SPECIAL MASTER'S REPORT. / Exhibits 11 − 55 to the Monitor's Third Biennial Assessment of Westchester County's Compliance Covering Activities for dates of January 1, 2014 to December 31, 2015. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20, # 11 Exhibit 21, # 12 Exhibit 22, # 13 Exhibit 23, # 14 Exhibit 24, # 15 Exhibit 25, # 16 Exhibit 26, # 17 Exhibit 27, # 18 Exhibit 28, # 19 Exhibit 29, # 20 Exhibit 30, # 21 Exhibit 31, # 22 Exhibit 32, # 23 Exhibit 33, # 24 Exhibit 34, # 25 Exhibit 35, # 26 Exhibit 36, # 27 Exhibit 37, # 28 Exhibit 38, # 29 Exhibit 39, # 30 Exhibit 40, # 31 Exhibit 41, # 32 Exhibit 42, # 33 Exhibit 43, # 34 Exhibit 44, # 35 Exhibit 45, # 36 Exhibit 46, # 37 Exhibit 47, # 38 Exhibit 48, # 39 Exhibit 49, # 40 Exhibit 50, # 41 Exhibit 51, # 42 Exhibit 52 − Part 1, # 43 Exhibit 52 − Part 2, # 44 Exhibit 52 − Part 3, # 45 Exhibit 52 − Part 4, # 46 Exhibit 53 − Part 1, # 47 Exhibit 53 − Part 2, # 48 Exhibit 53 − Part 3, # 49 Exhibit 53 − Part 4, # 50 Exhibit 53 − Part 5, # 51 Exhibit 53 − Part 6, # 52 Exhibit 53 − Part 7, # 53 Exhibit 54, # 54 Exhibit 55)(Johnson, James) (Entered: 04/29/2016)
578 SPECIAL MASTER'S REPORT. / Exhibits 56 − 91 to the Monitor's Third Biennial Assessment of Westchester County's Compliance Covering Activities for dates of January 1, 2014 to December 31, 2015. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 56, # 2 Exhibit 57, # 3 Exhibit 58, # 4 Exhibit 59, # 5 Exhibit 60, # 6 Exhibit 61 − Part 1, # 7 Exhibit 61 − Part 2, # 8 Exhibit 61 − Part 3, # 9 Exhibit 62, # 10 Exhibit 63, # 11 Exhibit 64, # 12 Exhibit 65, # 13 Exhibit 66, # 14 Exhibit 67, # 15 Exhibit 68, # 16 Exhibit 69, # 17 Exhibit 70, # 18 Exhibit 71, # 19 Exhibit 72, # 20 Exhibit 73, # 21 Exhibit 74, # 22 Exhibit 75, # 23 Exhibit 76, # 24 Exhibit 77 − Part 1, # 25 Exhibit 77 − Part 2, # 26 Exhibit 77 − Part 3, # 27 Exhibit 77 − Part 4, # 28 Exhibit 77 − Part 5, # 29 Exhibit 78 − Part 1, # 30 Exhibit 78 − Part 2, # 31 Exhibit 78 − Part 3, # 32 Exhibit 78 − Part 4, # 33 Exhibit 78 − Part 5, # 34 Exhibit 78 − Part 6, # 35 Exhibit 78 − Part 7, # 36 Exhibit 79 − Part 1, # 37 Exhibit 79 − Part 2, # 38 Exhibit 80, # 39 Exhibit 81, # 40 Exhibit 82 − Part 1, # 41 Exhibit 82 − Part 2, # 42 Exhibit 83, # 43 Exhibit 84, # 44 Exhibit 85, # 45 Exhibit 86, # 46 Exhibit 87, # 47 Exhibit 88, # 48 Exhibit 89, # 49 Exhibit 90, # 50 Exhibit 91)(Johnson, James) (Entered: 04/29/2016)
579 LETTER MOTION for Leave to File Excess Pages In Response to Monitor's Report Regarding Paragraph 33(c) of the Settlement addressed to Judge Denise L. Cote from Robert F. Meehan dated May 4, 2016. Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 05/04/2016)
580 ENDORSED LETTER granting Request for Leave to File Excess Pages In Response to Monitor's Report Regarding Paragraph 33(c) of the Settlement addressed to Judge Denise L. Cote from Robert F. Meehan dated May 4, 2016. (Signed by Judge Denise L. Cote on 5/5/2016) (gr) (Entered: 05/05/2016)
581 LETTER MOTION to File Amicus Brief addressed to Judge Denise L. Cote from Michael E. Rosman dated May 5, 2016. Document filed by Center for Individual Rights. (Attachments: # 1 amicus brief)(Rosman, Michael) (Entered: 05/05/2016)
582 ORDER......the CIR's May 5 motion to file an amicus brief is denied. (Signed by Judge Denise L. Cote on 5/5/2016) (gr) (Entered: 05/05/2016)

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583 LETTER MOTION for Extension of Time addressed to Judge Denise L. Cote from James Castro−Blanco dated May 6, 2016. Document filed by Westchester County, New York.(Castro−Blanco, James) (Entered: 05/06/2016)
Minute Entry for proceedings held before Judge Denise L. Cote: Telephone Conference held on 5/6/2016. Associated Cases: 1:06−cv−02860−DLC, 1:13−cv−02741−DLC(gr) (Entered: 05/06/2016)
584 ENDORSED LETTER addressed to Judge Denise L. Cote from James Castro−Blanco dated May 6, 2016. ENDORSEMENT: The Court will advise the County if any of its witnesses, who will be submitting affidavits on 5/11, should appear at the hearing. (Signed by Judge Denise L. Cote on 5/6/2016) (gr) (Entered: 05/09/2016)
585 BRIEF re: 562 Status Report,,,,,,,,,,,, Response of the United States to Monitor's Report on Paragraph 33(c) Compliance. Document filed by United States of America.(Kennedy, David) (Entered: 05/09/2016)
586 DECLARATION of David J. Kennedy re: 585 Brief . Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kennedy, David) (Entered: 05/09/2016)
587 BRIEF re: 562 Status Report,,,,,,,,,,,, Response of the County of Westchester. Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 05/09/2016)
588 DECLARATION of Justin R. Adin re: 587 Brief . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41)(Meehan, Robert) (Entered: 05/09/2016)
589 DECLARATION of Norma V. Drummond re: 587 Brief . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II)(Meehan, Robert) (Entered: 05/09/2016)
590 DECLARATION of Mark Fang re: 587 Brief . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q (1 of 10), # 18 Exhibit Q (2 of 10), # 19 Exhibit Q (3 of 10), # 20 Exhibit Q (4 of 10), # 21 Exhibit Q (5 of 10), # 22 Exhibit Q (6 of 10), # 23 Exhibit Q (7 of 10), # 24 Exhibit Q (8 of 10), # 25 Exhibit Q (9 of 10), # 26 Exhibit Q (10 of 10), # 27 Exhibit R, # 28 Exhibit S)(Meehan, Robert) (Entered: 05/09/2016)
591 DECLARATION of Edwin McCormack re: 587 Brief . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Meehan, Robert) (Entered: 05/09/2016)
592 LETTER addressed to Judge Denise L. Cote from Craig Gurian dated May 11, 2016 re: May 23rd hearing; new expert report on exclusionary zoning, perpetuation of segregation, and disparate impact; and Monitor's biennial report. Document filed by Anti−Discrimination Center. (Attachments: # 1 Ex 1 − Beveridge Expert Report, # 2 Beveridge Expert Report, Ex 1, # 3 Beveridge Expert Report, Ex 2, # 4 Beveridge Expert Report, Ex 3, # 5 Beveridge Expert Report, Ex 4, # 6 Beveridge Expert Report, Ex 5, # 7 Beveridge Expert Report, Ex 6, # 8 Beveridge Expert Report, Ex 7, # 9 Beveridge Expert Report, Ex 8, # 10 Beveridge Expert Report, Ex 9, # 11 Beveridge

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Expert Report, Ex 10, # 12 Beveridge Expert Report, Ex 11, # 13 Ex 2− May, 2, 2014 hearing trans, # 14 Ex 3 − Cheating On Every Level report, # 15 Ex 4 − ADC to Monitor, Aug. 24, 2009, # 16 Ex 5 −ADC to AUSA, May 6, 2014, # 17 Ex 6 − ADC to Monitor, June 5, 2014, # 18 Ex 7 − Lawyers Comm et al letter to Monitor, # 19 Ex 8 − Analysis of Fully−Funded Units, # 20 Ex 9 − Prescription for Failure report)(Gurian, Craig) (Entered: 05/11/2016)
593 MEMORANDUM OF LAW re: 575 Order,,,,, . Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 05/11/2016)
594 DECLARATION of Norma V. Drummond re: 593 Memorandum of Law . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Meehan, Robert) (Entered: 05/11/2016)
595 DECLARATION of David Vutera re: 593 Memorandum of Law . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Meehan, Robert) (Entered: 05/11/2016)
596 DECLARATION of Antonio Zaino re: 593 Memorandum of Law . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F (1 of 2), # 7 Exhibit F (2 of 2))(Meehan, Robert) (Entered: 05/11/2016)
597 ORDER.....The issues raised in the April 28 report and the ADC letter are largely beyond the scope of the issues to be addressed at the May 23 hearing. Accordingly, it is hereby ORDERED that, by May 25, the Monitor shall identify any specific requests for relief arising out of his April 28 report. IT IS FURTHER ORDERED that the parties and the Monitor shall file submissions addressed to the following: 1)The requests for relief in the Monitors May 25 submission; 2)Whether the Court should accept the ADCs May 11 submission as an amicus brief; and 3)Whether any of the requests for relief presented in the ADC May submission should be granted, whether or not the ADC filing is accepted as an amicus brief. IT IS FURTHER ORDERED that the following schedule for these submissions shall govern, unless the parties and Monitor present a proposed alternate schedule by May 20 at noon. The Countys submission shall be due June 10, the Government and the Monitors submissions shall be due June 17; the Countys reply shall be due June 22 at noon. IT IS FURTHER ORDERED that a conference on the issues raised in the ADCs letter and identified in the Monitors May 25 submission shall be held on June 24, 2016 at 2:00 p.m. (Signed by Judge Denise L. Cote on 5/13/2016) (gr) (Entered: 05/13/2016)
598 LETTER addressed to Judge Denise L. Cote from Edward J. Phillips dated May 17, 2016 re: pursuant to April 26, 2016 Order. Document filed by Town of New Castle, New York.(Phillips, Edward) (Entered: 05/17/2016)
599 LETTER addressed to Judge Denise L. Cote from David J Kennedy dated 5/17/2016 re: Court's Order of May 9, 2016. Document filed by United States of America.(Kennedy, David) (Entered: 05/17/2016)
600 ORDER: On May 9, 2016, the Court indicated that it would inform the County if any of its witnesses who submitted affidavits in response to the April 26 Order should attend the conference on May 23 at 2:00 p.m. On May 11, the County submitted affidavits from three witnesses: Norma Drummond, Deputy Commissioner for Housing and Community Development; Antonio Zaino, Director of Urban Design; and David Vutera, a Senior Assistant County Attorney in the Contracts and Real Estate Bureau of the Westchester County Attorneys Office. Accordingly, it is hereby ORDERED that Norma Drummond shall appear at the May 23 conference. (Signed by Judge Denise L. Cote on 5/19/2016) (gr) (Entered: 05/19/2016)
601 LETTER addressed to Judge Denise L. Cote from Robert F. Meehan dated May 19, 2016 re: Court's Order of May 9, 2016. Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 05/19/2016)
602 NOTICE of /Supplement to the Monitor's Third Biennial Assessment of Westchester County's Compliance re: 576 Special Master's Report,,,,,,. Document filed by James E. Johnson. (Attachments: # 1 Exhibit)(Johnson, James) (Entered: 05/19/2016)

