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HUD Disregards Public Comments & Plans to Undermine Fair Housing

On July 23, HUD announced its plans to release a new final rule, Preserving Community and Neighborhood Choice, to replace the 2015 Affirmatively Furthering Fair Housing (AFFH) rule and the 1994 Analysis of Impediments (AI) requirements, policies designed to implement the 1968 Fair Housing Act.  In January, HUD released proposed changes to the AFFH rule, but ultimately decided to disregard broad public comments and issue this new final rule, which does not revise the AFFH rule, but in fact terminates it.  The final rule will not be subject to public notice or comments and will take effect 30 days after its publication in the Federal Register.  This final rule represents a dramatic step backwards in HUD’s legislatively mandated role in promoting fair housing and correcting the legacy of segregation and structural racism.

The new rule undermines the intent of Congress including the “affirmatively furthering fair housing” language in the Fair Housing Act, as well as decades of case law interpreting this provision.  The goal of the AFFH regulations was to provide cities, counties, and states that receive federal funds for housing with a specific planning approach to help them meet their statutory obligation to affirmatively further the purposes and policies of the Fair Housing Act, by taking meaningful actions to address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, and transforming racially and ethnically concentrated areas of poverty into areas of opportunity.  The rule was carefully crafted following a years-long public participation process. 

The National Housing Trust worked for several years with HUD and fair housing stakeholders to ensure that the AFFH rule embraced a balanced approach to fair housing, which recognized both preservation of existing affordable housing and reinvestment in distressed or gentrifying neighborhoods as a valid fair housing strategy equal to mobility and moving to high opportunity areas. 

The new rule will dramatically abridge the process by which HUD grantees must identify and address patterns of poverty and segregation, essentially asking local governments simply to self-certify that they are “furthering fair housing.”  In contrast with the AFFH rule, which was developed as a result of broad public engagement, the public will not have a chance to weigh in on the new rule, which will be considered “final.”  HUD and the Office of Management and Budget utilized a waiver under a provision of the Administrative Procedure Act that exempts rules related to grants from notice and comment requirements.

President Trump has tweeted repeatedly in conjunction with HUD’s announcement, promising to protect Americans from being “bothered or financially hurt by having low income housing” built in their neighborhoods. NHT joined several other PWG members in expressing strong opposition to HUD’s plans and the inherent racism in the Administration’s approach in this statement: