County of Westchester v. United States Department of Housing & Urban Development (116 F. Supp. 3d 251, 2015)

United States District Court for the Southern District of New York 2015-07-17

Money and Finance The Public Health and Welfare Government Organization and Employees

Citations

Full opinion text

OPINION AND ORDER

DENISE COTE, District Judge:

Plaintiff County of Westchester (“County”) brings these two actions, pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”), 42 U.S.C. §§ 12705(c)(1) and 12711, and the Fifth Amendment of the U.S. Constitution, against defendants the United States Department of Housing and Urban Development(“HUD”) and HUD Secretary Julian Castro (“Secretary”), seeking review of final administrative determinations by HUD to withhold from the County funds from Community Planning and Development Formula Grant Programs (“CPD Funds”) for the 2011, 2013, and 2014 fiscal years (“FY2011,” “FY2013,” and “FY2014”). For the following reasons, these actions are dismissed and judgment is entered in favor of the defendants.

HUD withheld the CPD Funds at issue here because, in HUD’s view,'the County failed to provide an accurate certification that the funds would be administered in conformity with the Fair Housing Act and to affirmatively further fair housing (“AFFH”), as required by federal law (“Certifications”). To AFFH, the County was required to produce an “AI,” which must include an analysis of impediments to fair housing choice in addition to offering appropriate actions to overcome the effects of any identified impediments. HUD determined that the AIs which the County produced to obtain the CPD Funds at issue here were not acceptable under the standards mandated by the federal statutes and regulations that govern the grant programs: despite HUD’s assistance, encouragement and guidance, the County refused to provide an adequate assessment of the impediments which local zoning ordinances presented to fair housing choice within the County, and to adequately identify the actions it would take to overcome the effécts of any such impediments. The defendants have moved for summary judgment on the ground that their denial of the CPD Funds was not arbitrary and capricious or otherwise in violation of HUD’s grant of statutory authority. For the reasons, described below, that motion is granted.

Plaintiff has' cross-moved for summary judgment on the ground that HUD may not consider local zoning ordinances when making a decision whether to grant or deny CPD Funds. For this proposition it relies on two statutory provisions under the HOME Investment Partnerships Program (“HOME”), which is one of the three CPD grant programs at issue here. 42 U.S.C, §§ 12705(c)(1), 12711. These two provisions only apply to the HOME program, and in any event do not relieve the County of its obligation to make accurate Certifications and to produce adequate AIs in order to obtain CPD Funds.

The defendants have an alternative ground for summary judgment premised on the County’s breach of its 2009 settlement agreement with HUD, which concluded False Claims Act litigation against the County. In the course of that earlier litigation, this Court determined that the County had filed seven false Certifications between 2000 and 2006 that it would affirmatively further fair housing. Despite the requirements of federal law, the County’s Ais, submitted in connection with those Certifications, did not analyze race-based impediments to fair housing. Instead, the Certifications restricted them analysis to impediments to affordable housing in the County.. 668 F.Supp.2d at 562. In settling thát litigation-in which the County stood to have damages assessed against it of over $150 million — the County committed to providing an AI by December 2009 that was acceptable to HUD. It did not do so. It has provided HUD with essentially three AIs since 2009 — one in 2010, one in 2011 and a third in 2018 — and HUD has found all three to be inadequate. This Opinion does not reach the question of whether HUD can withhold CPD funds for the County’s breach of the settlement agreement.

Before turning' to -the factual background and then the legal analysis of the issues presented by these motions, it is important to note HUD’s contention that there is particular urgency surrounding this litigation. The congressional- appropriation reserved for the FY2013 CPD Funds will, by law, revert to the U.S. Treasury on September 30, 2Q15. Before that time, the funds may be reallocated to other communities. According to HUD, without expeditious resolution of the issues here, over $5 million in FY2013 CPD Funds will not be available for use anywhere as Congress intended.

BACKGROUND

The facts and procedural history giving rise to this dispute have been described in several previous Opinions issued by this Court and the Second Circuit, Court of Appeals. See, e.g,, United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 495 F.Supp.2d 375 (S.D.N.Y.2007) ("2007 Opinion”) (denying motion to dismiss False Claims Act lawsuit against the County); United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 668 F.Supp.2d 548 (S.D.N.Y.2009) (“2000 Opinion ”) (finding that County’s Certifications to obtain CPD Funds were false but reserving on County’s scienter); U.S, ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester Cnty., N.Y., No. 06cv2860 (GWG), 2012 WL 917367 (S.D.N.Y. Mar. 16, 2012) (accepting in part and rejecting in part Monitor’s 2011 Report ) (“Magistrate Judge Opinion ”); U.S. ex rel. Anti-Discrimination Ctr. of Metro New York, Inc, v. Westchester Cnty., N.Y., No. 06cv2860 (DLC), 2012 WL 1574819 (S.D.N.Y. May 3, 2012) (“2012 Opinion ”) (adopting Monitor’s conclusions in part and MJ’s opinions in part); United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 712 F.3d 761 (2d Cir.2013) (“Appeal Opinion ”) (affirming holding that the County had breached promotion requirement); Cnty. of Westchester v. U.S. Dep’t of Hous. & Urban Dev., No. 13cv2741 (DLC), 2013 WL 4400843 (S.D.N.Y. Aug. 14, 2013) (“2013 Opinion ”) (dismissing APA claims for lack of jurisdiction and statutory claim for pleading deficiency); Westchester v. U.S. Dep’t of Hous. & Urban Dev., 778 F.3d 412 (2d Cir.2015) (“2015 Opinion”) (vacating in part 2013 Opinion and remanding on issue of jurisdiction). The Court assumes familiarity with those Opinions. Only those facts necessary to the resolution of the present motion are described below.

I. Statutory & Regulatory Framework

The CPD Funds at issue are allocated pursuant to three different federal programs: the HOME program, the Community Development Block Grant (“CDBG”) program, and the Emergency Solutions Grant (“ESG”) program. All three were enacted against the backdrop of the Fair Housing Act (“FHA”), whose provisions are incorporated by reference into the three grant programs’ authorizing statutes.

A. Fair Housing Act

The FHA was passed in 1968 to provide “for fair housing” within the limits imposed by the Constitution. 42 U.S.C. § 3601. The statute bans discrimination on the basis of “race, color, religion, sex, familial status, or national origin” in.connection with the sale and rental of housing and other private real.estate transactions, subject to limitations imposed by the statute. 42 U.S.C. §§ 3604, 3605. “The FHA was enacted to eradicate discriminatory [housing] practices .,. .including] zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., — U.S. -, 135 S.Ct. 2507, 2521-22, 192 L.Ed.2d 514 (2015) (citation omitted).

B. Grant Programs

The three grant programs all require that jurisdictions make certain submissions to HUD to determine eligibility. Each program and its application process is described below. Of principal relevance here are the requirement that applicants certify to HUD that they will “affirmatively further fair housing,” including an “analysis of impediments”; for HOME grants, the requirement that jurisdictions submit a “housing strategy”; and, under' the “consolidated plan” process established by regulation, the requirement that jurisdictions submit an “action plan.”

1. CDBG Program & the “Affirmatively Further. Fair Housing”- Requirement

The CDBG program was established under the'Housing and Community Development Act of 1974. 42 U.S.C. §§ 5301-5321 (“CDBG statute”). “The primary objective” of the program is “providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income.” Id. § 5301(c). The CDBG program works against the backdrop of the FHA and incorporates by reference standards applicable to fair housing.

. Jurisdictions applying for CDBG grants-must certify that they have satisfied six criteria in order to be eligible. 42 U.S.C. § 5304(b). Applicants must certify, inter alia, that “the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 [42 U.S.C. § 2000a et seq.] and the Fair Housing Act [42 U.S.C. § 3601 et seq.], and the grantee will affirmatively further fair housing.” Id. § 5304(b)(2). By HUD regulation, the duty to affirmatively further fair housing requires the grantee to “conduct an analysis to identify impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions in this regard.” 24 C.F.R. § 570.601(a)(2) (emphasis added).

2. ESG Program

The ESG program was initially authorized as the “Emergency Shelter Grants” program by the Stewart B. McKinney Homeless Veterans Act of 1987; it was modified to its current form, and name, by the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act of 2009. Administered pursuant to 42 U.S.C. §§ 11371-11378, the purpose of the program is, among other things, “to provide funds for programs to assist the homeless, with special emphasis on elderly persons, handicapped persons, families with children, Native Americans, and veterans.” Id. § 11301.

"The ESG program does not have any independent certification requirements. A grantee may only receive an ESG grant, however, if it also receives a CDBG allocation. Id. § 11378(a). Functionally, therefore, eligibility for ESG hinges on proper AFFH certification pursuant to 42 U.S.C. § 5304(b)(2).

3. HOME Program & the Housing Strategy

The final grant program at issue concerns HOME funds, allocated under the Cranston-Gonzalez National Affordable Housing Act of 1990, codified at 42 U.S.C. §§ 12701-12714, 12741-12756. The statute states that its objective is to “improve housing opportunities for all residents of the United States, particularly members of disadvantaged minorities, on a nondiscriminatory basis.” Id. § 12702(3). As with the CDBG program, the HOME program is concerned with affordable housing, but operates in conformity with the FHA and incorporates standards relevant to fair housing.

In order to qualify for HOME funds, a jurisdiction must “submit to [HUD] a comprehensive housing affordability strategy in accordance with [42 U.S.C. § 12705].” Id. § 12746(5). Section 12705(b) sets out twenty criteria to be included in the housing affordability strategy (“Housing Strategy”), two of which are relevant for this Opinion.' Section 12705(b)(4) requires grantees to

explain whether the cost of housing or the incentives to develop, maintain, or improve affordable housing in the jurisdiction are affected by public policies, particularly by policies of the jurisdiction, including tax policies affecting land and other property, land use controls, zoning ordinances, building codes, fees and charges, growth limits, and policies that affect the return on residential investment, and describe the jurisdiction’s strategy to remove or ameliorate negative effects, if any, of such policies____

Id. Another of the twenty criteria, like the CDBG statute, requires grantees to certify “that the jurisdiction will affirmatively further fair housing.” Id. § 12705(b)(15).

The definition of AFFH under the HOME statute is identical to that under the CDBG statute. 24 C.F.R. § 91.225(a)(1). The AFFH certification is submitted as a component of the Housing Strategy. See id. §§ 91.200, 91.225. “Certification,” in turn, is defined as a “written assertion, based on supporting evidence,” that will be deemed accurate “unless the Secretary determines otherwise after inspecting the evidence and providing due notice and opportunity for comment.” 42 U.S.C. § 12704(21). HOME grantees must also submit “annual updates of the housing strategy,” and the statutory scheme appears to treat these annual updates as extensions of the initial Housing Strategy, subject to ongoing approval or disapproval by the Secretary of HUD. 42 U.S.C. § 12705(a)(2), (3). Grantees thus must recertify each year that they are fulfilling the AFFH duty.

Section 12705(c)(1) governs HUD’s approval or rejection of Housing Strategies. It provides:

Not later than 60 days after receipt by the Secretary, the housing strategy shall be approved unless the Secretary determines before that date that (A) the housing strategy is inconsistent with the purposes of this Act, or (B) the information described in subsection (b) of this section has not been provided in a substantially complete manner. For the •purpose of the preceding sentence, the adoption or continuation of a public policy identified pursuant to subsection (b)(1) of this section shall not be a basis for the Seóretary’s disapproval of a housing strategy.

(Emphasis added.)

Finally, § 12711, which also appears in the same subchapter of the U.S.Code, sets further limitations on HUD’s ability to approve or reject a jurisdiction’s application for grant funding. It provides:

Notwithstanding any other provision of this subchapter or subchapter II of this chapter, the Secretary shall not establish any criteria for allocating or denying funds made available under programs administered by the Secretary based on the adoption, continuation, or discontinuation by a jurisdiction of any public policy, regulation, or law that is (1) adopted, continued, or discontinued in accordance with the jurisdiction’s duly established authority, and (2) not in violation of any Federal law.

Id. § 12711.