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603 LETTER MOTION for Extension of Time to Respond to the Court's May 13, 2016 Order addressed to Judge Denise L. Cote from Justin R. Adin dated May 20, 2016. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 05/20/2016)
604 ENDORSED LETTER granting 603 Letter Motion regarding the parties' proposed briefing scheduling....The County's response to the Monitor's May 25, 2016 submission, and ADC's May 11, 2016 letter will be due on June 17, 2016; The Government and the Monitor's response will be due on June 24; and the County's reply will be due on July 1, 2016. (Signed by Judge Denise L. Cote on 5/20/2016) (gr) (Entered: 05/20/2016)
605 ORDER: On May 20, 2016, the parties requested that the conference scheduled for June 24 be adjourned to a date in July. Accordingly, it is hereby ORDERED that the conference shall take place on Friday, July 8 at 2:00 p.m. in Courtroom 15B, 500 Pearl Street. (Signed by Judge Denise L. Cote on 5/20/2016) (gr) (Entered: 05/20/2016)
Reset Hearings: Pretrial Conference set for 7/8/2016 at 02:00 PM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. (gr) (Entered: 05/20/2016)
606 ORDER: On May 19, 2016, the Court received a letter and various attachments in the mail from Edwin Frank, who is a member of Chappaqua for Responsible Affordable Housing. His letter pertains to the topics to be addressed at the hearing scheduled for May 23 at 2:00 p.m. Accordingly, it is ORDERED that the parties are hereby notified of the Courts receipt of these submissions. IT IS FURTHER ORDERED that the submissions will be docketed on ECF. (Signed by Judge Denise L. Cote on 5/19/2016) (Attachments: # 1 Appendix Letter From Edwin Frank, # 2 Appendix Article, # 3 Appendix From, # 4 Appendix Letter from Edwin Frank dated October 2 2016, # 5 Appendix HUD's March 2 2016 letter, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F, # 12 Exhibit G, # 13 Exhibit H, # 14 Exhibit I, # 15 Exhibit J)(gr) (Entered: 05/20/2016)
Minute Entry for proceedings held before Judge Denise L. Cote: Conference held on 5/23/2016. (Court Reporter Kelly Surina) (gr) (Entered: 05/23/2016)
607 ORDER: On May 23, 2016, a conference was held in the above−captioned matter. For the reasons stated on the record at the conference, it is herebyORDERED that, by Monday, June 6, the County shall identify to the Monitor and the Government any passages from the 2015 videotaped depositions that it believes should not be publicly disclosed. The parties shall confer and submit to the Court their proposed redactions or any remaining disputes about those redactions by Monday, June 13. IT IS FURTHER ORDERED that, by Monday, June 6, the County shall retain a public relations consultant or firm that it will employ to assist in developing the One Community Campaign. The parties, the Monitor, and the consultant shall discuss a substantive proposal for the campaign, including the time period for which it shall extend. That proposal shall be submitted to the Court by June 24 with any objections from the County, the Government, or the Monitor. (Signed by Judge Denise L. Cote on 5/23/2016) (gr) (Entered: 05/23/2016)
608 OPINION AND ORDER # 106531 The November 19, 2015 Report and Recommendation is affirmed in part. The County timely met its obligation to have financing in place for 450 new affordable housing units by December 31, 2014. The County has breached 7(i)−(j) of the Consent Decree, however, by failing to use all available means as appropriate to advance the construction of 750 affordable housing units and to counter New Castles opposition to the Chappaqua Station Development. The December 29, 2015 site remediation permit that the Town issued to Conifer is not a building permit within the meaning of 23 of the Consent Decree. Decision is reserved on the Governments application for contempt and the imposition of other remedies for the breach of 7(i)−(j). The County is required to take four actions to keep itself, the Court, and all parties informed of the status of the approval process for the Development. (Signed by Judge Denise L. Cote on 5/24/2016) (gr) Modified on 6/20/2016 (vj). (Entered: 05/24/2016)
610 INTERNET CITATION NOTE: Material from decision with Internet citation re: 608 Memorandum & Opinion. (Attachments: # 1 Internet Citation) (vf) (Entered: 06/02/2016)

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 68 of 78

05/25/2016 06/08/2016
06/08/2016
06/09/2016
06/10/2016 06/10/2016 06/13/2016 06/13/2016 06/13/2016 06/14/2016 06/14/2016
06/14/2016 06/16/2016 06/16/2016

609 NOTICE of Monitor's Specific Requests for Relief Arising from the Third Biennial Assessment of Westchester County's Compliance. Document filed by James E. Johnson. (Johnson, James) (Entered: 05/25/2016)
611 TRANSCRIPT of Proceedings re: Conference held on 5/23/2016 before Judge Denise L. Cote. Court Reporter/Transcriber: Kelly Surina, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/5/2016. Redacted Transcript Deadline set for 7/14/2016. Release of Transcript Restriction set for 9/9/2016.(Grant, Patricia) (Entered: 06/08/2016)
612 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 05/23/2016 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Grant, Patricia) (Entered: 06/08/2016)
613 ORDER: On May 23, 2016, a conference was held in the above−captioned matter. A review of the transcript revealed four errors. Accordingly, it is herebyORDERED that the Court Reporters shall correct the transcript as follows (See Order). (Signed by Judge Denise L. Cote on 6/9/2016) Copy Sent By Chambers to SDNY Court Reporters. (gr) (Entered: 06/09/2016)
614 LETTER MOTION for Extension of Time to File Proposal for One Community Campaign addressed to Judge Denise L. Cote from Justin R. Adin dated June 10, 2016. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 06/10/2016)
615 MEMO ENDORSEMENT granting 614 Letter Motion for Extension of Time until July 1, 2016 to submit proposal to the Court. (Signed by Judge Denise L. Cote on 6/10/2016) (gr) (Entered: 06/10/2016)
616 LETTER addressed to Judge Denise L. Cote from Robert F. Meehan dated June 13, 2016 re: Release of Videotaped Depositions. Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 06/13/2016)
617 LETTER addressed to Judge Denise L. Cote from David J Kennedy dated 6/13/16 re: Video Depositions. Document filed by United States of America.(Kennedy, David) (Entered: 06/13/2016)
618 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated June 13, 2016 re: Videotaped Depositions. Document filed by James E. Johnson.(Johnson, James) (Entered: 06/13/2016)
619 NOTICE OF APPEARANCE by Mariann Meier Wang on behalf of Inclusive Communities Project and 8 other amici. (Wang, Mariann) (Entered: 06/14/2016)
620 LETTER MOTION for Leave to File Amicus Brief on behalf of 10 amici addressed to Judge Denise L. Cote from Mariann Meier Wang dated June 14, 2016. Document filed by Inclusive Communities Project and 8 other amici. (Attachments: # 1 Brief on behalf of 10 amici, # 2 Declaration of Jerrold Levy, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2)(Wang, Mariann) (Entered: 06/14/2016)
621 NOTICE OF APPEARANCE by Jerrold M. Levy on behalf of Enhanced Section 8 Outreach Program (ESOP), Inc.. (Levy, Jerrold) (Entered: 06/14/2016)
622 LETTER MOTION for Leave to File Excess Pages in Response to this Court's May 13, 2016 Order addressed to Judge Denise L. Cote from Justin R. Adin dated June 16, 2016. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 06/16/2016)
623 MEMO ENDORSEMENT granting 622 Letter Motion for Leave to File Excess Pagesin Response to this Court's May 13, 2016 Order addressed to Judge Denise L. Cote from Justin R. Adin dated June 16, 2016. (Signed by Judge Denise L. Cote on 6/16/2016) (gr) (Entered: 06/16/2016)

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 69 of 78

06/17/2016
06/17/2016
06/17/2016 06/17/2016 06/24/2016 06/24/2016 06/24/2016 06/27/2016 06/27/2016 06/27/2016
06/27/2016
06/28/2016

624 TRANSCRIPT of Proceedings re: corrected transcript held on 5/23/2016 before Judge Denise L. Cote. Court Reporter/Transcriber: Kelly Surina, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/11/2016. Redacted Transcript Deadline set for 7/21/2016. Release of Transcript Restriction set for 9/19/2016.(McGuirk, Kelly) (Entered: 06/17/2016)
625 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CORRECTED CONFERENCE proceeding held on 5/23/2016 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/17/2016)
626 MEMORANDUM OF LAW re: 597 Scheduling Order,,,,, . Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 06/17/2016)
627 DECLARATION of Robert F. Meehan re: 597 Scheduling Order,,,,, . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Meehan, Robert) (Entered: 06/17/2016)
628 MEMORANDUM OF LAW re: 597 Scheduling Order,,,,, . Document filed by United States of America. (Kennedy, David) (Entered: 06/24/2016)
629 DECLARATION of David J Kennedy . Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Kennedy, David) (Entered: 06/24/2016)
630 BRIEF re: 597 Scheduling Order,,,,, //Monitor's Submission Relating to the Monitor's Requests for Relief and Relief Proposed by the Anti−Discrimination Center of Metro New York, Inc.. Document filed by James E. Johnson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 (part 1), # 3 Exhibit 2 (part 2), # 4 Exhibit 2 (part 3), # 5 Exhibit 2 (part 4), # 6 Exhibit 2 (part 5), # 7 Exhibit 2 (part 6))(Johnson, James) (Entered: 06/24/2016)
631 LETTER MOTION for Leave to File Reply Brief addressed to Judge Denise L. Cote from Craig Gurian dated June 27, 2016. Document filed by Anti−Discrimination Center. (Attachments: # 1 Exhibit ADC Reply Brief in Support of the Court's Taking Action to Vindicate the Integrity of the Consent Decree)(Gurian, Craig) (Entered: 06/27/2016)
632 ENDORSED LETTER addressed to Judge Denise L. Cote from Craig Gurian dated June 27, 2016 requesting for Leave to File Reply Brief addressed. ENDORSEMENT: The request to file a reply brief is denied. (Signed by Judge Denise L. Cote on 6/27/2016) (gr) (Entered: 06/27/2016)
633 OPINION AND ORDER #106544......The Monitors March 17, 2016 request to make public the videotapes of 2015 depositions of County officials is granted. The videotapes shall be made available to the public in their entirety. As described in an accompanying scheduling order, this Order is stayed pending appeal as long as the County pursues its appeal promptly and seeks expedited review. The parties shall promptly inform the Court when the appeal process is complete. (Signed by Judge Denise L. Cote on 6/27/2017) (gr) Modified on 7/5/2016 (ca). (Entered: 06/27/2016)
634 ORDER: On June 27, 2016, the Court ordered that the videotapes of depositions taken of County officials in 2015 must be made available to the public. The Court also stayed its Order on the condition that the County promptly seek expedited appellate review. Accordingly, on the condition that the County files, by Tuesday, July 5, its appeal, its brief in support of its appeal, and a request for expedited review of that appeal, it is hereby ORDERED that the public release of the videotapes is stayed until July 13, 2016. (Signed by Judge Denise L. Cote on 6/27/2016) (gr) (Entered: 06/27/2016)
635 ORDER:In its June 24, 2016 brief, the Government raised an issue related to the Anti−Discrimination Center of Metro New Yorks (ADC) prior request to correct a transcript of a conference that took place on May 2, 2014.... The Court Reporters in

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 70 of 78

06/29/2016 06/29/2016 06/29/2016 06/29/2016 06/29/2016 06/29/2016 06/30/2016
06/30/2016
06/30/2016
06/30/2016

