Appendix — City of Yonkers v. United States

vu1497 MAR z 8 2001

IN-THE

Supreme Court of the United States

CITY OF YONKER

Petitioner,

V.

UNITED STATES AND YONKERS BRANCH, NATIONAL

ASSOCIATION FOR THE ADVANCEMENT OF COLORED

PEOPLE,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

a ae —— aan

oe

APPENDIX

RAYMOND P. FITZPATRICK, JR.

Counsel of Record

R. Scott CLARK

FITZPATRICK, COOPER & CLARK

Attorneys for Petitioner

Farley Building, Suite 600

1929 Third Avenue North

Birmingham, Alabama 35203

(205) 320-2255

l

TABLE OF APPENDICES

Appendix | — Opinion Of The United States Court

Of Appeals For The Second Circuit Dated,

Decided And Filed January 5,;2001 ..........

Appendix 2 — Third Supp!emental Long Term Plan

Order Of The United States District Court For The

Southern District Of New York Dated December

BG RT ee ov on ood la kn eas Sry ae

Appendix 3 — Amendment To Third Supplemental

Long Term Plan Order Of The United States

District Court For The Southern District Of New

York Dated January 24, 2000... ... 2... .....

Appendix 4 — Excerpts Of Transcript Of Proceedings

Of The United States District Court For The

Southern District Of New York Dated April 30,

1986 And May 2, 1986; Respectively .........

Appendix 5 —- Housing Remedy Order Of The

United States District Court For The Southern

District Of New York Dated May 28, 1986 ....

Appendix 6 — Modification To Housing Remedy

Order Of The United States District Court For The

Southern District Of New York Dated And Filed

BO rh eee cs:

Appendix 7 — First Remedial Consent Decree In

Equity Of The United States District Court For

The Southern District Of New York Dated And

Filed January 28,1988 ....... Ae ema ee a

Page

la

23a

32a

34a

96a

ll6a

li

Appendices

Page

Appendix 8 — Order Amending House Remedy

Order Of The United States District Court For The

Southern District Of New York Dated April 13,

1988 .... ... . 6 eeu ee I3la

Appendix 9 — Long Term Plan Order Of The United

States District Court For The Southern District

Of New York Dated And Filed June 13, 1988 .. 133a

Appendix 10 — Modification To Tenant Selection

Section Of Consent Decree Of The United States

District Court For The Southern District Of New

York Dated Awauet Za, Telcos iv a's so dases ss - Sla

Appendix 11 — Supplemental Long Term Plan

Order Of The United States Disfrict Court For The

Southern District Of New York Adopting

Additional Remedial Measures Dated October 5,

bk ey 1S4a

Appendix 12 — Transcript Of Proceedings Of The

United States District Court For The Southern

District Of New York Dated November 6, 1996

Appendix 13 — Second Supplemental Long Term

Plan Order Of The United States District Court

For The Southern District Of New York Dated

November 6, 1996 And Filed November 7, 1996

lll

Appendices

—

Appendix 14 — The City Of Yonkers Affordable

Housing: Year One — Annual Report “A Forma-

tive Year Of Change, Growth And Productivity”

pated Feoruary 24,1996 ... 2c. ccc cacues

Appendix 15 — Memorandum Of The Department

Of Planning And Development, City Of Yonkers

Dated January 19, 1999 With Year 2 Existing

ea ee es br abcd kak nds dens

Appendix 16 — Transcript Of Proceedings Of The

United States District Court For The Southern

District Of New York Dated February 24, 1999

i ee oe = Se Se. ee oe £6 Oe Oe ae ew ee 2 OOS OD Oe 4 et 6 6S Be Ss

Appendix 17 — Order Of The United States District

Court For The Southern District Of New York

Re en a eS oe eS

Appendix 18 — Order Of The United States District

Court For The Southern District Of New York

Awarding City 43 Credits For Year Two Dated

NE SRL Da gi ea ee ea

Appendix 19 — City Of Yonkers’ Submission

Concerning Disputed Year 2 Existing Housing

Credits And Other Pending Matters Dated June

I aed Powe cael y is undwesc

Appendix 20 — Affidavit Of John D. Spencer Dated

Sa aa a

iv

Appendices

Page

Appendix 21 — Letter From Michael-H. Sussman

To Honorable Leonard B. Sand Re Existing

Housing Issues Dated June 21,1999 .......... 290a

Appendix 22 — Letter From Diane L. Houk To

Honorable Leonard B. Sand Re Existing Housing

lseues Dated Fume Zh, 1999 ooo. ie cca wees: 296a

Appendix 23 —- Memorandum From Raymond P.

Fitzpatrick, Jr. Dated June 22, 1999 With

Proposed Rental And Outreach Program Outlines

Appendix 24 — Letter From Diane L. Houk To

Honorable Leonard B. Sand Re City Of Yonkers’

Outreach Programs Dated July 1, 1999 ........ 317a

Appendix 25 — Letter From Michael H. Sussman

To Honorablé Leonard B. Sand Re City Of

Yonkers’ Proposed Outreach Program Dated July

Bi Vertes ee 323a

Appendix 26 — Letter From Raymond P.

Fitzpatrick, Jr. To Hon. Leonard B. Sand Re DOJ

And NAACP Comments Concerning Outreach

Program Dated July 2, 1999 ................. 326a

Appendix 27 — Memorandum From Marilyn

Melkonian To Honorable Leonard B. Sand

Re Several Issues And Proposals To Existing

Housing Program Dated July 28,1999 ........ 329a

Vv

Appendices

Appendix 28 — Letter From Michael H. Sussman

To Honorable Leonard B. Sand Re Housing

Monitor’s Recommendations Dated July 30, 1999

8 6 @ t¢ © 8 4.8 8 © 2 6 £4 0-8 4.908 D BIER SSS OR Se Oe 47 Oe Oe eee

Appendix 29 -—— Letter From Diane L. Houk To

Honorable Leonard B. Sand Re Housing

Monitor’s Recommendations Dated June 21, 1999

BD 6 66.2 BS 8 6 be SS Se EOE OS ES 4 ES Be A Ore eee ee ee eee

Appendix 30 — Memorandum From Laura O.

Lazarus Re Judge Sand’s Tentative Conclusions

And Confirmation Of Meeting Dated August 11,

E990 0k. dive ns veoh eweelen se ea ees eee

Appendix 31 — Letter From Michael H. Sussman

To Honorable Leonard B. Sand Re Outstanding

Housing Issues Dated August 18, 1999 ........

Appendix 32 — Letter From Raymond P.

Fitzpatrick, Jr. To Honorable Leonard B. Sand

Re Tentative Findings Dated August 20, 1999

& 6 6-2 0 & @ &€ &-@ 6 & & 2.4.8 B'S S276 AE BEES OS OSS Se A

Appendix 33 — Letter From Michael H. Sussman

To Honorable Leonard B. Sand Re Attorney’s

August 20, 1999 Letter Dated August 20, 1999

(20 @ 44 & £2 2 Sa Oe MN OS & ER. DS E-OS SSS BU Ae SS ee ee eo

Page

vi

Appendices

Appendix 34 — Transcript Of Proceedings Of The

United States District Court For The Southern

District Of New York Dated September 9, 1999

e ¢ 6 66 86 6.4.6 66°C 8 6.694 CO SO See 2 ee ee 6 oe eee ee

Appendix 35 — Letter From Raymond P.

Fitzpatrick, Jr. To Hon. Leonard B. Sand

Re Additional Comments On Housing Issues

Dated November 18, 1999 ..................

Appendix 36 — Letter Frem Michael H. Sussman

To Honorable Leonard B. Sand Re Additional

Comments On Housing Issues Dated November

21, S9OP ss aacdueen PETER Tee Tee ee

Appendix 37 — Notice Of Appeal Dated January

13, FOOD 1... Soikvsasveeneges sent eee

Appendix 38 — Constitutionai Provisions Involved

BeBe eee eee ee we ne fe ee ee oe ae ee eee ee ee ee oe et ee

Page

372a

la

APPENDIX 1 — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DATED, DECIDED AND FILED JANUARY 5, 2001

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2000

(Argued: Thursday, October 5, 2000 Decided: JAN 5 2001)

Docket Nos. 00-6022(L) & 00-6036(XAP)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

\

SECRETARY OF HOUSING AND

URBAN DEVELOPMENT,

Third-Party-Defendant.

SHIRLEY C. BROWN, in her capacity as a member of the

State Board of Regents; LORA BRADLEY CHODOS, in

her official capacity as a member of the State Board of

Regents; THOMAS FREY, in his official capacity as a

member of the State Board of Regents; WILLARD A.

GENRICH, in his official capacity as a member of the State

Board of Regents; NORMA GLUCK; EMLYN I.

GRIFFITH, in her official capacity as a member-of the State

Board of Regents; FLOYD S. LINTON, in his official

capacity as a member of the State Board of Regents;

2a

Appendix 1

VINCENT TESE; UNITED STATES DEPARTMENT OF

HOUSING AND URBAN DEVELOPMENT; SAMUEL

PIERCE; SALVADORE SCLAFINI, in his official capacity

as a member of the State Board of Regents; THOMAS SOBOL;

MARIO CUOMO; MARTIN C. BARRELL, in his official

capacity as a member of the State Board of Regents; JAMES

MCCABE, SR.., in his official capacity as amember of the State

Board of Regents; MIMI LEVIN LIEBER, in her official

capacity as amember of the State Board of Regents; YONKERS

COMMUNITY DEVELOPMENT: AGENCY,

Defendants-Appellees,

CITY OF YONKERS:

Defendant-Appellant-Cross-Appellee,

YONKERS BOARD OF EDUCATION,

Defendants-Appellants,

v.

YONKERS FEDERATION OF TEACHERS;

Intervenor-Defendant,

YONKERS BRANCH-NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF COLORED PEOPLE;

Intervenor-Plaintiff-Appellee-Cross-Appellant,

3a

Appendix 1 :

R. CARLOS CARBALLADA, in his official capacity as a

member of the State Board of Regents; LOUISE P.

MATTEONI, in his official capacity as member of the State

Board of Regents; EDWARD MEYER, in his official

capacity as a member of the State Board of Regenis; JORGE

L. BATTISTA, in his official capacity as a member of the

Staite Board of Regents; STATE OF NEW YORK; BOARD

OF REGENTS OF THE STATE OF NEW YORK;

ADELAIDE L. SANFORD, in her official capacity as a

~ member of the State Board of Regents; URBAN

DEVELOPMENT CORPORATION OF THE STATE OF

NEW YORK; GEORGE PATAKI, as Governor of the State

of New York; RICHARD P. MILLS, as Commissioner of

Education of the State of New York; H. CARL MCCALL,

as Comptroller of the State of New York,

Defendarits- Appellees.

Before: KEARSE, CALABRESI, and SOTOMAYOR,

Circuit Judges.

7 * *

CALABRESI, Circuit Judge:

I. BACKGROUND

In 1985, following a lengthy bench trial, the United

States District Court for the Southern District of New York

(Leonard B. Sand, District Judge) found that the City of

Yonkers (“the City” or “Yonkers”) had intentionally

segregated its public housing and public schools on the basis

4a

Appendix 1

of race by relegating virtually all of its subsidized housing

to the predominantly minority-resident southwest part of the

City, all in violation of the Fair Housing Act, 42 U.S.C.

§ 3601 et seg., and the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution.

United States v. Yonkers Bd. of Educ. , 624 F. Supp. 1276,

1288-1376 (S.D.N.Y. 1985).

In the next year, on May 28, 1986, the District Court

entered a Housing Remedy Order (“HRO”), which aimed to

desegregate public and subsidized housing by requiring the

City to develop additional such housing in overwhelmingly

white East and Northwest Yonkers.' United States v. Yonkers

Bd. of Educ., 635 F.Supp. 1577 (S.D.N.Y. 1986). The HRO

required the City to build a specified number of subsidized

housing units in specified areas by a specified date and also

gave the plaintiffs and plaintiffs-intervenors in the case —

the United States and the National Association for the

Advancement of Colored. People (“the NAACP”),

respectively — the right to petition the District Court for

further remedial orders in case these guals were not timely

met. The City refused to comply with the HRO and appealed

to this Court, which affirmed the District Court’s liability

and remedy rulings. United States v. Yonkers Bd. of Educ.,

837 F.2d 1181, 1184, 1236 (2d Cir. 1987), cert. denied, 486

U.S. 1055 (1988). In spite of the length, care, and detail of

1. On May 13, 1986, the District Court entered a separate order

in the school segregation portion of the case, see United States v.

Yonkers Bd. of Educ., 635 F. Supp. 1538 (S.D.N.Y. 1986), which

spawned a separate history. of litigation that is not directly relevant

to the present appeal.

5a

Appendix 1

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.’

A brief history of this obstruction seis the stage for the

present appeal. In January 1988, following our affirmance

of the HRO, the parties negotiated a consent decree under

which the City agreed to implement certain key parts of the

HRO. The City, however, refused to take the actions required

by the consent decree, and on June 13, 1988, the District

Court entered a Long Term Plan Order (“LTPO”) setting

forth the specific steps the City had to take in implementing

the HRO. The LTPO:

(1) required the City to ensure that a certain

perceniage of low income housing units were

included in any new multi-family housing

development;

(2) directed the City to disperse the assisted

housing units in a manner that avoids the

“undue concentration of both public and

assisted units in any neighborhood of

Yonkers;” and

_2. On August 2, 1988, the District Court found both the City

and several individual City Council-members in civil contempt of -

its earlier remedial orders. This Court subsequently affirmed the

contempt sanctions, although it limited the fines levied against the

City, which had previously been doubling on-each consecutive day

of non-compliance, to $ 1 million per day. United States v. City of

Yorkers, 856 F.2d 444, 460 (2d Cir. 1988). The Supreme Court

subsequently reversed the contempt sanction as applied to the individual

council members. Spallone v. United States, 493 U.S. 265, 280 (1990).

6a

Appendix 1

(3) created a system of priorities among those

eligible for assisted housing as follows:

priority | — persons who had been

residents of public or subsidized housing

in the City of Yonkers between January

1, 1971 and the date at which assisted

housing under the LTPO was made

available;

priority 2 — residents of the City of

Yonkers;

priority 3 — persons employed in the

City of Yonkers.

Under the LTPO, the City earned housing credits (to be used

towards achieving the goals of the HRO and Consent Decree)

whenever it apportioned housing according to the priority

scheme (and also when it took certain other housing actions).

Once again, the City failed to implement the terms of

the remedial order, and in October 1993, the District Court

entered a Supplemental Long Term Plan Order (“SLTPO”)

setting forth additional measures to remedy the City’s

ongoing housing segregation. Although this Court affirmed

the SLTPO on appeal, United States v. Yonkers Bd. of Educ.,

29 F.3d 40 (2d Cir. 1994) (per curiam), cert. denied, 515

U.S. 1157 (1995), and although the City’s earlier open and

aggressive defiance of the Court desegregation orders had

subsided, the City continued to fail to provide the new

subsidized housing the SLTPO contemplated.

Wa eee hi er ; 3

7a

Appendix 1

Accordingly, on November 6, 1996, the District Court

entered a Second Supplemental Long Term Plan Order

(“SSLTPO”) to promote further the implementation of the

HRO. Among other things, the SSLTPO required the City

to provide at least 190 additional units of affordable housing

per year to LPTO qualified individuals in each of the next

6 years. The District Court also reserved the right to modify

the SSLTPO on request from any party, or even sua sponte,

if it determined that “the goals set forth [in the SSLTPO] are

not likely to be realized in the foreseeable future, absent such

modification.”

In each of the first two years of the SSLTPO (1997 &

1998) the parties disputed the number of credits towards the

goal of 100 units per year to which the City was entitled. In

adjudicating these disputes, the District Court recognized,

and shared, the plaintiffs’ concern that the City’s remedial

measures were not adequately benefitting priority one

households. At a hearing held in February 1999, the Court

requested that the parties submit “a proposed revision of the

remedy order designed to increase the ability of priority 1

class members to have greater housing opportunity,” and also

“more carefully [to] define what is meant by furthering the

integrative purposes of the order.”

The District Court held another hearing in September

1999, in which it heard arguments relating to the participation

of priority one households during the first 2 % years of the

SSLTPO and also on the SSLTPO’s effect on furthering

integration in the City’s housing. The Court determined that

the housing program’s “accomplishments to date fall far short

of what one hoped for,” and it ordered the parties to confer

8a

Appendix |

and to prepare a new remedial order. On December 29, 1999,

the District Court granted the City nearly ali the housing

credits it had requested for its activities in 1998 (as it had

earlier done with respect to the City’s 1997 requests). At the

same time, the Court granted these credits only “on the

condition and understanding that no future credits will be

granted unless” the City creates housing opportunities that

“further the racially integrative goals which are the essence

of all the Court’s prior housing remedy orders intended to

counter the effects of prior racial discrimination in housing

in Yonkers.”

To ihis end, the District Court entered the Third

Supplemental Long Term Plan Order (“TSLTPO’’). The

TSLTPO specified that, with exceptions that are not relevant

nere, future housing credits would be awarded to the City

only:

(a). for priority one households that move to

census blocks in East and Northwest Yonkers

that, as of 1990, had a minority (black and

Hispanic) population of below 45%;

(b) for minority priority two & three households

that move to census blocks in East and

Northwest Yonkers that, as of 1990, had a

minority population of below 45%; and,

(c) for non-minority priority two and three

households that move to census blocks in East

and Northwest Yonkers that, as of 1990, had

a white population of below 45%.

abe ert. hai mr AD

9a

Appendix 1

In addition, as a carrot to accompany this stick, the District

Court instituted a complicated bonus system under which

the City would, if it reached certain targets for the placement

of priority one households, receive more than one unit of

housing credit for each household placed.?

With minor revisions that are not relevant here, this is

the order the City of Yonkers now appeals. Specifically, the

City contends (1) that the District Court’s newest remedial

order represents an improper modification of the consent

decree that had previously been in place and (2) that the new

order employs race-conscious remedial devices in an

unconstitutional manner. At the same time, the NAACP

cross-appeals the bonus-credit element of the TSLTPO,

arguing that this modification improperly weakens the

remedial character of the order and improperly rewards the

City for its dilatory tactics. Because we find that the TSLTPO

satisfies the standards for modifying a consent decree set

out in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367,

383-85 (1992), and because we find that the TSLTPO’s use

of race satisfies even the strict scrutiny to which legislative

race-conscious remedies must be subjected, see Adarand

Constrs., Inc. v. Pena, 515 U.S. 200, 227 (1995), we reject

the City’s challenge. Furthermore, although we might not

have adopted the bonus-credit element of the TSLTPO

ourselves, we defer to the District Court’s more intimate

knowledge of the case and on that basis reject the NAACP’s

cross appeal. We accordingly affirm the District Court’s

remedial order in its entirety.

3. It is worth noting that there is a stick built into even the

carrot: if the City falls short of these goals, it receives less than one

unit of credit for each priority one family placed.

10a

Appendix |

Il. DISCUSSION

- A. The City’s Appeal

1. The Modification

The City’s first contention on appeal is that the TSLTPO

represents an improper, and hence impermissible,

modification of the consent decree that preceded it, namely

the SSLTPO.*

Fed. R. Civ. F. 60(b) clearly contemplates that remedial

orders may be modified. providing that:

On motion and upon such terms as are just, the

court may relieve a party or a party’s legal

representative from a final judgment, order, or

proceeding for the following reasons: ... (5)...

it is no longer equitable that the judgment should

have prospective application; or (6) any other

reason justifying relief from the operation of the

judgment.

Furthermore, because consent decrees are injunctions, their

modifications are reviewed for abuse of discretion only.

Juan F. v. Weicker, 37 F.3d 874, 878 (2d Cir. 1994), cert.

denied, 515 U.S. 1142 (1995). Consent decrees are, however,

also contracts between the parties. /d. This fact, combined

with the concern that allowing consent decrees to be too

4. We reject the NAACP’s contention that the terms of the

TSLTPO do not modify those of the SSLTPO.

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Appendix 1

easily modified would discourage parties from accepting

compr )mise settlements, has led to a significant cabining of

District Courts’ discretion to modify consent decrees.

“Modification is a remedy not to be lightly awarded,

‘especially where the design is not to relieve a party of

obligations but to impose new responsibilities.’ ” /d. (quoting

Walker v. HUD, 912 F.2d 819, 826 (Sth Cir. 1990)).°

At the same time, however, the past decade has seen a

significant relaxation of the restrictions imposed on District

Courts seeking to modify consent decrees. At least ir the

context of institutional reform litigation, the Supreme Court

has softened the traditional rule that “[nJothing less than a

clear showing of grievous wrong evoked by new and

unforseen conditions” could justify modifying a consent

decree. United States v. Swift & Co., 286 U.S. 106, 119

(1932). In reconsidering this rule, the Supreme Court has

reasoned that “[t]he experience of the District Courts and

Courts of Appeals in implementing ana modifying [consent]

decrees has demonstrated that a flexible approach is often

essential to achieving the goals of reform litigation,” Rufo,

502 U.S. at 381, and that this flexible approach is especially

important because consent decrees in this context “reach

5. Although the text of Fed. R. Civ. P. 60(b) focuses on

modifications that relieve a party from the operation of a consent

decree, the above quotation clearly demonstrates that modifications,

such as the one in the TSLTPO, that increase the obligations imposed

by a consent decree are also permissible. See also United States v.

Western Elec. Co., 46 F.3d 1198, 1202 (D.C. Cir. 1995) (noting

that “[aJt the request of the party who sought the equitable relief, a

court may tighten the decree in order to accomplish its intended

result’).

12a

Appendix |

beyond the parties involved directly in the suit and impact

on the public’s right to the sound and efficient operation of

its institutions.” /d. (internal quotation marks omitted).

Changes in consent decrees are not trivial matters even

under the new standard. The Supreme Court has made clear

that “it does not follow that a modification will be warranted

in all circumstances,” and that a party seeking an alteration

bears the initial burden of establishing that a significant

change in circumstances warrants the modification. /d. at

383. But instead of facing Swift’s requirement of making “a

clear showing of grievous wrong evoked by new and

unforeseen conditions,” Swift, 286 U.S. at 119, a party

seeking a modification may now meet its burden simply by

showing that there has been “a significant change either in

factual conditions or in law.” Rufo, 502 U.S. at 384.° And

under Rufo, a modification due to changed factual conditions

the circumstance relevant to the case before us — is

“appropriate when a decree proves to be unworkable because

of unforseen obstacles,’ or when “enforcement of the decree

without modification would be detrimental to the public

interest.” /d.

6. In articulating this standard, Rufo in effect adopted the rule

this Court had articulated earlier in New York State Assoc. for

Retarded Children v. Carey, 706 F.2d 956, 969-71 (2d Cir. 1983),

cert. denied, 464 U.S. 915 (1983).

7. Furthermore, Rufo notes that “unforseen” does not in this

context mean “unforseen and unforeseeable” and that “[l]itigants

are not required to anticipate every exigency that could Conceivably

arise during the life of a consent decree.” /d. at 385.

i

3

13a

Appendix |

The City, which recognizes these developments in the

law, contends that the modification at issue in the present

appeal does not pass even the more flexible Rufo test. That

contention, however, may be straightforwardly rejected. The

SSLTPO was adopted to promote the implementation of the

HRO and thereby to further the ultimate goal of remedying

the City’s past intentional racial discrimination in its public

and subsidized housing. And by the time of the modification

before us (i.e., the adoption of the TSLTPO), it had become

manifest that neither the intermediate nor the ultimate goal

of the SSLTPO was being achieved.

To begin with, the City’s actions under the SSLTPO were

clearly failing to reflect the priority scheme that had been

established under the HRO. In 1997, only 29% of the

SSLTPO’s beneficiaries were priority one households, 68%

were priority two, and 3% were priority three; and in 1998,

only 7.9% were priority one, 85.4% were priority two, and

6.7% were priority three. Furthermore, the City’s actions

under the SSLTPO were similarly inadequate in achieving

the “integrative goals which underlie the entire remedy

order.’’* Thus, the District Court found that during 1998 (the

second year of the SSLTPO), 31 out of the 73, cr 45.5% of,

public housing moves completed under the SSLTPO were

non-integrative (that is, they involved moves by whites into

8. The City’s response — that 70% of the beneficiaries under

the SSLTPO were minority families — cannot answer this charge.

Achieving the remedy’s integrative goals depends not simply on

providing subsidized housing to minority families but rather on

locating minority housing outside of predominantly minority

neighborhoods or locating white housing outside of predominantly

white neighborhoods.

l4a

Appendix |

census blocks that were less than 45% minority or by

minorities into census blocks that were more than 45%

minority).” And, the Court also concluded that in the first

eight months of 1999 (the third year of the SSLTPO, and the

period leading up to the modification at issue and the

adoption of the TSLTPO), 13 out of the 26, or 50% of, public

housing moves under the SSLTPO were non-integrative.’®

These data reveal that more than two years after its adoption,

roughly half of those housing allocations made under the

SSLTPO whose effects on the racial segregation of Yonkers

public housing are known remain non-integrative.''

9. Our own inspection of Gov't Exhibit I generates slightly

different figures, namely that 29 out of 63, or 46% of, moves were

non-integrative. Furthermore, the government brief reports still other

numbers, specifically that 33 of 58, or 59.6% of, moves were by

minority households into “predominantly minority communities” or

by white households into “predominantly white communities.” The

pages of the appendix the government cites in support of its

contention allude to the question but contain no precise claim.

10. Our own inspection of Gov't Exhibit J once again suggests

Slightly different numbers, specifically that, 14 out of 26, or 53.8%

of, moves were non-integrative, and the government brief reports

that 16 of 26, or 61.5% of, moves were by minority households into

or “adjacent” to “predominantly minority communities” or by white

households into “predominantly white communities.” And again,

the pages of the appendix the government cites in support of its

contention allude to the question but contain no precise claim. The

NAACP has asserted that 13 of these 26 moves were non-integrative.

il. The data needed for determining the integrative effect of

the City’s housing program during the first year of the SSLTPO are

not available.

15a

Appendix 1

In light of these facts, we conclude, with the Distrfct

Court, that the SSLPTO “prove[d] to be unworkable because

of unforseen obstacles” — specifically the continued failure

of the City to serve priority one households and to promote

integrative housing moves — and that continued “enforcement

of the [SSLTPO] without modification would be detrimental

to the public interest” — the achievement of the goals of

serving priority one households and desegregating Yonkers

public housing. Rufo, 502 U.S. at 384. Accordingly, we hold

that the modification of the SSLTPO embodied in the

TSLTPO was well within the discretion of the District Court,

and we reject this element of the City’s appeal.

2. The Race-Conscious Remedy

The City’s second contention on appeal is that the

TSLTPO — by conditioning the City’s receipt of credits for

housing priority two and three families on the race of the

families and on the racial makeup of the neighborhoods in

which they are housed — employs a race-conscious remedy

in violation of the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution. Such a race-

conscious remedy, the City contends, cannot survive the strict

scrutiny to which such remedies must be subjected under

Adarand Constrs., Inc. v. Pena, 515 U.S. 200, 227 (1995);

see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273-

74 (1986) (plurality opinion of Justice Powell).

In this respect we first note that, although the language

adopted by Adarand, that “all racial classifications, imposed

by whatever federal, state, or local government actor, must

be analyzed by a reviewing court under strict scrutiny,”

l6a

Appendix |

Adarand, 515 U.S. at 227, is unquestionabiy broad, both

Adarand and Wygant involved race-based remedies adopted

by governmental agencies other than courts. In Adarand, they

were imposed by the United States Congress (at 15 U.S.C.

§ 644(g)(1)), see Adarand, 515 U.S. at 206; in Wygant, by a

local school board, see Wygant, 476 U.S. at 269-70. And it

may be, as Justice Stevens argued in casting the fifth vote to

——.——affirm a court-ordered race-based remedy integrating the

Alabama State police, that strict scrutiny does not apply to

race-based remedies ordered by “a district judge who has

found that the governmental unit before him is guilty of

racially discriminatory conduct that violates the Constitution.”

United States v. Paradise, 480 U.S. 149, 193-94 (1987)

(Stevens, /., concurring); see also Crumpton v. Bridgeport

Educ. Ass'n, 993 F.2d 1023, 1030-31 (2d Cir. 1993) (suggesting

that a district court’s race-based remedy may not be subject

to strict scrutiny where it follows an express finding that-a

government agency employed practices that contributed to

racial segregation).

We need not, however, reach this question in order to

decide the case before us. As the plurality opinion in Paradise

points out, a race-conscious remedy that can survive even

strict scrutiny may be affirmed regardless of whether strict

scrutiny or only a lesser standard of review applies. Paradise,

480 U.S. at 166-67. And the remedy embodied in the

TSLTPO clearly survives even strict scrutiny.

To pass strict scrutiny, a race-conscious remedy must

be narrowly tailorét to further a compelling government

17a

Appendix 1

interest.'? Adarand, 515 U.S. at 227. In the case before us,

there is no doubt that tie second element of this requirement

is met. The district court expressiy found that the City has

engaged in intentional racial discrimination in its subsidized

housing program, United States v. Yonkers Bd. of Educ., 624

F.Supp. at 1288-1376, and “(t]he Government unquestionably

has a compelling interest in remedying past and present

discrimination by a state actor.” Paradise, 480 U.S. at 167.

Accordingly, the parties’ arguments on appeal have quite

properly focused on the first element of the strict scrutiny

requirement, namely the question whether the district court’s

race-conscious remedy is narrowly tailored to further this

unquestionably compelling interest.

To determine Whether a race-conscious remedy is

narrowly tailored to the ends it serves we must consider

(1) the necessity for relief and the efficacy of alternative

remedies, (2) the flexibility and duration of the relief,

(3) the relationship of the numerical goals of the relief to the

relevant labor market (or to its ..alog in a case involving

something other than employment discrimination), and

(4) the impact of the relief on the rights of third parties.

Paradise, 480 U.S. at 171. The TSLTPO comfortably passes

all four elements of this test.

First, the necessity of relief in the case at bar is patent.

As we have said in an €arlier opinion in this case, “ ‘the

12. A cisirict court’s determination that a race-conscious remedy

is narrowly tailored to advance a compelling government interest

involves an application of law to facts, which we review de novo.

See Engineering Contractors Ass'n. v. Metropolitan Dade County, 122

F.3d 895, 905 (11th Cir. 1997), cert. denied, 523 U.S. 1004 (1998).

18a

Appendix 1

choice of remedies to redress racial discrimination is a

balancing process left, within appropriate constitutional or

statutory limits, to the sound discretion of the trial court’

.... The district court, which has ‘first-hand experience with

the parties and is best qualified to deal with the flinty,

intractable realities of day-to-day implementation of

constitutional commands,’ must be given a great deal of

flexibility and discretion in choosing the remedy best suited

to curing the violation... .” United States v. Yonkers Bd. of

Educ., 837 F.2d at 1236 (quoting Paradise, 480 U.S. at 184

(other internal quotation marks omitted)). Furthermore, even

if a race-conscious judicial remedial order were permissible

only where no less restrict alternative is available, that

standard is met in the case before us. In spite of fifteen years

of remedial efforts encompassing four race-neutral remedial

regimes (the HRO simpliciter, and the HRO combined with

the LTPO, the SLTPO, and the SSLTPO), and at least partly

because of the active and passive resistance to integration

displayed by the City (and documented in both this and in

our earlier opinions), Yonkers public housing remains

substantially segregated even today. Roughly half of the

housing moves under the most recen’ race-neutral remedy

were non-integrative, see supra, at___. And, at the September

9, 1999 hearing that led to the adoption of the TSLTPO, the

District Court, expressly responding to the City’s contention

that a race-based remedy would fail strict scrutiny, concluded

that “the experience [of race-neutral remedies] has not been

satisfactory.” We agree, and hold that the first of the Paradise

factors is satisfied in this case.

Second, the TSLTPO is both “flexible” and “ephemeral.”

Paradise, 480 U.S. at 177-78. The TSLTPO contemplates

WHORE LE GSE. Nol kN CY Hating

Nba che eee aoe

19a ,

Appendix 1

that the District Court will adjust the terms of the Order as

needed (for example, the circumstances in which the bonuses

and penalties that the Order mandates will apply). And, as

its focus on determining the grant of credits towards the goals

set forth in the SSLTPO reveals, the TSLTPO will remain in

force only until the discrete goals of the SSLTPO and of the

earlier remediai Orders in this case have been met.

Accordingly, we conclude that the second Paradise factor

is satisfied.

Third, the numerical goals and conditions for awarding

housing credits adopted by the TSLTPO are not

disproportionate to the racial mix of Yonkers residents or

the size of the Yonkers housing market. The TSLTPO retains

the reasonably-paced (100 credits per year) integrative

program adopted by the SSLTPO. Moreover, we “should not

second-guess the [District Court’s] carefully considered

choice of the figure[s] necessary to achieve its many

purposes, especially when [those] figure[s] [are] hedged

about with specific qualifying measures designed to prevent

any unfair impact that might arise from rigid application.”

Paradise, 480 U.S. at 182. The third Paradise factor is,

therefore, satisfied.

And fourth, the TSLTPO does not unduly burden the ©

rights of third parties. The City’s claim that the TSLTPO

“effectively constitute[s] an outright ban on a non-minority

family’s opportunity to access affordable housing in

Yonkers,” is meritless. The TSLTPO places no limits on the

number of white families that may move into subsidized

housing in greater than 45% minority neighborhoods or on

the number of credits the City may receive for such moves.

20a

Appendix I

The TSLTPO also credits the City for providing housing

opportunities in areas that are not predominantly minority

to any priority one household, including white priority one

households. Furthermore, insofar as the TSLTPO effectuated

any reduction in the public housing available to white

residents of Yonkers (a consequence we do not in any event

foresee), it would do so only by reducing the number of new

white applicants who would receive housing and not by

expelling any white families from housing they already

inhabit. And as the Supreme Court has observed in the

context of access to employment, Wygant, 476 U.S. at 282-

83, and to places at university, id., at 283 n. 11, the denial of

a new application is much less burdensome than the loss of

an existing good. We readily find that the fourth Paradise

factor is also satisfied.

Finally, we must, in deciding whether the TSLTPO was

narrowly tailored, “acknowledge the respect owed a district

judge’s judgment that specified relief is essential to cure a

violation of the Fourteenth Amendment.” Paradise, 480 U.S.

at 183. The District Court has first-hand experience of the

long and often difficult effort that remedying the City’s

intentional racial discrimination entails, in other words,

of the “realities of day-to-day implementation of ...

constitutional commands.” Swann v, Charlotte-Mecklenburg

Bd. of Educ., 402 U.S. 1, 6 (197!). After having carefully

and patiently attempted to achieve this end by race-neutral

means, after having expressly determined that such means

were not succeeding, and after hearing from both sides to

the dispute, the District Court adopted a race-conscious

remedy that is both temperate and responsible. Wetherefore = -

hold that the TSLTPO is narrowly tailored to the compelling

OPT ne) ee i te

2la

Appendix |

state interest of remedying the City’s past intentional racial

discrimination, and we reject the City’s constitutional

_ challenge to the order.

3. The NAACP ’s Cross-Appea!

In addition to granting the City housing credits only for

integrative moves, the TSLTPO gives the City bonus credits

(more than one credit per move) if it achieves certain targets

for the placement of priority one households and imposes

certain penalties (grants less than one credit per move) if the

City fails to achieve these targets. The NAACP cross appeals

the bonus-credit element of this regime, arguing that it

improperly rewards the City for its earlier obstructionist and

delaying tactics. Cf Reed v. Rhodes, 179 F.3d 453, 478 (6th

_ Cir. 1999) (Cole, /., dissenting).

Weare skeptical of giving the City credit where no credit

is due and understand the NAACP’s frustration with this

element of the TSLTPO. At the same time, we review District

Court modifications of consent decrees for abuse of

discretion only, Juan F., 37 F.3d at 878, and we do not

believe that the District Court went beyond its discretion in

~ modifying the SSLTPO in this way. Judge Sand has presided

over this difficult and exhausting case with estimable

patience and skill, and we will not second-guess his informed -

balancing of incentives in an attempt to craft a remedial plan

that will be effective in the face of opposition. In short, we

do not wish to have what may or may not be the best become

the enemy of what is clearly the good. Furthermore, the

penalty imposed in the same bre2th as the bonus demonstrates

that the District Court was well aware of the plaintiffs’

22a

Appendix |

concerns that it was rewarding the City for delay and that it

sought to preseni the City with even-handed rather than

overly generous incentives. Accordingly, we reject the

NAACP’s cross appeal.

III. CONCLUSION

~ For all the foregoing reasons, we AFFIRM the District

Court’s entry ofthe TSLTPO in its entirety.

23a

APPENDIX 2 — THIRD SUPPLEMENTAL LONG

TERM PLAN ORDER OF FHE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF NEW YORK DATED DECEMBER 239, 1999

UNITED STATES DISTRICT COURT

SCUTAERN DISTRICT OF NEW YORK

80 CIV 6761 (LSB) .

UNITED STATES OF AMERICA, |

Plaintiff,

and

YONKERS BRANCH NAACP, et al.

Plaintiff-Intervenors,

V. |

YONKERS BOARD OF EDUCATION, et al.

Defendants.

THIRD SUPPLEMENTAL

LONG TERM PLAN ORDER

: On September 9, 1999, the Court held a hearing

3 regarding the interpretation and implementation of the

Court’s prior jousing ren.edy orders. These orders include,

the 1986 Housing Remedy Order (HRO), the 1988 First

Remedial Consent Decree in Equity, the 1988 Long Term

24a

Appendix 2

Plan Order (LTPO), the 1993 Supplemental Long Term Plan

Order Adopting Additional Remedial Measures (SLTPO),

the 1996 Second Supplemental Long Term Plan Order

(SSLTPO) and the 1998 Plan (regarding assistance from the

Empire State Development-Corporation).

On February 74, 1999, the Court held a hearing

addressing the status of compliance with the SSLTPO. The

Court also received written submissions from the parties.

The Court directed the parties to examine matters further in

meetings with the Housing Monitor. Pursuant to the Court’s

Order dated June 1, 1999, the parties made additional ‘i ritten

submissions on or about June 21, 1999. After reviewing

recommendations made by the Housing Monitor, dated July

28, 1999, and reviewing further written comments submitted

by the parties in July and August 1999, as wellas considering

the parties’ oral argument made during the héaring on

September 9, 1999, the Court directs that the following

actions take place to further the impiementation of the

iemedy orders in this case. To the extent inconsistent with

yrior orders of the Court, the following provisions shall

govern:

Construction of Hoover Road, Grassy Sprain

and Yonkers Avenue Sites

1. Construction shall commence on the Hoover Road

and Grassy Sprain sites prior to April 1, 2000 and on the

Yonkers Avenue Site prior to March 1, 2000.

2. On September 17, 1998, the Court ordered the City .

of Yonkers to take all appropriate steps to implement

~ owiehe

25a

Appendix 2

construction of the Yonkers Avenue development utilizing

the Housing Investment Trust subsidy for twenty (20) units

to be occupied by households with income under 50% of the

applicable Westchester County median. Recently, the

developer for the Yonkers Avenue site informed the Court

that it wants to use an alternative financing source that does

not include the Housing Investment Trust subsidy. The

purpose of the subsidy was to ensure the long term

affordability of units serving households below 50% of

Westchester County median income. Therefore, the Court

orders the City of Yonkers to implement the construction of

Yonkers Avenue without the Housing Investment Trust

subsidy as follows: ;

-

a. the total number of units may be increased from

sixty-four (64) up to seventy-two (72) units which

additional units may include one apartment (1) for a

building superintendent and seven (7) apartments that

shall be rented at market rate;

b. the rent for seven (7) of the original units snall be

set at 30% of 20% of the Westchester County median

income and shall be rented to households with

incomes below 40% of Westchester media income;

c. the rent for thirteen (13) of the original units shall

be set at 30% of 45% of Westchester County median

income and shall be rented to households with

incomes below 50% of Westchester County median

income; and

d. the Yonkers Avenue development and occupant

eligibility structure set forth in subsections b and c

26a

Appendix 2

above shall be maintained for the affordability term

. described in Section 4 of the Long Term Plan Order.

However, rents may be increased proportionately for

the units in subsections b & c above as Westchester

County median income increases. _

Existing Housing Credits

3. The City of Yonkers requested a total of 85 existing

housing credits for Year 2 of the program which is the

calendar year 1998. In an earlier Order, this Court awarded

43 credits. Of the remaining forty-two (42) disputed credits,

eleven (11) are requested for units sold though the City’s

YCAP program. The plaintiffs and the Housing Monitor

maintain that the City was informed last year that they did

not oppose granting credits for YCAP units for Year 1

provided that the YCAP program adopt the affordability

restriction and the LTPO priority system in future years.

Although the YCAP program adopted the affordability

restriction on units, it did not adopt the LTPO pniority system

in Year 2. The City’s request for credit for the eleven (11)

YCAP units is denied for Year 2. However, if the YCAP

program adopts the LTPO priority system, the City would

be eligible to receive credit in future years for units obtained

through the YCAP program if all other program requirements

are met.

4. The plaintiffs also oppose the City’s request for an

additional thirty-one (31) credits because they claim that the

moves did not further the racially integrative purposes of

the Court’s remedial orders. Twenty-nine (29) of the seventy-

“three (73) moves in 1998 consisted of non-minority

Zia

Appendix 2

households moving to predominantly White neighborhoods

(i.e. neighborhoods with less than 45% Black and Hispanic

population as of the 1990 Census). Two (2) of the 1998

moves consisted of Black households moving to Runyon

Heights, a predominantly minority neighborhood in Yonkers

(i.e. aneighborhood with more than 45% Black and Hispanic

population as of the 1990 Census). As of August 16,1999,

nine (9) of twenty-six (26) moves in 1999 consisted of /

non-minority households moving to predominantly White Zz

neighborhoods and four (4) minority households moving to”

Runyon Heights. Such moves do not further the racially

integrative purpose of the Court’s remedial orders in this

case. Furthermore, only four (4) Priority I households made

moves in 1998. However, in recognition of the City’s efforts

to implement an outreach program to Priority | applicants,

to develop a rental housing program and to operate an

existing housing program which provides affordable

homeownership opportunities to moderate and low-income

families, the Court will award the City one credit for the

_ two moves to Runyon Heights in 1998 and twenty-nine

remaining credits for a total of thirty (30) woouenn credits

for 1998.

> . ‘~ al

Lp AE CRD wei BK EL OR ALE DE LAGI PENS ONE TEL SS ne ORs

Future Implementation of Existing Housing Program

5. The granting of credits for 1998 as discussed above

is made on the condition and understanding that no future

credits will be granted unless housing opportunities created

by the existing housing program further the racially

integrative goals which are the essence of all the Court’s

prior housing remedy orders intended to counter the effects

of prior racial discrimination in housing in Yonkers. Toward

a

%

:

i

j

28a

5

Appendix 2

that end, the Court further orders that future full credits will

only be allowed and AHTF funds may only be used for the

creation of affordable housing opportunities as follows:

a) For Priority 1 households who move to census blocks

in East and Northwest Yonkers which as of 1990 had

a Black and Hispanic population which together

totaled less than 45%;

b) For minority Priority 2 and 3 households who move

to census blocks in East and Northwest Yonkers

which as of 1990 had a Black and Hispanic

population of less than 45%;

c) For non-minority Priority 2 and 3 households who

move to census blocks in East and Northwest

Yonkers which as of 1990 had a White population

of less than 45%; and

d) Nothing in this Order shal! alter the ability of the

City to use AHTF funds or receive half credits for

moves to Southwest Yonkers as set forth in Section

10 of the Long Term Plan Order.

6. Starting in the year 2000 (Year 4), the City shall

receive one credit for each Priority One Placement

(hereinafter “PIP”). An initial annual goal of 20 PIPs is

established until further rental programs for Priority 1

households are developed by the City. If the City reaches its

annual goal of PIPs it shall receive a bonus of 50% (i.e. if a

goal of 20 PIPs is reached, the bonus is 10 credits). If the

PIP goal is exceeded, the City shall also receive two (2)

29a

Appendix 2

credits for each PIP placement in excess of the goal (i.e. if

there are 24 PIPs, the City will receive 20 credits, plus a

bonus of 10 credits plus 8 credits for the four PIPs in excess

of the goal). If the PIP goal is not reached, the number of

credits will be diminished by the number of units in the

shortfall (i.e. if the goal is 20 PIPs, but only 17 occur ina

year, the City will receive 14 credits). If there are not at

least 10 PIPs annually, the City will receive no credits for

PIP placements. The Court will adjust the annual PIP goal

as needed.

Rentai Programs

7. While an effective rental program should be

developed and implemented, the affordable housing program

should remain essentially a homeownership program. On

June 22, 1999, the City proposed a rental program which

would include home purchase assistance for 2-4 family

homes, lease-to-purchase assistance and rental buydowns.

The Court ordets the City to implement immediately these

three programs and to give priority in the programs to

Priority 1 households. The Court sets an annual goal of

twenty (20) rental units commencing January 1, 2000.

8. The €ity-shall also explore further development of a

Section 8 rental assistance program to begin by March 15,

2000. The City shall discuss this possibility with the New

York State Division of Housing and Community Renewal

and the United States Department of Housing and Urban

Development within the next sixty (60) days. The Housing

Monitor and the United States shall assist the City in this

effort. :

30a

Appendix 2

9. Upon establishment of a Section 8 program, the Court

will consider whether an increase in the annual goals is

appropriate.

Priority 1 Outreach Program

10. The City shall implement immediately the Priority 1

Outreach Program outlined in its June 22, 1999 proposal for

the existing homeownership program. The City shall develop

an Outreach program for its existing rental program within

thirty (30) days of the date of this order and submit it to the

parties and Housing Monitor for comments. .

Yonkers Green

11. The history of subsidized housing projects in

Southwest Yonkers is that they were initially conceived of

as being integrative with affirmative marketing plans which

proved unsuccessful and were later abandoned. The concern

of the NAACP regarding the concentration of subsidized

housing to Southwest Yonkers on the basis of race is,

therefore, entirely understandable. Phase One of Yonkers

Green, however, may go forward as follows:

~ a) the LTPO priority system shall not be used by the

developer or the City when selling homes at Yonkers

Green so as to avoid limiting the housing choice of

current or prior pubic and assisted housing residents

to Southwest Yonkers; ;

b) The City shall submit a specific description of a

proposed marketing plan, outlining among other

3la

Appendix 2

Pin Ai a

things, the financial ard personnel resources to be

committed to the plan to the parties and Court

Monitor for review on within thirty (30) days of the

date of this Order. The final plan and the following

reporting requirements shall be incorporated into the

land development agreement entered into between

/ the City and the developer. Every ninety (90) days

: after the marketing begins, the City shall submit a

written report to the Housing Monitor and the parties

i setting forth the results to date of such marketing

: plan. The plan shall not be discontinued, nor shall

the resources devoted to it be diminished, until its

goals are achieved or upon further order of the Court.

3 The Court sua sponte, or upon the request of any

party, may order the City to require the developer to

increase or modify marketing efforts should it appear

that the marketing plan is falling short of its goals.

MS 3 esa AW

i Dated December 29, 1999

New York, New York

SO ORDERED:

s/ Leonard B. Sand

LEONARD B. SAND

UNITED STATES DISTRICT

JUDGE

32a

APPENDIX 3 — AMENDMENT TO THIRD

SUPPLEMENTAL LONG TERM PLAN ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

DATED JANUARY 24, 2000

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

80 Civ. 6761 (LBS)

UNITED STATES OF AMERICA,

Plaintiff,

and

YONKERS BRANCH — NAACP, et al.,

Plaintiffs-Intervenors,

v.

YONKERS BOARD OF EDUCATION, et al.

Defendants.

AMENDMENT TO THIRD SUPPLEMENTAL

LONG TERM PLAN ORDER

To obviate any confusion which may otherwise exist,

the Third Supplemental Long Term Plan Order, dated

December 29, 1999, is amended by adding at the start of

paragraph 5 the following sentence:

33a

Appendix 3

This paragraph 5 relates solely to the existing

housing program and in no way alters the

requirements for occupancy of new construction.

SO ORDERED

Dated: New York, New York

January 24, 2000 s/ Leonard B. Sand

U.S.D.J.

34a

APPENDIX 4 — EXCERPTS OF TRANSCRIPT OF

PROCEEDINGS OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF NEW

YORK DATED APRIL 30, 1986 AND MAY 2, 1986,

RESPECTIVELY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

80 Civ. 6761

UNITED STATES OF AMERICA, et al.,

Plaintiffs,

v.

YONKERS BOARD OF EDUCATION, et al.,

Defendants.

April 30, 1986

10:00 a.m.

* a *

[178] Mallach — Direct

Q. Mr. Mallach, assuming that the remedial order

contemplates some provision of housing beyond the 200

public housing units to be provided by HUD, in your opinion

is it important to have a unit goal for the provision of that

housing?

35a

Appendix 4

A. Yes, I believe so.

Q. And assuming that the court finds that the remedial

order should you include a unit goal, how should the unit

goal be determined?

A. I think it should be determined basically by an

assessment of feasability. In other words, it should grow out

of an analysis of the number of units that could realistically

be provided in the community.

That in turn would include an analysis which would be

much more detailed than anything I have been able to do up

to this point of the vacant and underutilized land that would

be available for such development, the opportunities for

rehabilitation, acquisition of existing units, creation of

accessory apartments and so forth, so that it would be a goal

that would reflect what is feasible and what is realistic but

at the same time would be one that would require a significant

and conscious effort to achieve.

Q. And why is it important to have a goal that requires

some serious effort to achieve it?

[179] A. I think these are really practical considerations

rather than anything that is specifically legal, but I think if

— housing development is difficult, time consuming and

fraught with uncertainty, and whenever you set a goal there

is a risk, in fact, a likelihood that you will fall somewhat

short of that goal.

So if you set a goal that is really negligable, that requires

no major efforts to pursue —

|

36a

Appendix 4

MR. ABRAM: Your Honor, I am going to object

to the answer and question. This is entirely speculative.

This is so far completely beyond the ken of what has

just been proffered as his area of expertise, planning.

He is giving apparently some type ofa legal advisory

opinion totally without foundation, totally speculative.

THE COURT: Overruled.

MR. ABRAM: ! believe it should be stricken.

THE COURT: Overruled. .

Q. Would you continue.

A. I’m sorry. By establishing a goal that reflects a -

significant effort, I think the likelihood is much greater that

you will at least approach that goal, at least get a significant

number of units provided than if you set a more modest goal.

Q. In your experience, does setting a substantial [180]

goal relate at all to the racial discrimination issues in this

case?

A. I think it relates directly and unequivocally to those

issues.

Q. In what way?

‘A. I think the issue as I understand it, or a significant

issue in this case is remedying the history of racial

37a

Appendix 4

discrimination in terms of providing meaningful racial

integration with particular respect to lower income

households in the City of Yonkers.

Now, given the patterns of segregation that exist in the

city and given the cost to the existing housing in the city, it

is in my opinion extremely unlikely that any significant

integration will come about in the city of Yonkers unless

there is a significant goal for the production of new housing

units affordable to lower income households in areas that

are not at present areas of minority concentration.

Q. And can you explain more about why new units are

necessary?

A. I think there are a number of reasons. If you look at

the housing market in Yonkers, the first thing is that the city

of Yonkers and the city outside the southwest corner in

particular has an extremely low housing vacancy rate. In fact,

it is considered something of a norm in [181] housing market

analysis that a rental vacancy rate below five percent is

considered a tight housing market. The rental vacancy rate

in Yonkers, excluding southwest Yonkers, according to the

1980 census, was 1.2 percent. That is effectively a zero

vacancy rate.

Q. And what is that based on?

A. That is based on, directly on the 1980 census of

housing.

38a

Appendix 4

MS. VANDERWICKEN: Your Honor, I would like

to offer into evidence the 1980 census as foundation for

some of Mr. Mallach’s testimony.

THE COURT: RH 1?

MS. VANDERWICKEN: Yes.

MR. ABRAM: Your Honor, the only comment

I have is that at Mr. Mallach’s deposition on April 22nd

— I seem to have been here three years ago — Mr.

Mallach was asked if he was going to do any additional

analysis and proffering any additional exhibit. He said

no. Last night at the conclusion of this hearing Mr.

Sculnick asked the same think of Ms. Vanderwicken.

She said no.

THE COURT: The United States census figures,

which I could judicially note if they had not been

received in evidence — how much time do you want te

spend arguing that?

GX RH | received.

[182] (Exhibit GX RH 1 for identification was

received in evidence)

Q. Do you have a copy with you, Mr. Mallach?

A. No, I don’t, but I have noted some of the salient

features.

39a

Appendix 4

Q. Is there any other data that indicates the vacancy rates

in Yonkers that you are aware of?

A. The vacancy rates — the only data that I am familiar

with with respect to vacancy rates is that from the 1980

census. There may be other data, but I am not familiar with

it.

Q. Okay. All right. Now, why does it matter that the

goal for housing be for low and moderate income families?

A. I think the principal reason is that that is where the

housing needs are in Yonkers, and particularly within the

minority population. I mean, I have looked at the census data

with respect to the distribution of housing needs in the black

population of Yonkers, also familiar with other sources of

data in terms of how the presence of substandard housing

conditions relates to household income, and based on that

I would say the overwhelming majority of black families in

the city of Yonkers who live in deficient housing conditions

of one kind or another are very low income households, in

other words, 50 percent of the area [183] median or less,

and most of the remainder are low income households.

Q. All right. Let me show you what has been marked

for identification as Government Exhibit RH 2 and ask if

you can identify and describe that?

A. Yes. This is a table that I prepared by extracting data

from the census document marked as RH 1.

Q. And what does it signify?

40a

Appendix 4

A. This data shows the number and percentage of

households, of renter households in the Yonkers black

community spending 30 percent or more for shelter, which

is the recognized standard of financial hardship as defined

by the federal government.

And what it shows is that, first, roughly 2700 households

out of about 6500 do suffer from financial hardship. This is

over 40 percent. Of those, nearly 2200 or over three quarters

are very low income households, and all of the remaining

number are low income households.

There are for all practical purposes no non-lower income

households, black households in the city of Yonkers suffering

financial hardship according to the 1980 census. Of course,

in all probability there are a few, but from a statistical

standpoint, financial housing need is purely a lower income

phenomenon.

Q. Okay.

[184] MS. VANDERWICKEN: I would like to

offer GX RH 2 into evidence, your Honor.

THE COURT: Received.

(Exhibit GX RH 2 for identification was received

in evidence)

Q. I would like to show you what has been marked four

identification GX RH 3, Mr. Mallach, and could you describe

that document?

4la

Appendix 4

A. This is another tabulation of data from the 1980

census, and it shows the number and percentage of white

and black households respectively living in three different

types of substandard housing conditions, units lacking

plumbing, units with inadequate heating, and overcrowded

units.

Q. Okay. Can you describe what the footnote or explain

the footnote in this?

A. Yes. The census tabulation for units with inadequate

heating does not provide a precise basis for eliminating

the overlap between that category and other deficiency

categories. So for purposes of making the estimate on this

table, I reduced the number of such households by 20 percent

to account for the overlap.

Q. All right. Did you prepare an exhibit similar to this

comparing housing conditions of Hispanics and whites?

[185] A. No.

Q. And why not?

A. The problem is that the way the Hispanic category

is defined in the census it is not a mutually exclusive

category, so it includes some black families, some white

families. It’s a supplementary category, if you will, so I felt

that it would not provide a clear statistical picture.

Q. Okay. What is the significance of this exhibit to the

remedy?

42a

Appendix 4

A. I think the significance is in a couple of features.

First, it shows that a much larger percentage of black

households than white households suffer from substandard

or overcrowded housing conditions, roughly 15 percent

compared to 6.5 percent.

Secondly, it shows that the overwhelming majority of

black households in Yonkers are renter households, which

again, given the extent to which they are lower income

households is not surprising, but I believe it is significant in

terms of potential remedy concerns in terms of the types of

housing that will have to be provided for this population.

Q. Okay. Are there any other —

MS. VANDERWICKEN: First of all, 1 would like

to offer RH 3 into evidence, your Honor.

[186] THE COURT: Received.

(Exhibit GX RH 3 for identification was received

in evidence)

Q. Are there any other reasons for focusing a goal on

lower and moderate income families that are particularly

relevant to the court’s finding of discrimination in this case?

A. I think there are at least two features that come

to mind. One is, of course, that the discrimination as

I understand it was principally with respect to the location

of low and moderate income housing. This was not

principally a case involving private discrimination in the

eo

eee

43a

Appendix 4

conventional housing market. So in that sense, to the extent

that lower income households were the victims of

discrimination, I think there is a logic to it providing that

they benefit from the remedy.

A second issue is the question of where the need exists.

If you are going to provide a remedy in the form of

construction of housing in areas that are not minority

concentrated areas and hope to attract minority families to

these units, the minority families who are most likely to be

attracted to these units are minority families who have a need

for decent or affordable housing, because families who

already have a unit that’s of high quality or readily affordable

are significantly less likely to want to move.

[187] Now, the fact is the households who fall into that

category are overwhelmingly made up of low income and

very low income households. So I think for a remedy to be

effective, these households are going to have to be given an

opportunity.

Q. Now, does a focus on low and moderate income

housing mean that the housing developed pursuant to a

remedial decree would only be for low and moderate income

people?

A. No, in fact, on the contrary, given the absence of

massive federal subsidies or virtually any federal subsidies

at all, I think economic realities dictate that if you are going

to provide any appreciable number of lower income units

over and above the 200 public housing units that have already

been committed it is going to be necessary to package them

44a

Appendix 4

in some fashion in conjunction with moderate or middle or

even upper income housing units to create a source of internal

subsidy that would make lower income units economically

feasible.

Q. Mr. Mallach, the city’s proposal suggests that the

remedy should make as a priority home ownership as opposed

to rental. In your opinion, is it appropriate for the remedy to

include some home ownership as part of the housing

provision?

A. Yes.

[188] Q. And why is that?

A. Because I think overall home ownership is something

which in our society is considered a very positive attribute,

and because | think there are many people including minority

people, including low and moderate income households who

do aspire to home ownership and who can be home owners

under proper circumstances.

So I think to the extent that those people exist and to the

extent that home ownership would be beneficial for those

people and a positive feature in the neighborhoods where

the units would be built, | would certainly support some

number of those units.

Q. In your opinion, is it appropriate for the priority to

be given to the provision of ownership units?

A. No.

45a

Appendix 4

Q. And why is that?

A. The problem is that given that the concentration of

the housing need is most heavily within the very low income

population, the reality is that a very large percentage,

arguably a substantial majority of those families are not

realistic candidates for home ownership. So that providing

home ownership units that are nominally targeted to that

population would in reality exclude all but the cream, if you

will, of those households.

* * *

[264] Mallach — Cross

* * *

Q. Now, you did not directly testify about affirmative

marketing, at least I didn’t hear any testimony about that.

Do you believe that affirmative marketing has to be a

component of this remedy order?

A. I believe it’s essential.

Q. And in what way?

A. I think to the extent that lower income units are built

outside the southwest Yonkers area, I think there is a very

real possibility that unless you have affirmative marketing

to reach people in the southwest, you will get developments

that will have only very small minority representation. I think

developments with federally subsidized projects, many such

46a

Appendix 4

projects that have been built in largely white suburban areas

have turned — especially senior citizen projects — have

turned out to be all or virtually all white projects, especially

where word of mouth and informal means of communication

were the principal ways by which people first learned about

the [265] availability of the units.

Q. Do you see affirmative marketing as a commitment

to be made by any developer including the not-for-profit

developer in its contract with the city?

A. Absolutely. In fact, in many of the mandatory

set-aside ordinances that I am familiar with and some that

I have helped draft have included an ordinance provision

requiring affirmative marketing of all developers building

under the ordinance.

[310] Q. It’s your professional opinion, isn’t it, that in

terms of achieving stable integration that a mixed, both

racially and economic level development is preferable than

one that’s devoted exclusively to low income or minority

populations?

A. Generally speaking. I think the key issue is that the

neighborhood should be mixed income in a way that the

potential low income population or minority population is

not likely to become the dominant population in the

neighborhood. I think that’s the crucial element in terms of

stable integration.

2, Ee Ben CL 4 AA s

re ak Re BT Ale

Bet Ge a Aa Sate A ea aa pedal ARTY TD Se tellin ne tell al

PMLA aki AMI Ase apt

47a

Appendix 4

I think for — that means if you were to put a [311] small

development within a relatively large neighborhood, in all

probability you could — that development could be entirely

low income as long as it represented a small part of the

neighborhood that it was a part of. If you were developing a

large development that was likely to be a significant part of

that neighborhood’s population or conceivably even create

a new neighborhood, then that development should be mixed

income with a majority of non-lower income occupancy.

Q. You would agree, though, as a general matter, and it

is your preference, isn’t it, that a mixed market development

would be better received and better able to integrate into the

surrounding neighborhood than one devoted solely to low

income units?

A. Again, that varies, but I think that’s likely to be the

case.

MR. ABRAM: No further questions, your Honor.

THE COURT: Mr. Weaver?

CROSS-EXAMINATION

BY MR. WEAVER:

Q. Mr. Mallach, at your deposition you were asked

precisely what you had been instructed to do in connection

with your retention in this case, and your response was that

your role was to advise the Justice Department attorneys on

different possible elements, approaches, [312] alternatives,

so forth that might be applied in the course of framing a

remedy for the Yonkers litigation. Is that still the case?

48a

Appendix 4

A. I believe so.

Q. In your consideration of appropriate housing

remedies, have you considered the effect of any of these

proposals on the existing schools in Yonkers?

A. Not in detail. I did review subsequent to the

deposition and prompted by your questions at that time,

I did review the annual school profiles for the city schools

to get a general idea as to whether capacity appeared to exist

in the schools in the general vicinity of the major sites under

consideration.

Q. How many students and/or children would you

anticipate your proposal for the use of the Whitman site

would generate if 400 units were built there?

A. If 400 units were built, the number of school children

would vary enormously depending on at least three different

factors. One would be, and the most important one, would

be the bedroom mix of those units, how many were two

bedroom, three bedroom and so forth. The second would be

the physical type of those units, flats, town housings, single-

family houses and so forth, and the third would be the price

level of the units.

So before one could come up with even an [313] estimate

of the number of school children, one would have to have a

reasonably detailed development program for the site.

Q. What is your estimate of the racial mix of the children

that that site would generate?

By a aa AS a

Bi a a ils eae

49a

Appendix 4

A. I have no idea.

Q. In your examination of the census data, did you

determine the number of whites in Yonkers who would be

eligible for subsidized housing?

A. No.

Q. Did you determine as you did in Exhibit 2 for black

households, where 30 percent or more of the income was

spent on housing, the same type of data for white households?

A. Not specifically. I looked at it.

Q. Did you determine from the data how many families

in Yonkers live below the poverty level?

A. The data is in the census. I don’t recall what it is

offhand.

Q. Is it your impression that there are many more white

families in Yonkers below the poverty level than black

families?

A. Yes.

Q. And indeed, on Exhibit RH 3, Government Exhibit

RH 3, the number of persons or households in substandard

[314] conditions, some 78 percent of those households are

white; isn’t that correct?

A. I believe it’s more like 73 percent, but I may be

wrong.

50a

Appendix 4

Q. That’s close enough. Now, having been qualified as

an expert witness in this case to opine as to the appropriate

remedy, can you tell me what process you undertook when

you first were approached to do this task as to what condition

it was that you were attempting to remedy?

A. Well, the principal thing I did with respect to that,

in addition to discussing it with counsel, was to read a

substantial part of the judge’s opinion with regard to liability.

-Q. All right. And what specific things did you get from

either of those sources that you used as a guide to developing

your remedial plan?

A. My understanding from both sources is that — and

again, this is with respect to the housing aspect of the case

— that the issue was that over an extended period, Yonkers

had engaged in racial discrimination with respect to the

location of subsidized housing developments. That was the

central issue that I focused on in terms of trying to arrive at

an approach to remedy.