4. Action Plans

By federal regulation, jurisdictions may streamline their grant program submissions with a “consolidated plan,” by which they may apply simultaneously for CDBG, ESG, and HOME funding, as well as other funding programs (“Consolidated Plan”). 24 C.F.R. § 91.1. Certain components of the plan — including a Housing Strategy-may be submitted on a five-year basis, as may the applicant’s AI; other components must be submitted annually. Id. § 91.15(b). Among the required annual submissions are “action plans.” Action plans — like those submitted to HUD by the County — include a jurisdiction’s application for funding, any update to its Housing Strategy, and its annual express certifications that it will AFFH. Id. §§ 91.220, .225; see 2009 Opinion, 668 F.Supp.2d at 553. Jurisdictions participating in a consortium that files a consolidated plan must abide by the same requirements. See id. §§ 91.440, .445. HUD is permitted to reject any “plan for which a certification is rejected by HUD as inaccurate, after HUD has inspected the evidence and provided due notice and opportunity to the jurisdiction for comment.” 24 C.F.R. § 91.500.

C. The Statutory Lapse Date

The CPD funds are allocated to jurisdictions based on a statutory formula. If not disbursed to the earmarked jurisdiction, these funds may be reallocated to other jurisdictions until the statutory lapse date, ie. the date on which the federal appropriation for HUD funding expires.

Once the statutory lapse date passes, funds that have not been reallocated remain available to the original jurisdiction in an expired account for five fiscal years to satisfy obligations incurred prior to the lapse date. 31 U.S.C. § 1552(a); see 2015 Opinion, 778 F.3d at 417 n. 8. This means that, following the statutory lapse date, funds that were statutorily allocated to the applicant and not reallocated to other jurisdictions can only be distributed to the applicant. 31 U.S.C. § 1553(a); 2015 Opinion, 778 F.3d at 417 n. 8. They revert to the Treasury upon the expiration of the five-year deadline. 31 U.S.C. § 1552(b).

II. The 2006 False Claims Act Litigation and 2009 Settlement .

This litigation has its genesis in False Claims Act litigation’ filed against the County in 2006. After this Court determined that the County had falsely certified to HUD that it was affirmatively furthering fair housing, the County entered into a settlement (“Settlement”)" with HUD in 2009. Between that time and today, HUD and the County have sparred* over the extent of the County’s compliance with federal law and the Settlement, and the County’s entitlement to federal housing and community development funds. After the False Claims Act litigation and Settlement are described, the.Opinion will describe the principal milestones in the County’s interaction with HUD in the years since the County settled the False Claims Act litigation.

A. False Claims Act Lawsuit

In 2006, the Anti-Discrimination Center of Metro New York, Inc., acting as a qui tarn relator, sued the County for violation of the False Claims Act, 31 U.S.C. § 3729 et seq. (“FCA”). The lawsuit asserted that the County had received over $52 million from the federal government for housing and community development after falsely certifying, from 2000 through 2006, that it was affirmatively furthering fair housing. The County had submitted those Certifications to HUD on behalf of itself and a consortium of all but five , of the municipal entities in Westchester County. The County submitted Consolidated Plans every five years, including a Housing Strategy and an AI. It submitted annual Action Plans in which it annually certified that it would AFFH.

In rejecting the County’s motion to dismiss the FCA lawsuit, the Court held that a grantee that certifies to the federal government that it will AFFH as a condition to its receipt of federal funds must analyze the existence and impact of race discrimination on housing opportunities and choice in its jurisdiction. 2007 Opinion, 495 F.Supp.2d at 376., Following the close of discovery, the plaintiff in the FCA lawsuit brought a motion for partial summary judgment, contending that there was no genuine issue that the County, knowingly submitted seven false annual Certifications that it would AFFH. According to the qui tarn relator, the Certifications were false because the County had failed to analyze impediments to fair housing choice within the County in terms of race. In opposing the motion, the County continued to dispute that it was required to analyze race when analyzing impediments to fair housing choice, but also took the position that it had determined that racial segregation and discrimination were not significant barriers to fair housing choice within the County. 2009 Opinion, 668 F.Supp.2d at 551. Accordingly, when it disbursed HUD funds, the County had not deemed any municipalities within the Consortium to have failed to AFFH, nor had it deemed any municipalities to be impeding the County’s ability to do so. Id. at 559.

In the 2009 Opinion, this Court ruled that the County’s certifications to HUD were false as a matter of law. Id. at 562. The Opinion found that the. 2000 and 2004 AIs submitted by the County to HUD were devoted entirely to the lack of affordable housing in the County and related obstacles. The record contained “no evidence that either of the County’s AIs during the false claims period analyzed race-based impediments to fair housing.” Id. The Opinion observed that while “federal law does not require the County to find evidence of racial discrimination or segregation where none exists, federal law does require that to obtain the HUD funds at issue ..., the County had to maintain records of its analysis of whether race created an impediment to fair housing.” . Id. at 563. Because the County never performed the required analysis of race-based impediments to fair housing,' it of course “never created a contemporaneous record of how its management of the HUD-acquired funds or any other ‘appropriate’ steps it could take would overcome the effect” of any impediments that did exist. Id. at 565. The Opinion observed that the

statutory and regulatory framework .. / impose[d] no duty on the County to undertake any particular course of action to overcome an impediment to, fair housing ..., [but did] require the recipient of the federal funds to certify that it will take “appropriate” actions to overcome the effect of the impediments to fair housing choice that its analysis has identified.

Id.

While the 2009 Opinion found that the County’s Certifications were false, it denied summary judgment on the issue of the County’s “knowing” submission of false claims. Id. at 567. Before the issue of the County’s scienter could be tried, the United States filed a notice of intervention in the lawsuit and its own complaint .against the County to recover under the FCA the damages it had sustained, as well as associated penalties due to the County knowingly presenting false claims to obtain federal funding for housing and community development. Simultaneously, on August 10,2009, the United States and the County entered into a thirty-eight page Stipulation and Order of Settlement and Dismissal (“Settlement”). Because of the treble damages provision of the FCA, had the County not settled the. litigation, it was at risk of being found liable for over $150 million in damages.