this district follow the Second Circuits guidance in United States v. Zichettello, 208 F.3d 72, 78 (2d Cir. 2000), in developing the procedures for correcting transcripts at a partys request..... Accordingly, it is hereby ORDERED that, if ADC or any party seeks to correct court transcripts in the future, it must comply with the procedure described above by providing notice of its proposed corrections to all parties and the Monitor at the same time that it requests those corrections from the Court Reporters. If the County, the Government, or the Monitor disagrees with any proposed corrections, a party to the action shall write a letter to the Court informing it of the dispute. (Signed by Judge Denise L. Cote on 6/28/2016) Copy Sent By Chambers To SDNY Court Reporters, Attn: M. McDaniel. (gr) (Entered: 06/28/2016)
636 LETTER MOTION for Extension of Time of June 27, 2016 Scheduling Order addressed to Judge Denise L. Cote from Justin R. Adin dated June 29, 2016. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 06/29/2016)
637 NOTICE OF APPEAL from 633 Memorandum & Opinion,,. Document filed by Westchester County, New York. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Adin, Justin) (Entered: 06/29/2016)
Appeal Fee Due: for 637 Notice of Appeal. Appeal fee due by 7/13/2016. (tp) (Entered: 06/29/2016)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 637 Notice of Appeal. (tp) (Entered: 06/29/2016)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 637 Notice of Appeal filed by Westchester County, New York were transmitted to the U.S. Court of Appeals. (tp) (Entered: 06/29/2016)
USCA Appeal Fees received $ 505.00 receipt number 465407013214 on 6/29/16 re: 637 Notice of Appeal filed by Westchester County, New York. (yv) (Entered: 06/29/2016)
638 TRANSCRIPT of Proceedings re: CONFERENCE held on 5/23/2016 before Judge Denise L. Cote. Court Reporter/Transcriber: Kelly Surina, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/25/2016. Redacted Transcript Deadline set for 8/4/2016. Release of Transcript Restriction set for 10/3/2016.(McGuirk, Kelly) (Entered: 06/30/2016)
639 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNECE proceeding held on 5/23/16 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/30/2016)
640 TRANSCRIPT of Proceedings re: CONFERNECE CORRECTED held on 5/23/2016 before Judge Denise L. Cote. Court Reporter/Transcriber: Kelly Surina, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/25/2016. Redacted Transcript Deadline set for 8/4/2016. Release of Transcript Restriction set for 10/3/2016.(McGuirk, Kelly) (Entered: 06/30/2016)
641 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE CORRECTED proceeding held on 5/23/16 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/30/2016)

Case: 1:06-cv-2860 As of: 02/22/2018 09:20 PM EST 71 of 78

06/30/2016
06/30/2016
06/30/2016 06/30/2016
07/01/2016 07/01/2016 07/01/2016 07/01/2016 07/05/2016 07/05/2016 07/05/2016
07/06/2016

642 TRANSCRIPT of Proceedings re: Conference corrected held on 5/2/2014 before Judge Denise L. Cote. Court Reporter/Transcriber: Sonya Ketter Huggins, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/25/2016. Redacted Transcript Deadline set for 8/4/2016. Release of Transcript Restriction set for 10/3/2016.(Siwik, Christine) (Entered: 06/30/2016)
643 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference corrected proceeding held on 5/2/14 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Siwik, Christine) (Entered: 06/30/2016)
Minute Entry for proceedings held before Judge Denise L. Cote: Telephone Conference held on 6/30/2016. (Court Reporter Kelly Surina) (gr) (Entered: 06/30/2016)
644 ORDER......On June 30, a telephone conference was held. For the reasons stated on the record at that telephone conference, it is hereby ORDERED that the Countys request for an extension is granted in part. By July 15, the County must submit its brief in support of its appeal, its request for expedited appellate review, and its request an extension of this Courts stay of the June 27 Order from the Second Circuit. IT IS FURTHER ORDERED that the stay is extended until July 29. This Courts stay will automatically expire on July 29 absent an order from the Second Circuit. (Signed by Judge Denise L. Cote on 6/30/2016) (gr) (Entered: 06/30/2016)
645 JOINT LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated July 1, 2016 re: One Community Proposal. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit One Community Presentation)(Adin, Justin) (Entered: 07/01/2016)
646 REPLY MEMORANDUM OF LAW re: 597 Scheduling Order,,,,, . Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 07/01/2016)
647 DECLARATION of Robert F. Meehan re: 597 Scheduling Order,,,,, . Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A)(Meehan, Robert) (Entered: 07/01/2016)
648 ENDORSED LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated July 1, 2016 re: Joint letter One Community Proposal. ENDORSEMENT: Status letter is due 8/19/16. (Signed by Judge Denise L. Cote on 7/1/2016) (gr) (Entered: 07/01/2016)
649 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated July 5, 2016 re: Updates on Chappaqua Station Development. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 07/05/2016)
650 JOINT LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated July 5, 2016 re: Requested Amendment to Docket to Reflect Current Status of Certain Parties. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 07/05/2016)
651 LETTER addressed to Judge Denise L. Cote from Interfaith Clergy for Social Action of Westchester dated 7/1/2016 re: We write to voice our support for your honor's June 27, 2016 decision that found Weschester County "in breach" of Paragraphs 33c of the consent decree and for the US Department of Justice's 2015 motion for contempt against the County of Westchester [Dkt529] and its May 9, 2016 Response in support of the Monitor's call for court−ordered remedies of the County's breaches of the Consent Decree [Dkt 585]....(gr) (Entered: 07/05/2016)
652 ENDORSED LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated July 5, 2016 re: Joint Request for Amendment to Docket Sheet to Reflect Current Status of Certain Parties. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 7/5/2016) (gr) (Entered: 07/06/2016)

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07/06/2016 07/06/2016
07/07/2016 07/07/2016 07/12/2016 07/18/2016 07/18/2016
07/18/2016
07/18/2016 07/20/2016 07/20/2016 07/20/2016 07/20/2016 07/20/2016 07/22/2016 07/22/2016 07/22/2016

