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Staff Message: Affirm HUD’s Fair Housing Approach

By Ellen Lurie Hoffman, NHT Federal Policy Director

For many affordable housing developers and providers, it may seem like just yesterday that we were submitting comments to HUD on the proposed Affirmatively Furthering Fair Housing (AFFH) rule during the Obama Administration.  Nonetheless, the Trump Administration’s reconsideration of AFFH requires everyone who cares about affordable and fair housing to present robust comments to HUD once again, reiterating the critical importance of affirmatively furthering fair housing and supporting the carefully crafted rule, which was developed as a result of a years-long public participation process. 

In August, HUD published an Advance Note of Proposed Rulemaking (ANPR) inviting public comment by October 15 on amendments to HUD’s AFFH regulations.  As many readers know, the goal of the AFFH regulations is to provide HUD program participants with a specific planning approach to help them meet their statutory obligation to affirmatively further the purposes and policies of the 1968 Fair Housing Act.  We must stop HUD from dismantling regulations designed to address and correct decades of government policies which created and perpetuated racial segregation and discrimination.

With our partners, NHT submitted multiple written comments to HUD between 2013-2016 and participated in countless meetings and listening sessions on AFFH.  In each and every instance, we emphasized the importance of 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.  We strongly recommended that HUD revise early drafts of the AFFH rule to ensure that jurisdictions feel empowered to both revitalize distressed areas as well as to promote and preserve housing in areas of high opportunity.

As a result of the extensive public participation process, HUD listened, heard us, and modified the AFFH rule to embrace this balanced approach in the final rule published in 2015.  But HUD’s latest ANPR states that the Department has determined that a new approach towards AFFH is required.  So, we must state our case for a balanced approach again, to ensure that it is not lost in the rewrite.

The ANPR cites that over the three years since the AFFH rule was adopted, its approach has not proven to be an efficient way to guide meaningful action by program participants.  HUD expresses interest in minimizing regulatory burden while more effectively aiding program participates to plan for fulfilling their AFFH obligations, creating a process that is focused primarily on accomplishing positive results, providing for greater local control and innovation, seeking to encourage actions that increase housing choice, and more efficiently utilizing HUD resources. 

We agree these are laudable goals and recognize that there may be room for improvement in the implementation of the AFFH process.  However, the process has only been in place for two years, with a relatively small number of jurisdictions required to submit their first Assessments of Fair Housing (AFHs) between 2016 and 2018.  We are greatly dismayed that HUD chose to suspend this process for almost three years and withdraw the Assessment Too tool, making it impossible for jurisdictions to prepare and submit AFHs.  Instead of halting the process in its tracks and returning to the dysfunctional Assessment of Impediments process previously in place, we would have much preferred to see HUD work on providing more technical assistance to program participants, highlight early successful assessment strategies, and continue to provide the valuable national data associated with the Assessment tool.

Further, several of the questions posed by the ANPR provide a troubling view of HUD’s priorities in implementing a new fair housing assessment process.  For example, HUD asks if, instead of a data-centric approach, jurisdictions should be permitted to rely upon their own experiences through a qualitative approach.  This possibility seems to ignore the history of segregation and discrimination in the United States and the critical need for objective data to help jurisdictions assess and address their fair housing challenges. The ANPR also raises the possibility of “safe harbors” for jurisdictions, which seems to be fundamentally contradictory to the intent and letter of the Fair Housing Act.

The Fair Housing Act created a mandate to affirmatively further fair housing to ensure access to decent, affordable housing in strong and healthy communities for all Americans.  Following years of detailed and deliberate public participation, the previous Administration designed AFFH to incorporate the use of objective data and public input into a fair housing planning process that is integrated into overall community development planning. This approach recognized the importance of both preservation of existing affordable housing and reinvestment in neighborhoods as well as mobility to high opportunity areas as valid fair housing strategies. 

It is critically important that everyone who works to provide access to or protect resources for affordable housing takes time to comment to HUD on the ANPR, to prevent a lapse in fair housing protections or a retreat to subjective decisions about the use of federal resources.  Start writing your comments now, or work with partners to develop comments, so that the Administration hears our voices loud and clear and must consider what is at stake.