B. Settlement of FCÁ Litigation

The Settlement acknowledged that- the County receives federal funding from the CDBG, ESG and HOME programs, among others. It required the County to pay $8.4 million to thefedex-al government and $2.5 million to the relator. In addition, the County was required to pay $21.6 million into the County’s account with HUD. The Settlement provided that

HUD shall make those funds available to the County for the development of new affordable housing units that will AFFH in the County, provided that the County’s use and expenditure of the funds, and any program income earned from the use of the funds, as defined by 24 C.F.R. § 570.500(a), shall be subject to the requirements of the CDBG program

and other terms and conditions of the Settlement. Those other term's included the County’s duty to ensure the development of at least 750 new affordable housing units within seven years of the Settlement. The Settlement described the criteria, including race-i’elated criteria, for the placement of the new housing units. In addition, the County was required to add $30 million in County funds' to this development effort. It also agreed that “[i]n the event that a municipality does not take actions needed to promote” or “undertakes actions that hinder” development of the 750 housing units, it would “use all available means as appropriate to address such action or inaction, including, but not limited to, taking legal action.”

Another significant component of the Settlement was the appointment of a Monitor “for so long as the County’s obligations” under the Settlement “remain unsatisfied.” James E. Johnson of Debe-voise & Plimpton LLP has been serving as the Monitor since August 2009. The Settlement provided that the Monitor would conduct compliance assessments every two years “to determine whether the County has taken all possible actions under” the Settlement, “including, but not limited to ..., if necessary, taking legal action.”

The Settlement included several other important components. Of particular interest to the current litigation are the following. The County explicitly acknowledged the importance of the obligation to AFFH, and committed to adopting a policy statement to that effect. It also promised to complete within 120 days an “AI within its jurisdiction that complies with the guidance in HUD’s Fair Housing Planning Guide.... The AI must be deemed, acceptable by HUD.” (Emphasis added.) Besides identifying and analyzing the “impediments to fair housing within its jurisdiction, including impediments based on race or municipal resistance to the development of affordable housing,” the County agreed that its AI would identify and analyze. “the appropriate actions the County will take to address and overcome the effects of those impediments.” ’ In this respect, the Settlement closely tracks the language of HUD’s regulations defining the AFFH duty. See, e.g., 24 C.F.R. § 91.225(a)(1).

. The County made several other critical commitments in the Settlement, one of which became the subject of litigation in the ensuing years. .The County agreed that it would “promote, through the County Executive, legislation currently before the Board of Legislators to ban ‘source-of-income’-discrimination in housing.”

III. The County’s Ais and HUD’s Rejections: 2009 to 2013

The County has never provided an AI to HUD that HUD deemed acceptable, despite its explicit commitment in the Settlement to do so. Since the Settlement, HUD has withheld funds from the County and in some instances reallocated funds initially earmarked for the County to other jurisdictions. The description of the ensuing years of application and rejection is organized around the AIs the County has submitted to HUD. The final AI and its two supplements, submitted to HUD in 2013, preceded the two HUD letters that are the principal focus of the County’s summary judgment motion: the letters of August 9, 2013 and July 18,2014.

A. 2010

In 2010, the County submitted a late and incomplete AI. Pursuant to the schedule set forth in the Settlement, the County’s Settlement-compliant AI was due December 8, 2009. The County requested an extension to January 20, 2010, which HUD granted, and then another extension to September 30, 2010. HUD granted an extension to June 30, 2010. Five days before that deadline, the County asked for an extension to July 31, 2010. HUD consented to an extension to July 23, 2010.

The County submitted a revised AI to HUD on July 23, 2010. HUD rejected the County’s AFFH certification on December 21,2010. HUD observed that the AI “provides data and identifies many issues central to furthering fair housing choice,” but faded “to make any material link between those impediments and the actions the County will take to overcome them.” In its detailed six-page letter, HUD described five actions the County could take to make its AI acceptable, including identifying the steps it would take to overcome exclusionary zoning practices. HUD notified the County that it would take formal action on the CPD Funds if the. County did not submit an acceptable AI by April 1, 2011, Following its December 21 rejection of the AI, HUD contacted the County on several occasions to offer technical assistance with thé required analysis.

B. 2011

In 2011, after the United States Attorney’s Office notified the County that it would bring an enforcement action, the County submitted another AI. In response to the AI, HUD listed six restrictive zoning practices that the County’s future submissions should address. When the County submitted another AI, HUD deemed that submission inadequate as well. The parties then took their disputes to the Monitor. A more detailed description of these events follows.

1. April 13, 2011 AI

On March 24, 2011, one week before its AI was due, the County asked for an extension to May 1, 2011 to submit a revised AI. HUD denied the request, noting the County’s delays in responding to HUD’s offers ,of assistance and its delays more generally. HUD warned that it would request that the United States Attorney seek enforcement of the Settlement or pursue administrative remedies if an acceptable AI were not received. The County did not submit an AI on April 1, and on April 6, the United States Attorney advised the County it would act to enforce the Settlement by April .14.

The County submitted an AI on April 13, 2011. On April 28, HUD refused to approve the new AI, referring once again to the County’s commitment in the Settlement to complete an AI acceptable to HUD. HUD advised the County that its rejection applied to CPD programs covered by the County’s FY2011 Action Plan.

On May 13, 2011, HUD explained the reasons for the April 28 rejection of the AI, which it characterized as “substantially incomplete and unacceptable to HUD.” In the nine-page letter, HUD identified seven major deficiencies. Among other things, HUD explained, the County had not adequately examined the availability of family rental housing, barriers related to patterns of racial and ethnic segregation, exclusionary zoning, and the location of affordable housing. In connection with exclusionary zoning analyses, the letter identified six zoning practices the County needed to address: (1) restrictions that limit or prohibit multifamily housing; (2) restrictions on the size of a development; (3) restrictions directed at Section 8. or other affordable housing; (4) restrictions that directly or indirectly limit the number of bedrooms in a unit; (5) restrictions on lot size or other density requirements that encourage single family housing or restrict multifamily housing; and (6) restrictions on townhouse development (collectively, “Restrictive Practices”). The letter noted the connection between the location of affordable housing and patterns of racial segregation, explaining that the County’s discussion of affordable housing “[did] not adequately address how it will reduce segregation.” Over three days in June, HUD provided the County with technical assistance for a further revision of its AI.

2. July 11, 2011 AI

On July 11, 2011, the County submitted another revised AI. HUD rejected that AI on July 13, 2011. HUD found that the revision did not meet the Settlement’s requirements and did not incorporate the corrective actions identified in HUD’s May 2011 letter. In particular, HUD pointed to the AI’s failure to address deficiencies in the “promotion of source-of-income legislation [and its] plans to overcome exclusionary zoning practices.” Both parties subsequently sought review before the Monitor. In its submission to the Monitor, the County committed to identifying specific zoning practices that may have “exclusionary impacts,” and, as a last resort, to bringing legal action against a municipality when a particular project is blocked or hindered by its exclusionary zoning ordinance. U.S. ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester Cnty., N.Y., No. 06cv2860 (DLC), 2011 WL 7563042, at *6, *8 (S.D.N.Y. Nov. 14, 2011) (‘Monitor’s 2011 Report”).