653 Amicus Curiae APPEARANCE entered by Craig Gurian on behalf of Anti−Discrimination Center, Inc..(Gurian, Craig) (Entered: 07/06/2016)
654 ORDER....ORDERED that ADCs May 11, 2016 motion to file an amicus brief is denied. Decision is reserved concerning whether the Court will accept the Beveridge Report. IT IS FURTHER ORDERED that the June 14, 2016 request of ten other amici to file a brief is denied. (Signed by Judge Denise L. Cote on 7/6/2016) (gr) (Entered: 07/06/2016)
655 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated 7/7/2016 re: Municipal Progress. Document filed by James E. Johnson.(Johnson, James) (Entered: 07/07/2016)
656 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated 7/7/2016 re: Corrected Letter on Municipal Progress. Document filed by James E. Johnson.(Johnson, James) (Entered: 07/07/2016)
657 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 7/12/2016 re: Proposed Order Reflecting July 8, 2016 Conference. Document filed by United States of America.(Kennedy, David) (Entered: 07/12/2016)
658 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated July 18, 2016 re: Resignation of Monitor. Document filed by James E. Johnson.(Johnson, James) (Entered: 07/18/2016)
659 OPINION AND ORDER #106569:....The County has breached 32 of the Consent Decree by failing to submit an AI that is acceptable to HUD. Decision is reserved regarding the Countys alleged breach of 25(a). The Monitors requested remedies listed in his May 25 submission are granted in part, as described in a separate Order. Among other things, the County will be required to retain a consultant to prepare an AI that is acceptable to HUD. (Signed by Judge Denise Cote on 7/18/16)(lr) Modified on 7/21/2016 (ca). (Entered: 07/18/2016)
660 ORDER:....(SEE ORDER)...IT IS HEREBY ORDERED that: 1. The County shall designate a consultant to complete the AI (the "Consultant") no later than August 8, 2016....(SEE ORDER)....(Signed by Judge Denise Cote on 7/18/16)(lr) (Entered: 07/18/2016)
665 INTERNET CITATION NOTE: Material from decision with Internet citation re: 659 Memorandum & Opinion. (vf) (Entered: 08/08/2016)
661 NOTICE OF APPEAL from 659 Memorandum & Opinion, 660 Order. Document filed by Westchester County, New York. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Meehan, Robert) (Entered: 07/20/2016)
Appeal Fee Due: for 661 Notice of Appeal.$505.00 Appeal fee due by 8/3/2016. (nd) (Entered: 07/20/2016)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 661 Notice of Appeal. (nd) (Entered: 07/20/2016)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 661 Notice of Appeal filed by Westchester County, New York were transmitted to the U.S. Court of Appeals. (nd) (Entered: 07/20/2016)
USCA Appeal Fees received $ 505.00 receipt number 465407013293 on 7/20/16 re: 661 Notice of Appeal filed by Westchester County, New York. (yv) (Entered: 07/20/2016)
662 NOTICE OF APPEAL from 608 Memorandum & Opinion,,,. Document filed by Westchester County, New York. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Meehan, Robert) (Entered: 07/22/2016)
Appeal Fee Due: for 662 Notice of Appeal. Appeal fee due by 8/5/2016. (tp) (Entered: 07/22/2016)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 662 Notice of Appeal. (tp) (Entered: 07/22/2016)

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07/22/2016 07/25/2016 07/26/2016 08/01/2016 08/08/2016 08/08/2016 08/12/2016 08/19/2016 08/26/2016 09/01/2016 10/03/2016 11/01/2016 12/01/2016 12/02/2016
12/07/2016 12/07/2016

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 662 Notice of Appeal filed by Westchester County, New York were transmitted to the U.S. Court of Appeals. (tp) (Entered: 07/22/2016)
663 LETTER addressed to Judge Denise L. Cote from Interfaith Clergy for Social Action dated 7/25/2016 re: appointment of the next Monitor. (gr) (Entered: 07/25/2016)
USCA Appeal Fees received $ 505.00 receipt number 465407013304 on 7/26/2016 re: 662 Notice of Appeal filed by Westchester County, New York. (lnl) (Entered: 07/26/2016)
664 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated August 1, 2016 re: Updates on Chappaqua Station Development. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 08/01/2016)
666 LETTER MOTION for Extension of Time to Designate a Consultant addressed to Judge Denise L. Cote from Justin R. Adin dated August 8, 2016. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 08/08/2016)
667 MEMO ENDORSEMENT granting 666 Letter Motion for Extension of Time to Designate a Consultant addressed to Judge Denise L. Cote from Justin R. Adin dated August 8, 2016. (Signed by Judge Denise L. Cote on 8/8/2016) (gr) (Entered: 08/08/2016)
668 LETTER addressed to Judge Denise L. Cote from Robert F. Meehan dated August 12, 2016 re: Designation of AI Consultant. Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 08/12/2016)
669 JOINT LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated August 19, 2016 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 08/19/2016)
670 LETTER addressed to Judge Denise L. Cote from James E. Johnson dated August 26, 2016 re: AI consultant. Document filed by James E. Johnson.(Johnson, James) (Entered: 08/26/2016)
671 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated September 1, 2016 re: Updates on Chappaqua Station Development. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 09/01/2016)
672 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated October 3, 2016 re: Updates on Chappaqua Station Development. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 10/03/2016)
673 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated November 1, 2016 re: Updates on Chappaqua Station Development. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 11/01/2016)
674 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated December 1, 2016 re: Updates on Chappaqua Station Development. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 12/01/2016)
675 ORDER: It is hereby ORDERED that the County shall provide a status update by December 7, 2016 on the One Community Campaign. IT IS FURTHER ORDERED that, James Johnson having resigned as Monitor on August 10, the Government shall by December 7 provide a status update on the selection of a new Monitor. IT IS FURTHER ORDERED that the parties shall provide a status report by December 7 on the preparation of an AI acceptable to HUD, which is due to be completed no later than January 9, 2017. (Signed by Judge Denise L. Cote on 12/2/2016) (gr) (Entered: 12/02/2016)
676 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 12/7/2016 re: Order dated December 2, 2016. Document filed by United States of America.(Kennedy, David) (Entered: 12/07/2016)
677 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated December 7, 2016 re: Order of December 2, 2016. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 12/07/2016)

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12/08/2016
12/09/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016 12/30/2016
01/05/2017 01/06/2017
01/06/2017
01/09/2017 01/11/2017 01/12/2017

