Westchester County's Bumpy Road to Fair Housing

Westchester County’s long, slow road to housing desegregation



 

Fatima and Khalia Garba struggled to find their new home in Pelham because  they pay their rent with government-issued vouchers.

Christmas came early for Fatima Garba and her daughter, Khalia. On December 5, 2011, the pair moved into an apartment on Second Avenue in Pelham, a tree-lined street several blocks from Hutchinson Field and a short drive to the town center. The space was relatively modest—two bedrooms, a small living room, and a single, shag-carpeted bathroom—but the kitchen appliances were new, the building was clean, and her fellow tenants had proven gracious and hospitable.

Fatima, an émigré from Ghana who had spent the majority of her adolescence and adulthood in Yonkers, had been desperate to move her family out of their apartment on Clifton Avenue. She didn’t trust her neighbors, who were frequently visited by the police at all hours of the night, but, more important, she’d grown increasingly worried about Khalia’s education. For years, Fatima had managed to scrape together enough money from her job as a Citibank teller to send her daughter to Our Lady of Angels, a private Catholic school. But the recession had stalled her career and she had decided to return to college to get her nursing degree. Her new part-time work schedule at the bank didn’t provide enough money to pay for her daughter’s tuition, so Khalia was forced to enroll at local School 21. “She was getting bullied,” Fatima said on a damp day in early January. “It was heartbreaking.”

At 29, Fatima has managed to retain her girlish smile, but the weary blend of work, biology classes, and a prolonged paternity suit with a man she refers to as her “daughter’s father” has taken its toll. On this particular afternoon, her eyes are slightly bloodshot and her warm, West African lilt can barely conceal her exhaustion. Only when she describes her new home do the stress and anxiety clouding her features begin to part. “Just knowing you’re surrounded by such a beautiful neighborhood,” she says, “kind of makes your day.”

For Jerry Levy, an attorney at the county’s Enhanced Section 8 Outreach Program who helped Fatima find her apartment, his client’s victory was more than a Christmas present—it was a Christmas miracle. As recently as 2010, County Executive Rob Astorino vetoed legislation that had been passed by Westchester’s Board of Legislators that would have banned landlords from discriminating against tenants like Fatima who pay their rent with government-issued vouchers. “Astorino’s policy is to keep minority people locked up in minority areas where there are very bad schools,” Levy says.

Jerry  Levy, of Westchester County’s Enhanced Section 8 Outreach Program, says officals won’t work towards desegregation for political reasons.

Ultimately, however, this legislation is only one point of contention in a housing settlement with the federal government that has provided anything but. Facing trial and a potential liability in excess of $150 million for misappropriating fair housing funds, Westchester agreed in 2009 to spend more than $50 million to help break up some of the whitest, most affluent towns this side of the Henry Hudson Parkway (think Larchmont, Rye, Scarsdale, and any other conceivable New York setting for a John Updike novel). Yet, nearly three years after the settlement was reached, many civil rights and fair housing advocates contend that the county has not only failed to meet the terms of the agreement but that its measures to date have only perpetuated its de facto segregation. “To me,” Levy says, “there’s absolutely no difference between Westchester and the South in the late fifties and early sixties.”

The case began in 2006, when the New York City-based Anti-Discrimination Center (ADC) slapped Westchester with a lawsuit alleging that it had made more than 1,000 false claims for federal funding over a six-year period—actions it believed violated the False Claims Act. Legalese decoded, the county was accused of defrauding the federal government of millions of dollars earmarked to affirmatively further fair housing (AFFH for the more acronymically inclined). U.S. District Judge Denise Cote concurred, declaring that Westchester had “utterly failed” to meet its financial responsibilities. Rather than let the case drag out expensively in court, then-County Executive Andy Spano opted to settle. “Given the amount of money that we were spending prior to the agreement,” Spano said in mid-December, “we thought it was a no-brainer.”