On November 17, 2011, the Monitor issued a report concluding that the County was “in breach of its obligation [under the Settlement] to promote certain ‘Source of Income’ legislation.” It also concluded that, “under the terms of the Settlement, the County should analyze zoning ordinances in connection with the AI,” and found that completion of such analysis would be “appropriate” by February 29, 2012. Id. at *1. The Monitor explicitly endorsed the six Restrictive Practices HUD listed in the May 2011 letter, whose impact on racial disparities the County should, “at a minimum,” assess. Id. at *7. The Monitor also concluded that the County had to identify the types of zoning practices that would lead the County to pursue legal action, if not remedied by the municipality, and the circumstances that would warrant its use of litigation. Id. at *9. The Monitor did not, however, address the propriety of HUD’s rejection of the AI or the adequacy of the County’s AFFH certification because such issues were not “properly joined.” Id. at *1.

C. 2012

In 2012, the parties litigated the findings in the Monitor’s report. Ultimately, the Monitor’s findings were adopted by the Court. In addition, the County submitted a document in response to HUD’s demand that it address the Restrictive Practices. HUD rejected that document, explaining its reasons for doing so in detail. HUD reminded the County again that it was in jeopardy of losing its FY2011 CPD Funds. Following litigation, the County was required to provide the Monitor with data that was relevant to an analysis of the zoning ordinances in the municipalities within the County. These and other events are described below.

1. Response to Monitor’s 2011 Report

The County objected to some of the conclusions in the Monitor’s 2011 Report and appealed the Monitor’s decisión to the Magistrate Judge, who accepted all but one of the Monitor’s findings in a decision in March of 2012. The County did not object to the Monitor’s recommendation that the County analyze the impact of each of the Restrictive Practices in connection with its analysis of zoning ordinances. It did object, however, to a disclosure of its strategy to overcome exclusionary zoning practices, including identifying the types of practices that would prompt legal action. Magistrate Judge’s Opinion, 2012 WL 917367, at *9.

The Magistrate Judge ruled that the Monitor was permitted under the Settlement to require an analysis of zoning ordinances, and that it could further require the County to “identify the types of zoning practices that would, if not remedied by the municipality, lead the County to pursue legal action” and to “ ‘specify’ a strategy that it intends to employ to overcome exclusionary zoning practices” in the AI. Id. The Magistrate Judge also noted that the County’s AI “must contain certain information and analyses, comply with HUD’s Fair Housing Planning Guide, and ‘be deemed acceptable by- HUD.’ ” Id. at *10. The Magistrate Judge found, however, that the County Executive’s veto of source-of-income legislation did not constitute a violation of the Settlement. Id. at *6. The County did not appeal from' any of the Magistrate Judge’s rulings, including his finding that the County had an obligation to analyze local zoning ordinances and identify when it would bring litigation to challenge them. HUD did appeal, however, .objecting to the Magistrate Judge’s ruling regarding the County Executive’s veto of source-of-income legislation.

In May of 2012, this Court granted HUD’s objection to the Magistrate Judge’s ruling and adopted the sections of the Monitor’s 2011 Report regarding the source-of-income legislation; it adopted the remainder of the Magistrate Judge’s Report and Recommendation. 2012 Opinion, 2012 WL 1574819, at *11. That decision was later affirmed by the Court of Appeals. Appeal Decision, 712 F.3d at 771 (2d Cir.2013).

2. 2012 Zoning Submission

As the litigation was pending in the District Court over that portion of the 2011 Monitor’s Report devoted to source-of-income legislation, the County submitted to HÚD on February 29, 2012, a Zoning Submission (“First Zoning Submission”). The First Zoning Submission collected zoning ordinances adopted by forty-three local jurisdictions in the County, and included a subsection for each addressing the Restrictive Practices identified by HUD.

On April 20, 2012, HUD notified the County of its intent to reject the FY2012 Action Plan’s AFFH certification and of its continuing disapproval of the FY2011 Action Plan. In a second letter that day, HUD explained to the County that the First Zoning Submission did not comply with the Monitor’s directives and that the County had again failed to develop a strategy to overcome exclusionary zoning practices. HUD reiterated that that failure was “one of the bases for HUD’s disapproval of the County’s FY2011 Annual Action Plan and rejection of the County’s certification that it will affirmatively further fair housing.”

The twelve-page letter laid out HUD’s analysis of the illegality of exclusionary zoning, citing this Circuit’s decision in Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926 (2d Cir.1988), and the New York Court of Appeals’s decision in Berenson v. Town of New Castle, 38 N.Y.2d 102, 378 N.Y.S.2d 672, 341 N.E.2d 236 (1975). HUD noted that the First Zoning Submission did not examine whether any of the restrictions imposed by a local jurisdiction’s zoning ordinances “are having exclusionary impacts.” HUD also explained why it did not accept the Submission’s conclusion that the County!s “analysis has not identified specific local zoning practices that have exclusionary impacts.” HUD observed that the conclusion was not supported by either data or an appropriate methodology and not based on applicable legal principles. The letter also listed four steps, drawn from the * Monitor’s 2011 Report, that the County should take to develop a clear strategy to address exclusionary zoning practices.

It is noteworthy that HUD’s criticism in 2012 of the County’s conclusion — that local zoning ordinances did not have an exclusionary impact — is echoed in HUD’s correspondence in 2013 and 2014. HUD has consistently asserted that the County’s conclusion was unsupported by data or any appropriate methodology.

Meanwhile, on March 15, 2012, the County submitted its proposed Action Plan and Certification for FY2012 CPD funds. On April 20, 2012, HUD notified the County that it intended to reject the County’s FY2012 Certification due to the failure of the County’s revised AI to “sufficiently address deficiencies regarding promotion of source-of-income legislation or plans to overcome exclusionary zoning practices, which were required pursuant to the terms” of the Settlement. The letter reminded the County that the Settlement “vests authority for approval of the AI exclusively in HUD.”

On April 27, HUD provided the County with a formal notice of disapproval of its FY2012 Action Plan. Noting that the County “has been on notice about [AI] deficiencies now for years,” HUD stated its expectation “that the County will substantively comply with the requirements HUD has set forth for its AI.” HUD listed those requirements, noting that fulfilling them would permit HUD to approve the FY2011'and 2012 annual Action Pláns and allow the grants for those years to go forward. The County never responded to this letter.

In a letter of May 14, 2012, the Monitor noted numerous deficiencies in the County’s Zoning Submission and requested a revised AI and Housing Strategy, as well as certain documents and communications relating to the Submission. The County responded on July 6, 2012, with a Second Zoning Submission containing its own legal analysis and a report by the Land Use Law Center (“LULC Report”).

3. 2012 Motion to Compel

The United States Attorney then filed a motion to compel the County to provide a response to the Monitor’s information requests of May 14, 2012. At a conference with the Court on July 25, the County confirmed its intent to comply with its obligations under the Settlement and acknowledged that there was a difference between an analysis of affordable housing and one of fair housing. The County was ordered to respond to the Monitor’s outstanding requests for information by the deadlines to which the parties agreed during a conference in the courthouse. The Court also established a dispute resolution process for any future objections by the County to requests for information.

The County supplied a Third Zoning Submission and provided additional information to the Monitor on eight dates between July 31 and October 5, 2012. In response to requests from the Monitor, the County filed a Fourth Zoning Submission in November 2012.

D. 2013

Early in 2013, HUD formally rejected the County’s 2012 Zoning Submissions. In response to HUD’s notice that it was reallocating FY2011 Funds, the County simultaneously filed suit to challenge the decision and submitted its first revised AI since 2011. HUD found the revised AI inadequate, as it did two additional Zoning Submissions subsequently submitted to supplement the AI. HUD provided -the County yet another detailed explanation of what would be.required to make its AI adequate. Amid this, the Monitor released its first report analyzing fair housing patterns in the County. These events are described in more detail below.

1. Rejection of 2012 Zoning Submissions

In a ten-page letter of March 13, 2013, HUD explained in-detail why the County’s Zoning Submissions of 2012 remained inadequate. It emphasized the County’s failure to “conduct a proper analysis of exclusionary zoning” as well as its continuing failure “to develop a strategy to overcome exclusionary zoning practices.” HUD concluded that the County’s prior submissions, taken together, “fail to meet the Settlement’s requirements for an acceptable AI” and its “refusal to meet the Settlement’s requirements stand[] as an obstacle to HUD’s approval of the County’s FY2011 and FY2012 Annual Action Plans.”

On March 15, the County submitted its FY2013 Action Plan to HUD. HUD responded in a letter of April 19, described below.

2. April 24, 2013 AI

On March 25, 2013, HUD advised the County that it intended to reallocate roughly $7.4 - million in FY2011 CDBG, HOME and ESG funding. HUD explained that the County had not provided a satisfactory certification that it would comply with its obligation to AFFH as part of its FY2011 annual Action Plan. HUD warned that to avoid permanent loss of the funds, the County must provide by April 25, inter alia, “a satisfactory zoning analysis and plan to overcome exclusionary zoning practices. ” (Emphasis in original.)

By letter of April 4, the County argued that it had complied with all of HUD’s procedural" requirements. It argued that “[b]ased upon the analysis already conducted by the County, and the test set forth in the [LULC Report], the County ... determined that there was no exclusionary zoning within Westchester County under Berenson. ” Focusing exclusively on its statutory obligations, the .County contended that it had satisfied each of them and was entitled to receive CPD funds. The County argued that “HUD cannot condition the disbursement of CPD funds upon, a ‘Huntington analysis’ of local zoning” because the “relevant question is whether the municipalities receiving CPD funds can satisfy their obligation to AFFH generally at the time that the FY2011 CPD funds are expended.” It added that HUD’s actions are in violation of § 12711 of Title 42.

In a letter of April 16, HUD reaffirmed that the April 25 deadline for receipt of substantive assurances would be enforced. Otherwise, HUD would begin the process of reallocating the FY2011 funds to-other eligible jurisdictions. HUD reminded the County that it had not submitted a revised AI since July 2011. In recapping HUD’s analysis of the deficiencies in the County submissions, HUD referred again to the Settlement’s explicit requirement that the County submit an AI acceptable to HUD.

■ On April 19, HUD notified the County that it intended to reject the County's certification to AFFH submitted with its FY2013 Action Plan. In response, on April 24, the County submitted an updated AI. This was the first revision that the .County had made to its AI since 2011.

The April 2013 AI retained the revisions made in July 2011 and incorporated the data and information in the County’s 2012 submissions to HUD and the Monitor. It also provided an update to Chapter 12, “Current Impediments-and Fair Housing Action Plan,” in response to HUD’s March 2013 letter. In all, the April 2013 AI contained 236 pages over twelve chapters. It included voluminous appendices as well. Among these were the County’s previous zoning submissions, and, as Appendix 51, the County’s Sixth, Zoning Submission.

The Sixth Zoning Submission consists of 31, separate analyses — one per eligible municipality. It purports to be an analysis of the disparate impact on minorities of each municipality’s zoning ordinances. Each analysis ranges in length from seven to over twenty pages and includes “a narrative analysis” of the data provided in the analysis; a map of the municipality; and three tables showing comparative population data accounting for race, type of housing, and minimum lot size. Each also discusses the presence of the Restrictive Practices identified by HUD in its May 2011 Letter by evaluating relevant ordinances with reference to those practices. Each analysis ended with the statement “Therefore, the County has concluded that [the municipality’s] zoning ordinance does not show a separate or segregative impact on minorities and does not pose an impediment to AFFH with respect to race.”

On April 26, HUD notified the County that HUD was disapproving its FY2013 Action Plan because the AI constituted “insufficient evidence to support the accuracy of the County’s FY2013 AFFH certification.” In a letter of May 10, HUD provided the County the specific reasons for HUD’s disapproval of the FY2013 Action Plan. It -reminded the County that its FY2012 Action Plan had previously been disapproved as “substantially incomplete” and that the deficiencies identified then had not been remedied. It also committed that it would approve the annual Action Plans for FY2011, 2012 and 2013- if the County provided eight specific assurances. In a multi-page attachment, - HUD described in detail the deficiencies in the County’s most recent AI, and required any revision or resubmission of the FY2013 Action Plan to be made by June 10, 2013.

3. Supplemental AI Submissions

The County made no submission on June 10, but on June 13 it provided a Seventh Zoning Submission, consisting of revised zoning analyses for five local jurisdictions. The County indicated that, if the revised analyses were acceptable to HUD, it would conduct such an analysis with respect to the remaining twenty-six municipalities. On July 12, having reviewed the Seventh Zoning Submission, HUD again rejected the County’s FY2013 Certification. HUD offered to make resources available to assist the County in finalizing its zoning analysis and strategy, however, “as long as progress is being made.” On July 23, the County provided HUD with an Eighth Zoning Submission, consisting of revised analyses of ten jurisdictions, including the five from the Seventh Zoning Submission but with further revisions'; The County offered again to conduct similar analyses of the remaining municipalities provided the methodology was acceptable.

4. Monitor’s 2013 Report

The Monitor has issued two reports analyzing the zoning ordinances in the municipalities within- the County.: They were issued on July 31, 2013 and September 8, 2014 (“Monitor’s 2013 Report” and “Monitor’s 2014 Report”). The Monitor has -also requested relevant data from the municipalities, many of which have complied with those requests, and engaged in discussions with several municipalities about fair housing issues.

In response to the County’s • assertion that there is no evidence of exclusionary zoning in any of 31 municipalities in the County, the Monitor undertook his own analysis.. The Monitor’s 2013 Report analyzed each jurisdiction’s zoning regulations and gave each jurisdiction an opportunity to respond to the accuracy of his findings. The Monitor concludes that the regulations in 24 of the 31' “are not exclusionary,” but that the zoning codes in seven required a “more searching analysis.” These seven municipalities had zoning codes that did not provide meaningful opportunities for affordable housing and, “when viewed in the light of applicable state and.federal law, [were] exclusionary.” Therefore, the Monitor concluded, the County!s assertion that exclusionary zoning is absent from the County “is strongly contradicted by its. own data.” The Monitor did not find that any particular zoning ordinance actually had a seg-regative effect, but concluded that a Huntington analysis was required. The Monitor directed the County to, among other things, “identify the steps it will take to ensure that the municipalities make provision for affordable housing, including, but not limited to, modification of certain zoning regulations .... ” The final version of the Monitor’s 2013 Report was issued on September 13, 2013, but did not differ in any material respect.

The release of Monitor’s 2013 Report had concrete effects. At least six of the seven municipalities it identified as problematic entered into a dialogue with the Monitor about possible changes to their zoning ordinances. Ultimately, Mamaro-neck, Ossining, and Pound Ridge chose to amend to their zoning ordinances to make them less exclusionary.

5. August 9, 2013 Letter from HUD

HUD responded to the County’s July 23 submission on August 9, 2013 (“August 2013 Letter”). This letter, which the County contends is one of the, most significant to this litigation, concluded that the County’s July 23 Zoning Submission “demonstrate[d] meaningful progress” but that it continued to fail “in critical aspects previously identified by HUD.” After describing the analysis in the July 23 Zoning Submission which HUD’ found appropriate, it took issue with the County’s continued assertion that local zoning ordinances “do not have a disparate impact on minorities.” HUD found the conclusion not supported by the available data or an adequate disparate impact analysis. Observing‘that the County acknowledged that Restrictive Practices exist in these municipalities and that they have the effect of limiting the availability of affordable housing, HUD criticized the County for its refusal to acknowledge “any connection between zoning restrictions” that affect affordable housing and those • that affect fair housing. Accordingly, HUD continued to find that the County’s AI was unacceptable.

Because time was of the essence for reallocation of the FY2011 funds, HUD required the County to provide evidence that it was capable of conducting an adequate disparate impact analysis by August 15 with respect to one of three municipalities recently identified by the Monitor as having-exclusionary zoning practices. It also required the County to sign and submit, by August 15, four “special assurances.” These assurances were (1) an ac-knowledgement that the County had “an ongoing duty to [AFFH] that includes compliance with the 2009- Settlement”; (2) that the County would “adopt[ ] and incorporate[] by reference into its [AI] the findings of the [Monitor’s 2013 Report] and will comply with [the Monitor’s] recommendations and information requests”; (3) that the County would submit a final Zoning Submission by October 15 consistent with the content of HUD’s August 2013 Letter, and incorporate that Submission into the AI; and (4) that the County would “adopt[], incorporate[ ] by reference, and commit[ ] to implementation of” a HUD-prescribed “Strategy on Exclusionary Zoning.”

The County did not give the requested assurances. Instead, by a letter of August 13, the County rejected HUD’s critiques, insisted that-its analyses were “extensive, well documented and complete,” and objected to HUD’s requested assurances as unreasonable demands. The County proposed as an alternative that HUD provide the CPD Funds to New. York State to administer on the County’s behalf. As HUD had previously explained to the County, however, HUD believed it only had statutory authority to do that with respect to ESG funds. Accordingly, in a letter of August 16, HUD explained that it would be reallocating the FY2011 Funds. On August 19, HUD made available the roughly $400,000 in FY2011 ESG funds to the State of New York.

6. County’s 2013 Lawsuit

Having been informed again on April 16 that HUD intended to reallocate FY2011 CPD Funds, the County took two actions on April 24, 2013. It submitted the revised AI to HUD, as described above, and filed a complaint in this Court. The complaint challenged HUD’s denial of FY2011 Funds in its April 16, 2013 letter, bringing three claims under the APA and one claim under 42 U.S.C. § 12711. The first APA claim sought an injunction under 5 U.S.C. § 705; the second two alleged that HUD’s denial was arbitrary and capricious for imposing a more stringent standard on the County than similarly situated applicants and for failure to comply with the Settlement.

On April 26, 2013, the Court denied the County’s application for a temporary restraining order and declined to grant the County’s application for a preliminary injunction. In an Opinion of August 13, 2013, this Court determined it lacked subject matter jurisdiction over the County’s three APA claims and that the County failed to adequately plead that HUD breached § 12711 by conditioning funding on implementing souree-of-income legislar tion; the Court accordingly dismissed all four claims. 2013 Opinion, 2013 WL 4400843, at *4-5. The County appealed this decision and sought a preliminary injunction from the Court of Appeals for the Second Circuit. The Court of Appeals denied the County’s motion for a preliminary injunction on September 25, 2013, and, as described further below, held on February 18, 2015 that subject matter jurisdiction exists as to those FY2011 funds that had not yet been reallocated.