678 ORDER: The Court having received updates from the Government and the County on December 7, 2016, it is hereby ORDERED that the parties shall participate in a telephone conference with the Court on December 9 at 2:30 p.m. Counsel for the Government shall have all parties and the Proposed Monitor on the line and call 212−805−0202. (Signed by Judge Denise L. Cote on 12/8/2016) (gr) (Entered: 12/08/2016)
Minute Entry for proceedings held before Judge Denise L. Cote: Telephone Conference held on 12/9/2016. (Court Reporter Tara Jones) (gr) (Entered: 12/09/2016)
679 MOTION to Approve Appointment of Replacement Monitor . Document filed by United States of America.(Kennedy, David) (Entered: 12/30/2016)
680 MEMORANDUM OF LAW in Support re: 679 MOTION to Approve Appointment of Replacement Monitor . . Document filed by United States of America. (Kennedy, David) (Entered: 12/30/2016)
681 DECLARATION of David J. Kennedy in Support re: 679 MOTION to Approve Appointment of Replacement Monitor .. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kennedy, David) (Entered: 12/30/2016)
682 DECLARATION of Stephen C. Robinson in Support re: 679 MOTION to Approve Appointment of Replacement Monitor .. Document filed by United States of America. (Kennedy, David) (Entered: 12/30/2016)
683 DECLARATION of Jamie M. Tovar in Support re: 679 MOTION to Approve Appointment of Replacement Monitor .. Document filed by United States of America. (Kennedy, David) (Entered: 12/30/2016)
684 SCHEDULING ORDER: On December 30, 2016, the Government filed a motion to appoint a replacement monitor and to amend paragraph 17 of the Consent Decree by eliminating the fee cap on the monitors fees. It is hereby ORDERED that the County shall serve any opposition to the motion by January 20, 2017. The Governments reply, if any, shall be served by February 3. At the time any reply is served, the moving party shall supply Chambers with two (2) courtesy copies of all motion papers by mailing or delivering them to the United States Courthouse, 500 Pearl Street, New York, New York. (Signed by Judge Denise L. Cote on 12/30/2016) (gr) (Entered: 12/30/2016)
685 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated January 5, 2017 re: Updates on Chappaqua Station Development. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 01/05/2017)
686 TRANSCRIPT of Proceedings re: CONFERNECE held on 12/9/2016 before Judge Denise L. Cote. Court Reporter/Transcriber: Tara Jones, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/27/2017. Redacted Transcript Deadline set for 2/6/2017. Release of Transcript Restriction set for 4/6/2017.(McGuirk, Kelly) (Entered: 01/06/2017)
687 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/9/16 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/06/2017)
688 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated January 9, 2017 re: the Court's July 18, 2016 Order. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 01/09/2017)
689 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 1/11/2017 re: County's Letter of January 9, 2017. Document filed by United States of America.(Kennedy, David) (Entered: 01/11/2017)
690 LETTER MOTION for Extension of Time and Amendment to December 30, 2017 Scheduling Order addressed to Judge Denise L. Cote from Justin R. Adin dated

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01/12/2017 01/13/2017
01/20/2017 01/20/2017 01/20/2017 01/27/2017 02/03/2017 02/03/2017 02/06/2017 02/10/2017

January 12, 2017. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 01/12/2017)
691 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 1/12/2017 re: County's Request for Extension. Document filed by United States of America.(Kennedy, David) (Entered: 01/12/2017)
692 ORDER: The August 10, 2009 Consent Decree required the County to complete an AI "deemed acceptable by HUD" by December 9, 2009. As described in the Opinion of July 17, 2015, Cty. of Westchester v. U.S. Dep't of Hous. & Urban Dev., 116 F. Supp. 3d 251, 262 (S.D.N.Y.), aff'd, 802 F.3d 413 (2d Cir. 2015), the County breached that obligation. The Order of July 18, 2016 required the County to "complete an AI 'deemed acceptable by HUD' no later than January 9, 2017." On January 9 the County requested an extension of 90 days. The Government consents on the condition that the County complies with the obligations described in the Governments letter of January 11. It is hereby ORDERED that the time for the County to submit to HUD an AI that is "deemed acceptable by HUD" is extended to April 10 provided that the County: (See Order). IT IS FURTHER ORDERED that the County shall submit a status report to the Court every two weeks, beginning January 27, to advise the court of its progress in meeting the April 10 deadline. No further extensions to the April 10 deadline will be granted. IT IS FURTHER ORDERED that the Countys request to extend the briefing schedule for the Governments motion to amend the Consent Decree is denied. Any motion by the County for relief from the monitoring provisions of the Consent Decree must be filed with the opposition on January 20. The Governments opposition and reply shall be served by February 3, and the Countys reply, if any, shall be served by February 10. (Signed by Judge Denise L. Cote on 1/13/2017) (gr) (Entered: 01/13/2017)
693 CROSS MOTION to Alter Judgment re: 320 Stipulation and Order of Dismissal,,,,,,,,, . Document filed by Westchester County, New York.(Meehan, Robert) (Entered: 01/20/2017)
694 MEMORANDUM OF LAW in Support re: 693 CROSS MOTION to Alter Judgment re: 320 Stipulation and Order of Dismissal,,,,,,,,, . and in Opposition to Plaintiff's Motion to Appoint a Monitor. Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 01/20/2017)
695 DECLARATION of Robert F. Meehan in Support re: 693 CROSS MOTION to Alter Judgment re: 320 Stipulation and Order of Dismissal,,,,,,,,, .. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit A − Settlement)(Meehan, Robert) (Entered: 01/20/2017)
696 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated January 27, 2017 re: Status Update on AI. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 01/27/2017)
697 ENDORSED LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated January 12, 2017 re: Extension of Time and Amendment to December 30, 2017 Scheduling Order. ENDORSEMENT: By 2/6/17, the County shall advise the Court of the interim dates for submissions to HUD. (Signed by Judge Denise L. Cote on 2/3/2017) (gr) (Entered: 02/03/2017)
698 REPLY MEMORANDUM OF LAW in Support re: 693 CROSS MOTION to Alter Judgment re: 320 Stipulation and Order of Dismissal,,,,,,,,, ., 679 MOTION to Approve Appointment of Replacement Monitor . Reply in Support of Motion and Opposition to Cross−Motion. Document filed by United States of America. (Kennedy, David) (Entered: 02/03/2017)
699 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated February 6, 2017 re: Interim Submission Dates for AI. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 02/06/2017)
700 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated February 10, 2017 re: Status Update on AI. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 02/10/2017)

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02/10/2017 02/23/2017 02/23/2017
02/23/2017 02/24/2017 03/10/2017 03/10/2017 03/10/2017 03/24/2017 04/07/2017 04/07/2017 05/05/2017 06/02/2017

