United States of America (ex rel), et al v. Westchester County, New York

Filing 608

OPINION AND ORDER......The November 19, 2015 Report and Recommendation is affirmed in part. The County timely met its obligation to have financing in place for 450 new affordable housing units by December 31, 2014. The County has breached 7(i)-(j) of the Consent Decree, however, by failing to use all available means as appropriate to advance the construction of 750 affordable housing units and to counter New Castles opposition to the Chappaqua Station Development. The December 29, 2015 site remediation permit that the Town issued to Conifer is not a building permit within the meaning of 23 of the Consent Decree. Decision is reserved on the Governments application for contempt and the imposition of other remedies for the breach of 7(i)-(j). The County is required to take four actions to keep itself, the Court, and all parties informed of the status of the approval process for the Development. (Signed by Judge Denise L. Cote on 5/24/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
UNITED STATES OF AMERICA ex rel. ANTI- :
DISCRIMINATION CENTER OF METRO NEW
:
YORK, INC.,
:
Plaintiff,
:
:
:
-v:
WESTCHESTER COUNTY, NEW YORK,
:
Defendant.
:
:
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06 Civ. 2860 (DLC)
OPINION AND ORDER

APPEARANCES:
For the U.S. Government:
David J. Kennedy
United States Attorney’s Office
86 Chambers Street
New York, NY 10007
For Westchester County, New York:
Robert F. Meehan
Westchester County Attorney’s Office
138 Martine Avenue, 6th Floor
White Plains, NY 10601
DENISE COTE, District Judge:
On August 10, 2009, the County entered into a Consent
Decree that required it, among other things, to ensure the
development of at least 750 new affordable housing units by
2016.

In February 2012, the County sought approval from the

Monitor to include among that number 28 units to be built at
Chappaqua Station in the Town of New Castle.

That approval was

granted in September 2012, but the New Castle units remain

unbuilt.

The land for the development was not purchased by the

County until January 29, 2016, and as of today, New Castle has
only granted a site remediation permit for that land.

This

Opinion addresses the debate between the parties about whether
the County has breached ¶¶ 7(i)-(j) and 23 of the Consent Decree
by failing to act more diligently in connection with the New
Castle development.
The current litigation arises out of the Report of Monitor
James E. Johnson dated May 8, 2015 (“Report”).

The United

States (“Government”) has objected to the Opinion of November
19, 2015 (“Magistrate Opinion”) issued by the Honorable Gabriel
Gorenstein insofar as it sustained the objections of Westchester
County (“County”) to portions of that Report.

The County also

objected to the Magistrate Opinion on more limited grounds.

As

explained below, the County timely satisfied the financing in
place interim benchmark imposed by ¶ 23 of the Consent Decree
for the period ending December 31, 2014, but breached the
obligations imposed on the County under the Decree’s ¶ 7(i)-(j).
Decision is reserved on the question of whether sanctions should
be imposed for that breach.
Background
The procedural history giving rise to this dispute has been
described in previous opinions issued by this Court and the
Second Circuit Court of Appeals.

See, e.g., United States ex
2

rel. Anti–Discrimination Ctr. of Metro N.Y., Inc. v. Westchester
Cnty., 495 F. Supp. 2d 375 (S.D.N.Y. 2007) (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) (“2009
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 (DLC), 2012 WL 1574819
(S.D.N.Y. May 3, 2012) (adopting Monitor’s conclusions in part
and Magistrate Judge’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) (“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) (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)
(vacating in part 2013 Opinion and remanding on issue of
jurisdiction); Cty. of Westchester v. U.S. Dep’t of Hous. &
Urban Dev., 116 F. Supp. 3d 251 (S.D.N.Y. 2015) (“2015 Opinion”)
(holding that HUD’s administration of grant programs at issue
was lawful); Cty. of Westchester v. U.S. Dep’t of Hous. & Urban
3

Dev., 802 F.3d 413, 418 (2d Cir. 2015) (“2015 Appeal Opinion”)
(affirming this Court’s finding that HUD did not violate federal
administrative law).
Opinions.

The Court assumes familiarity with those

Only the facts necessary to resolve the present

dispute are described below.
A. False Claims Act Litigation and the 2009 Consent Decree
This litigation began in 2006 when the Anti-Discrimination
Center of Metro New York, Inc. (“ADC”) sued the County as a qui
tam relator under the False Claims Act (“FCA”), 31 U.S.C. § 3729
et seq.

ADC claimed that the County received more than $52

million from the federal government for housing and community
development after falsely certifying that it affirmatively
furthered fair housing (“AFFH”).

In the 2009 Opinion, the Court

ruled that the County’s certifications to HUD were false as a
matter of law.

668 F. Supp. 2d at 571.

The Court scheduled a

trial on the issue of the County’s knowledge in making the false
statements.

Id.

If a verdict was entered against it, the

County faced an adverse judgment of as much as $156 million.
2013 Appeal Opinion, 712 F.3d at 775.

The Government intervened

after the 2009 Opinion was issued but before the remaining
issues in the case were tried, and the County entered into a
Consent Decree with the United States Department of Housing and
Urban Development (“HUD”) on August 10, 2009 (“Settlement”).

4

The Consent Decree consists of thirty-eight pages and
imposes many obligations on the County.

The County was required

to spend $51,600,000 as a remedy for violating the False Claims
Act.

Of this sum, $21,600,000 was paid into the County’s

account with HUD, which would make the funds available to the
County to meet the requirements of the Community Development
Block Grant program and other terms and conditions.

See

Settlement ¶¶ 2, 3, 5.
The Settlement also has as a central goal the construction
of new affordable housing units.

Paragraph 7 of the Consent

Decree requires that the County “ensure the development of at
least 750 new affordable housing units” by 2016.

The County was

required to secure funding of $30,000,000 for land acquisition
and other necessary costs of development of the new units.
Settlement ¶ 5.

The new units must meet a series of demographic

and affordability requirements in order to ensure that they
AFFH.

For example, 630 of the units must be built in

municipalities that, according to 2000 Census data, have a
“single race African-American only” population of less than 3%
and a Hispanic population of less than 7%.
¶ 7(a)(i).

Settlement

Paragraph 7(d) further requires that at least half

of the 750 new units must be rental units, of which at least 20%
shall be “affordable to and occupied by households with incomes
at or below [50%] of Area Median Income.”
5

The remaining units

must be “affordable to and occupied by households with incomes
at or below [65%] of the [Area Median Income].”

Id.

Paragraph

7(e) describes additional affordability requirements that are
tied to the County’s median income.

Moreover, no more than 25%

of the units “shall be units intended for occupancy by senior
citizens that are controlled by age restrictions.”
¶ 7(f).

Settlement

The Settlement also gives priority to “sites within

qualifying municipalities and census tracts that are located in
close proximity to public transportation.”

Settlement ¶ 7(g).

These requirements, read holistically along with the other
provisions of the Consent Decree, confirm that the overall goal
of ¶ 7 is to develop 750 new affordable housing units whose
occupancy will AFFH.
Paragraph 7(i) of the Consent Decree further provides that
the County must “use all available means as appropriate” to
ensure the development of the 750 new units.

These include, but

are not limited to, “developing financial or other incentives
for other entities to take steps to promote” the development of
the new affordable housing units.

These incentives may involve

“conditioning or withholding the provision of County funds on
actions that promote the objectives” of ¶ 7.

This affirmative

obligation in ¶ 7(i) is a requirement that the County must meet
throughout the duration of the Consent Decree’s implementation.
It is not contingent on municipal action (or inaction) and
6

ensures that the County diligently pursues the ultimate 750-unit
goal using “all available means as appropriate.”
Paragraph 7(j) is in some ways similar to ¶ 7(i) but it
operates differently.

Paragraph 7(j) requires that, “[i]n the

event that a municipality does not take actions needed to
promote” development of the 750 housing units or “undertakes
actions that hinder” such development, the County must “use all
available means as appropriate to address such action or
inaction, including, but not limited to, taking legal action.”
Moreover, the “County shall initiate such legal action as
appropriate to accomplish the purpose of this [Consent Decree].”
In other words, the Settlement contemplates a distinct set of
County obligations that are triggered by municipal opposition to
new affordable housing developments.

If a municipality

“hinder[s]” the objectives of ¶ 7 or “does not take actions
needed to promote” the goal of developing 750 units, the County
must address that opposition using “all available means as
appropriate.”

This specific obligation is in addition to the

consistent obligation to “use all available means as
appropriate” to ensure the development of 750 affordable housing
units that is found in ¶ 7(i).
Paragraph 23 of the Consent Decree provides for interim
benchmarks to ensure the County’s progress towards the 750-unit
construction goal.

By the end of 2014, the County was required
7

to have financing in place for 450 units and building permits
for 350 units.

By the end of 2015, the County needed financing

in place for 600 units and building permits for 525 units.

By

the end of 2016, the County must have financing in place and
building permits for all 750 new affordable housing units.
The Settlement also provides for the appointment of the
Monitor until the County satisfies these and other obligations.
The Settlement requires that the Monitor conduct compliance
assessments every two years “to determine whether the County has
taken all possible actions” under the Settlement.

The Monitor

also has discretion in approving sites for the 750 units,
resolving disputes between the County and the Government, and
determining appropriate penalties for breaching the Consent
Decree in certain circumstances.
The final provision of the Consent Decree that is of
particular importance to this dispute is its description of the
penalties that the County faces if it fails to comply with ¶ 7
or ¶ 23.

