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PLANNING COMMISSIONERS JOURNAL / NUMBER 78 / SPRING 2010 knew that nearly three-quarters of coun- ty-funded affordable housing was being built in racially-segregated, African- American neighborhoods. Despite this the county’s AIs in 1996, 2000, and 2004 made absolutely no men- tion of that segregation or of race-based impediments to fair housing choice. Moreover, even though the County’s own appointed Housing Opportunities Com- mission had identified intense opposi- tion to affordable housing in the whitest communities and the failure of 20 municipalities to build a single unit of affordable housing pursuant to the County’s affordable housing “allocation plan,” the AIs failed to mention these impediments. The Anti-Discrimination Center of New York began an investigation of Westchester County’s civil rights perfor- mance in 2005, requesting records to establish whether the County had truth- fully made certifications of AFFH com- pliance. Document discovery in a subsequent lawsuit brought under the False Claims Act revealed the nearly complete absence of supporting records. As the then-County Executive testified at his deposition, he never read the AFFH certifications requiring his signature, and “signed whatever [he had] to sign to get the money from HUD.” On February 24, 2009, a federal judge concluded that more than 1,000 of the County’s AFFH certifications – those in the annual applications and those implic- itly made each time the County request- ed payment from the federal government based on annual written certifications – were false. Finding that HUD’s 1995 Fair Housing Planning Guide7 was persuasive authority, the court instructed the Coun- ty (and other recipients) that the AFFH certifications were “not mere boiler- plate,” but were material and substantive requirements that are required for receipt of federal funds. Within a few weeks of the court’s rul- ing, HUD Secretary Shaun Donovan and Deputy Secretary Ron Sims were person- ally engaged in settlement negotiations with the county. Those efforts, combined with a temporary cutoff of funds to the county, culminated in a $62.5 million settlement on August 10, 2009, requiring the county to develop 750 units of affordable housing in the whitest towns and villages in Westchester, and to affir- matively market them to people of color. In addition, the settlement requires the county to conduct a new AI and to con- sider all fair housing impediments. Speaking not just to Westchester County, but also to the state and munici- pal recipients of HUD funds across the country, Sims noted that the agency would begin to “hold people’s feet to the fire” on civil rights certifications.8 Scattering the Seeds of Westchester While HUD has announced it will publish a proposed regulation toughen- ing AFFH substantive and procedural requirements later this year, the agency has already become active in reviewing recipients’ certifications and perfor- mance. The most notable instances involve St. Bernard Parish, Louisiana; the State of Texas; and the City of Joliet, Illi- nois. All three involve litigation or administrative complaints by grassroots advocates, alleging discrimination on the basis of race or national origin, and the failure to identify and analyze impedi- ments experienced by people in those protected classes. • In Louisiana, HUD threatened to withhold hurricane recovery funds to rebuild a hospital because St. Bernard had adopted a series of racially discrimi- natory ordinances with respect to multi- family housing. • In Texas, HUD rejected the state’s plan to spend $1.7 billion in disaster recovery money, in part because its seven-year old AI did not comply with federal requirements. • In Illinois, HUD has taken enforce- ment action against the City of Joliet because the city allegedly used its eminent domain power in a discriminatory fashion to shut down affordable housing inhabit- ed almost exclusively by low-income, African-American single mothers. What It All Means for Municipal Planning Planning professionals and planning commissioners across the country will increasingly be called upon to inform and guide their communities through the HUD-required planning processes. Com- munities whose planning departments and commissions are already immersed in conversations about addressing local housing issues will have a head start in developing robust AIs. Those with little experience in assessing the civil rights impacts of zoning, land use, building, and funding functions may have to bring in outside consultants to help develop compliant AIs. One AI worth taking a look at – espe- cially for those in small or mid-sized municipalities – is that of the City of Naperville, Illinois (a Chicago suburb), winner of an Illinois APA 2009 Best Prac- tices Award.9 Planners would also do well – even before HUD’s new regulations are in place – to dust off their copy of the HUD Fair Housing Planning Guide and review its roadmap on how to conduct an AI.10 The Guide includes valuable suggestions on data sources and community involve- ment strategies. ◆ Michael Allen, Esq. is a part- ner in the civil rights law firm, Relman & Dane, PLLC, which engages in litigation and consulting throughout the country, principally in the areas of fair housing and fair lending. Allen was the firm’s lead attorney in United States ex rel. Anti- Discrimination Center v. Westchester County and has a similar role in the State of Texas matter noted in this article. 17 these provisions are often colloquially referred to as the “protected classes.” 6 The County’s own data showed that 24 of these municipalities had African-American populations of 3 percent or less, and that others had block groups that were almost entirely African-American. 7 Available at: www.nls.gov/offices/fheo/images/ fhpg.pdf 8 As reported by Peter Abelbome in The New York Times, “Integration Faces a New Test in the Suburbs,” (August 22, 2009). 9 Available at: www.planningcommunications. com/ai/naperville_ai_2007.pdf or www.naperville. il.us/emplibrary/Boards_and_Commissions/fhacanaly sisofimpediments.pdf 10 See footnote 7 for download location.