# Appendix — City of Yonkers v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1000%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 534 U.S. 1054 ## Text 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. lla 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 64a Appendix 4 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. 65a Appendix 4 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. 66a Appendix 4 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 67a Appendix 4 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. 68a Appendix 4 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. 69a Appendix 4 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. 70a Appendix 4 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. 7la 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 72a Appendix 4 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. 73a Appendix 4 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 74a Appendix 4 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. 75a Appendix 4 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 76a Appendix 4 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 77a Appendix 4 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 78a Appendix 4 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 79a Appendix 4 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. 80a Appendix 4 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. 8la Appendix 4 | 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 goin [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1000%3A2. Public record. Not legal advice.