In August 2009, the parties arrived at a consent decree: Over a period of seven years, the county was required to spend $51.6 million to develop 750 units of affordable housing in 31 municipalities with African American populations of less than 3 percent and Latino populations of less than 7 percent. Among other provisions, Westchester agreed to market these new developments across New York, create an analysis of impediments (AI) to the county’s fair housing, and remove them through its implementation plan. The settlement also called for Westchester to pursue legal action against municipalities whose zoning laws proved exclusionary.

While no minimum income level was established, prospective buyers and renters needed to meet a certain percentage of a municipality’s median income. The focus of the agreement was less on the Fatima Garbas of the world and more on creating housing opportunities for middle-class families, particularly those of African American and Hispanic origin. “This is consistent with the President’s desire to see a fully integrated society,” Ron Sims, the deputy secretary of housing and urban development, told the New York Times in August of 2009. For its part, New York’s paper of record hailed the decree as a “landmark desegregation agreement.”

Marlene Zarfes, WRO’s fair housing director, notes that her organization found that one in five minorities were discriminated against in Westchester.

It took all of six months before the relationship between the settlement parties had begun to fray. In his report from February 2010, James Johnson, a monitor appointed by the federal government to oversee Westchester’s enforcement of the consent decree, rejected the county’s implementation plan, arguing that it “lacks any concrete short-, medium- or long-term strategies for how the county plans to develop the 750 Affordable AFFH Units required by the Stipulation.” More revealing, he found that “Source of Income” legislation, which is designed to protect prospective renters from discrimination based on lawful sources of income including Section 8 vouchers, had “apparently been promoted only through letters from the former County Executive to fair housing advocates.” (By then, Astorino had been sworn into office.) Not to be outdone, the ADC, which had been removed from the proceedings after receiving $7.5 million in the settlement, submitted a report of its own, entitled “Prescription for Failure,” detailing what they believed to be the county’s many transgressions. In it, they cited the implementation plan’s purposeful conflation of “affordable housing” (what it sounds like) with “fair housing”—units whose location is designed to help reduce residential segregation. The ADC also targeted the county’s reluctance to assert its authority over municipalities whose zoning laws discourage the construction of housing complexes that can accommodate multiple families.

Fast-forward to July 2011. The federal monitor has rejected the county’s AI five times, Astorino has called out HUD for what he referred to in a press conference as the government agency’s “unprecedented bureaucratic overreach,” and the ADC, unwilling to play the role of anguished chorus in what they perceived to be an ongoing Greek tragedy, has filed a motion to intervene in and enforce the settlement. Through all the legal maneuvering and public rhetoric, the county has managed to get the financing in place for 154 housing units (54 ahead of the 2011 schedule) and obtain 107 building permits (57 ahead of the 2011 schedule), with another 102 units in the pipeline. In addition to nixing legislation barring source-of-income discrimination, a bias that fair housing advocates maintain doubles as a form of racial prejudice, Astorino has also dug his heels into the carpeting of the County Executive’s office about not pursuing litigation against municipalities with exclusionary zoning.

Thirty-three months after the settlement was reached, exactly which municipalities practice these kinds of zoning policies and the degree to which they prove exclusionary remain, improbably, the subject of some debate. On January 6, 2012, two days after Judge Cote denied both of the Anti-Discrimination Center’s motions from 2011, the federal monitor released his first biennial assessment of Westchester’s efforts to enforce the terms of the consent decree, acknowledging that it has “surpassed the Settlement’s numerical benchmarks for the development of housing units.” But, while the assessment falls well short of the ADC’s indictments, it nonetheless recognizes that the county’s progress to date has been “mixed.” After rejecting the county’s request for a December 2012 deadline, the monitor gave the county until the end of February to complete an analysis of each of its townships’ zoning laws—one that it submitted, dutifully, on the 29th, and that the ADC has dismissed as a “whitewash” for its failure to analyze how small a percentage of a municipality’s acreage is available for multiple dwelling construction. “Great news!” reads the not-for-profit’s website. “In the fantasy version of Westchester that the County hopes the Government and Monitor will accept, there is no exclusionary zoning in Westchester.”

On March 16, after the Astorino administration sought an additional review of the monitor’s report, Federal Magistrate Gabriel Gorenstein made a series of judgments that may yet decide the future of the county’s fair and affordable housing settlement. While he determined that Johnson had erred in ruling that the county executive had a legal obligation to sign source of income legislation into law—making an almost semantic distinction over the definition of “promote”—Gorenstein did uphold the monitor’s decision that the Astorino administration must specify its strategy to overcome exclusionary zoning and identify the types of practices that would require the county to pursue legal action if left unremedied.
However the settlement unfolds, certain facts remain: The county may be the fourth most diverse in the state, but nearly 76 percent of Census block groups in the settlement-listed municipalities have African American populations of less than 3 percent; 54 percent of these groups have Hispanic populations of less than 7 percent. In Westchester, it appears that desegregation comes slowly, or not at all.    

Located on the top floor of the Michaelian Office Building in downtown White Plains, the Westchester County Executive’s is the rare government office whose waiting room resembles that of a dermatologist or an upscale orthodontist. In front of two dark leather sofas sits a glass coffee table, its surface littered with glossy magazines, including this publication. On its walls hang Impressionist paintings of the Hudson Valley, one of which is dated 1914, or roughly 35 years before the white flight from New York City to Westchester County.

Staring at its tiny brush strokes on a Friday afternoon in early January, one almost forgets the six-foot Christmas tree slowly, painstakingly decomposing in the corner of the room. Everyone who passes seems to remark on the conifer spines spilling all over the floor, yet more than two weeks removed from Christmas, there it stands. “Are you the reporter from Westchester Magazine?” asks one harried looking man in a dress shirt and slacks, pointing in its general direction. “That’s off the record.”

No such luck.

“Oh God, that tree,” groans Jessica Proud, then the county’s deputy director of communications, before marching said reporter towards Astorino’s office at the end of the hall. Earlier that day, the county executive had submitted a press release highlighting Westchester’s latest steps towards satisfying the conditions of its consent decree. The federal monitor had approved 206 housing units, of which 182 had been fully financed and 108 had building permits in place. By March of this year, the county expected to exceed its projections for 2012. The press release also detailed some of the sites the county is currently developing in Rye, Cortlandt, Yorktown, and Pleasantville.

What it neglected to mention is that, despite the settlement’s mandate for Westchester to build fair housing, several of these sites hug the border of the county’s more diverse townships. The 18 units at Edgar Place on Cottage Street practically straddle the line separating Rye, which the 2010 Census reports has a combined Hispanic and African American population around 8 percent and boasts a median home value of $1,131,300, according to the real estate website zillow.com, and Port Chester, whose African American and Hispanic population is close to 66 percent and whose median home value hovers around $416,700—not exactly an area of need when it comes to matters of racial and economic diversity. The 46 units planned for Larchmont (African American and Hispanic populations of approximately 8 percent, $978,900 median home value) are situated 500 feet, or a short stroll down Palmer Avenue, from the city limits of New Rochelle (African American and Hispanic populations of 47 percent, $558,700 median home value) and boast a scenic view of Metro-North and I-95. Then there are the units in Cortlandt and Pelham, the former falling on a Census tract whose exclusive population belongs to a local Veterans Hospital while the latter has no Census population at all.

Craig Gurian, the Anti-Discrimination Center’s executive director, argues that sites like these only deepen Westchester’s racial divide. “Affirmatively marketing these units to minorities,” he wrote in the ADC’s memorandum of its motion to enforce the decree, “would not be a matter of reducing segregation, but of perpetuating segregation.” While the children of their prospective residents gain access to some of the county’s more reputable public schools, many would still be living on the wrong side of the tracks—quite literally in the case of the Larchmont complex.

“Only God can create more land,” says Astorino, who’s joined in his office by Westchester County Communications Director Ned McCormack. “Unless he chooses to do that, we have to use the properties that are available. We also have to limit ourselves to seventy-five percent of the units being new construction. Everyone laughed when we set aside fifty-one million dollars in the settlement, because, if you do the math, it doesn’t add up.”

Astorino is nothing if not engaging. Like most politicians, he demonstrates an almost preternatural ability to keep his eyes focused on his subject when he’s speaking, but unlike many, he possesses an intelligent, guy’s-guy sensibility that’s warm and disarming in equal measure. Prior to his career in politics, he was one of the founders of the popular sports talk radio station 1050 ESPN in New York, and it shows. No sooner have we shaken hands than he jokingly offers me a glass of beer on tap. Against all odds, he manages to do this without sounding like a creep. “The objective part of the settlement is that it must be in these communities—the thirty-one communities that are eligible and listed based on the 2000 census. It does not say it must be on this street, or that neighborhood,” he says. Adds McCormack: “You can’t let the perfect drive out the good.”

Sal Carrera would agree. As the former Director of Real Estate and Economic Development under the Spano administration, he was responsible for analyzing county-owned sites and negotiating with local developers in order to determine how Westchester could most effectively spend its allotted $51.6 million. “If I was still in the position,” he said, “I would have moved forward on those three projects without a doubt.” This is not to suggest that he understands the current County Executive’s persistent hang-ups with HUD or agrees with his strategy for housing development. “The low-growing fruit were the easy ones to deal with, and I think that’s what they’ve been working on,” he said. “There was a list of properties that the county owned—a number of properties that could have been built on. I don’t see any of that happening and I don’t know why.”

Yes, the federal monitor has approved these sites, tacitly and with stern warnings that its approach had been “opportunistic rather than systematically planned,” but why hasn’t Westchester developed housing units in towns like Scarsdale ($1,178,900 median home value, black and Hispanic populations of 5.5 percent)? Replies the county executive: “Who’s to say we won’t in two or three years?”

Scarsdale Mayor Miriam Levitt-Flisser, for one. While she acknowledges that there are a few developments on the town’s drawing board, it has no plans to build affordable housing projects in the foreseeable future. In February 2011, the village passed legislation to comply with the countywide mandate, but this only affected new construction. “It is what it is,” she says. “The amount of available space that we have precludes us from making grandiose plans.” Despite Scarsdale’s seeming inability to increase its affordable housing options, Levitt Flisser bristles at the notion that her town is segregated. “Anyone who knows Scarsdale knows that we are a very mixed, international community here.” Although its African American and Hispanic populations have grown since 2000, the 2010 Census reveals that the town remains more than 84 percent white.

Astorino refuses to see the settlement as an integration order. “They’ve changed the moniker,” he says referring to HUD. “That’s their words.” Like Spano before him, Astorino insists that the only kind of segregation in Westchester County is economic. “People can live wherever they can afford to, but there are no barriers at the gates of each community saying, ‘Don’t come in,’” he says. “I can’t live in certain parts of Westchester County because I can’t afford the down payment on the homes, and I certainly can’t afford the property taxes.”

Gurian disagrees. “The level of segregation is actually higher for families making more than one hundred thousand dollars,” he says. “If the discrimination were purely economic, that wouldn’t be the case.” The 2000 Census numbers appear to confirm as much. While building his original lawsuit against the county, Gurian employed Andrew Beveridge, a Queens College and CUNY Graduate Center professor of sociology, to examine different sectors of the population. According to the index of dissimilarity, a device that measures segregation by the percentage of a minority group that would need to move to even out its distribution over a given area (in this case, Westchester County), he found that affluent African Americans (households earning in excess of $100,000) were as isolated from affluent whites as less affluent African Americans from the rest of the white population. Perhaps more telling: When these households were mapped over the rest of the African American populace, there was a high concentration of affluent households in less affluent neighborhoods. “From my analysis of income and racial segregation,” Beveridge wrote in his report, “it is obvious that racial segregation and concentration is not simply the result of income segregation.”

When it comes to pursuing litigation against municipalities with exclusionary zoning—one of the chief impediments to fair and affordable housing identified by the federal monitor—the  county executive remains similarly skeptical. On November 30, 2011, Astorino took to the pages of the New York Daily News to rail against what he called the federal government’s “warped war on Westchester,” accusing it of using the settlement as a “hammer to dismantle local zoning” without any recognition of the rule of law. Discussing his relationship with the county’s townships in his office two months later, he again referred to HUD’s putative hammer: “We want to work hand in hand, cooperatively, just as we’re doing with all of the local communities. That’s how you’ll get this thing done—not by banging people over the head.”

Bennet Gershman, a law professor at Pace University who’s been tracking the county’s progress in the settlement and commented on it for the Journal News, fell short of suggesting that Astorino has willfully misinterpreted the New York State Constitution, but said that it’s absolutely clear that counties can sue subdivisions. “Astorino knows the law,” he wrote in an email. “As for his op-ed, it reminds me of the demagogic bluster we’ve heard for so many years from the likes of Alabama Governor George Wallace [‘segregation today, segregation forever’].”

“Rob Astorino is not George Wallace,” counters Marlene Zarfes, the fair housing director at Westchester Residential Opportunities, Inc. (WRO), a White Plains-based organization whose mission is to promote equal, affordable, and accessible housing for all residents of the region. Her organization is eager to see the county resolve its dispute with the federal government because HUD is currently withholding millions of dollars from the county that help finance not-for-profits like WRO. (In the wake of the federal magistrate’s ruling, Astorino has called on HUD to release these funds.) “We believe we need more fair and affordable housing, but to leave the impression that people in government are intentionally discriminating is wrong.”
In light of the recent housing settlement, WRO conducted extensive tests in Mount Kisco, Peekskill, and the Sound Shore communities in which they sent paired groups of testers to real-estate offices, management companies, and apartment complexes to pursue housing. After more than a year and a half of research, it discovered that one in five African American and Hispanic applicants were discriminated against, either because they were steered toward predominantly ethnic neighborhoods, or because their credit was checked where a white applicant’s was not. In one instance, WRO brought legal action against the New Rochelle management company Hoffman Investors Corp. and its superintendent, Bernard Kurtzke—a suit that resulted in the Westchester County Human Rights Commission ordering the respondents to pay upwards of $27,000 to the not-for-profit and the county at large. “From the continuum of complaints that we get,” she says referring to her organization’s clients, “we have reason to believe that we’re not going away anytime soon.”

For Astorino, cases like these are simply the cost of doing business. “Does discrimination exist in Westchester?” he asks rhetorically. “Yes. It exists everywhere in the world. Is it a part of the fabric of who we are? No.” Jerry Levy, he of Enhanced Section 8 fame, offers a more dire assessment. “They lost New Rochelle, Yonkers, Mount Vernon, and Peekskill. They’re now considered minority neighborhoods—to [Westchester officials] that’s the Bronx,” he says. “I think they’ve drawn the line and it’s not just the county. Where is the governor on this issue? Our senators aren’t speaking out.”

Levy believes that the county executive is determined to undermine the terms of the consent decree because it’s in his political interest to do so. Westchester’s election history bears out his theory. Astorino was propelled to office in 2009 in no small part by his adamant criticism of the settlement, both the terms of the accord and the county’s original decision to settle. “Any politician who stands up and says we’re going to do this is basically looking for a new job,” Levy says.
Whether the county has circumvented its pact with the federal government or merely done the best it could with a flawed agreement, its housing patterns persist. Nearly two and a half years after the settlement was celebrated as a model approach, not only in New York, but across the country, Westchester remains as divided along ethnic lines as it was when the lawsuit began. More troubling still is that, despite the efforts of both fair housing and civil rights advocates, segregation—racial and economic—will likely continue.

Several weeks after she and her mother moved into their apartment in Pelham, Khalia returned home from school with three presents she’d received from her new friends at Pelham Middle School. “In Yonkers, every day she come home, ‘this person did that’ or ‘this person did this,’” says Fatima. “I’m like ‘Wow, you already have best friends?’”

The Garbas’ search for a suitable home and public school was not without its complications. Although she’s reluctant to name names, Fatima hints that she was a victim of discrimination. “When I started looking for apartments, a broker was showing me places that I would have been out of my mind to move into,” she says, her eyes widening. “He told me that with Section Eight, these were the only apartments he could show me.”
She reclines on her sofa before continuing: “I love living here, my daughter loves living here.” If only the rest of the county felt the same.

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