Now, it seemed clear that given the extent to which

Yonkers had developed since the discriminatory [315]

practices had begun, that it would not be practical to go back

30 or 40 years and try to reconstruct a hypothetical as to

how many units of subsidized housing might have been built,

either in the city as a whole or in the city outside southwest

Yonkers in the absence of racial discrimination, because even

if one could come up with a hypothetical number, the great

majority of sites that had at one time or another been

contemplated for subsidized housing projects were no longer

available for that purpose.

Sla

Appendix 4

So, then, again following that concept further, there was

a need to develop a conceptual approach to arriving at a

plausible remedy that still dealt with the nature of the liability

but that recognized the realities of Yonkers today in terms

of economic conditions, site availability, available subsidy

of resources and so forth. So that’s essentially what I pursued.

Q. During the course of your reading the court’s opinion,

you were not struck by the indications that, one place or

another, that the housing remedy would be developed with

an eye toward improving the racial integration of the schools?

A. I saw that that was part of it, Yes.

Q. What consideration have you given to — strike that.

Who in your view were the victims of the [316]

discrimination that the court found in its opinion?

A. With respect to housing, principally low income

minority families or households.

Q. All minority family households?

A. I really can’t answer that.

Q. Do you think that the people that were living in

southwest Yonkers, minority family households, were more

affected than minority family households in some other

location?

A. Yes.

52a

Appendix 4

Q. What consideration have you given in your research

into an appropriate remedy, to a remedy aimed at the removal

of the vestiges of the discrimination found to have been

suffered by those minority families in southwest Yonkers?

A. I think the key element is the combination of housing

production affordable to such families outside of southwest

Yonkers, coupled with effective affirmative marketing to

| create the greatest possibility that families in need living in

, southwest Yonkers will take advantage of those units.

Q. As I recall, you indicated that persons who already

have adequate housing will not be likely to move because

similar housing is available some place else, is that —

[317] A. That’s correct.

Q. Do you have any suggestions as to how minority

families can be — we can assure their being recruited to

occupy some of the units that you proposed to be built?

A. I am not sure there are any ways to insure that they

will occupy the units. I think they make up a substantial part

of the housing need. | think it’s certainly legitimate, even

desirable to give priority to new units to families with

housing problems, be it affordability, overcrowding, living

in substandard housing and the like.

Secondly, I think it 1s necessary to provide, again,

through affirmative marketing, active, effective outreach to

neighborhoods and the communities and the organizations

which can most effectively reach the population who are the

minority families in the substandard housing conditions.

|

53a

Appendix 4

Q. And we have determined that 73 percent of the people

living in substandard housing conditions are white?

A. That’s correct.

Q. What would your target area be, where would you

target the affirmative marketing?

A. Largely in southwest Yonkers.

Q. Would you go outside of Yonkers?

A. I really hadn’t thought about that. I don’t [318] know

that it would be necessary. I think there is a — the pool of

need in southwest Yonkers is likely to be adequate for what

are likely to be a realistic number of units to be produced

under the program.

Q. Would you favor a preference for residents of

southwest Yonkers, particularly minorities living in

substandard housing?

A. I’m not sure. I can see some arguments on either

side to that.

Q. I think at a couple of places during your testimony

you indicated that there was some danger, at least, of either

having the units proposed to be constructed renting up ail

white or getting very few minority residents; is that correct?

A. That’s correct.

54a

Appendix 4

Q. If the units rented up all white, that would have no

effect whatsoever on the remedy of this case, would it?

A. Exactly.

Q. So we would have done all of that for nothing?

I mean, the people that lived in it would think it was nice,

but that’s not related to this case?

A. That’s correct.

Q. Don’t you think we need something to guarantee that

when we get done we are going to have remedied the [319]

violations found here? -

A. Well, I am not sure. Again, guarantees, regrettably,

are often very difficult to come by in this world, and very

often require trade-offs in terms of other things that are also

problematic and, again, whether it would be appropriate

essentially to create — the only way you could guarantee

minority occupancy or substantial minority occupancy in

these developments is by essentially creating racial

conditions for occupancy, and I think there are some fairly

compelling arguments why that might not be a desirable

undertaking for other reasons.

So I think what you are trying to do is walk a tightrope

between encouraging a high level of minority occupancy but

at the same time avoiding something that would be

tantamount to a racial test for occupancy.

THE COURT: Well, I think you have to tell me

what you mean by affirmative marketing. I understand

55a

_ Appendix 4

what you mean in terms of public relations and

advertising and community meetings and so on, but does

it go beyond that?

THE WITNESS: Well, it might. I think one thing

you might want to do, for example, is to the extent that

you were creating low income units or units affordable

to very low income families, you might — and there is

already an existing waiting list of such households under

the public housing program, you might give priority to

those [320] families.

, think by giving priority to families living in

substandard housing and overcrowded housing, you are

doing something which would potentially increase the

size of your black — the minority pool without, again,

having an explicit racial criteria for occupancy. So I think

there are certain things that might go somewhat beyond

the publicity and the promotional aspects, but I would

be reluctant to go too far beyond that.

Q. You would agree, would you not, that the focus of

the task before the parties in the court here in the housing

portion is to remedy the constitutional violations found rather

than creating general housing opportunities for low income

people?

; A. I don’t think it’s an either/or situation. As I have

3 testified earlier, I don’t know that it’s — that an effective

remedy of those violations is possible except through the

creation more generally of low income housing opportunities.

(Continued on next page)

56a

Appendix 4

[321] Q. Did you give any consideration to preferences

being granted to majority families for occupancy in currently

existing subsidized housing in southwest Yonkers?

A. No.

Q. in your opinion, if a housing development or unit in

southwest Yonkers is occupied by 100 percent minorities, is

that something that should be addressed in this housing

remedy?

A. I think it is an interesting question but very much a

secondary one. I do not believe as a general proposition that

integration is well served by actions that are designed to

reduce the pool of units available to black and other minority

families.

So for that reason, as a step in framing the remedy, at

this point I would certainly consider it inappropriate. I think

certainly in the long run, if it could be done in a way that

does not reduce the housing opportunities available to black

families I would certainly not only not object to but actively

support a process which would effectively racially integrate

existing subsidized housing in southwest Yonkers, but not

in a way that would reduce the pool of housing available to

minority families. :

Q. At one point you indicated that the victims of

discrimination were lower income households and that they

should benefit from the remedy to be adopted here. In your

[322] view were you talking about both white and minority

lower income households?

57a

Appendix 4

A. No. I believe I specified that we are talking about

lower income minority households, principally in southwest

Yonkers.

Q. How does a minority lower income family in

southwest Yonkers benefit from the construction of a low

income housing unit that is to be occupied by a majority

tenant on the east side?

A. lam sorry.

Q. You had indicated that there is a distinct possibility,

or a possibility, that all of our units that we build under the

proposal will be occupied by majority residents, whites.

I would like to know how we have helped the

discriminated-against minority in southwest Yonkers by

doing that.

A. I think my testimony was that in the absence of any

steps for affirmative marketing, for encouraging minority

occupancy, for any other measures that might be taken, where

rent-up of new units is allowed to take place, largely through

word of mouth and neighborhood sources of information,

there is a significant risk that the development would be

largely or entirely, almost entirely, nonminority.

However, my reason for saying that, of course, [323]

was to stress the importance of having affirmative marketing

and other measures to target minority occupancy, and I am

confident that that will be part of a responsible plan developed

by the city.

58a

Appendix 4

[894] [May 2, 1986]

* * *

THE COURT: Ms. Vanderwicken?

MS. VANDERWICKEN: Your Honor, I would like to

first address the question of the scope of the violation and

therefore the scope of the remedy.

The government’s position is that the violation here is

one where by its actions the city has maintained a segregated

city, and it did so in conjunction with private discrimination

that had already begun that process but was exacerbated by

the actions of the city, that if the city had not conducted its

housing program as it did, there would not be the condition

currently existing of the vast bulk of minority families living

in one quadrant of the city and three quarters of the city being

much more largely majority.

And along with that, the victims of this violation are the

whole city. The whole city now lives in a segregated

condition. The minority population for the most part lives in

an area which has numerous majority people, of course, but

they are prevented from living elsewhere in the city, and the

city as a whole is segregated and identifiable in terms of

areas that are available to people on the basis of race.

Therefore, the remedy should include some [895] actions

that will go to changing that situation and insuring that it

does not continue and will not be repeated.

59a

Appendix 4

Now, first of all, that requires a very strong and effective

fair housing program, and that, as Ms. Hanson was talking

about, should address both the private discrimination and

actions by the city that have and might otherwise continue

to be productive of a segregated condition.

Now, Mr. Sussman and the NAACP are proposing that

that fair housing agency be an independent agency. The

government’s position is that it should be able to function

with sufficient independence, that it is able to do its job

effectively, and that would require some controls over the

city’s discretion in staffing and it should require strong

monitoring which we suggest be done by the government,

but nevertheless there needs to be strong monitoring of what

the agency does —

THE COURT: By which government?

MS. VANDERWICKEN: Well, by the parties. There

needs to be effective enforcement of the fair housing laws

and that that should be supported by the city. Now, that can

happen in different kinds of ways. Ms. Hanson talked about

one way, and another way I suggested in my examination of

her which would be the city helping to fund another agency

which did that aspect of the fair housing [896] effort.

Now, in terms of the framework for the 200 units of

public housing, that is one of the major and most immediate

points of contention, obviously. The city has continued to

propose the development of the Yonkers Avenue and

Tuckahoe Road sites which we believe the evidence is fairly

clear are inappropriate even in a configuration of 80-20

proposed by the city.

60a

Appendix 4

The city’s own witness, Mr. Efron, testified to the

inadequacy of the rear portion of the Tuckahoe Road which

is the only portion that would be amenable to the 125 unit

configuration, and Mr. Pistone, the city’s planner, agreed

with our expert that both sites are isolated and not in any

existing neighborhoods, and we believe as such that they

are really inappropriate for remedy in this particular case,

even though in the abstract Yonkers Avenue, for instance,

might be a perfectly good site for conventional housing.

In terms of public housing, in terms of the city’s having

sought to isolate public housing from white neighborhoods,

it is inappropriate, in terms of the city’s condo and co-op

plan, that might be appropriate even as —

THE COURT: What’s your view with respect to the

200 units in August? What’s the government’s view with

respect to the appropriateness of a mechanism in the event

[897] that at some time just prior to August the city council

fails to designate two other sites?

MS. VANDERWICKEN: ‘Well, your Honor, we would

go further than what you suggested earlier, and that is, we

think that the record now shows that there are some

appropriate sites or potentially appropriate sites. Three school

sites have been identified, have been reviewed by our expert,

the Whitman, 15 and 4. Mr. Pistone identified several sites

that are still available and which he has reviewed and has

found appropriate for public housing.

Now, whether or not HUD would, we don’t know, but

those are — that’s the universe of sites that we now have

6la

Appendix 4

evidence of that should be the sites chosen, and we would

submit that the city should either be directed by the court on

specific of those sites or be directed to choose among those

sites some combination such that all 140 units are not on

any one site and submit that, those proposals to HUD with

the necessary documentation within a very short time period.

As everybody knows, HUD does not move quickly, and

there is not even any guarantee that they would move by

August, and so any time that is wasted in this effort is very

dangerous to the possibility of obtaining that CDBG money.

(Continued on next page)

[898] THE COURT: What you are suggesting is that

there be an order which says appropriate sites acceptable to

HUD are to be designated by July 1, if the city council shail

not have approved such sites by that date then all of the sites

listed on Mr. Pistone’s list are to be deemed submitted to

HUD by the city of Yonkers and HUD make its selection?

MS. VANDERWICKEN: No, I don’t think that can be

the way, your Honor, because HUD has to deal with specific

proposals and numbers of units and so on.

THE COURT: Who is going to make the selection from

that list?

MS. VANDERWICKEN: We will have this more

worked out by the time we present our proposed order next

Monday, but I think the outlines should be that way before

July 1, I would think between the date of the court’s order

62a

Appendix 4

and three weeks afterwards the city should identify sites

which could include only those three school sites — let me

just say parenthetically, of course, that Whitman should be

immediately returned to the city. That would be not necessary

to this but is part of what we would ask for.

At any rate, that the city should designate sites, that any

sites that are privately owned should be designated only if

they can get the agreement of the developer or owner of that

site to have it developed in a [899] turnkey manner in some

proportion, at least, of public housing units. If the city had a

developer — in fact, we think that there may well be

developers that would be interested in this from other

information we have. If the city can get a developer who

would be amenable to developing 80/20 type configuration

on a site such that some percent are public housing units and

some percent are conventional, that would be fine, if it meets

the strictures that Mr. Gelletich noted in his deposition in

terms of the kinds of agreements that have to be made

between the Public Housing Authority and a private owner.

A very short time period should be given for getting that

taken care of, getting the documentation prepared and getting

the sites off to HUD to be reviewed.

If the city does not make some selection within that list

by the time given, then I think it is going to have to be up to

the court to do it.

THE COURT: To pick the sites?

"

,

a

=

ae

=)

63a

Appendix 4

MS. VANDERWICKEN: From among those listed.

And given the fact that the only sites that the city really would

have control over are the school sites, then it pretty much

limits it to that, unless the city can produce other evidence.

That seems to be the way it has to go, your Honor, in

terms of meeting the deadline that we are up [900] against.

THE COURT: What is the government’s view as to the

appropriateness of setting a goal for units beyond the 200?

MS. VANDERWICKEN: There again we will be a little

more specific Monday, your Honor. Generally, we think that

there should be an inventory of the type that has been

discussed, that preferably that be done by the city, preferably

through some independent contractor arrangement or

possibly by a court’s expert, and that the unit goal not be

determined by that person who conducts the inventory but

that the inventory provide the basis for a goal then being

determined bite the court.

THE COURT: What is that inventory going to tell us

that we don’t know? If we accept Mr. Pistone’s evaluation

of the 10 sites on his list and we add to that the schools,

since those schools are not on his list, doesn’t that tell us

that there is enough vacant land in Yonkers to accommodate

housing in excess of any goal the court might reasonably

set?

MS. VANDERWICKEN: Not necessarily, your Honor,

because we have already been talking about the problem of

land being developed otherwise. Most of the sites on

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Pistone’s list, except for Lincoln High School and school 4,

are privately owned, and a couple of them, | believe, are

[901] already zoned appropriately for multifamily housing

and those might be developed for multifamily housing, others

are zoned for other uses and may well be used, unless there

is the kind of moratorium or some kind of —

THE COURT: Obviously it is a factor, but it seems to

me that to say that the first inquiry isn’t how great is the

need or how much must be done to provide an adequate

remedy in light of the violation, or what is the fiscal resource,

but to begin with how much land do we have available.

I know that is the traditional way in which it has been

approached in Yonkers. I am wondering whether it is indeed

the appropriate way.

MS. VANDERWICKEN: The reason we believe it is,

your Honor, is because the scope of the violation is so great

and because there is no way to calculate the number of

victims or who the victims are, and because sites have been

being swallowed up. We believe that if we were operating

with a somewhat cleaner slate and with more sites available

and so on, and if there was some way to calculate the number

of victims that number would be greater than the space available,

essentially. So that we are not talking about an appropriate

remedy being less than the sites feasible but really an

appropriate remedy would be more than what we can do.

So in order to accomplish as much of that as [902]

possible, you need to identify really what the whole realm

of possibility is, and make the assumption, which I think is

valid based on Mr. Mallach’s testimony and common sense,

that certainly not all of the possibility is going to be realized.

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I would just like to say, I was going to say that Mr.

Mallach testified to that and Mr. Sternlieb did also, in his

deposition. He was asked how do you go about identifying a

unit goal and he said you look at the feasibility, you look at

the sites, you look at what the whole situation is, and that’s

how you do it.

In terms of financial feasibility, your Honor, we believe

that can really only be determined — that shouldn’t be

brought into the determination of a unit goal because that

can only be determined once you get started. Mr. Mallach

was very Clear that there are a number of techniques that can

be used for developing housing, that once you have the goals

set and once you get about the business of doing it, you can

start making use of.

There are really so many different ways that that can

happen, that it is inappropriate to set up a limit based on

some kind of hypothetical number of available dollars at the

beginning of this process.

What really should be done is to look at the sites,

determine the number of units that are basically [903]

stretching the feasible, as Mr. Mallach talked about, and then

going about to see how to get the financing for that and see

if it is possible. It may be that sometime or other the city is

going to have to float a bond to be able to purchase some

land that might otherwise slip away, to be necessary to

maintain some kind of balance in an overall remedy. But

that doesn’t have to be done yet. The financing of this can

be made flexible and looked at regularly over time to see

what is essent?al here.

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The 10 percent incentive, the 10 percent of the CDBG

funds we think is really inadequate as an amount. It is not

clear that there is any set number, but we have on the basis

of the amount of dollars that would be available proposed

that two thirds of at least the first two years of CDBG, grant

years that have not yet been received by the city be basically

incorporated into seed money for this housing trust fund,

and that if not that high a percentage, some gradually

decreasing percentage of the CDBG funds on the following

years be put into this fund.

THE COURT: If you are putting two thirds into the trust

fund, is the trust fund only for the creation or acquisition of

new units?

MS. VANDERWICKEN: Or rehabilitation. We would

think that the trust fund money really should be used for the

nonsouthwest side housing, which is one reason why we

[904] don’t propose taking 100 percent. Clearly, some

substantial amount should still be retained and used for

rehabilitation and development of the southwest side, and

one third — I haven’t really figured it out exactly, but clearly

the uses that the city has made of CDBG funds in the past

has certainly not all gone into rehabilitation, and one third

of that grant would be a hefty amount, if that was directed

specifically to rehabilitation in the southwest side. And

gradually, after the first two years, as a smaller portion of

the grant went into the housing trust fund or the housing

development part of this, gradually more could go into the

rehabilitation of the southwest side.

Plus, your Honor, the point has been made before that

the city has every incentive to develop and to encourage the

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development of the southwest side. It has clearly been

something that has been on the agenda of the city and has

been for a number of years. Those efforts are beginning to

bear fruit. There is some new development coming in. There

is looking like fairly good possibilities of some commercial

and conventional housing along the waterfront.

The city already has built-in incentives to work in that

area. It has no incentives to work outside it, in terms of

available housing to low and moderate income [905] people.

So to the extent that there is this source that can be used,

that does not put the city itself in any jeopardy. That money

is not anything that is dependent on currently for ongoing

city services. That should be used in large part at this point

for that which the city would not otherwise put any effort

into doing.

In addition, the city has shown its willingness in the past

to exercise various powers, eminent domain, zoning powers,

tax abatement, etc., to make housing possible in the

southwest, and has shown its willingness to use those powers

for this remedy. In fact, it had essentially agreed to use its

power of eminent domain to buy the motel, for instance, on

the Yonkers Avenue site, to make that site available for its

proposal for that site in its decree.

In addition, it recently used its eminent domain power

to make available to the conventional development on the

waterfront some sites. So that that is not something that is

out of the ken of what this city has at its fingertips.

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Those kinds of powers should be used and should be

exercised to facilitate low and moderate income housing in

this decree and the court should require it in the proper

circumstance.

[906] The city has indicated that its financial straits, its

financial difficulties and the constraints it is under, including

review by the emergency financial control board, militate

against imposing any additional financial burden on it in

order to remedy the violations found by the court. Tes.imony

and the documents submitted into evidence show that the

structure the city is operating under, that is, the periodic

revisions of a four-year financial plan, which are reviewed

and revised periodically, allow for the city meeting a variety

of operations arising from litigation of various types and if

in order to provide an adequate remedy that meets the

violation found in this case, the city needs to incur an

additional burden, then that simply must be factored in. It

was certainly aware of that possibility and the potential

burden when it went ahead with the bond issue in December

and included in that bond issue that obligations for the police

facility, for instance, which, while may have been certainly

one of the things that the city would like to take care of, was

not an absolutely pressing, number one consideration.

=

The city needs to increase its tax base, no question about

that, and it is doing so. There is lots of new industry and new

commerce coming into the city. As I mentioned, the new

Shop Rite and the waterfront development on the west side

as well as new apartments are coming in. [907] The bond

sale itself did better than was expected. It sold in two days

and had a good mix of institutional investors. It is not at all

clear that another bond issue would not similarly do well.

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The full assessed value of property in the city is rising

and the tax rates in relation to that are in fact falling, although

they are going to rise, obviously, in response to the bond

issue.

There is no evidence that with the increase of income

taxes and sales taxes that people have been driven away, nor

that they would be with some incremental addition.

There is also evidence that the city is trying to get the

school district made independent, and with the full

knowledge that that is going to severely increase the tax rates

that people are carrying, and that does not inhibit it from

going ahead and attempting to effect that change.

Several city officials have testified that there has been

great loss of revenue from certiorari actions, and that large

amount has been lost due to the need for — well, if the city

conducts a reassessment of its property, which there have

been various indications have been both considered and

deemed necessary, that will provide a rationalized basis for

assessment and will diminish the loss of assessments from

certoiraris.

[908] There has been testimony on a variety of ways

that new housing can be provided. These include the kind of

mandatory inclusionary ordinance your Honor was talking

about. | think it may be true that that may not work so well

in a city that is not the subject of tremendous pressure for

increased development, but it is a tool that could be used,

and particularly it could be used with city owned land. The

school sites could be made available to developers free.

I think it would be very reasonable.

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THE COURT: I was thinking it in terms of the publicly

owned land.

MS. VANDERWICKEN: In return from some kind of

inclusionary development, and that makes an awful lot of

sense in this city.

Also, density bonuses, as Mr. Mallach talked about, are

a method for really encouraging beyond what would be

available from the CDBG money. That is really what fuels

developer interest, is the increased profits that they could

get through density bonuses.

And then particularly if there is a nonprofit form, the

internal subsidization is a feasible methed of development,

as well as the use of the IDA bonds that particularly Mr.

Martinelli talked about. However, the reliance on the IDA

bonds, which he indicated were a more substantial incentive

than the trust fund, is inappropriate [909] because that is

really not an agency that is under the control of the city, and

while that may be something that can be looked to as a

possibility, it is certainly nothing that can be relied on to

insure the development of housing.

The city has talked about the inappropriateness, Mr.

Sculnick just talked about the inappropriateness of limiting

private development on land that is not owned by the city,

but I would point out that zoning, the whole concept of zoning

is a limitation on development for purposes that the city

deems reasonable and necessary, and that any kind of

limitation such as zoning is a reduction of total free market

ability to develop land as an owner would like to.

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Appendix 4

And in addition I would like to note that Mr. Pistone’s

sites, which as a city official have some imprimatur of the

reasonableness of developing sites not currently zonec for

multifamily housing, most of the sites on his list are not

currently zoned for such housing.

And further, in addition, Mr. Mallach testified that in

developing an inventory of sites that would be appropriate

for multifamily housing you would initially exclude from

that list sites that would be more appropriately used for

commercial and industrial development. The city zoning map

has areas that are zoned for executive parks, etc., and it would

not be reasonable [910] to include those areas that have

already been identified as likely targets.

In terms of a home ownership priority in the remedy,

I don’t think any party disagrees that home ownership has

some value and that to the extent possible it would be

reasonable to include some home ownership units in the

decree, but for the public housing part of it in particular, the

city’s proposal for the co-op and condo units is inappropriate,

number one, because the time limit, the city is proposing

150 of those units to be used in these isolated and very

scattered condo and co-op units, which they have provided

no evidence whatsoever are available. As the entire remedy

is Shaped and as time goes on, to the extent that such units

are identified and can be made available, either through the

MHA or through the city, that would be totally appropriate,

either as ownership or as rental.

And finally, your Honor, there is the general question

of deference to local control and local initiative over the

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setting of a number of units to be built and the process by

which they are to be built. The government basically believes

that such deference is appropriate to the extent that the city

is under a firm obligation to fully remedy the extensive

violations found in this case, and to the extent it shows itself

willing to fulfill that [911] obligation.

Thank you.

THE COURT: Thank you.

Mr. Sussman.

MR. SUSSMAN: Good day, Judge.

On behalf of the NAACP, again we find ourselves at

points of disagreement with some of the suggestions of the

court, and also, I think, certainly with, more primarily, the

views of the city of Yonkers. I think the easiest way, however,

to explain the position and support it is to divide this

argument into three segments.

Really, in my view, your Honor, there are three basic

issues that this court at this point, and not at some later point,

must determine, and I understand that as in the school part

that is a substantial obligation and responsibility of this court,

and I don’t suggest these responsibilities lightly. I understand

the court and the Constitution’s concerns with federalism

and local autonomy and authority. But that concern, as the

court itself has recognized, is modified by constitutional

considerations which are clearly implicated, not only in this

case but at this time in this case.

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It seems to me the argument in this matter really relates

to three specific issues. One is what has happened in the city

of Yonkers in the last three years. [912] Of course, this court

stopped taking evidence, as it had to at some point in time

during the liability hearing, and events have continued to

transpire in the city, and for the court and the parties, as has

apparently been done up to this point, to ignore those three

years or act as if they don’t shed light on the city seems to

me to lose an important opportunity.

Second, there has to be an analysis of the proposal made

by the city. As with the school board, in a case like this

constitutionally the defendant has the first responsibility and

obligation to formulate an appropriate remedy, to submit it

and justify it to the court, to of course have it scrutinized

and evaluated.

And only third, if it is found wanting, is the court in a

constitutional position to evaluate alternatives proposed by

the parties.

I do believe that proceeding in that manner with

argument will better elucidate the issues in this case than

seeking in a sense at random to pick on a different issue

here and a different issue there. I think they fall into an

organizational perspective.

The NAACP’s position is this: There has been a

continuing violation by the city of Yonkers since the liability

phase of this case and since the hearing ended. Indeed, as

the evidence is made clear, the very same [913] instincts

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and motivations have continued to control the municipal

authority with respect to housing and zoning, as the court in

its extensive liability finding made clear.

In my judgment this cannot be excused by the pendency

of this litigation. In fact, common sense counsels far to the

contrary. As Mr. Doran, the city corporation counsel, said

publicly many times in the last three years, the city had every

reason, through its municipal officials, to act responsibly in

this period of time, to submit reasonable sites, to amend its

HAP, to take actions which would have in some sense cured,

at least symbolically, the various violations which this court

found.

Indeed, the entire exact contrary occurred. Given every

opportunity, and I think that is the only appropriate standard,

the city of Yonkers through its officials took actions and

omitted, in a manner totally consistent with the pattern of

40 years that this court found, and it seems to me that that is

very significant in giving rise to what kind of order is now

appropriate.

Just to review the evidence very briefly, and I don’t want

to prolong the agony, because in fact it is very agonizing for

all parties, I think, to recognize the continuation of these

practices, because it in a sense points to the futility of the

litigation exercise. But the evidence shows that with respect

to the issue of section 8 [914] existing certificates, political

figures understood there was a need for these certificates in

the city of Yonkers, The city’s own HAP showed that. The

city’s own planning expertise indicated that. In fact, there

was no counter-indication anywhere that I am able to see on

this record or through my perusal of city documents.

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There is an extraordinary difficulty for low and moderate

income families getting housing and this can be assisted by

the subsidy programs provided by the section 8 existing

certificates. Yet when those certificates became available to

the city through the consent decree, and it later became clear

through this court’s opinion, not through, my understanding,

frankly, the time the settlement was negotiated, that a HAP

amendment was going to be necessary, that of course being |

a position taken by HUD, the city was given an opportunity

of some seven or eight months to amend its HAP to allow

for the expeditious use of the certificates.

What happened? No consensus could develop, there was

strong opposition among east Yonkers council members and

the HAP was never amended. The certificates have just now,

some two years after the consent decree, started in use in

Yonkers. This was not through any fault of the Public

Housing Authority. That authority in June of 1984 submitted

the appropriate application to make use of [915] these

certificates, evidencing, of course, its understanding of their

need.

Turning to the next issue which I presented issue on, we

talk about the HAP in 1985. The city officials, of course,

some of them still disclaim knowledge of the most elemental

issues, even though they have been on the council seven or

eight years. But taking that for what it is worth, clearly there

was knowledge that the HAP had to be approved in order to

be eligible for CDBG money. Mr. Oxman stated quite

candidly the same kind of political pressures that had long

been found by this court to exist dissuaded the council from

approving the HAP. So in fact the city of Yonkers remains

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ineligible for CDBG money because it has not taken the most

elemental step in the process, showing basic respect for the

Community Development Block Grant program.

So the third matter, of course, is with respect to the two

sites, and perhaps it is the matter least in need of discussion,

given the city’s statement in closing. I am not even sure the

city at this point is advocating these two sites. But two days

after the sites were proposed, having witnessed the course

of events which led to their submission, | stated on behalf of

the NAACP, publicly, that these sites were in fact sites of

exclusion, that other sites which were available in the city

of [916] Yonkers and known to all in the city of Yonkers as

appropriate, including the planning department, the

Municipal Housing Authority and others, were not being

even considered under any rational basis, that the planning

director of the city had been excluded from the process, that

no rational process was meant to exist.

The situation was entirely one, as Mr. Oxman alluded

to, in which sites were suggested which could meet one test,

that is, getting votes from the city council, and that, your

Honor, is not an adequate test when the result of it are sites

that by environmental standards and by neighborhood and

site selection standards are simply inappropriate.

Why it took HUD some 20 months to finally deem the

sites inappropriate, I share the frustration of Mr. Martinelli

and Mr. Oxman. The timetable was entirely responsible in

light of the factors that easily could be discerned through a

view of these sites. 3

ee ee a

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In any event, the sites have now been rejected and the

city now continues to propose the sites for utilization in the

remedy, quite obviously to me, because politically it was

impossible to provide any sites to this court which might be

considered for any form of housing. That is the reason why

in February these sites were again raised, not because the

city had a lack of knowledge that [917] they had already

been rejected by HUD. Between December and February,

no other sites were considered, notwithstanding Mr. Pistone’s

list of 1984. He was never even consulted.

So at some point, it seems to me, the court has to take

clear cognizance of this pattern of events, and while of course

| would like to share the optimism of the court that given

another opportunity the city of Yonkers would be more

responsive to federal law and to good civics, it doesn’t seem

to me that there is any evidence on this record or any evidence

in the sequence of events that I am aware of which would

give any reason for that.

The only thing that gives reason to it in a view towards,

in a sense, judicial discretion to municipal officials. But as

| say, that instant, however justified it is and rooted in our

constitution, has limits, and this court, it seems to me, has

shown extraordinary patience with the city of Yonkers, with

HUD, and has found, for example, in the testimony of Oxman,

McGovern and Martinelli, that notwithstanding clear notice

that these sites were unacceptable starting in December 1985,

absolutely no process was put in motion to find new sites.

Only one reason for that appears clear on this record,

and that is that there is no will in Yonkers, in fact, there is a

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contrary and strong countervailing will [918] not to disgorge

sites, if you will, and this has nothing to do with whether

there are sites, it has nothing to do with finances. It has to

do with the same factors that this court clearly found to have

existed over a 40-year period in the city, and that is racist,

and while it may be impolitic to call that what it is, that is

what it is. When politicians in the city of Yonkers say there

will never be subsidized housing in the east side of the city,

there will never be public housing, as they continue to say

this minute, they are in fact in contempt of the court, in

contempt of th: Constitution and in contempt of their

assurances to HUL , whether they are personal assurances or

municipal assurances.

It seems to me high time that the court, frankly, recognize

that this is the animal, if you will, that is being dealt with.

We are not dealing with people who will voluntarily, as much

as we wished they would, change their course of conduct.

They have made too many political speeches and too many

promises to their constituents, and they are not about

voluntarily to cease this course of conduct.

Then, your Honor, what we are left with, that being

recognized, is the question whether, by a divided vote,

understanding the forces in the city council on the one hand,

the city has the will to find other sites, and it [919] seems to

me the last several months offer a clear demonstration that

it does not. If that is the NAACP’s view of the sad history,

and quite honestly I don’t think the record allows for any

other conclusions — neither of the parties addressed that

part of the record but I don’t see much basis for optimism.

SA Eee ee ee Te

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The other thing I would mention with regard to that are

the factors that went into the development of this remedy

proposal. [ think that is a reasonable basis for inquiry in

deciding whether that proposal, for example, offers a

countervailing and positive mood or positive evidence to that

which I suggest to be the reality, and frankly, your Honor,

I think the evidence again shows that this proposal was made

without the least bit of objective, rational consideration.

You as well as all of us heard the evidence with respect

to the condominium cooperative proposal. The reason that

proposal was developed is very simple. If you are going to

80/20 and you only have two sites and the sites have a limited

capacity, you are left with 150 public housing units. You

are left with them because they don’t fit on those two sites.

What do you do with them? You could come up with

another site but that implicates all the political problems that

I have already referenced. So what you do do [920] is suggest

some program which in fact has very, very mixed history

nationally, has been for the past 15 years in disfavor with

HUD, which has no track record in the city of Yonkers, which

is presented with absolutely no justification.

No one came from the city of Yonkers to explain the

proposal, to really give credence to it. No city official

explained where it came from or what its basis was in fact.

And you present that to the court.

If that is not bad faith in this case I honestly don’t know

what would be. It seems to me it is terrible faith and it does

not indicate any reason for optimism with respect to the city.

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I have already touched on some of the city’s proposals

and indicated our view of them. Let me quickly move to

those that I haven’t referenced.

THE COURT: Before you do that, and the conclusion

drawn from that in terms of, for example, the two sites, is

what?

MR. SUSSMAN: With regard to those two sites,

obviously they should be rejected. The conclusion with

respect to the issue of how the court is to proceed with the

200 units of housing, it seems to me the court has really two

and only two choices. One is it can direct the city within 30

days to submit to the court and to HUD sites. [921] It seems

to me that this has to be a court order. | disagree entirely

with the city, in the sense they say that this is something

between them and HUD. It is not. It relates to the remedy of

what this court has found.

THE COURT: But what you are saying then is that the

city should be given a period of time, you suggest 30 days,

in which to designate two sites.

MR. SUSSMAN: Yes, but the understanding has to be

very clear, your Honor, that should they not do that the court

has to select sites, and if the court desires an expert or a

master or some other mechanism of assistance to help the

court decide which among sites which have been vouched

appropriate are best, then obviously the court is entitled to

that, and we certainly support the court in seeking that kind

of assistance, should it be deemed necessary.

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| don’t think, frankly, it is the NAACP’s position to tell

the court that is or is not necessary. It may be in my view,

given the record, it is not necessary, that the court would be

justified in saying Whitman, school 4, school 15 are in fact

appropriate sites. But the fact is that the court has to feel

comfortable, | would believe, making the ultimate judgment,

and what evidence the court feels is necessary to do that is

obviously known, it seems to me, best to the court.

[922] The point is, the city has to understand that there

is going to be, through jucicial intervention, the selection of

sites, just as city officials have been warning, and not simply

have the perspective that at this point it can choose again

getting CDBG money and selecting two sites, which to me,

your Honor, is exactly the choice suggested in a sense by

Mr. Sculnick. That is, the way it is left now is the city can

forfeit the funds or the city can come forward with sites which

HUD deems appropriate. My reading of thé city at this point,

it is obvious what would occur. The city would simply forfeit

the money, and at that point we are in August and is the

NAACP at that time going to come back for an order? It

should not have to. That should derive from this proceeding.

After all, those 200 units, whatever their exact source and

HUD conditioning, also relate directly to the remedy of the

violation found by this court, and the court has an interest in

seeing that the CDBG moneys are used on the one hand and

that the federal moneys are used on the other band.

(Continued on next page)

[923] MR. SUSSMAN: Now, that leads to in a sense

the second issue, and just so it is entirely clear in this record,

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our position with regard to the 200 public housing units is_

that they do derive from HUD conditions from a

determination by HUD that rental units of housing for

families are necessary in the City of Yonkers in light of the

city’s HAP, in light of its needs, in light of the historically

unmet goals, and that to try to convert those into owner

occupied units or to try te convert them into moderate income

units or some other form of housing seems to us

inappropriate.

In other words, the city should not be allowed, if you

will, to finagle and convert that obligation to any other, which

is, of course, what it is trying to do. The 150 co-op/condo -

proposal, as vague as it is, as time unlimited as it is, seems

to me entirely unresponsive to the need which has beu

identified in the consent decree and is clearly responsive to

the remedial issues in this case.

Now, the second matter that’s before this court, quite

obviously, beyond the 200 units, is what else? And again,

unsurprisingly, the city’s position can be summarized as we

will put into place certain, what I would consider highly

inadequate subsidy programs, and if developers utilize them,

okay, if they do not, okay. And I [924] think the structure of

the argument is important here, because what is being said

is there is an opportunity issue; we rejected barriers, we are

now taking the barriers down, if anyone comes in, fine. But

this court, as Mr. Sculnick argued, does not have the authority

equitably to do more.

Now, it seems to me that argument has been — it has to

be confronted directly, and I believe it is wrong. This court

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has the equitable authority in light of the violation of the

City of Yonkers to in fact order the city to insure through

available financing techniques the creation of a discreet

number of units of housing.

It seems to me that’s indisputable, because the city in

fact blocked for racial reasons the construction of numerous

units, numerous sites in east Yonkers, and the court’s opinion

which carefully recites the round-by-round blocking of east

side sites gives clear predicate for that kind of an order. So

the notion that because the court did not state a specific

number of units were blocked, therefore the court is not

allowed to set a number, seems to me not to be properly

based. The court found the general pattern and practice which

existed and which in a sense kept all units out and pushed

them in another part of the city.

Now, the question has been raised as to what sufficiently

predicates the setting of the goal beyond the [925] 200. The

government’s position is that a process should occur which

will inventory available land and then apparently, based on

the results and the resulting prospective on how much land

is actually available, would set a goal. The city, as I have

already indicated, would simply set no goal and would leave

in a sort of laissez faire market manner the production of

this housing.

Our position, your Honor, is somewhat different. We

believe that the setting of a goal is essentially a matter of

judicial discretion and prudence, taking into account the

violation, the sites and some basic judicial judgment. Again,

B4a

Appendix 4

| don’t see — in the City of Yonkers, just to take this as an

example, there are numerous park lands which if we brought

the map up could be displayed.

One could make arguments, your Honor, that certain

segments of this park or that park are inadequately used and

therefore should be chopped off from the rest of the park

and be used for housing. One could argue that the Theresa

Avenue site near Lincoln High School, three acres versus

eight acres, should be used for housing. One could argue

with respect to the Whitman school how many acres of that

school should be used for a buffer between the single family

zones, how much should be used for housing.

It doesn’t seem to me that an inventory really does us

very much good. What would do us considerable good [926]

is simply the exercise in light of the evidence in this case, in

light of the financing mechanisms available, in light of the

clear numerosity of sites available — and here | disagree to

some extent with Ms. Vanderwicken, and I do believe there

are clearly sufficient sites available, the court simply — and

again, the responsibility is unfortunately in our system,

| think, on the court, must look at those factors and come to

a view as to what a reasonable number is.

Now, | think in setting that, Judge, there are certain

factors that you can take into account, and they are clearly

evident on this record. And let’s talk for a moment about the

financial matters.

If one assumes as | think is a fair assumption that requests

for proposals could be issued by the City of Yonkers for any

BSa

Appendix 4

number of city-owned sites, whether it be the Lincoln school

site, the Whitman school site, the School 15 site, the School 4

site, requests for proposals could be issued.

Now, in that process, your Honor, the city could very

well, given some goal from this court, indicate to developers

that it has city-owned land. The developers are free to make

a bid as to how much they will pay for that land. The

developers are free to come forward with respect to each of

those parcels with a plan which will be [927] inclusionary

in terms of some mix economically of housing.

Now, it may very well be that when all is said and done,

given the prime nature of School 15 and Walt Whitman, given

their location in this county in relatively exclusive kinds of

areas, that developers would ask the city for these properties

and be willing to pay considerable sums for these properties.

Developers might in a sense be running over each other for

the opportunity to develop without any subsidy by the City

of Yonkers.

The issi:e of how much tax abatement is necessary and

how much of the CDBG money is necessary seems to me

quite speculative until one makes that effort with a series of

city-owned parcels of which there are many to determine

how quote-unquote prime this land is for development in a

mixed manner. We have no objection to that kind of process

once the 200 units have been constructed.

And it seems to me that the arguments about the city’s

financial situation in a sense are z lot to do about nothing,

because they all presuppose that critical to the construction

86a

Appendix 4

of the 80-20 housing is some substantial city subsidy, and it

does not seem to me at all evident from this record and from

the experience with 80-20 housing on prime sites which are

owned by the city already which are vacant which are

generating no revenue, that those kinds of arguments are

salient.

[928] An 80-20 project, as one of the gentlemen testified

to, may very well be tax producing, because the assumption,

as Mr. Mallach testified, is that on the 80 percent there is

going to be revenue generated, not lost. Beyond that, even if

it becomes true that the city must subsidize to some extent

to achieve the goal which we have suggested is 450 units,

the order of the court it seems to me should be clear as to

what the available kinds of subsidies are.

Yes, your Honor?

THE COURT: 450 uriits is a number that comes from

where?

MR. SUSSMAN: 450 units is a number which comes

from our perception after you deal with the 200 units of what

sites are actually available, the relative developability of

those sites —

THE COURT: 450 includes the 200?

MR. SUSSMAN: No, it does not.

THE COURT: That’s in addition to the 200?

87a

Appendix 4

MR. SUSSMAN: Yes, it is. And it’s also our sense, your

Honor, that in terms of the density which we would be most

interested in, which is a fairly low density on most sites,

obviously Whitman you have 20 acres, the number of units

that can be built even with fairly low density of 20 or 25

which are lower per acre than the MG [929] classification,

you still end up with some 500 units potentially.

But the bottom line is our major objective remedially is

to provide sufficient units of low and moderate income

housing throughout east Yonkers so as to de-identify, which

we believe to be the nature of the violation, most areas of

east Yonkers as you can specifically and discreetly define

them and not simply put all the housing here or here or here.

And if you start looking at the east side and with that

level and number of sites, I think you see that that provides

a certain rough equity of distribution given available Sites,

which happen, I think, as Mr. Pistone’s list shows and the

school site shows, to be spread out through east and I would

add northwest Yonkers, which should not be immune from

remedial activity as well.

But I am the first to suggest that the precise number is a

question which ultimately comes down to judgment. Even

if one has an expert — and as I Say, we don’t oppose the court

having an expert for this reason or for another reason as to

the appropriateness of specific sites — it doesn’t seem to

me from my experience in these cases the expert is going to

be able to come up with a mathematically defensible as opposed

to some extent an arbitrary number, even with regard to any

one site. What [930] number is appropriate on that site is a

matter of great debate and is not a matter of particular precision.

88a

Appendix 4

So it does — I mean, to me that’s somewhat of an

exercise in imagination, and the court’s imagination, if you

will, and discretion is probably as good at this point as an

expert’s, although, as I said before, if the court feels uneasy

about that we have no objection and we will submit names

of persons who could give assistance.

But I don’t think the enterprise would be that well

grounded or would be likely to come to very firm

conclusions, and | think it might provide another opportunity

for delay, for reargument, for unsettledness, which I am not

sure would be necessary.

But the basic point, your Honor, is the order of the court

it seems to me in the area of housing production, must pay

cognizance of the various tools available to the city. It

certainly, at this stage, either in the opinion or the order,

should not, that is, this court should not say to the city, vou

are never going to have to use general obligation bonds, you

are never going to have to use your bonding authority

otherwise, you are never going to have to use X, Y or Z. It .

seems to me that would be entirely inappropriate.

At the same time, the court should not sanction, for

example, the city’s use of ten percent of its CDBG [931]

money rather than 50 percent of its CDBG money for this

particular purpose. The court’s decree has to be flexible in

indicating to the city that it should get going as quickly as

possible with this kind of RFP approach that we have

suggested and see what kind of assistance actually appears

to be necessary or even requested by developers.

PN REI ERNE. PIE SpNeT eoNeet Remmi ENON

Pee SREP AION! POE YE NT ee NN mI

89a

Appendix 4

It may be, as I indicated, that given the sites we are

_ discussing, the developers will jump at an 80-20 mix once

we got beyond the 200 units and will not even need particular

assistance. If that’s true, fine. There is little issue. If it is not

true, then the panoply of possible alternative subsidies is

still available, having not been precluded hastily by an order.

It seems to me another matter that if the court adopted

this kind of approach would be necessary, quite obviously,

is reporting. The city would have to first come in with a

group or list of the sites which it proposed to RFP. That list

could be added to by the parties. If the city balked at doing

that in a short period of time, the court would simply set the

list and that at that point the city would have to engineer the

request for proposals, publicize them and report back as to

what kind of proposals it has received.

And obviously the RFP would have to be clear that the

goal it’s creating in the simply 80-20 — 80-20 is [932] not

magical, but some mix of low and moderate and higher

income housing, and, it seems to me a preference should be

given to those developers who come in with a mix

emphasizing low and find that economically feasible, since

that’s the group we are most trying to provide for, and if

developers can economically do that they should be benefited

in the process.

Now, finally, let me speak briefly about the issue of fair

housing since that is part of the city’s proposal and we have

sought to make certain suggestions to the court in that area.

First of all, with regard to the Section 8 existing

administration, that administration it seems to us both by

90a

Appendix 4

law and by right should be done by an agency of the city.

The problem is that to date as I think Mr. Grandin’s testimony

demonstrated, there has not really been much supervision

and aggressiveness at attempting to find housing, particularly

in east Yonkers, for low and moderate income people.

Now, part of this is tautological because we argue and

assume that there is not that much housing in east Yonkers

for these people. So that the issue of what aggressive efforts

the city has made, while it is ii “*!evant indicia of good faith,

is at the same time empirically not that interesting because

there probably [933] isn’t that much housing out there.

Once we agree the city should administer the Section 8

existing program, it seems to me the second issue is how to

deal with the fair housing questions, and our proposal there

is that the city in fact fund the not-for-profit organization to

do things which the city has not in its proposal even

suggested, but which from our point of view, and I think the

evidence shows, and it was not really questioned by Ms.

Hanson’s cross-examination, is a critical function, and that’s

testing.

The reason testing is very important is because when

you are trying to place either the Section 8 existing certificate

holders or helping people in private market discrimination

cases you need a capacity to actually verify that racial

discrimination exists, and currently neither the city through

its sponsorship nor any other agency in Yonkers does that.

And it does seem again clearly at variance with Mr.

Sculnick’s position, part of the violation in this case that the

city, as Ms. Vanderwicken said, not only exacerbated private

9la

Appendix 4

market discrimination and reinforced it, but also mirrored

it. And it seems to us that dealing with that through

aggressive activity, particularly where it relates to publicly

assisted housing persons like those receiving these

certificates would be a very important and responsive

component of a remedy.

[934] Now, the specific budgetary dollars that are

necessary, | think, frankly, that should be handled by the

hiring of a housing consultant who could give the city and

the court advice within a short period of time as to the proper

structuring of a not-for-profit, the budget which would be

necessary and elaboration to a greater extent on the functions.

I don’t think the record in the City of Yonkers through

its human rights commission, with all regard to Mr.

McDonald who is a very recent occupant of the position,

gives us any real basis for the belief that this organ of city

government can in fact aggressively handle this. The

hamstrung nature of the position in terms of political

influences, the budgetary instability and the general

vicissitudes of commitment as was shown in the liability

case to that agency do not augur well for entrusting it with

this important task.

We will be providing as the court indicated written

comments, hopefully Friday, if not then on Monday, and we

obviously urge the court to act in a strong manner in light of

the evidence, and not simply to in a sense delay to another

day the process of reckoning which has to come for the city.

Thank you.

92a

Appendix 4

MR. NELSON: Mr. Nelson? First of ali, your Honor,

with respect to the Whitman facility, there is no [935] finding

in the court’s opinion with respect to schools that the

Whitman facility in its proposed use as an administrative

facility and a teacher training center would detract in any

way from the integration effort.

Secondly, there is no evidence on this record to

substantiate a finding that the Whitman facility is essential

to the remedy of the housing violation. Indeed, there is

evidence on this record that there are sufficient sites in east

Yonkers to remedy housing violations without the use of

the Whitman facility.

Much —

THE COURT: There is also the testimony of Dr.

Raymond that the reason for the school’s decision to utilize

Whitman in the fashion in which the school board proposed

was for non-education uses.

MR. NELSON: I think that is a different issue, your

Honor, a very different issue. What Dr. Raymond addressed

herself to was to achieve the support of the northeast

community for the school integration effort. That was the

thrust of her testimony, as I remember.

Much of the emphasis and energy that has occurred

during these housing hearings has been directed at providing

housing opportunities in east and northwest Yonkers. In this

landmark and unique case where school and housing issues

and indeed the court’s findings are so [936] interrelated, there

is an additional concern which cannot be ignored.

93a

Appendix 4

If the city’s housing practices were responsible in

significant part for perpetuating and exacerbating the system-

wide racial segregation of the Yonkers public schools, then

the scope of the housing remedy must be city wide and must

be responsive to alleviating that unlawful condition.

In addressing the school issues, the district and indeed

the court in its proposed remedial order has sought to provide

integrated equal educational opportunities throughout the

school system for all the students in Yonkers. That task, the

task of integrating the school system, is facilitated not only

by expanding and providing housing opportunities in east

and northwest Yonkers, but also, and from our perspective

perhaps more importantly, for effective school desegregation

to occur and to be responsive to the court’s liability findings,

the remedial order must also address the racial segregation

that presently exists in southwest Yonkers. That’s all.

THE COURT: Well, having raised the questions, and

I think they are appropriate questions to raise, that is, the

relationship between the school and the housing, the question

becomes, how does one do that?

Now, one suggestion that I asked for post [937] hearing

comments on was the suggestion that the way one furthers

both causes, that is, of integrated housing and integrated

schools, is a linkage in the rent up priorities, that one says

that where a unit becomes available in a predominantly white

area, the rent up priority should accord highest preference

to a minority family with school children who will attend

schools in furtherance of the objectives of the school phase.

So that the integrative choice has two inducements, better

housing and integrated school setting.

94a

Appendix 4

Now, I was interested in Ms. Hanson’s comment that to

the extent to which you offer incentives to majority members

to occupy housing in predominantly minority areas, again,

with a linkage to the schools, you engage in a practice which

some people might regard as gentrification, a process which

has occurred and is occurring in many parts of many cities.

And — well, my question to you is, obviously one thing

which assists the school board in its obligation to further

integration in the school system is to improve housing

conditions and opportunities throughout Yonkers, but is there

anything beyond that that you would propose, and do you

have any comment on the suggestion of a — is there any

way one can do that other than by rent up priorities, rent up

or sale, whichever, whether it is a [938] rental or a sale?

MR. NELSON: I have two comments, your Honor. One

with respect to Ms. Hanson’s observation on gentrification.

As I know gentrification, that is more a condition where you

~ have middle to upper income majority families coming into

an urban setting as opposed to eligible, white, low income

families with school age children who would be occupying

subsidized and low income units in southwest Yonkers.

THE COURT: Generally regarded as the gentries?

MR. NELSON: Exactly. Secondly, I am at somewhat

of a disadvantage not having sat through the hearings last

week as Mr. Weaver did. He is saddened that he couldn’t be

here today to make this argument, he would have been here

tomorrow, and it is my understanding that in our submission

to the court we may have some suggestions and some

specifics for you.

so." 0 eee vet

95a

Appendix 4

THE COURT: All right. Then thank you.

All right. Then this record is closed, and the parties are

to make their post remedy hearing submissions by two

o’clock on Monday, and I thank you all.

MR. SUSSMAN: Thank you, your Honor.

MS. VANDERWICKEN: Thank you, your Honor.

(Proceedings adjourned)

*x * * *

96a

APPENDIX 5 — HOUSING REMEDY ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

DATED MAY 28, 1986

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

80 CIV 6761 (LBS)

UNITED STATES OF AMERICA,

Plaintiff,

~— and —

YONKERS BRANCH-NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF COLORED PEOPLE, et al.,

Plaintiffs-Intervenors,

— against —

YONKERS BOARD OF EDUCATION; CITY OF

YONKERS; and YONKERS COMMUNITY

DEVELOPMENT AGENCY,

Defendants.

CITY OF YONKERS and YONKERS COMMUNITY

DEVELOPMENT AGENCY,

Third-Party Plaintiffs,

— against —

97a

Appendix 5§

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, and SECRETARY OF

HOUSING AND URBAN DEVELOPMENT,

Third-Party Defendants.

HOUSING REMEDY ORDER

May 28, 1986

HONORABLE LEONARD B. SAND, U.S.D.J.

* * *

SAND, J.

Pursuant to this Court’s liability findings of November

20, 1985, the evidence adduced at the remedial hearing, the

supplemental findings set forth in the Opinion filed this date

and the subsequent written submissions and oral arguments

of the parties, the Court enters the following Order.

I. Injunction

The City of Yonkers, its officers, agents, employees,

successors and all persons in active concert or participation

with any of them, are permanently enjoined from:

A. blocking or limiting the availability of public or

subsidized housing in east or northwest Yonkers on the basis

of race or national origin;

98a

Appendix 5

B. confining public or subsidized housing to southwest

Yonkers on the basis of race or national origin;

C. otherwise intentionally promoting racial residential

segregation in Yonkers;

D. interfering with any person who is exercising or

attempting to exercise his or her rights to equal housing

opportunities;

E. taking any action intended to deny or make unavailable

housing to any person on account of race or national origin,

or

F. impeding or interfering with the successful

implemertation of the school desegregation remedy.

Il. Fair Housing Resolution and Office

It is further ordered that the City shall take the actions

described below to implement a fair housing program.

A. Within 30 days of the date of this Order, the City

shall adopt a Resolution of the City Council setting forth

the fair housing policy of the City of Yonkers: to assure equal

housing opportunities and nondiscrimination in the provision

of housing throughout the entire City.

B. Within 60 days of the date of this Order, the City

shall adopt a Resolution of the City Council establishing a

Fair Housing Office (FHO). The FHO shall have the general

responsibility to administer and implement the fair housing

99a

Appendix 5

policy of the City and shall have the specific responsibilities

described below. The City shall provide for adequate funding

of the FHO throughout the life of this Order to ensure that it

may fully carry out its responsibilities. The FHO shall

establish a principal office and auxiliary offices as needed.

The FHO shall publicize and promote the services it offers.

C. The FHO shall be headed by an Executive Director.

The City shall provide funds for sufficient staff to carry out

all of the FHO’s responsibilities under this Order. Staff shall

be hired by the Executive Director.

D. Within 30 days after passage of the FHO Resolution,

the City shall submit to the United States and plaintiffs-

intervenors the names and qualifications of not less than three

candidates for Executive Director. Within 15 days thereafter,

the United States and plaintiffs-intervenors shall respond to

the City, indicating which, if any, of the candidates are

acceptable. The City Manager shall, within 15 days of these

responses, appoint a candidate from among those approved

by both the United States and plaintiffs-intervenors. If the

United States and plaintiffs-intervenors do not agree on the

acceptability of any of the City’s candidates, they shall

include in their responses to the City the names of two or

more candidates of whom they approve. If the City Manager

finds none of these alternative candidates acceptable,

this Court shall make the selection from among all

those suggested by the parties. If the position of Executive

Director becomes vacant during the life of the decree, the

same procedure shall be followed in making subsequent

appointments with time periods adjusted so that the position

does not stay vacant for longer than 60 days.

100a

Appendix 5

E. In order for the other parties effectively to monitor

the City’s compliance with its obligations under this Order,

the FHO shall submit to the City Manager and the United

States and plaintiffs-intervenors each year during the life of

this Order a proposed plan of activities and programs for the

following year. The first such plan shall be submitted within

60 days of the appointment of an Executive Director. The

United States and plaintiffs-intervenors shall have 30 days

to make suggestions and comment on the plan before it is

adopted by the City Manager. The City Manager must adopt

a plan within 60 days of its submission.

The FHO shall also, on a semi-annual basis, report to

the United States and the plaintiffs-intervenors on its

activities for the period, including any difficulties encountered

in Carrying out its responsibilities under this Order. The FHO

shall maintain detailed records of its activities and, upon

reasonable notice, shall make these records available to the

United States or plaintiffs-intervenors for review.

F. The FHO shall have the functions and responsibilities

as set forth below:

1. On an ongoing basis, the FHO shall review

the activities of City agencies and offices for

compliance with the fair housing policy of the

City and the terms of this Order. The FHO shall,

as it deems appropriate, make recommendations

to such entities for actions to be taken to ensure

compliance with the fair housing policy and this

Order. In its reports to the United States and

plaintiffs-intervenors, the FHO shall include full

.

¥ bets, ee er FERRARO DEE NUR DAR RS OS ed Bead ETN ote CSR tl RAG Oy Sa ATR ae AGRI re ai

i TEERER Re BN othe Sa SR la as OO a a i lS ew POE Oe EE Osa tael ect ah ; " : *e

10la

Appendix 5

information about its reviews of City agencies’

activities, any recommendations made by the FHO

and any agency action taken iri response to such

recommendations.

2. The FHO shall conduct educational

programs for City and School District personnel,

as well as for the community at large, to explain

the City’s fair housing policy and its enforcement

efforts and obligations under this Order. Such

programs should be designed to elicit support for

the remedial efforts of the City and the Board of

Education and to promote racial harmony in

Yonkers. The FHO shall coordinate with the

School Board the development and presentation

of programs explaining fair housing policy to City

school children. These educational programs shall

be initiated as soon as possible (and, in no event,

more than 60 days) after the appointment of an

Executive Director. To the extent appropriate and

feasible, the FHO shall make use of the services

and experience of private and public organizations

which have developed programs to aid

communities experiencing desegregation.

3. The FHO shall collect information relating

to housing needs and services, identify available

rental and sales units within the City and provide

information to homeseekers seeking housing on

a nondiscriminatory basis and inform them of the

availability of rental management companies,

brokers, local lending institutions and agents. To

Se tee

resin

102a

Appendix 5

assist the FHO in the gathering of this and any

other relative information, the FHO shall have the

right and authority to issue subpoenas which shall

be enforceable by this Court. The FHO shall

perform all of its functions on a continuing and

nondiscriminatory basis throughout the life of this

Order. The FHO shall ensure that all persons who

request its assistance in obtaining housing are

made aware of housing opportunities 1n all areas

of the City. The FHO shall in particular make such

information available to all persons in the City

receiving Section 8 certificates who seek its

services and the Municipal Housing Authority

(MHA) shall inform persons obtaining certificates

from that agency of the services available through

the FHO.

4. The FHO shail offer training concerning

fair housing practices for persons in the housing

rental and sales business. In addition, the FHO

shall require and conduct training concerning fair

housing practices for all persons responsible

for the management or marketing of housing

currently receiving City assistance or housing

developed pursuant to the Order.

5. The FHO shall ensure that all housing

made available pursuant to the operation of this

Order, and all housing otherwise receiving City,

state or federal assistance, including housing

in the southwest quadrant, be affirmatively

marketed either through the FHO’s own efforts

103a

Appendix 5

or by review, approval and monitoring of the

affirmative marketing plans of persons providing

such housing. These efforts shall be designed to

ensure that such housing is made available to all

persons regardless of race or national origin and

to ensure that persons who, based on past

experience, have been least likely to occupy

housing in a particular area of the City are fully

informed of all housing opportunities there. The

affirmative marketing plans shall be consistent

with the occupancy priorities provisions (§ VII)

of this Order.

6. The FHO shall coordinate with appropriate

personnel from the Yonkers Board of Education

to ensure that demographic data, school

enrollment data, plans for housing and school

program development and other information

relevant to the remedial process is available to

both the Board and the City. ;

7. In providing information about available

housing resources to persons seeking such

information, the FHO also shall inform such

persons of their rights to equal housing

opportunities under the City’s fair housing policy,

state law and the Federal Fair Housing Act of

1968. The FHO shall alert persons seeking

housing that a refusal to rent or sell on account of

race or national origin or the imposition of

different terms and conditions of rental or sale on

account of race or national origin, is against the

104a

Appendix 5

law, and shall encourage such persons to

immediately report any suspected discrimination

to the FHO. The FHO shall refer persons who

wish to file complaints concerning suspected

discrimination to, as appropriate, the Yonkers

Commission on Human Rights, HUD, the New

York Division of Human Rights, and the United

States Department of Justice, and shall inform

them of other assistance available through private

non-profit agencies. The FHO shall assist

complainants in communicating with the

appropriate agencies and shall cooperate with

such private and governmental agencies in their

activities. The FHO shall not conduct or intervene

in litigation proceedings except proceedings to

enforce subpoenas issued pursuant to paragraph

3 hereof.

Ill. Transfer of Section 8 Administration

It is further ordered that the City shall, within 60 days

of the date of this Order, seek HUD approval to transfer

administration of its Section 8 existing program to the

Yonkers Municipal Housing Authority (MHA). The FHO

shall cooperate with the MHA in assisting certificate

holders to obtain housing in all areas of the City on a

nondiscriminatory basis and shall report on its own and the

MHA’s actions in this regard. HUD shall advise the Court

and the parties within 30 days after such application whether

it has approved the transfer, and if not, its reasons for such

disapproval.

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105a

Appendix 5

IV. Public Housing Units

The City has previously committed itself to provide

acceptable sites for 200 units of public housing as a condition

for receiving its 1983 Community Development Block Grant

(“CDBG”) funds but has failed to do so. Pursuant to the 1984

HUD-NAACP Consent Order entered by this Court, HUD

agreed to fund 200 units of public housing east of the Saw

Mill River Parkway. The Consent Order provided that HUD

would initiate procedures to reduce funding of the City’s

1984-85 CDBG entitlement grant up to its full amount unless

the City submitted to HUD for preapproval sites for at least

140 of the 200 units. But for the terms of this Order, HUD’s

authority to commit the 1984-85 CDBG funds would expire

on September 30, 1986 (funds for the grant were appropriated

in 1983 and “remain available until September 30, 1986.”

P.L. 98-45, 97 Stat. 223, July 12, 1983). HUD shall obligate

the funds prior to the expiration of the funding authority in

September if either (a) the City submits an acceptable

Housing Assistance Plan (HAP) and other documentation

as required by 24 C.F.R. § 570.302 prior to that expiration,

or (b) such HAP and documentation are deemed submitted

as herein provided. If the City submits all requisite

documents, HUD shall obligate the funds, but make their

availability conditional on the City submitting acceptable

sites in East Yonkers for development of 140 units of public

housing. (The Court finds such action would be consistent

with HUD’s obligations under paragraph 6.B. of the March

19, 1984 Consent Decree with the NAACP). The City would

accept this condition by execution of a grant agreement

containing the condition. Because, but for the terms of this

Order HUD could not obligate the funds until the City

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submits all necessary documents, the City is hereby ordered

to submit the required documents and execute the conditional

grant agreement prior to the expiration of the funding

authority, and to make timely submission of acceptable sites.

A. Accordingly, it is ordered that the City shall, within

fifteen (15) days of the date of this Order, submit to HUD an

acceptable HAP for the 1984-85 program year and other

documentation required by 24 C.F.R. § 570.302. HUD shall

advise within ten (10) days thereafter if the HAP and other

documentation is acceptable. If the City fails to submit an

acceptable HAP and other documentation as heretofore

provided, plaintiff and plaintiffs-intervenors shall submit

same to the Court and to HUD within the next five (5) days, Ls

and upon approval by this Court, said submission shall

be deemed to be the HAP for the City of Yonkers for the

1984-85 program year and to have satisfied any and all HUD

regulations and relevant statutes requiring such HAP.

B. Itis further ordered that the City shall, within fifteen

(15) days of the date of this Order, execute a grant agreement

with HUD for the 1984-85 program year, with the condition™

that receipt of the grant depends on submission of acceptable

sites for 140 units of family public housing. If the City fails

to execute such grant agreement within fifteen (15) days from

the date of this Order, plaintiff and plaintiffs-intervenors shall

submit such an agreement to the Court and to HUD within

the next ten (10) days, which grant agreement, upon approval

by the Court, will be deemed to have been executed by

Yonkers and to have satisfied any and all relevant statutes

and HUD regulations requiring such agreement.

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C. It is further ordered that the City shall within thirty

(30) da

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