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Deadline for AFFH Rule Comments Approaching

PHADA Members Can Comment Until March 16

Jim Armstrong, PHADA Policy Analyst

HUD published a proposed rule significantly amending its 2015 final AFFH rule that had established a framework for HUD grantees to submit Assessments of Fair Housing. PHADA described elements of that proposed rule in the Advocate of February 5. PHADA has continued to review the proposed rule and will prepare and submit comments by the March 16 deadline.


Improvements, Uncertainties, and Weaknesses in the Proposed Rule

To HUD’s credit, the rule:

  • Eliminates requirements for HAs to prepare Assessments of Fair Housing.
  • HAs would now:
  • Participate with their CDBG recipient jurisdictions in preparing Consolidated Plans every 3 to 5 years,
  • Certify to their compliance with AFFH requirements, and
  • Eliminates requirements for any regional analysis of fair housing issues (governments may still undertake regional initiatives).
  • Only CDBG recipients must prepare an AFH every 3 to 5 years (HOME and HOPWA grantees that aren’t CDBG entitlement communities would not).
  • Future Consolidated Plans must analyze fair housing issues and must identify at least three specific and measurable fair housing goals the jurisdiction will address in the coming 3 to 5 years.
  • Certifications and progress on fulfilling AFFH obligations will be a part of certifications and reporting involved with Comprehensive Plans.
  • HUD announced that it would assemble unspecified publicly available metrics to assess performance and make data available through a web-based dashboard.
  • HUD will offer incentives to jurisdictions that perform well meeting their fair housing goals and will concentrate oversight and enforcement actions on localities that perform poorly.
  • HUD has not yet proposed standards it will use to:
    • Assess the success of HAs in collaborating with localities to develop Consolidated Plan AFFH goals.
    • Assess localities’ AFFH performance.
    • Award incentives to high performing localities or identify low performing localities subject to concentrated oversight and enforcement.

Presumably, HUD removed non-CDBG HOPWA and HOME grantees from requirements for fair housing analyses because they do not prepare Consolidated Plans.

A number of worrisome issues remain in the proposed rule:

  • HUD only refers to illegitimate discrimination by quoting the Fair Housing Act’s prohibition. There are only 4 references to discrimination based on, “race, color, religion, sex, handicap, familial status, or national origin,” in the proposed rule or its discussion although that is the central issue addressed by the Fair Housing Act.
  • HUD references disparate impact only in passing references to the U.S. Supreme Court’s decision although the court has established standards for the use of disparate impacts in adjudicating fair housing complaints.
  • HUD defines 16 new issues as “inherent barriers to fair housing choice” that include things such as water and energy conservation, wetlands and environmental protections, and some forms of rent control. The proposed rule does not appear to consider discrimination against or disparate impacts affecting members of protected classes as “inherent barriers to fair housing choice.”
  • The proposed rule is silent on the future of the department’s AFFH Data and Mapping Tool.
  • That publicly available tool offered HUD grantees and the public a powerful tool to assess patterns of housing development and residency that substantially reduced grantees’ burdens to complete assessments of potentially illegitimate disparate outcomes for protected classes. That tool may fall victim to this proposed rule, reimposing significant data collection and analysis burdens on CDBG jurisdictions.


HUD’s List of Inherent Barriers to Fair Housing Choice

In addition to eliminating many references to housing patterns that reflect potential illegitimate disparate outcomes for members of protected classes, HUD’s proposal enumerates a set of things the department considers, “inherent barriers to fair housing choice”:

  • Lack of a sufficient supply of affordable decent, safe, and sanitary housing, particularly for people with disabilities.
  • Concentration of substandard housing stock in a particular area.
  • Inflexible or unduly rigorous design standards or other similar barriers which unreasonably increase the construction or rehabilitation costs of low-to-mid price housing or impede the development or implementation of innovative approaches to housing.
  • Lack of effective, timely, and cost-effective means for clearing title issues.
  • Source of income restrictions on rental housing.
  • Administrative procedures that restrict or materially impede approval of affordable housing development.
  • High rates of residential lead poisoning.
  • Long-term creation of restrictions on development of rental housing, such as certain types of rent control.
  • Unduly prescriptive or burdensome building and rehabilitation codes.
  • Arbitrary or excessive energy and water efficiency mandates.
  • Unduly burdensome wetland or environmental regulations.
  • Unnecessary manufactured-housing regulations and restrictions.
  • Cumbersome or time-consuming permitting and review procedures.
  • Tax policies which discourage investment or reinvestment.
  • Arbitrary or unnecessary labor requirements.

While identifying policies only tangentially related to residential housing patterns as “inherent barriers to fair housing choice,” the proposed rule is silent concerning the roles of historical policies and practices such as red-lining, the use of restrictive covenants, and real estate practices such as steering as “inherent barriers to fair housing choice.”


Data HUD Will Use in its Scoring and Dashboard

The department will use unspecified publicly available data and publish rankings of Consolidated Plan submitters based on that data. While the department is not clear on what data it will include, it lists the following as elements of this scoring:

  • Affordable housing availability,
  • The jurisdiction’s housing quality, and
  • Adjudicated complaints of violations of the Fair Housing Act or related statutes.


HUD’s Redefinition of Fair Housing Choice

The proposed rule’s definitions, its list of “inherent barriers to fair housing choice,” and the data sources HUD plans to use to assess jurisdictions’ success in meeting AFFH responsibilities point to a significant change in the department’s approach to implementing Fair Housing Act requirements. It seems that the central element of concern for fair housing is the quality and availability of affordable housing, and that it will no longer be the impacts of illegitimate discrimination against or disparate impacts of otherwise neutral policies and procedures affecting members of protected classes. While it is clear that there is a dearth of affordable housing nationally, HUD has not made the case that lack of affordable housing is an adequate surrogate for the illegitimate impacts of discrimination or of disparate impacts of housing practices for members of affected classes.


PHADA’s Next Steps

PHADA has created a task force of its leadership to provide feedback on the tone and content of the association’s comments. The task force has offered advice and feedback concerning PHADA’s approach to comments on this proposed rule, and the task force and PHADA’s executive leadership will review potential comments. PHADA welcomes members’ feedback concerning matters that should be included in its comments and requests that members send feedback to: Jacycle@principle2.org, by March 9, 2020

Sidebar box with issues to consider for PHADA Members' comments proposed AFFH rule.

In addition, PHADA strongly encourages members to comment on this proposed rule, detailing local impacts, supporting positive changes that have been included in the proposal, and strongly suggesting that HUD correct the proposal’s deficiencies. Some points members may consider as they prepare comments are summarized in this issue of the Advocate. Comments may be submitted through Regulations.gov at this site. As of February 18, HUD has received 13,846 comments.