In July of last year, the U.S. Department of Housing and Urban Development (HUD) issued new regulations to strengthen Fair Housing requirements for localities that receive their funding. The new regulations, named the Affirmatively Furthering Fair Housing Final Rule (AFFH), were a legacy of the Obama Administration's sustained emphasis on fair housing.
The goal of AFFH is to overcome historic patterns of segregation and reduce disparities in housing choice and access to opportunity. The overarching mission is expanded economic opportunity and enhanced quality of life. President Obama and HUD leadership believed that fair housing is critical to building complete communities with ladders to opportunity. The idea was that complete communities that provide equitable access to housing opportunities ensure that economic gains are broadly distributed and sustainable for groups traditionally left behind by economic growth.
Just four months later, America elected a President that is adamantly opposed to the fair housing approach of the previous administration. President Trump and his selection for HUD Secretary, Ben Carson, believe that localities should determine how they will address fair housing issues on their own, without top-down direction from the federal government. Indeed, fair housing seems to be squarely in the cross hairs as the HUD program most likely for significant alternation under the Trump Administration.
Legislators have already begun to attack AFFH. The Local Zoning Decisions Protection Act of 2017 would nullify the AFFH Final Rule. While this is an immediate threat to AFFH, this act would need 60 votes in the Senate for passage and it would be difficult to secure votes from eight Democratic Senators.
It is unknown how this will play out over the next four years. Carson will be embarking on a "listening tour" at the start of his tenure, so he is not promising immediate action. Given that it would take some time for a large bureaucracy to change course, it will most likely be at least a year before there are major changes to the program. In the meantime, you should be aware of the following key elements of AFFH.
- Replaces requirements that a Participating Jurisdiction (PJs) complete an Analysis of Impediments to Fair Housing Choice (AI) with a more rigorous process called the Assessment of Fair Housing (AFH);
- Requires HUD to provide additional data that will help PJs improve fair housing assessment, planning, and decision making;
- Facilitates regional approaches to Fair Housing that encourage collaborations between jurisdictions and housing authorities; and
- Encourages greater public participation in AFH development.
A common misunderstanding is that AFFH gives HUD the authority to tell localities where they can build multifamily housing. However, this continues to be a local decision under AFFH.
Who is required to submit an AFH?
Jurisdictions that are required to submit Consolidated Plans for CDBG, HOME, ESG and/or HOPWA programs; and Public Housing Authorities receiving assistance under Sections 8 and 9.
When will PJs be required to implement AFFH plans?
Generally speaking, the first AFH must be submitted 270 days prior to the start of:
- For Insular Areas, States, and PJs with a FY 2015 CDBG grant of $500,000 or less, the program year on or after January 1, 2018 for which a Consolidated Plan is due; or
- For Public Housing Authorities, the program year on or after January 1, 2018 for which a 5-Year Plan is due; or
- For all other PJs, the program year on or after January 1, 2017 for which a Consolidated Plan is due.
For most program recipients, the next Consolidated Plan will be due in 2020, with the AFH due 270 days prior in 2019. It will be interesting to see if and how much AFFH is altered prior to 2018, when program recipients will need to begin working on an AFH in order to meet the deadline. Regardless, PJs should become familiar with AFFH, plan for compliance, and pay close attention to any program changes.