E. 2014

In 2014, HUD notified the County that its FY2012 Funds would be reallocated, but outlined specific steps-including four special assurances — that the County could give to prevent reallocation. HUD also rejected the County’s FY2014 Action Plan, and the Monitor released a report that built upon his 2013 Report. These, events are described in more detail below.

1. Special Assurances

On April 23, 2014, noting that the County had never provided the assurances requested two years earlier (on April 27, 2012), HUD .advised the County that it intended to reallocate the FY2012 CPD Funds. HUD also recounted that, because of “the County’s inaction and refusal to design its own solution, HUD [had] provided the County with a roadmap to coming into compliance with the Settlement and its AFFH obligations.” HUD observed that the County

has not provided a productive alternative why to come into compliance with the Settlement Agreement and its AFFH obligation. Instead, the County has steadfastly refused to revise its [AI] to include an adequate analysis of restrictive zoning practices and a strategy to overcome exclusionary zoning.

HUD reminded the County that the Settlement required the County to submit an AI “deemed acceptable by HUD.”

Despite a long record of unfulfilled requests, HUD gave the County yet another opportunity to' delay reallocation. If the County agreed by May 7, 2014 to provide four “special assurances” attached to the letter, the FY2012 and 2013 Action Plans would be approved and the funds awarded “upon timely satisfaction of all submission requirements.” Otherwise, the FY2012 CPD Funds would be reallocated.

The four special assurances (“Assurances”) were largely duplicative of those outlined two years earlier. The fourth required the County to commit to implementation of an attached one-page- strategy to overcome exclusionary zoning practices (“Strategy”). The Strategy involved three steps: identifying municipalities with Restrictive Practices that may potentially have discriminatory exclusionary effects; communicating with the municipality to seek removal or reduction of unjustifiable "restrictions with potentially discriminatory exclusionary effects; and, after exhausting efforts to obtain cooperation, engaging in enforcement activities, which might include filing litigation or making a referral to the U.S. Department of Justice.'

The County did pot give the Assurances by May 7, 2014. As described below, HÚD relied again on the Country’s refusal to provide these Assurances and to adopt the Strategy to overcome exclusionary zoning practices when it rejected the Country’s FY2014 Action Plan. On May 9, 2014 the County informed HUD that it would not be seeking requalification under the CPD programs for the FY2015-17 cycle.

2. Efforts by Board of Legislators

During May 2014, Robert Kaplowitz (“Kaplowitz”), Chairman of the County’s Board of Legislators (“BoL”), sought to postpone the reallocation of FY2012 funds by proposing that the BoL pursue the enactment of legislation that would provide the Assurances to HUD. HUD agreed to postpone any irrevocable action on the FY2012 Funds until June 9, 2014. The parties have pointed to no evidence that the County ever provided HUD with the Assurances it sought, whether through legislation or otherwise.

On May 30, '2014, HUD advised the County that it continued to disapprove the County’s AI and subsequent Zoning Submissions. HUD cited the County’s failure to provide an adequate plan to overcome exclusionary zoning practices, as previously enumerated in the May 2011 letter describing the six Restrictive Practices the County was required to address.

Shortly thereafter, on June 5, the County submitted its FY2014 Action Plan to HUD. The FY2014 Action Plan was a, 62-page document with ten sections and hundreds of pages of appendices. Each of the ten sections is addressed to specific statutory and regulatory requirements. Most significantly, Section A contains the County’s grant application, as well as its express AFFH Certification. The AFFH Certification is signed by the County Executive, with the signature dated June 2, 2014.

3. HUD Rejection of FY2014 Action Plan

On June 27, 20Í4, HUD notified the County of its intent to reject the FY2014 Action Plan’s AFFH Certification. It explained that the County had failed to take the steps outlined in HUD’s April 23, 2014 letter to gain approval for the FY2012 and FY2013 Action Plans and that the inadequacy of the AI would, without prompt action by the County, result in the rejection of the FY2014 Action Plan as well. HUD offered the County “an additional opportunity to provide evidentiary support for its AFFH certification” before a final decision, and required the County to submit by July 8 a written response and specific evidence to support the 2014 AFFH Certification.

Having received no response from the County, on July 18, 2014, HUD formally rejected the AFFH Certification in the FY2014 Action Plan as “inaccurate.” It disapproved the Action Plan in its entirety as “substantially incomplete.” The letter explained once again that HUD was .taking this action because the County had failed to provide “an adequate” AI and had, moreover, had given the Department “no assurance that it plans to come into compliance with its AFFH obligations.” It once again attached the Assurances and Strategy and gave the County until September 1, 2014, to submit them to HUD. The County did not comply.

4. Monitor’s 2014 Report

Besides seeking a delay in the reallocation of funds in May 2014, Kaplowitz also sought help from the Monitor. He requested that the Monitor prepare a Huntington analysis of the 31 eligible municipalities’ zoning ordinances to aid the County in completing its AL While the Monitor’s earlier report had highlighted the steps that the County needed to undertake to comply with the law, the Monitor had not himself conducted that evaluation of the zoning ordinances under the Huntington standard. In response to this request for assistance, the Monitor described his proposed methodology to the parties on May 27, 2014, and requested any objection to that methodology by June 5. The County promptly objected to the methodology.

On September 8, 2014, the Monitor issued his 2014 Report. The Report, an extension of the Monitor’s • 2013 Report, analyzed at length the discriminatory impact of each municipality’s zoning code on the County’s minority residents. It concluded that there was prima facie evidence that six municipalities — Harrison, Larch-mont, Lewisboro, North Castle, Pelham Manor, and Rye Brook — had zoning codes that are presumptively exclusionary under federal law.

F. 2015

1. Ruling Regarding Judicial Review

On February 18, 2015, the Second' Circuit affirmed the 2018 Opinion’s dismissal of the County’s claims but only “insofar as they seek relief with respect to already reallocated ’ funds.” 2015 Opinion, 778 F.3d at 417. Because reallocated fund