Paragraph 38 of the Settlement provides that, in the

event of a breach, “as further mandatory and injunctive relief”
the County must “make available additional resources . . . for
the development of affordable housing to AFFH in addition to the
Affordable AFFH Units required pursuant to paragraph 7.”

As a

penalty for failing to meet its ¶ 23 benchmarks to ensure the
development of the 750 units described in ¶ 7, the County is
8

required to set aside $30,000 on the first day of its failure
and “for each and every month the non-compliance persists, make
available additional resources funded by [$60,000]” for
developing additional units.

The Monitor “shall determine the

formula for calculating the number of Additional Affordable AFFH
Units required each time a specified amount in imposed penalties
is accumulated.”

The Monitor also has discretion to “waive or

alter the imposition of penalties or the number of additional
Affordable AFFH Units required pursuant to this paragraph.”

The

penalties are doubled if the County violates ¶ 7 or ¶ 23 by more
than 50 percent.
B. Chappaqua Station Development
Chappaqua Station is a proposed 28-unit affordable housing
development (“Development”) that will be located at 54 Hunts
Lane in the Town of New Castle (“New Castle” or “Town”). 1
Conifer Realty LLC (“Conifer”) is the project’s developer.

In

2009, the County began working with the owner of the property
and the Town to consider using the property for multi-family
housing.

In July 2010, New Castle rezoned the location for the

Development to allow workforce housing.

The site is near the

Chappaqua Metro-North Railroad station and Chappaqua’s
commercial center.

In February 2011, the then-Town Supervisor

The vast majority of New Castle residents are white.
is 1.6% black and 4% Hispanic.
1

9

The Town

indicated that the Town supported Conifer’s efforts to build the
Development.
In February 2012, the County, New Castle, and Conifer
approached the Monitor about including the Development as part
of the 750 affordable housing units under the Consent Decree.
In September 2012, the Monitor approved Conifer’s modified
proposal and found that the 28-unit development would further
the goals of the Settlement.

On August 6, 2013, the Westchester

County Planning Board passed a resolution recommending that the
County provide $2,825,000 in financing towards the Development.
1. 2013-2014: Issuance of Special Permit & State Variance
Approval Process
On September 10, 2013, New Castle granted Conifer a
special permit to develop the property (“Special Permit”).

That

permit was conditioned upon Conifer obtaining certain variances
under the building and fire codes.

Specifically, the Special

Permit initially required three building code variances and five
fire code variances, at least two of which were required before
Conifer could be issued a building permit.

The variances would

need to be obtained from the Town’s Building Inspector and from
the New York State Hudson Valley Regional Board of Review
(“State Board”).

The Special Permit also provided that “[o]ther

variances may be required upon further review, upon receipt of a
complete Building Permit application, and/or upon final design.”

10

After the Town granted the Special Permit, local opposition
to the Development grew.

Robert J. Greenstein (“Greenstein”)

ran for Town Supervisor.

Opposing the Development was an

important part of his campaign platform.

Greenstein’s campaign

was successful and he was elected as the Town Supervisor in
November 2013.

He continues to hold that position.

On December 10, 2013, the State Board heard testimony about
Conifer’s application for variances.

At the hearing, Greenstein

testified against Conifer’s application for variances and
emphasized that he “ran on a platform against this” Development.
New Castle’s Building Inspector, William Maskiell (“Maskiell”),
also opposed the requested variances.

The County’s Deputy

Commissioner of Planning Norma Drummond (“Drummond”) testified
briefly in support of Conifer’s petition for state variances at
the hearing.
10 hearing.

The State Board ultimately adjourned the December
Six days later, the Westchester Board of

Legislators (“BOL”) voted against the funding proposal for the
Development.

The State Board then held further hearings on the

petition for state variances on April 8, July 2, December 9,
2014, and on January 22, 2015.

At the July 2, 2014 hearing,

some but not all of the state variances were granted. 2
On June 26, 2014, the Monitor issued an annual report. In that
report, the Monitor outlined briefly some of the facts set forth
here and described the approval process for the Chappaqua
Development as “stalled.” He noted that the County and
2

11

On September 24, 2014, the County submitted a notice to the
Monitor that it planned to include the Chappaqua Station units
in the 2014 “financing in place” benchmark.

On November 17,

Conifer presented a revised proposal for the Development and a
new petition for variances to the State Board.
2. November and December 2014: County Bond Legislation &
Initial Correspondence on “Financing in Place”
On November 24, 2014, the BOL passed two pieces of
legislation that authorized the issuance of $2,925,000 in bonds
to finance the Development and authorized the acquisition of the
necessary land.

The legislation explicitly provided that the

issuance of the bonds was “subject to the approval of all
required State and Municipal variances.”
Act No. 214-2014 § 1.

Act No. 213-2014 § 1;

Both statutes further provided that the

“county intends to finance, on an interim basis, the costs or a
portion of the costs of said objects or purposes for which bonds
are herein authorized, which costs are reasonably expected to be
reimbursed with the proceeds of debt to be incurred by the
County.”

Act No. 213-2014 § 3; Act No. 214-2014 § 3.

The

County contends that no further action by the County was
necessary to authorize funds for the Development.
On December 15, 2014, the Monitor wrote to HUD and United
States Department of Justice (“DOJ”) officials seeking their
municipal support “ha[d] wavered considerably” and contributed
to uncertainty surrounding the Development.
12

opinion about whether the Chappaqua units could count towards
the 2014 “financing in place” benchmark even though issuance of
the bonds was conditional.

On the same day, the Monitor wrote a

similar letter to County officials indicating his preliminary
view that the units should not count towards the 2014 benchmark
and requesting further submissions on that subject.

The Monitor

wrote that he believed that receiving building permits was a
“condition precedent to awarding credit for units with financing
in place.”
The County responded on December 18, pointing to ¶ 23 of
the Settlement and arguing that building permits could not be a
requirement for the “financing in place” benchmark because the
building permit benchmark is lower than the financing in place
benchmark.

In other words, the County argued that receiving

building permits could not be a prerequisite for achieving the
“financing in place” benchmark because there was a separate,
lower benchmark that applied to units with building permits.

In

a letter of December 23, DOJ agreed with the County insofar as
units do not need to have building permits to satisfy the
“financing in place” benchmark.

DOJ further wrote that, in its

view, “‘[f]inancing in place’ means that the project must have a
written commitment for the full amount of funds necessary for
construction of the project.”

The letters of mid-December 2014

addressed the earlier dispute about whether building permits
13

were necessary to achieve financing in place; the letters did
not address the issue being litigated here, which is whether the
units may be counted towards the “financing in place” benchmark
if the financing is “subject to” obtaining both state and
municipal variances.

As of December 31, 2014, the required

state variances had not yet been approved by the State Board.
3. 2015: State Board Approval of Variances
On January 22, 2015, the State Board provisionally approved
all of Conifer’s requested state variances despite the Town’s
opposition.

The building code variances were approved subject

to two conditions: Conifer was required to enter into an
agreement with the Metropolitan Transportation Authority (“MTA”)
for a no-build zone adjacent to the property and to install
sprinklers above the windows that would face the MTA’s railroad
tracks.

The fire code variances were granted subject to several

conditions, including expansions to the building’s standpipe
system, improvements to the Saw Mill River Parkway’s off-ramp,
and other modifications to the building’s design.
On February 17, 2015, the Town Board of New Castle (“Town
Board”) requested that the State Board reconsider its decision
to grant the variances discussed above.

The Town Board’s letter

expressed concern that the Development would not adequately
ensure the safety of its residents, the public, and first
responders who may be called to assist in the event of an
14

emergency.

In a letter to the Monitor dated April 15, New

Castle officials stated that construction on the Development
could not proceed until the State Board issued a final written
determination that memorialized its decision granting the state
variances.

On April 17, the State Board denied New Castle’s

request to reconsider granting the state variances.

On April

27, the State Board issued a written decision memorializing its
conditional approval of Conifer’s requested state building and
fire code variances.
4. 2015: Litigation Between Conifer and New Castle
Conifer and New Castle were entangled in litigation about
the September 2013 Special Permit while the disputes over state
variances were ongoing.

On February 3, 2015, Conifer wrote to

New Castle to confirm the length of the Special Permit.

In a

letter of February 5, New Castle responded that Conifer’s
Special Permit was only valid for 18 months under Town Code
§ 60-430(M).

As such, the Town claimed that Conifer’s Special

Permit expired on March 20, 2015, but Conifer could seek an
extension by submitting a letter to the Town Board.

On February

19, Conifer sued New Castle seeking a declaratory judgment that
its Special Permit does not expire for 25 years under a
different provision of the municipal code, Town Code § 60430(O)(15)(m).

On May 6, the Supreme Court of the State of New

York, Westchester County dismissed Conifer’s suit.
15

Conifer

appealed the dismissal.

The County did not intervene or

participate in the litigation concerning the Special Permit.

On

May 26, the Town passed a resolution extending Conifer’s Special
Permit until November 2016.
On March 26, 2015, during the course of the litigation,
Conifer met with New Castle officials to discuss the building
permit application, which is separate from the Special Permit
discussed above.

Maskiell, the Town’s Building Inspector,

indicated that he would not begin work on Conifer’s application
for a building permit until the approximately $152,000 permit
fee was paid.

He also stated that, even when the fee was paid,

the application would “go all the way to the bottom of the
pile,” implying that it would be given the lowest priority among
the applications awaiting review.
5. 2015: Monitor Questions Whether County Has Met 2014
“Financing in Place” Benchmark or Breached ¶ 7(i)-(j)
Based on these events, the Monitor was concerned that the
Development’s 28 affordable housing units should not be counted
towards the 2014 “financing in place” benchmark.

Thus, on April

1, 2015, 3 the Monitor submitted information requests to the DOJ,
HUD, the County, and New Castle seeking their views on whether
Also on April 1, the Monitor released his progress report
concerning the 2014 calendar year. In that report, he took the
position that he adopted in his May 8, 2015 report: that the
financing was not “in place” until all variances were approved
and the legislative contingencies were satisfied.
3

16

the units should count towards the benchmark.

The Monitor also

sought information from the County about how it had addressed
New Castle’s opposition to the Development and whether the
County’s efforts complied with the terms of the Consent Decree.
The Monitor’s information request specifically mentioned ¶ 7(i)(j) when he inquired about the Town’s opposition.
In a letter of April 15, the County claimed that all the
financing for Chappaqua was in place by the end of 2014 and that
New Castle’s opposition to the Development would not compromise
its ability to meet the affordable housing interim benchmark.
The County argued -- as it continues to do -- that “Paragraph
7(j) of the Settlement only requires action by the County if its
ability to build 750 units is compromised by a municipality.
The situation contemplated by that provision has not occurred.”
The County proceeded to identify several steps it has taken to
“ensure the County continues to meet its interim benchmarks” and
the successful completion of the Development.

These steps

included: (1) multiple meetings and conference calls with
Conifer; (2) negotiations surrounding the Development’s
infrastructure work; and (3) obtaining approval to purchase and
close on the property when Conifer is ready.

These activities

do not address Town opposition to the Development, in part
because the County denies that its ¶ 7(j) duties were triggered
with respect to the Development.
17

The letter further claimed

that all of the municipal and state variances had been approved,
presumably referring in part to the January 22, 2015 State Board
approval discussed above.

The County’s April 15 letter did not

identify the municipal variances that were approved with any
specificity.

The County’s position was therefore that it had

complied with the “financing in place” and both of the “all
available means” provisions of the Settlement.
The DOJ’s view was that the County should not receive
credit for the Chappaqua units because the financing was
contingent upon conditions that had not yet occurred by the
benchmark’s deadline of December 31, 2014.

Moreover, the DOJ

contended that the County did not use “all available means” to
further the Settlement under ¶ 7(i) and that New Castle’s
actions triggered the County’s affirmative duty under ¶ 7(j) to
“use all available means” to counter New Castle’s hostility
towards the Development.

The DOJ further stated that the County

failed to satisfy the affirmative obligations in ¶ 7(j).

New

Castle responded to the Monitor’s information request on April
15.

In that letter, New Castle indicated that its opposition to

the Development was grounded in safety concerns and argued that
Conifer should relocate the Development to downtown Chappaqua.

18

6. 2015: Monitor’s May 8 Report
The Monitor released his Report on the County’s compliance
with the Consent Decree on May 8, 2015. 4

In that Report, the

Monitor found that the County breached two provisions of the
Consent Decree.

First, the Monitor found that the County

violated ¶ 23, which required that the County have “financing in
place” for 450 affordable housing units by December 31, 2014.
The Monitor found that the County’s legislation providing
funding for the 28-unit Development included preconditions that
were not met until after the deadline for the 2014 benchmark.
Specifically, the November 2014 legislation conditioned the
issuance of bonds on the granting of required state and
municipal variances.

According to the Monitor, financing is

only “in place” under the Consent Decree when legislative
preconditions to the County’s commitment of funds are satisfied.
The Monitor determined that the appropriate penalty for
this violation was $30,000 for the first day of noncompliance
and $60,000 for each month of continued noncompliance.
Settlement ¶ 38.

See

The Monitor sought further submissions from

the parties concerning the Settlement’s other penalty, which
includes requiring construction of additional affordable housing
For a detailed description of the Monitor’s reports between
2009 and 2015, as well as litigation that occurred during that
time period, see 2015 Opinion, 116 F. Supp. 3d at 262-75; 2015
Appeal Opinion, 802 F.3d at 418-28.
4

19

units beyond the 750 units described in ¶ 7.

Nothing in the

record suggests that the parties have made such submissions to
the Monitor.
Second, the Monitor found that the County breached ¶ 7(i)(j) of the Settlement.

The Monitor concluded that New Castle’s

opposition to the Development was sufficient to trigger the
County’s ¶ 7(j) obligations to counter it with “all available
means.”

Specifically, New Castle had criticized the Development

publicly, testified against Conifer’s variance application,
sought reconsideration of the conditional state variance grant,
advocated for the project’s relocation, and threatened to delay
review of Conifer’s building permit application.

The Monitor

rejected the County’s claim that its ¶ 7(j) duties are only
triggered if a municipality actually compromises the County’s
ability to construct the 750 units.

The Monitor concluded that,

with the 2016 benchmarks looming, “the County’s compliance with
Paragraph 7 is plainly imperiled by New Castle’s stance.”

The

Monitor further wrote that the County has failed to take any
actions that directly address the Town’s opposition to the
Development.

Thus, he determined that the County breached

¶ 7(j).
The Monitor also found that the County had not satisfied
its other affirmative obligation to use “all available means as
appropriate,” including “financial or other incentives,” to
20

ensure that the 750 units progressed towards construction.
Settlement ¶ 7(i).

The Monitor pointed to a February 27, 2015

letter from the Drummond in which she wrote that the County had
not considered using incentives contemplated in ¶ 7(i).

The

Monitor characterized the County’s role in New Castle’s battle
with Conifer over the Development as that of a “spectator.”

The

Monitor noted that the County had not used its discretionary
funding policy to address New Castle’s opposition or ensure the
Development’s progress, had not submitted testimony at public
hearings, and had not intervened in or filed an amicus brief in
the litigation between New Castle and Conifer.

He referred

these issues to the DOJ for appropriate action, which “may
include an action for contempt.”
7. 2015 and 2016:
Station

Subsequent Developments for Chappaqua

On July 1, 2015, Conifer paid the Town $152,862 for the
building permit application fee.

The County contends through a

declaration of its Director of Urban Design in the Department of
Planning Antonio Zaino (“Zaino”) that, between August 1 and
December 31, Zaino made consistent and regular efforts to ensure
that the issues with the Development were resolved.
Specifically, Zaino claims that he had weekly conference calls
with representatives from Conifer about the scope of the public
bids for the site work; he obtained approval to issue public

21

bids for work related to the Development; he met with consulting
engineers to discuss revisions to construction documents; he
visited the Development’s site in November 2015 with Town
representatives; and he attended a meeting with the New York
State Department of Transportation (“NYSDOT”), among other
activities.
Declarations from Drummond and Senior Assistant County
Attorney David Vutera (“Vutera”) also list various actions they
undertook to further the Development.

Drummond claims that,

between August and December 2015, she spoke with the Town’s
attorney several times regarding the building permits for the
Development.

She also states that she spoke with Conifer

representatives on many occasions during that time period to
discuss issues related to the Development.

Vutera’s declaration

outlines his various duties associated with negotiating,
drafting, and reviewing deeds, covenants, easements, and
contracts in connection with the Development.

These activities

appear to address the affirmative obligation to “use all
available means as appropriate” to ensure the 750 units’
development under ¶ 7(i); they are not specifically aimed at
countering the Town’s opposition to the Development.
On September 22, Maskiell, the Town’s Building Inspector,
wrote a letter to Conifer indicating that he had reviewed its
building permit application.

The Town had authorized its staff
22

to work overtime to accelerate its review of the application.
The Maskiell letter included 87 questions and outstanding pieces
of information or revisions needed to approve the building
permits.

Conifer responded on October 12.

Conifer’s letter

addressed many of Maskiell’s concerns and indicated that more
information would be produced at a later date.

Conifer and

Maskiell exchanged additional letters and met on at least one
occasion.

On December 29, Maskiell issued Conifer a “Building -

Fill/Grading Permit” for site remediation.

This is the first in

a series of at least four permits that will be necessary in
order to build the 28 units in the Development.

The remaining

three permits include: a permit for building the foundation and
related site and utility work; a permit for the building’s
shell; and “fire suppression.”

The December 29 permit does not

allow Conifer to begin actual construction of the Development.
On January 29, 2016, the County purchased the land for the
Development for $1,275,000.
for $1.

It then sold the land to Conifer

On February 9, the Town Board held a meeting. 5

The

meeting was held in response to Conifer’s November 25, 2015
The Government described this February 9 meeting for the first
time in its March 25 reply. Because the County submitted its
brief in opposition on March 8, however, the County had an
opportunity to describe the events of the February 9 meeting but
chose not to do so in its brief. The February 9 meeting is
mentioned in a declaration of Edward J. Phillips (“Phillips”),
an attorney for the Town, which was annexed to the County’s
March 8 brief.
5

23

letter requesting to amend the 2013 Special Permit in order to
implement some of the modifications to the project.

At the

meeting, Greenstein expressed that he and the Town Board
unanimously preferred moving the Development to a different
site.

Greenstein accused Conifer of “dig[ging] its heels in and

press[ing] ahead with a bad project.”

Another Town Board member

urged Conifer to “end the rancor” and “scale down the project
. . . or perhaps make a bigger project in an alternate
location.”
The Town Board raised several safety issues at the February
9 meeting.

A focal point was the statement of the Town’s Fire

Chief, who was concerned because the NYSDOT had rejected
Conifer’s proposal to install a fence over a bridge to the
property.

The Fire Chief had previously claimed that the

absence of a fence created a safety problem.

The Town Board

required Conifer to provide some assurances that it would be
able to undertake safety remediation measures in light of the
fact that the NYSDOT rejected the fence that the Fire Chief
claimed was necessary.

Specifically, Greenstein stated that

Conifer is “caught between a rock and a hard place” because the
Fire Chief required the fence but the NYSDOT rejected it.
Greenstein also claimed that the dispute is Conifer’s “issue to
work out.”

Greenstein also discussed the Town Board’s desire to

24

maintain the appropriate population density for the area of the
Development.
At the meeting, the Town approved some but not all of the
modifications to Conifer’s Special Permit.

Even as it did so,

it continued to urge Conifer to reconsider the planned location
for the Development.

Moreover, a member of the Town Board and

Conifer’s attorney agreed that Maskiell would not issue a
building permit without all of the necessary approvals.

The

Town Board adjourned the meeting until March 29, 2016 to
consider the remaining safety concerns further.
At the March 29 meeting, the Town Board passed six
resolutions approving additional modifications to Conifer’s
Special Permit.

The Town Board also extended the Special Permit

until November 2017.

The March 29 meeting did not result in the

issuance of a building permit; indeed, Greenstein stated that
Conifer “still need[s] the building permit.
other conditions.

There are a lot of

They are not at the finish line.”

An

attorney for Conifer also noted that the company “still
[doesn’t] have a building permit.”

Thus, Conifer still has only

received the site remediation permit from December 29, 2015.
8. 2015:

Magistrate Opinion

On June 16, 2015, the County filed its objections to the
Monitor’s Report.

The County raised three principal objections

to the Report: (1) the Monitor violated ¶ 40 of the Consent
25

Decree by failing to meet with the County and the Government
before filing the Report; (2) the County complied with the
“financing in place” provision and therefore met its 2014
benchmark; and (3) the County did not breach ¶ 7(i)-(j) of the
Consent Decree.

On July 21, the Government submitted its

response in support of the Monitor’s findings. 6

In its

opposition, the Government also requested that Magistrate Judge
Gorenstein hold the County in contempt.
fully submitted on August 11.

The objections became

In conjunction with its August 11

reply, the County submitted new evidence and four additional
declarations.

This evidence, it contends, supported its

arguments opposing contempt sanctions. 7

Notably, the declaration

from Town counsel Phillips asserted that the review process for
the Development would conclude by the end of September 2015. 8
The Government also proposed that the County pay $1.6 million
into escrow, which the County could recover if it caught up to
the next benchmark by December 31, 2015.
6

Part of the County’s objection to the Government’s request for
contempt is procedural. The County contends that the United
States did not make a proper motion for contempt under Rule
7(b)(1), Fed. R. Civ. P.
7

If this representation was intended to convey that the
permitting process would conclude in September 2015, then it was
misleading. As discussed above, in September 2015, based on his
review of Conifer’s application, Maskiell posed 87 questions to
the developer. By December 2015, Maskiell had only issued a
grading permit for the Development. Whether that permit
constitutes a “building permit” within the meaning of ¶ 23 is in
dispute and is addressed below.
8

26

The Magistrate Opinion was issued on November 19, 2015.

It

declined to decide whether the Monitor violated ¶ 40 of the
Settlement because, even if he had, the court is still obligated
to determine whether the County breached the Consent Decree.
The Magistrate Opinion sustained the County’s other two
objections.
The Magistrate Opinion states that financing “‘in place’ is
best understood to be financing that is ready or in force -that is, in existence and available to be accessed as a
practical matter without restriction.”

It held that the

conditions on the County’s bond issuance did not operate to
affect the availability of money to build the Development.

The

County uses its available funds for capital projects and
afterwards issues bonds to reimburse itself.
Regarding the alleged violations of ¶ 7 of the Settlement,
Magistrate Judge Gorenstein found that New Castle’s actions and
inaction constituted opposition within the meaning of ¶ 7(j), 9
and therefore triggered the County’s obligations to use “all
available means as appropriate” to counter the opposition.
Magistrate Judge Gorenstein did not, however, take the next step
and explicitly determine whether the County had breached ¶ 7(j)
In its objections to the Monitor’s Report, the County defended
the Town. The County took the position that New Castle’s action
were “not contrary to the Settlement” and were actions that
encouraged the construction of quality affordable housing units.
9

27

of the Consent Decree by failing to use such means to counter
the Town’s opposition. 10

Instead, he considered whether the

County should be held in contempt for not undertaking specific
actions identified in the Report, and decided that it should
not.
In concluding that the County should not be held in
contempt, the Magistrate Opinion found that there was fair
ground to doubt the wrongfulness of the County’s failure to take
the specific actions.

For instance, it was not clearly wrongful

for the County not to offer financial incentives to overcome the
Town’s failure to issue variances and permits, and not to
intervene in the litigation brought by Conifer in pursuit of its
“absurd” argument that the Special Permit had a 25 year
duration.

The Magistrate Judge also found that the Settlement

did not clearly require the County to reach out to New Castle to
address its opposition or to submit testimony at public
hearings.
9. 2016:

Objections to the Magistrate Opinion

While it was the County that objected to the Monitor’s
Report, it was the Government that lodged the principal
objections to the Magistrate Opinion.

Because the Magistrate

The Magistrate Opinion suggests that the activities to which
the County pointed as fulfilling its obligation were inapposite.
The Opinion characterized those steps as taken “to promote the
development of Chappaqua Station” as opposed to steps used “to
counter municipal opposition.”
10

28

Opinion was not issued until late in 2015, the Government
proposed to extend its deadline to object in order to afford the
County a chance to catch up to its 2015 benchmarks and to allow
the Government time to take limited supplemental discovery of
the County.
The Government issued an interrogatory requiring the County
to identify all efforts it had taken during the fall of 2015 to
address the Town’s resistance to the Development.

In response,

the County listed meetings and conversations between County and
Town officials, but gave minimal information about the content
of those discussions.
In its January 22 submission, the Government objected to
the Magistrate Opinion’s findings that the County met its 2014
¶ 23 interim financing in place benchmark and that it should not
be held in contempt for violating ¶ 7(i)-(j).

The Government

agreed, however, that the County had met its December 31, 2015
benchmarks, even without counting the Development’s units. 11

The

Government contends that the County should still be subject to
monetary penalties for its late compliance with the 2014
benchmark.

Because the bonds to be issued to finance the

Development are expressly contingent on the State and municipal
The Government reserved its right to retract this concession
when the Monitor has had an opportunity to review the County’s
2015 final report.
11

29

approval of all required variances, and the Town may still
require more municipal variances as part of its approval
process, the Government claims that financing is still not “in
place” for the Development. 12
The Government also argues that the County’s violation of
¶ 7 is ongoing because it has not used all available means to
advance the development of the 750 new units (¶ 7(i)) or to
address the Town’s continued resistance to the Chappaqua
Development (¶ 7(j)). 13

The Government requests that the Court

order the County to take five separate actions to counter the
Town’s opposition to the Development and increase the likelihood
that the units may count towards the 2016 benchmarks. 14
The Government agrees with the County that all State variances
were granted as of April 27, 2015, when the State Board issued
its written decision. The County contends that the State
variances should be deemed granted as of January 22, 2015, when
they were orally granted on the record of a State Board meeting.
These dates are important to the extent that they may affect the
penalties the County were to face if a breach of the “financing
in place” benchmark occurred.
12

The Government also objects that the Magistrate Judge failed
to rule on the Monitor’s finding that the County had breached
¶ 7, and contends that civil contempt penalties are appropriate
for the County’s failure to meet its obligations under ¶ 7.
13

These five actions include: (1) Meet with the Monitor every 60
days that the building approval process remains pending before
the Town and provide the Monitor with all the information he
requests in advance of such meetings; (2) Publish its May 11,
2015 letter on the County’s website and pay for the letter to be
printed in a Sunday edition of the Journal News, thereby
publicly affirming its commitment to the Development; (3) Write
follow up letters to New Castle once per month inquiring about
14

30

The Government acknowledges that the County has worked with
Conifer and to some extent with the Town to obtain a lease of
land from the NYSDOT for the Development.

But it complains that

the County never provided funds to assist Conifer or the Town to
prepare and review the documents essential to the permit
process, that the County rejected financing for the Development
until late 2014, and that the County made few efforts to
encourage the Development in 2014 and 2015. 15

According to the

Government, as of December 30, 2015, no building permit has been
issued to Conifer. 16
The County raises more limited objections to the Magistrate
Opinion: 17 it objects to Magistrate Judge Gorenstein’s finding
the status of the building permit approval process and any
municipal variance approvals, ask why the approvals have not
bene granted, and share these communications with the Monitor;
(4) Commit to providing any information useful to New Castle in
making its determinations with respect to the Development; and
(5) Attend all public hearings, if any, in connection with the
approval process of the Development.
According to the Government, the County’s efforts have been
limited to a fifteen minute meeting with the Town Supervisor,
monthly phone conversations with County representatives, and
several email and telephone exchanges between County and Conifer
officials, among other activities.
15

The Government produced the County’s internal emails that
first refer to the 2015 Chappaqua permit as a grading/fill
permit, but then reference it as a “building permit” in
quotation marks.
16

The County abandons its objection to the Monitor’s Report on
the ground that he failed to meet in person with County
officials before issuing the Report.
17

31

that the Town’s actions were sufficiently obstructionist to
trigger the affirmative duties in ¶ 7(j) of the Consent Decree,
and contends the Magistrate Judge erred by not deciding whether
the County had breached the Settlement before addressing whether
contempt sanctions were appropriate. 18
has not breached the Consent Decree.

