Atlantic Legal Supports Westchester County in Challenge to Federal Government


Atlantic Legal has filed an amicus brief on behalf of the Building and Realty Institute of Westchester and the Mid-Hudson Region, Inc. ("BRI") in the Second Circuit Court of Appeals in United States of America ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York. At issue in this appeal is the obligation of the County, acting through its County Executive, to promote legislation banning "source of income" discrimination in public housing.

BRI is one of New York State’s largest building, realty and construction membership organizations, whose membership includes approximately 1,700 owners and managers of apartment rental buildings and complexes, cooperatives, condominiums, and others involved in the building and construction industry.

The litigation arises out of a 2009 settlement agreement between the County and the Federal Government which called upon the County to "promote, through the County Executive, legislation currently before the Board of Legislators to ban ‘source-of-income’ discrimination in housing." Legislation before the County Board of Legislators in 2009 would have added "source-of-income discrimination" to the list of prohibited housing discrimination practices applicable in the County. The definition of a legitimate "source of income" in the proposed 2009 law would have included funds procured from the federal Section 8 housing voucher program and would have provided a specific $50,000 civil penalty for each violation of the source of income housing discrimination provision. The 2009 legislation was not adopted by the Westchester County Board of Legislators. The County argues that promote does not require the legislature to pass, or the County Executive to sign, the legislation and that whatever the County Executive was required to do related only to the specific 2009 bill, and was not a perpetual obligation with respect to subsequently introduced legislation.

As outlined in the Foundations brief, landlords are subjected to substantial burdens if they determine to participate in the federal Section 8 program. That program is voluntary and landlords not wishing to participate need not do so. Adoption by Westchester of the kind of source of income legislation proposed in 2009, and, subsequently, in 2010, would convert a voluntary federal program to a mandatory one for landlords in Westchester County.

In its brief, Atlantic Legal argues "…that state and local source of income laws, such as the one the United States now seeks to compel Westchester County to enact, are preempted by the federal Section 8 legislation under the [United States] Supreme Court’s conflict preemption doctrine, namely that a state law is preempted where it stands as ‘an obstacle to the accomplishment and execution of the full purposes and objective of Congress’."

To view a copy of the Foundation’s brief, please click here.