701 REPLY MEMORANDUM OF LAW in Support re: 693 CROSS MOTION to Alter Judgment re: 320 Stipulation and Order of Dismissal,,,,,,,,, . . Document filed by Westchester County, New York. (Meehan, Robert) (Entered: 02/10/2017)
702 OPINION AND ORDER #107068......The Governments December 30, 2016 motions to remove the fee cap and appoint Stephen C. Robinson as Monitor are granted. The Countys January 20, 2017 motion to eliminate the monitorship is denied. (Signed by Judge Denise L. Cote on 2/23/2017) (gr) Modified on 3/7/2017 (jwh). (Entered: 02/23/2017)
703 ORDER: The United States having selected Stephen C. Robinson as Monitor pursuant to paragraph 11 of the August 10, 2009 Stipulation and Order of Settlement and Dismissal (the Consent Decree), and the Court having approved the Governments selection, it is hereby ORDERED that Stephen C. Robinson is appointed as Monitor. IT IS FURTHER ORDERED that the Governments motion to amend the Consent Decree as discussed in the accompanying Opinion and Order of February 23, 2017, is granted. Paragraph 17(b) now reads: During the first two years following the entry of this Stipulation and Order, the Monitor shall incur no more than $250,000 in annual fees and expenses for which the County is responsible; thereafter, the Monitor may make an application to the magistrate judge to incur fees and expenses for which the County shall be responsible upon a showing by the Monitor that such fees are appropriate to fulfill the obligations set forth in this Stipulation and Order. (Signed by Judge Denise L. Cote on 2/23/2017) (gr) (Entered: 02/23/2017)
704 ORDER: The Court having last received an update on the Countys One Community Campaign on December 7, 2016, it is hereby ORDERED that the County shall provide a status report on the Campaign to the Court every four weeks beginning March 10, 2017. (Signed by Judge Denise L. Cote on 2/23/2017) (gr) (Entered: 02/23/2017)
705 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated February 24, 2017 re: Status Update on AI. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 02/24/2017)
706 MANDATE of USCA (Certified Copy) as to 637 Notice of Appeal filed by Westchester County, New York. USCA Case Number 16−2272−cv. Ordered, Adjudged and Decreed that the order of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 03/10/2017. (nd) (Entered: 03/10/2017)
707 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated March 10, 2017 re: Status Update on AI. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 03/10/2017)
708 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated March 10, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 03/10/2017)
709 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated March 24, 2017 re: Status Update on AI. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 03/24/2017)
710 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated April 7, 2017 re: Status Update on AI. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 04/07/2017)
711 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated April 7, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 04/07/2017)
712 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated May 5, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 05/05/2017)
713 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated June 2, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 06/02/2017)

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06/21/2017
06/21/2017
06/22/2017 06/22/2017 06/22/2017
06/30/2017 06/30/2017 07/05/2017 07/17/2017 07/28/2017 08/25/2017 09/22/2017 10/20/2017 11/17/2017 11/17/2017 11/20/2017

714 MANDATE of USCA (Certified Copy) as to 661 Notice of Appeal filed by Westchester County, New York USCA Case Number 16−2540. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the opinions and orders of the district court are AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 6/21/2017. (tp) (Entered: 06/22/2017)
715 MANDATE of USCA (Certified Copy) as to 662 Notice of Appeal filed by Westchester County, New York USCA Case Number 16−2549−cv. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the opinions and orders of the district court are AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 6/21/2017. (tp) (Entered: 06/22/2017)
Transmission of USCA Mandate/Order to the District Judge re: 714 USCA Mandate. (tp) (Entered: 06/22/2017)
Transmission of USCA Mandate/Order to the District Judge re: 715 USCA Mandate. (tp) (Entered: 06/22/2017)
716 ORDER: On January 13, 2017, the Countys request to extend to April 10 the deadline to submit an AI deemed acceptable by HUD was granted. The Court having last received an update as to the AI on March 24, it is hereby ORDERED that the Government and the County shall provide such a status update by June 30. (Signed by Judge Denise L. Cote on 6/22/2017) (gr) (Entered: 06/22/2017)
717 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated June 30, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 06/30/2017)
718 JOINT LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated June 30, 2017 re: Status Update on AI. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 06/30/2017)
719 ENDORSED LETTER addressed to Judge Denise L. Cote Jfrom Justin R. Adin dated June 30, 2017 re: Status Update on AI. ENDORSEMENT: Status letter is due 7/17/17. (Signed by Judge Denise L. Cote on 7/5/2017) (gr) (Entered: 07/05/2017)
720 JOINT LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated July 17, 2017 re: Status Update on AI. Document filed by Westchester County, New York. (Attachments: # 1 Exhibit Letter from HUD to KJP)(Adin, Justin) (Entered: 07/17/2017)
721 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated July 28, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 07/28/2017)
722 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated August 25, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 08/25/2017)
723 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated September 22, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 09/22/2017)
724 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated October 20, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 10/20/2017)
725 LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated November 17, 2017 re: Status Update on One Community Campaign. Document filed by Westchester County, New York.(Adin, Justin) (Entered: 11/17/2017)
726 LETTER addressed to Judge Denise L. Cote from David J. Kennedy dated 11/17/17 re: County's One Community Campaign. Document filed by United States of America.(Kennedy, David) (Entered: 11/17/2017)
727 ENDORSED LETTER addressed to Judge Denise L. Cote from Justin R. Adin dated November 17, 2017 re: Status Update on One Community Campaign.

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01/22/2018 01/22/2018

ENDORSEMENT: The monthly status reports on the Campaign need no longer be submitted. (Signed by Judge Denise L. Cote on 11/20/2017) (gr) (Entered: 11/20/2017)
728 LETTER addressed to Judge Denise L. Cote from Adam Rodriguez dated January 22, 2018 re: Withdraw As Counsel. Document filed by Westchester County, New York.(Rodriguez, Adam) (Entered: 01/22/2018)
729 ENDORSED LETTER addressed to Judge Denise L. Cote from Adam Rodriguez dated January 22, 2018 re: Withdraw As Counsel. ENDORSEMENT: So Ordered. (Signed by Judge Denise L. Cote on 1/22/2018) (gr) (Entered: 01/22/2018)