The County argues that it
It also offers its opinion

that the Development’s units will count toward the 2016
benchmarks, with financing already in place and the required
building permit already issued.

As for the five requested

actions listed by the Government, the County argues that it has
already engaged in similar actions and been criticized that its
actions were inadequate.
10.

2016:

Building Permit Benchmarks and May 23 Hearing

As discussed above, the Government now seeks a ruling that
the Development does not currently satisfy the 2016 building
permit interim benchmark in ¶ 23.

In support of its argument,

the Government contends that the site remediation permit is not
a “building permit” within the meaning of ¶ 23 because it does
not allow Conifer to begin constructing the building.

While the

County objects to the Government’s request, arguing that the
issue is not yet ripe for the Court’s review, the County also
contends that the 2015 site remediation permit for the
The County also contends that the Government’s application for
contempt was procedurally improper and should not have been
reviewed on the merits.
18

32

Development satisfies the 2016 “building permit” benchmark in
¶ 23.
To address this dispute, the Court issued an order on April
26, 2016.

The Court notified the parties that the building

permit issue would be discussed at the May 23 hearing. 19

The

Court also ordered that the parties must be prepared to provide
evidence regarding the following topics:
(1)
(2)
(3)
(4)

The specific steps that must be completed for the Town
to issue the remaining three building permits listed
above;
Any municipal or other variances that Conifer will
need to obtain before these other building permits
will be granted;
An estimated timeline for completing the building
permit approval process and issuing the remaining
three permits; and
The steps that the County plans to take to address the
Town’s opposition to the development, and to “ensure
the development of at least” 750 new affordable
housing units.

The County provided its written submission on these topics on
May 11.

The Government filed its response on May 17, and the

County replied on May 19.

The Town also submitted a letter in

response to the Order on May 17.

The Monitor, the County,

Drummond, and the Government appeared at the May 23 conference.
A representative of the Town did not attend.
The May 23 hearing date had already been identified in
connection with the parties’ litigation about the Monitor’s
March 17, 2016 report regarding the County’s compliance with
¶ 33(c). Paragraph 33(c) of the Settlement requires the County
to “create and fund campaigns to broaden support for fair
housing,” among other things.
19

33

As these issues were being addressed, the Monitor issued
his Third Biennial Compliance Assessment on April 28, and the
ADC submitted a letter on May 11.

A conference has been

scheduled on July 8 to address additional issues raised in those
submissions.
Discussion
A “district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected
to.”

Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).

The

district court “may accept, reject, or modify the recommended
disposition.”

Fed. R. Civ. P. 72(b)(3).

The parties’ objections all require interpretation of the
Consent Decree.

“Consent decrees reflect a contract between the

parties (as well as a judicial pronouncement), and ordinary
rules of contract interpretation are generally applicable.”
2013 Appeal Opinion, 712 F.3d at 767 (citation omitted).

“This

requires that deference be paid to the plain meaning of the
language of a decree and the normal usage of the terms
selected.”

Id. (citation omitted).

Relevant provisions of the

Consent Decree must not be considered “in isolation,” but rather
“in the light of the obligation as a whole and the intention of
the parties manifested thereby.”

Id. (citation omitted).

Additionally, the “court has inherent power to enforce
consent judgments, beyond the remedial ‘contractual’ terms
34

agreed upon by the parties.”

E.E.O.C. v. Local 580, Int’l Ass’n

of Bridge, Structural & Ornamental Ironworkers, Joint
Apprentice-Journeyman Educ. Fund, 925 F.2d 588, 593 (2d Cir.
1991); see NLRB v. Local 3, Int’l Bhd. of Elec. Workers, 471
F.3d 399, 406 (2d Cir. 2006).

In other words, consent decrees

“are construed largely as contracts, but are enforced as
orders.”

Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985).

This is so because, “[u]nlike a private agreement, a
consent judgment contemplates judicial interests apart from
those of the litigants.”

Local 580, 925 F.2d at 593.

Indeed,

“[u]ntil parties to such an instrument have fulfilled their
express obligations, the court has continuing authority and
discretion -- pursuant to its independent, juridical interests - to ensure compliance.”

Id.

To ensure such compliance, a

court may use its broad discretionary power to fashion equitable
remedies “even absent a finding of contempt.”
at 1569.

Berger, 771 F.2d

Therefore, a court’s interest “in protecting the

integrity of a consent decree justifies any reasonable action
taken by the court to secure compliance.”

CBS Broad. Inc. v.

FilmOn.com, Inc., 814 F.3d 91, 101 (2d Cir. 2016) (citation
omitted).

This “inherent power to enforce a consent judgment

extends beyond the remedial contractual terms agreed upon by the
parties.”

Id. (citation omitted).

Ultimately, “though a court

cannot randomly expand or contract the terms agreed upon in a
35

consent decree, judicial discretion in flexing its supervisory
and enforcement muscles is broad.”

2013 Appeal Opinion, 712

F.3d at 767 (citation omitted); King v. Allied Vision, Ltd., 65
F.3d 1051, 1058 (2d Cir. 1995) (finding that a “district court
has broad equitable discretion to enforce the obligations of the
decree”).

These powers must be exercised in light of the

general principle that a court may not supplement the terms of
the Consent Decree.

E.g., Pandora Media, Inc. v. Am. Soc. of

Composers, Authors & Publishers, 785 F.3d 73, 77 (2d Cir. 2015)
(“A court may not replace the terms of a consent decree with its
own.” (citation omitted)); Perez v. Danbury Hosp., 347 F.3d 419,
424 (2d Cir. 2003) (“[T]he scope of a consent decree must be
discerned within its four corners, and not by reference to what
might satisfy the purposes of one of the parties to it.”
(citation omitted)).
I.

“Financing in Place”
The Consent Decree requires the County to meet interim

benchmarks “[t]o ensure the satisfaction” of its overarching
obligation to develop 750 new affordable housing units.

One of

those interim benchmarks was that sites for 450 housing units
would have “financing in place” by the end of 2014.
¶ 23.

Settlement

To meet that interim benchmark, the County relies on its

November 24, 2014 legislation, in which the County (1) stated
that it “intends to finance, on an interim basis, the costs or a
36

portion of the costs of said objects or purposes for which bonds
are herein authorized, which costs are reasonably expected to be
reimbursed with the proceeds of debt to be incurred by the
County”; and (2) authorized the issuance of bonds to reimburse
the County for expenditures related to the Development up to
$2,925,000.

The issuance of the bonds was explicitly “subject

to the approval of all required State and Municipal variances.”
The parties agree that the County failed to meet the 2014
interim benchmark if this legislation did not effectively put
“financing in place” for this project.
The Government contends that the legislation did not put
“financing in place” until all of the variances to which it
refers are approved.

The County disagrees.

It asserts that

contingencies associated with the issuance of the bonds are
irrelevant because the November 24, 2014 legislation authorized
the County to spend the required money for the project and the
bonds act as a mechanism for reimbursing the County for those
expenditures.

Thus, according to the County, the conditions had

no practical effect on the availability of the County’s funding
for the Development.
Caselaw and dictionary definitions indicate that financing
is “in place” where there is a firm commitment to provide funds
for a project and those funds are available for immediate use.
This commitment is not satisfied by a mere promise or
37

unsupported claim that the funds are available to perform the
contract.

In the analogous context of real estate sales

agreements, a party’s “unsubstantiated assertions that a line of
credit could be secured or that a closely-related corporation
would supply the funds” are insufficient to satisfy its burden
of showing that it is financially “ready, willing, and able” to
purchase real estate.

Internet Homes, Inc. v. Vitulli, 778

N.Y.S.2d 534, 535 (2d Dep’t 2004).

Additionally, courts have

held that “approvals and financing were in place” where the
closing of a loan was “contingent on a signed contract to
purchase the property” at issue.

Am. Baptist Churches of Metro.

New York v. Galloway, 710 N.Y.S.2d 12, 14 (1st Dep’t 2000).
The most common ways of securing financing include “issuance of
. . . bonds or notes.”

GPIF-I Equity Co. v. HDG Mansur Inv.

Servs., Inc., No. 13cv547 (CM), 2013 WL 3989041, at *6 (S.D.N.Y.
Aug. 1, 2013).

In the bankruptcy context, courts have

determined that funding sources are “untenable” where there was
no “firm financing in place and no evidence of any commitment to
such financing.”

In re Ralph C. Tyler, P.E., P.S., Inc., 156

B.R. 995, 997 (Bankr. N.D. Ohio 1993); In re Payless Cashways,
Inc., 268 B.R. 543, 546-47 (Bankr. W.D. Mo. 2001) (the “bare
promise of a priority administrative expense claim” is not
sufficient to constitute “post-petition financing in place”). 20
20

The Government cites an additional case in support of its view
38

Dictionary definitions provide further guidance and
indicate that there is some flexibility in the phrase “financing
in place.” 21

Webster’s online dictionary defines “financing” as

either “the act or process . . . of raising or providing funds”
or “the funds thus raised or provided.”

Merriam-Webster

Unabridged Dictionary (2016 online ed.).
definitions of the phrase “in place.”

There are also several

The online edition of the

Oxford English Dictionary defines “in place” as “set up, ready
for action; in force, operative.”

Webster’s online dictionary

defines the phrase as “in the state of being used or active.”
Taking these definitions together, sites have “financing in
place” when the necessary funds are committed and ready for
immediate use.
In light of this guidance, Magistrate Judge Gorenstein
correctly ruled that the November 24, 2014 bond act legislation
constitutes “financing in place” as that phrase is used in ¶ 23
of the Settlement.

Thus, the County met its interim benchmark

that the 2014 bond legislation did not satisfy the benchmark:
Irving Capital Corp. v. Serologicals Acquisition, Inc., No.
85cv6383 (WCC), 1986 WL 2763, at *2 (S.D.N.Y. Feb. 27, 1986).
In that case, the court recited a party’s view that the purchase
contract at issue required “a binding written commitment for all
financing in place” by a particular date. Id.
It is well-established that courts may consult dictionaries to
aid in interpreting contractual, statutory, or other texts. See
Davis v. Shah, ---F.3d---, 2016 WL 1138768, at *12 (2d Cir. Mar.
24, 2016); Chesapeake Energy Corp. v. Bank of New York Mellon
Trust Co., 773 F.3d 110, 116 (2d Cir. 2014).
21

39

by December 31, 2014, and penalties for late compliance are not
warranted.
The 2014 bond issuance legislation provides that the County
will fund the project up to an amount of almost $3 million in
the interim period between the passage of the legislation and
the issuance of the bonds.

The Government has not argued that

the amount authorized in the 2014 legislation was insufficient
to meet the benchmark’s requirements.

The County already spent

almost half of the money addressed in the legislation when it
purchased the land for the project on January 29, 2016. 22

There

is no suggestion in the record that the County is unable
immediately to fund the remaining portion of the commitment.
Indeed, at the May 23 conference, the County confirmed that it
could expend the money now without waiting for the bonds to be
issued or seeking other approvals from the BOL.

Its payment of

almost one half of the amount covered by the bond legislation
before those bonds have issued underscores how divorced the bond
issuance is from the actual funding decisions the County makes
in the interim regarding the Development.

The conditions

imposed on issuance of the bonds simply mean that the bonds
As described at the May 23, conference, the County is expected
to provide an additional $1.65 million to finance construction
of necessary infrastructure for the Development, such as the
modifications to the Saw Mill Parkway off-ramp. The County
plans to treat this like any other public works project and will
initiate a bidding process to hire contractors to perform this
work.
22

40

themselves will not be issued until the municipal and state
approval processes for the Development are complete.

Since the

County has a system in place for fulfilling its commitment to
fund the project in the interim, it had financing in place when
the November 2014 legislation was enacted.
The Government’s arguments to the contrary are unavailing.
The Government relies heavily on State v. Strong Oil Co., 433
N.Y.S.2d 345, 348 (N.Y. Sup. Ct. 1980), in claiming that the
County’s bond legislation does not take effect until the
conditions it contemplates are satisfied.

This is true,

according to the Government, because “while most laws are
complete when passed, they sleep until the contingency
contemplated sets them in motion.”

Id. (citation omitted); cf.

New York State Elec. & Gas Corp. v. FirstEnergy Corp., 766 F.3d
212, 221-22 (2d Cir. 2014) (discussing conditions precedent in
contract law and noting that the occurrence of substantive
conditions precedent is required before the parties have a duty
to perform the contract).

Although it appears to be true that

the County will not issue bonds until the project receives its
variances and is ready for construction, this fact does not
address the fundamental point that the bond issuance legislation
puts a financing system in place for reimbursing the County for
funds it has already expended in funding the Development.

The

County has assured this Court that, with the passage of the 2014
41

legislation, the County will finance the project in the interim
and reimburse itself from bonds issued later.
The Government also points to October 15, 2012 bond
authorization legislation for the Waterwheel project, another
development that is part of the Settlement.

That legislation

does not contain the contingency regarding state and municipal
variances.

Act No. 152-2012 § 1.

The Government then argues

that the inclusion of the contingencies in the 2014 legislation
must have real force because they were not present in the
Waterwheel legislation.

But, as discussed above, even assuming

that the contingencies in the 2014 Development legislation
present real impediments to the ultimate issuance of the bonds
contemplated in the legislation, those obstacles do not
undermine the financing system set up by the 2014 legislation.
The bonds are a reimbursement mechanism and will be issued after
the County spends the funds contemplated by the legislation. 23
Finding that financing was in place by December 31, 2014 does
not require the Court to ignore the variance contingencies or
render them superfluous.
The Government’s final argument is built upon a “main
purpose” of the Settlement, to wit, the construction of the 750
This interim financing provision was also included in the bond
legislation for the Waterwheel development. Act No. 152-2012
§ 3.
23

42

affordable housing units.

It asserts that a narrow

interpretation of the benchmark undermines that overarching
goal. 24

See 2015 Appeal Opinion, 802 F.3d at 431 (“[T]he consent

decree largely involves a promise to construct 750 new
affordable housing units and a series of promises peripheral to
that goal.”).

Other provisions of the Settlement, however,

impose additional obligations on the County in connection with
its commitment to construct affordable housing.

The County is

required to work with municipalities and developers to advance
the approval processes and counter local opposition to
affordable housing developments.

It is to those commitments

that this Opinion turns next.
II.

The County’s Obligations Under ¶ 7(i)-(j)

The Government’s second objection to the Magistrate Opinion
involves ¶ 7(i)-(j) of the Settlement.

As both parties agree,

Magistrate Judge Gorenstein erred when he considered the
Government’s application for contempt on the merits before first
considering and deciding whether the County had in fact breached
¶ 7(i) or (j).

The Government and the Monitor are correct that

the County in fact breached both subsections of ¶ 7.

First, the

According to the Monitor, “[t]his goal is more effectively
achieved if the County only receives credit for financing that
has satisfied all preconditions” because “such a policy provides
an incentive for the County to work with municipalities,
developers and other stakeholders to ensure that legislative
preconditions are satisfied as efficiently as possible.”
24

43

County failed to fulfill its affirmative duty in ¶ 7(i) to “use
all available means as appropriate” to promote the development
of the 750 new units.

Moreover, the Town’s opposition to the

Development triggered the County’s duties under ¶ 7(j) to “use
all available means as appropriate” to counter that opposition.
The County has not satisfied its obligations to use all
available means to address New Castle’s opposition.

Indeed, the

County continues to claim that the Town’s resistance to the
Development has not been sufficiently sustained even to trigger
the duties listed in ¶ 7(j).
As described above, ¶ 7 generally requires the County to
ensure the development of at least 750 new affordable housing
units that AFFH and details some of the steps the County must
take to advance that goal.

The two subsections of ¶ 7 that are

at issue here each impose a duty upon the County to ensure the
development of the 750 new affordable housing units.
In sum, Paragraph 7(i) requires that the County “shall use
all available means as appropriate to achieve” the objectives
set forth in ¶ 7, “including . . . developing financial or other
incentives for other entities to take steps to promote” the
objectives of ¶ 7.”

(Emphasis added.) 25

Somewhat similarly,

Paragraph 7(i) further contemplates that the County will
condition or withhold County funds on actions that promote the
objectives of ¶ 7, and leverage County funds that it is
expending pursuant to other provisions of the Settlement.
25

44

¶ 7(j) provides that, “[i]n the event that a municipality does
not take actions needed to promote the objectives of [¶ 7], or
undertakes actions that hinder the objectives of [¶ 7][,] . . .
the County shall use all available means as appropriate to
address such action or inaction.”

(Emphasis added.)

These

means include, but are not limited to, “pursuing legal action,”
and ¶ 7(j) specifically provides that the “County shall initiate
such legal action as appropriate to accomplish the purpose of
this” Settlement.
Thus, the duties in ¶ 7(i) and (j) are similar but
contemplate different circumstances. 26

The County always has a

duty to “use all available means as appropriate” to achieve the
development of 750 new units.

In other words, the County must

be consistently diligent in pursuing the goals of the
Settlement.

In addition to that required diligence, the Consent

Decree has specific requirements for addressing municipal
opposition to affordable housing developments.

The drafters of

the Consent Decree evidently envisioned that such resistance was
possible, and therefore made it explicit that, should such
resistance arise, the County must again “use all available means

The submissions considered in this Opinion have not always
been vigilant about separating the County’s ¶ 7(i) duties from
its ¶ 7(j) duties.
26

45

as appropriate” to neutralize that resistance and advance the
goals of the Settlement.
A.

Breach of ¶ 7(i)

Although Magistrate Judge Gorenstein did not reach the
question of breach, the Magistrate Opinion acknowledges that
“there were additional steps that the County could have taken
that were ‘available’ and ‘appropriate’” beyond the limited
steps it did take to support the Development.

The steps the

County took to further the Development principally included:
purchasing land in 2016 for the Development, reviewing zoning
amendments, Drummond testifying briefly in favor of the project
before the State Board, requesting additional funding for the
project, 27 and writing letters in support of state variance
requests. 28

The other steps that either the Monitor, the

Examples of such a request for outside funding include a
January 2013 application to the New York State Department of
Homes and Community Renewal for funding under a low-income
housing credit program.
27

It is worth noting two of these letters in particular, both of
which were addressed to Neil Mastropietro (“Mastropietro”),
Deputy Director of the MTA’s Real Estate Department. On May 21,
2014, the County wrote to Mastropietro requesting an easement
and a lease from the MTA to assist Conifer with the Development.
One year later, on May 11, 2015, the County wrote again to
request the same lease and easement, referencing its 2014
letter. The fact that the County waited one year to follow up
on its request for a vital lease and easement indicates that it
was not using “all available means” to pursue approvals and
assist Conifer diligently. There is no evidence in the record
of intervening efforts to advocate for Conifer on this
particular issue.
28

46

Government, or the Magistrate Judge have identified that were
available and appropriate but not used by the County to further
the Settlement include:





using financial or other incentives to encourage the Town
to embrace the Development (as explicitly listed in
¶ 7(i));
providing funds for consultants, engineers, and other
experts to assist the Town with its review of the plans
for the Development;
writing letters to stakeholders in support of Conifer’s
proposed development; and
making public statements supportive of the Development,
including appearing at Town Board meetings and testifying
in Conifer’s favor.

The County argues that it could not have taken the first
two of these four steps.

It contends that it cannot use

financial incentives to encourage the Town to complete the
Development’s approval processes because its Discretionary
Funding Policy (“DFP”) is only available when a municipality or
its agent applies for funding related to the Settlement.

The

County also urges that paying for experts or consultants would
not constitute an “incentive” because doing so would “simply
shift[] costs from the Town or Conifer to the County.”
The record from the past four years demonstrates that the
County has not used all available and appropriate means to
ensure the development of the 28 units at Chappaqua Station.
Although the County petitioned the Monitor in early 2012 to
include the Development as part of the 750 ¶ 7 units, the
County’s support of the project has been inconsistent, slow, and
47

half-hearted.

It waited until late 2014 to authorize $2,925,000

for the Development.

It never provided any funds to Conifer or

the Town to assist in the expenses associated with the building
permit process, it did not purchase the land for the Development
until early 2016, it did not attend and speak at Town Board
meetings addressed to the Development even though Town officials
had publicly opposed the Development since 2013, 29 and it has not
developed any public outreach program to broaden support for the
Development.
The County has not provided any persuasive reason that it
was unable to provide resources to the Town or Conifer to
further the goals of the Settlement, speed the project, and
counteract the Town’s obstruction.

Thus, wholly apart from the

affirmative duties imposed by ¶ 7(j), the County has breached
its obligations under ¶ 7(i) insofar as the 28 Chappaqua Station
units are concerned.
B.

Breach of ¶ 7(j)

Magistrate Judge Gorenstein correctly held that New
Castle’s attempts to delay or hinder the Development triggered
the County’s ¶ 7(j) obligation to use “all available means” to
address it.

To summarize briefly, New Castle officials have

In their May 11 submission, County officials reveal that they
attended the February 9 and March 29, 2016 Town Board meetings,
both of which occurred after the Government asked this Court to
require such attendance. It does not appear that either spoke.
29

48

attempted to hinder the Development in at least the following
ways: (1) Greenstein has repeatedly and publicly opposed the
Development since becoming the Town Supervisor; (2) Maskiell
indicated that he would delay the issuance of a building
permit; 30 (3) Town Board members continue to oppose the current
location of the Development; and (4) Town officials testified
against the Development before the State Board.

This opposition

continues to this day: as recently as February 9, the Town
continued to implore Conifer to move the Development to a
different site.

In its submission of May 17, 2016, the Town

continues to advocate for the relocation of the Development, all
the while acknowledging that a predecessor Town Board had
approved the site for the Development. 31

These actions are

precisely the type of municipal opposition that the Consent
Decree anticipated might occur and that impose upon the County
the affirmative obligation to use “all available means as
appropriate” to counteract such hostility.
Despite Maskiell’s statement in March 2015, the Town
represents that it acted expeditiously to review Conifer’s July
2015 application. In its May 17, 2016 letter it promises “to
work cooperatively with Conifer and other involved agencies” on
the Development.
30

In its submission, the Town also expresses its view that it
has not in any way “hindered” the Development “for even a
minute.” The Town blames Conifer for delays in submitting a
complete building permit application, reiterates its safety
concerns with the Development, and states that it does not
generally oppose affordable housing within the municipality.
31

49

The County has not acknowledged to the Monitor, to the
Magistrate Judge, or to this Court the extent and nature of the
Town’s opposition to the Development.

Moreover, it takes the

position that any opposition by the Town is inconsequential so
long as the County is able to meet the benchmarks in ¶ 23 of the
Consent Decree.

Because the County links the municipal

opposition trigger in ¶ 7(j) to the interim benchmarks in ¶ 23,
it argues that a municipality’s actions cannot be said to
“hinder” the development of 750 affordable housing units unless
the County falls short of those benchmarks.
The County is correct to this extent.

Paragraph 7 requires

the County to take steps to ensure the development of the 750
housing units, within seven years, that meet the requirements of
the Consent Decree.

To the extent the County is relying on the

Development to meet that metric, ¶ 7(j) imposes on it the duty
to respond appropriately, with all available means, to the
Town’s opposition to the Development.

In other words, a

municipality may express general opposition to affordable
housing without triggering the duties in ¶ 7(j). 32

When a town

opposes a development on which the County is relying to achieve
the requirement that it develop 750 new units within seven years
This Opinion is not the occasion to address whether municipal
opposition to the affordable housing goals of the Consent Decree
implicates other duties that the County agreed to assume when it
executed the Decree.
32

50

or to meet its interim benchmarks, however, ¶ 7(j) imposes
obligations on the County.
Specifically, ¶ (7)(j) triggers the County’s obligation to
“use all available means” either when a County “undertakes
actions that hinder the objectives” of the Settlement or when a
municipality “does not take actions needed to promote” the
development of new units.

Webster’s online dictionary defines

“hinder” as “to make slow or difficult the progress of,” “to
hold back,” or “to delay, impede, or prevent action.”

The

online Oxford English Dictionary provides additional
definitions, which include “delay, impede, deter, or obstruct.”
The term “hinder” thus does not mean that the municipality must
successfully achieve its goal of blocking an affordable housing
development to be said to have “hindered” the objectives of the
Settlement.

Moreover, municipal inaction in the form of failing

to “take actions needed to promote” a development can trigger
the County’s duty to act when those behaviors interfere with the
objectives embodied in ¶ 7.
In 2012, the County obtained the Monitor’s approval to
include the 28 units in the Development among ¶ 7’s 750 units.
Since 2013, New Castle’s opposition to the Development has been
continuous and multi-faceted, and, as discussed below, unless
New Castle issues a building permit this year for the
Development, it appears that the County may not meet its ¶ 23
51

interim benchmark of obtaining building permits for 750 units in
2016.

The County’s refusal to confront the Town’s opposition to

the Development not only breaches its duties in ¶ 7(j), but also
risks breaching its duties in ¶ 23.

The very purpose of the

affirmative duties embodied in ¶ 7(j) is to ensure the
development of at least 750 new affordable housing units and to
prevent the County from falling behind on its interim benchmarks
by requiring it to act proactively in the face of municipal
opposition to affordable housing units.
III. Chappaqua’s December 29, 2015 Site Remediation Permit and
the 2016 Benchmark
As just described, the County contends that it has no duty
to confront municipal resistance to the development of the 750
units so long as the interim benchmarks in ¶ 23 are met.

The

County asserts that the grading permit the Town issued for the
Development in December 2015 qualifies as a “building permit”
for purposes of ¶ 23, and therefore that the 28 units count
towards the 2016 building permit benchmark. 33

For the following

reasons, the County is in error.

As already discussed, the County is also in error about the
scope of the duties imposed under ¶ 7(j). Those duties relate
not only to achieving the interim benchmarks but also to
ensuring the development more generally of at least 750 new
affordable housing units within seven years of the issuance of
the Consent Decree.
33

52

The permit at issue is titled a “Building-Fill/Grading
Permit.”

It allows the developer to perform “site remediation

and preparation” and provides that “approval of erosion controls
[is] required prior to commencing work.”

This is the first in a

series of at least four permits that Conifer must receive from
the Town to complete construction of the Development. 34

The

remaining three permits that Conifer identified in its November
20, 2015 letter to the Town were permits for foundation and
utility work, the building shell, and fire suppression.

In its

May 11, 2016 submission, the County estimates that the first two
of these three remaining permits will be issued by the Town
“shortly after” the end of July, if all proceeds smoothly.

It

explains that the fire suppression permit is not needed until
well into the construction process.
The parties agree that the Settlement does not define the
term “building permit.”

Like other provisions of the Consent

Decree, the term “building permit” must be interpreted according
to its ordinary meaning, in light of the overall purpose of the
On April 26, 2016, the Court ordered the County, the
Government, the Monitor, and the Town (if it wished) to provide
written submissions addressing several issues related to the
building permit process. Those issues included the remaining
steps that must be completed before Conifer will receive the
remaining building permits. The facts recited herein come from
the parties’ briefs, those submissions, and the evidence
presented at the May 23 hearing on the status of the
Development’s building permit application.
34

53

Settlement.

2013 Appeal Opinion, 712 F.3d at 767.

The purpose

of the interim benchmarks in ¶ 23 is “[t]o ensure the
satisfaction of the goals set forth in paragraph 7.”

The goal

of ¶ 7 is to “ensure the development of at least” 750 new
affordable housing units that AFFH and that may timely be
occupied, as described further in that paragraph.

Indeed, the

¶ 23 benchmark does not refer to units with at least one of
several required building permits, it refers instead to “units
with building permits.”

Thus, there is no indication in the

Consent Decree that an initial site remediation permit, which
does not allow Conifer to begin building the structure, would
satisfy the benchmark.

The building permit benchmark in ¶ 23

therefore refers to a permit that allows the actual construction
of housing units that meet the ¶ 7 requirements.
This definition finds support in the industry definition of
“building permit” as well as other dictionaries.

At least one

construction-specific dictionary defines a “building permit” as
“[a] written authorization to an applicant (usually a builder)
for a specific project allowing him to proceed with
construction; granted by the municipal agency having
jurisdiction after plans have been filed and reviewed
favorably.”

Dictionary of Architecture and Construction 148

54

(Cyril M. Harris ed., 4th ed. 2006). 35

“Construction” in turn is

defined in several ways:
(1)

(2)
(3)

“All the on-site work done in building or
altering structures, from land clearance through
completion, including excavation, erection, and
the assembly and installation of components and
equipment”;
“A structure”; or
“The manner in which something is built.”

Id. at 249.

Other industry-specific dictionaries define

“construction” as “[p]utting together and assembling of
materials in order to erect or build a structure” or equipment
for “alterations, enlargements, additions, moving, conversion,
razing, or demolition of buildings or structures.”
Glossary at 34, 805.

Construction

The online Oxford English Dictionary

defines “construction” as the “action of framing, devising, or
forming, by putting together of parts; erection, building.”
These definitions, taken together, reveal that “construction” is
a broad term that may encompass a number of activities related
to the task of erecting or altering a structure.
Accordingly, and as the County’s Director of Urban Design
explains, there may be a series of separate permits for
different stages of work, allowing a developer to proceed with
Other texts contain similar definitions, such as: “Permit
issued by appropriate governmental authority, usually paid for
by the contractor, allowing construction of a project in
accordance with approved drawings, specifications, and special
stipulation, if any, to proceed with construction in the field.”
Construction Glossary: An Encyclopedic Reference and Manual 791
(J. Stewart Stein ed., 2d ed. 1993) (“Construction Glossary”).
35

55

early stage site preparation and construction before the latestage engineering plans are finalized.

But, whatever the

complexity of the construction project may be, and the number of
separate permits that are entailed in completing the project, a
preparatory stage permit, such as a site remediation permit,
cannot qualify as the building permit described in ¶ 23.
This reading of the term “building permit” in the Consent
Decree also finds support in the provisions of the Town Code to
which the parties have referred the Court.

Section 60-510(A) of

the Town Code, which is entitled “Building Permits,” provides
that: “No building or structure shall be erected, constructed,
enlarged, altered or moved or clearance or excavation made
therefor or work begun thereon, until a permit therefor has been
issued by the Building Inspector in accordance with . . .
Chapter 48 of the [Town Code].”

Town Code § 48-12(A) provides

in turn that a “building permit shall be required for any work
. . . including, but not limited to, the construction,
enlargement, alteration, improvement, removal, relocation or
demolition of any building or structure or any portion thereof,
and the installation of a building system, solid fuel burning
heating appliance, chimney or flue.”

Section 48-12(D) of the

Town Code also provides that “[t]here shall be no clearance or
excavation made . . . until a permit therefor has been issued by
the Building Inspector.”

(Emphasis added.)
56

Although the

Building Inspector is responsible for issuing § 48-12(D) permits
for “clearance or excavation,” the Town Code refers to such
approvals simply as “permits” rather than “building permits.”
Thus, to the extent that the Town Code provides any guidance on
the matter, it suggests that excavation permits are not
“building permits,” or are at least in a different category of
permit from building permits that cover the erection and
construction of buildings, as described in § 48-12(A).
In addition to the Town Code provisions, the County relies
on several letters to support its position that the Town’s
December 2015 site remediation permit qualifies as a ¶ 23
building permit.

For example, in his November 4, 2015 letter,

Maskiell suggested to Conifer the “possibility of issuing a
Building Permit that would be limited to performing
environmental remediation on the project site.”

In Maskiell’s

words, that permit would also be “limited to excavation and
filling.”

Additionally, Zaino summarized the building permit

process in his May 11 affidavit.

Specifically, he stated that

it is “standard practice for building permits from local
municipalities in Westchester . . . to be issued in seriatim,
beginning with permits granting the authority to perform
preparatory site work.”

This gradual permitting procedure

combined with the fact that Maskiell referred to the site
remediation permit as a “building permit” indicate, according to
57

the County, that the permit should satisfy the “building permit”
benchmark in ¶ 23. 36
Even if it were appropriate to look at the Town’s usage of
the term when defining “building permit,” as it is used in ¶ 23
of the Settlement, the weight of the evidence is against the
County.

Repeatedly, the Town assured opponents of the

Development that it had not yet issued a building permit.
During meetings that took place on February 9 and March 29, 2016
-- after the issuance of the site remediation permit -- Town
officials and an attorney for Conifer both specified that
Conifer has not yet received a “building permit.”

In those

meetings, members of the Town Board used the term “building
permit” in accordance with its ordinary, common meaning -- a
permit to construct or modify a building.
The goal of the Settlement is to construct 750 affordable
housing units where individuals and their families can
eventually reside.

This goal cannot be satisfied by obtaining a

site remediation permit and claiming that it is a “building
The County also cites a HUD document that sets deadlines
around the “last building permit” issued. Fair Housing
Accessibility Guidelines, U.S. Dep’t of Hous. & Urb. Dev.,
http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_ho
using_equal_opp/disabilities/fhguidelines/fhefha1 (last visited
May 17, 2016). This citation reveals only that HUD understands
that there may be multiple building permits issued for a
particular site. It does not answer the question of how a
“building permit” should be interpreted under the Settlement
when that term is used for an interim benchmark.
36

58

permit” even though it does not authorize construction.

Of

course, the County may still satisfy its 2016 interim benchmarks
through other housing developments or by including the Chappaqua
Development if the building permit process advances, as it
predicts, during this calendar year.
IV. Remedies
Having found that the County breached ¶ 7(i)-(j) of the
Settlement, the scope and timing of relief for those breaches
remains to be decided.

Recent statements by the County and the

Town are particularly helpful in this regard.
The Court’s April 26 Order required the County to identify
the steps it plans to take to address the Town’s opposition to
the Development.

In its May 11 submission, the County

acknowledges that the Town Board has objected to the
Development, but contends that the Town now recognizes that the
Development “is going to proceed.”

The County points to the

Town Board’s unanimous approval of modifications to Conifer’s
Special Permit at the February 9 and March 29 meetings as
evidence of the Town’s willingness to go forward with necessary
approvals despite its opposition.

The County is unaware of any

outstanding variances that Conifer needs in order to obtain its
remaining permits from the Town for the Development.
May 17 submission adopts the same tone.

The Town’s

It represents that its

staff has and will continue to work cooperatively with Conifer
59

and others on the Development and that there is no need to
impose remedies to address the Town’s opposition.
Considering the entire record in these proceedings, as well
as the most recent submissions for the County and the Town and
the representations made at the May 23 conference, decision is
reserved concerning the scope of any relief for the County’s
violations of ¶ 7(i)-(j).

The Government or Monitor may renew

requests for relief no later than September 2016 if either
conclude that it would be appropriate to do so.
Meanwhile, so long as the Town’s approval process for the
Development remains pending, the County shall take several steps
to keep the Court, the Government, and the Monitor informed of
its progress.

At the May 23 conference, the County indicated

that it does not object to making periodic reports about the
approval process for the Development.

Accordingly, the County

shall be required to do the following:






Meet with the Monitor every 30 days regarding the
Development and provide the Monitor with all the
information he requests regarding the Development in
advance of those meetings;
Discuss with the Town of New Castle at least once per month
the status of the building permit approval process and any
municipal variance approvals;
Attend all public hearings, if any, in connection with the
Development; and
Write to the Court on July 5, August 1, and September 1,
2016, with copies to the Monitor and the Government, to
update its May 11 projections regarding the Development,
including its estimates of the dates on which the
foundation and shell permits will be issued, and an

60

explanation of the steps or approvals that remain before
they may be issued.
Conclusion
The November 19, 2015 Report and Recommendation is affirmed
in part.

The County timely met its obligation to have financing

in place for 450 new affordable housing units by December 31,
2014.

The County has breached ¶ 7(i)-(j) of the Consent Decree,

however, by failing to use all available means as appropriate to
advance the construction of 750 affordable housing units and to
counter New Castle’s opposition to the Chappaqua Station
Development.

The December 29, 2015 site remediation permit that

the Town issued to Conifer is not a “building permit” within the
meaning of ¶ 23 of the Consent Decree.

Decision is reserved on

the Government’s application for contempt and the imposition of
other remedies for the breach of ¶ 7(i)-(j).

The County is

required to take four actions to keep itself, the Court, and all
parties informed of the status of the approval process for the
Development.
Dated:

New York, New York
May 24, 2016
__________________________________
DENISE COTE
United States District Judge

61