United States v. Westchester Cty.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER Do NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS LOCAL RULE 32.1.1. WHEN CITING A
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FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 28th day of April, two thousand seventeen.

PRESENT: GUIDO CALABRESI
DENNY CHIN,
RAYMOND J. LOHIER, JR,
Circuit Judges.


UNITED STATES OF AMERICA, ex rel. ANTI-
DISCRIMINATION CENTER OF METRO NEW
YORK, INC,
Plainti??Appetlee,
16-2540-cv(L)
v. 

WESTCHESTER COUNTY, NEW YORK,
Defendant-Appellant.



FOR PLAINTIFF-APPELLEE: DAVID J. KENNEDY, Assistant United States
Attorney (Benjamin H. Torrance, Assistant
United States Attorney, on the brief), for Joon H.
Kim, Acting United States Attorney for the
Southern District of New York, New York,
New York.

FOR DEF EN DAN T: ROBERT F. Westchester County
Attorney (Linda M. Trentacoste, Associate
County Attorney, Justin R. Adin, Senior
Assistant County Attorney, and Allison E.
Burke, Assistant County Attorney, on the brief),
Westchester County Attorney, White Plains,

New York.
FOR AMICUS CURIAE EDWARD J. PHILLIPS, Keane Beane, P.C.,
TOWN OF NEW CASTLE: White Plains, New York.

Consolidated appeals from the United States District Court for the
Southern District of New York (Cote, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the opinions and orders of the district court are
AFFIRMED.

Defendant-appellant Westchester County, New York (the "County"),
appeals from the opinions and orders of the district court entered July 18, 2016 and May
24, 2016, finding that the County breached a consent decree entered into with the
Department of Justice on August 10, 2009 (the "Consent Decree"). We assume the
parties? familiarity with the underlying facts, procedural history, and issues on appeal.

We review the district court's interpretation of a consent decree de novo,

United States ex rel. Anti-Discrimination Ctr. of Metro N. Y., Inc. v. Westchester Cty., 712 F.3d

2

761, 767 (2d Cir. 2013), and its factual findings for clear error, United States v. Broadcast
Music, Inc, 275 F.3d 168, 175 (2d Cir. 2001). We review a district court's orders granting
relief for Violation of a consent decree for abuse of discretion. Westchester Cty., 712 F.3d
at 767. The district court found that the County violated paragraphs 7 and 32 of the
Consent Decree. We affirm substantially for the reasons given by the district court,
adding only the following.
A. Paragraph 32

Paragraph 32 of the Consent Decree required the County to complete,
within 120 days, an analysis of impediments to fair housing choice "deemed
acceptable by [the United States Department of Housing and Urban Development
App. at 213-14. The district court concluded that the County breached
paragraph 32 by not completing an AI acceptable to HUD. We agree.

First, it is undisputed that HUD has not accepted any AI submitted by the
County since it entered the Consent Decree more than seven years ago. In Cty. of
Westchester v. US. Dep?t of Haas. 8) Urban Dem, 802 F.3d 413 (2d Cir. 2015), we held that
HUD justifiably rejected the County's AI submissions because of its failure to
adequately analyze the impediments that municipal zoning laws presented to fair
housing choice. Id. at 432-33. The County is not entitled to relitigate that issue now.
Zdaaok v. Glidden Darkee Famous Foods Div, 327 F.2d 944, 953 (2d Cir. 1964)

litigants have once battled for the court's decision, they should neither be

required, nor without good reason permitted, to battle for it again"). Nor has the
County submitted an acceptable AI since our decision in 2015.

Second, the County?s assertion that it has complied because refusal
to accept its AIS was unreasonable fails. As the United States demonstrates
convincingly, HUD refused to accept the County's A15 for good reason.

Third, the County also argues that it should no longer be required to
submit an AI. We are not persuaded. The County's attempt to re?write the Consent
Decree is rejected.

B. Paragraph 7

Paragraph 7 of the Consent Decree required the County to build 750 units

of affordable housing by 2016. Specifically, paragraph 7(i) required 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 [those] objectives . . . 
and conditioning or withholding the provision of County funds on actions
that promote [those] objectives . . . .

App. at 198. Paragraph 7(j) required that
[i]n the event that a municipality does not take actions needed to promote
the [building of the 750 units], or undertakes actions that hinder [those]
objectives . . ., the County shall use all available means as appropriate to
address such action or inaction, including, but not limited to, pursuing
legal action.

App. at 199.

On May 24, 2016, the district court found that the County breached

Consent Decree T11 by, inter cilia, failing to build 28 units at Chappaqua Station in

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the Town of New Castle ("New Castle"). The district court concluded that the County
failed to adequately address the opposition of New Castle to the development, in
derogation of its obligations under paragraph 7. The district court found that the
County breached paragraph 7(i) because its support for Chappaqua Station had "been
inconsistent, slow, and half-hearted," and faulted the County for its delays and lack of
support for the project. App. at 173?75. The district court similarly held that the County
breached paragraph 7(j) because "[New Castle's] actions are precisely the type of
municipal opposition that the Consent Decree anticipated might occur and that impose
upon the County the affirmative obligation to use 'all available means as appropriate' to
counteract such hostility." App. at 176. The district court's conclusions are amply
supported by the record.

New Castle, as amici, urges us to hold that the district court erred in
concluding that the County violated paragraph which required that the County
"use all available means" to address New Castle's "actions" that "hinder" the Chappaqua
Station project. App. at 199. New Castle argues that by expressing unfavorable
opinions about the Chappaqua Station project, it did not engage in any action that
"hindered the project in any discernible way," Arnicus Br. at 1, and, therefore, the
County's obligations under paragraph 7 were not triggered. The district court,
however, never took issue with the right of New Castle officials to express views on the
Chappaqua Station project; rather, the district court saw those statements as evidence of

opposition to the project. Moreover, the district court reasonably viewed the statement

of the New Castle building inspector that he would move the Chappaqua Station
building permit application "all the way to the bottom of the pile," App. at 1411, as
evidence of an intent to delay the project.

Finally, the County disputes the district court's finding that the site
remediation permit granted for Chappaqua Station does not qualify as a building
permit for purposes of paragraph 23, which sets forth a schedule for the development of
the 750 units required by paragraph 7. Specifically, by the end of 2016, the County was
required to have financing in place and building permits for 750 new affordable
housing units. The site remediation permit issued to the developer on December 29,
2015 does not allow the developer to begin actual construction of the development and
is therefore not a building permit. As the district court held, "a preparatory stage
permit, such as a site remediation permit, cannot qualify as the building permit

described in 23." App. at 183.

We have considered the County's remaining arguments and conclude
they are Without merit.

We note that these consolidated appeals are the sixth and seventh appeals
by the County from the district court's ongoing efforts to ensure the County's
compliance with its obligations under the Consent Decree. All of these appeals have

been rejected, and it is apparent that the County is engaging in total obstructionism.

The County would be well?advised to stop making excuses, and to complete its
obligations under the Consent Decree with diligence and dispatch.
Accordingly, we AFFIRM the opinions and orders of the district court.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk