Lawyers for Westchester County and the federal government took their arguments over a provision in the 2009 fair housing settlement to a three-judge panel at the U.S. Court of Appeals in Manhattan today, the last stop in more than a year of fighting over legislation preventing landlords from rejecting tenants who use Section 8, Social Security or other non-salary income to pay rent.
The judges are not expected to issue a decision immediately. Today was set aside to hear short arguments from the lawyers backing up their long legal briefs on what is known as source of income legislation.
The settlement requires, among a long list of other things, that the county “promote, through the County Executive, legislation currently before the Board of Legislators to ban ‘source-of-income’ discrimination in housing.” But when the legislation came to his desk in 2010, County Executive Rob Astorino vetoed it.
Westchester County Attorney Robert Meehan reiterated his argument that the requirement to promote applied only to the legislation in front of the 2009 Board of Legislators and the obligation ended with the end of the legislative session. Moreover, the word promote did not compel Astorino to sign the legislation. Meehan also said the settlement can’t require the legislators to vote a certain way or the county executive to sign a particular piece of legislation.
“The county never consented to change the legislative system and process,” Meehan said.
Former County Executive Andrew Spano took care of the promotion requirement by sending letters in 2009 asking housing groups to push for passage of the legislation, Meehan said.
He faced some skepticism from the judges.
“You’re asking us to essentially agree vetoing is promotion?” asked Judge Peter Hall. Meehan acknowledged vetoing is not promoting but said that wasn’t the core of the issue.
Representing the Department of Housing and Urban Development, Assistant U.S. Attorney David Kennedy argued “currently” in the settlement meant the type of legislation in front of the board, not the time frame. He also disputed that Spano satisfied the requirement and said of Astorino: “In fact he didn’t promote it at all.”
The issue at the core of the dispute is the plain meaning of the word promote, Kennedy said.
Because the two sides disagreed over the interpretation of the source of income provision, they sought a ruling in 2011 from the monitor overseeing the housing settlement. The ruling was appealed up the federal court system from a magistrate to a district judge and now the U.S. Court of Appeals for the Second Circuit. The district court agreed with the government in a ruling in May and both it and the Court of Appeals denied the county a stay of the order. Under threat of contempt proceedings, County Executive Rob Astorino asked the Board of Legislators to reintroduce source of income legislation in August. But he still has not promised to sign it.
With source of income only one dispute over the implementation of the settlement, Astorino has made a major issue of what he calls overreaching by HUD. But housing advocates have lamented what some argue is resistance to the settlement by the Astorino administration and the slow implementation of some provisions.