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PHADA Members Should Submit AFFH Rule Comments by March 16

On January 14, 2020, HUD published a proposal to make significant changes to its regulations implementing the Fair Housing Act’s Affirmatively Furthering Fair Housing (AFFH) requirements. In addition to making substantial changes to HUD’s 2015 final AFFH rule that may confuse matters for HUD program participants, the notice fails to detail many significant components of HUD’s proposed changes. The following list indicates significant issues PHADA will include in its comments that are particularly relevant to HAs as they fulfill their AFFH obligations. PHADA strongly encourages members and other stakeholders to comment on the proposed rule and consider including the following points in their comments.


  1. Strongly support some changes:
    1. HAs no longer need to submit independent Assessments of Fair Housing.
      1. Earlier rule required HAs to submit answers to 128 specific questions concerning 120 factors affecting fair housing.
    2. Regional assessments are no longer required.
      1. The earlier rule required assessments of fair housing issues in regions over which AFH submitters had little or no policy influence.
        1. Regions often covered more than one state,
        2. Non-metro regions covered several adjoining counties.


  2. Strongly suggest additional changes:
    1. Reemphasize the importance of illegitimate housing discrimination against protected class members.
      1. The proposed rule mentions discrimination against protected class members in passing 4 times.
      2. The proposed rule does not require any assessment of the impact of potential fair housing issues on members of protected classes.
      3. The proposed rule appears to replace an assessment of fair housing issues affecting members of protected classes with an analysis of the availability of affordable housing for low income households.
      4. The only instance where the proposed rule directly addresses illegitimate housing discrimination is in connection with adjudicated fair housing complaints.
    2. Reemphasize the importance of unintended disparate impacts on member of protected classes.
      1. The proposed rule mentions fair housing disparate impacts in a brief discussion of the Supreme Court’s Inclusive Communities decision.
      2. The proposed rule fails to require or encourage an assessment of potential disparate impacts for members of protected classes or the sources of those disparate impacts.
    3. Deemphasize significance of tangential policies not directly related to fair housing.
      1. The proposed rule strongly encourages or requires assessments of the availability of quality affordable housing.
      2. The proposed rule strongly encourages or requires assessments of policies only indirectly related to discrimination (intentional or unintentional) based on race, color, religion, national origin, sex, familial status, or disability, such as zoning ordinances, water and energy conservation policies, and square footage or height restrictions or requirements.


  3. Suggest matters that must be clarified in further changes:
    1. Establish standards for assessing a jurisdiction’s AFFH success through regulations.
      1. The proposed rule references but fails to define such standards.
      2. The proposed rule fails to describe the department’s methods for assessing HAs’ success in participating in their localities’ Consolidated Plan processes or in contributing to meeting their jurisdictions’ AFFH goals set in their Consolidated Plans.
    2. Specify in regulation the kinds of data HUD will use to score AFFH success and publish rankings through a dashboard.
      1. The proposed rule only refers to publicly available data.
      2. The proposed rule gives no indication of the ways in which HUD will consider or weigh various forms of publicly available data
    3. Clarify how and where HUD will award preferences in funding awards for high AFFH performance.
      1. The proposed rule only indicates that such preferences will be for HUD’s grant programs.
      2. The proposed rule fails to describe how AFFH rankings may affect grant awards or whether rankings will affect all of HUD’s grant programs uniformly.
      3. The proposed rule fails to identify any specific grant programs.
    4. Clarify what increased oversight or enforcement actions HUD will take for low AFFH performance.
      1. The proposed rule fails to describe how poorly jurisdictions need to perform to be subject to increased oversight and enforcement.
      2. The proposed rule fails to describe the outcomes of such increased oversight and enforcement.
      3. The proposed rule fails to identify any sanctions the department may consider applying to jurisdictions identified as poor AFFH performers.
    5. Justify and clarify the treatment of jurisdictions and HAs participating in or located in a jurisdiction participating in a HOME consortium.
      1. The discussion of the proposed rule fails to discuss any implications for HOME consortia members.
      2. Presumably, all consortium members and HAs located withing participating jurisdictions would be bound by the (at least) 3 AFFH goals established in the consortium’s joint Consolidated Plan.
      3. Presumably, no consortium members would be subject to any additional AFFH requirements due to their independent entitlement eligibility for CDBG funding.
      4. The proposed rule and HUD’s discussion must make the implications of this proposed AFFH rule for Consolidated Plan preparation clear and unambiguous.
      5. The proposed rule must make responsibilities of HAs located in jurisdictions participating in HOME consortia clear. These HAs must understand their responsibilities for participating in consolidated plan preparation and for contributing to AFFH goal accomplishment.


  4. Urge HUD to continue support and updates for the AFFH Data and Mapping Tool to facilitate analyses required of CDBG jurisdictions (including states) and for use by stakeholders and the public.
    1. HUD created this tool to facilitate analyses it required for preparing AFHs that consolidated large and disparate sets of data into a single tabular and visual presentation of fair housing concerns.
    2. The tool’s presentation of the location of concentrations of members of protected classes and the location of project based and tenant based housing assistance provided a powerful tool neighborhoods whose characteristics may represent the outcomes of illegitimate discrimination against members of protected classes.
    3. HUD may eliminate maintenance of elements only indirectly related to fair housing concerns in the tool, such as proximity to employment centers and transportation networks, and educational outcomes to reduce the administrative burden to the department to maintain the tool
    4. Eliminating support for this tool entirely will significantly increase the administrative burden for submitters of Consolidated Plans to prepare analyses surrounding impacts of housing policies on members of protected classes.