This month, the U.S. Department of Housing and Urban Development (HUD) published an Advance Notice of Proposed Rulemaking (ANPR) on amending its Affirmatively Furthering Fair Housing (AFFH) regulations. This is the first step in a regulatory process that will likely lead to a new set of regulations on this important civil rights legislation.
AFFH is a legal requirement that federal agencies and federal grantees further the purposes of the Fair Housing Act. This obligation to affirmatively further fair housing has been mandated by the Fair Housing Act since 1968. As provided in the current rule, AFFH means “taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.” Last January, HUD suspended the obligation of local governments to file plans under the 2015 regulation and, in May, withdrew an assessment tool that local governments could use in preparing those plans. In his statement announcing the ANPR, HUD Sec. Ben Carson specified that “HUD believes very deeply in the purposes of the Fair Housing Act and that states, local governments and public housing authorities further fair housing choice.” But he added that HUD’s 2015 rule “often dictated unworkable requirements and actually impeded the development and rehabilitation of affordable housing.” At the heart of the matter is how we measure what local governments do to “affirmatively further fair housing” as is required in the Fair Housing Act.
Unfortunately, the promise of the Fair Housing Act has never been realized. To make matters worse, the Great Recession and its aftermath wiped out nearly all of the modest gains made in the previous four decades. One need look no further than San Francisco, one of the most “progressive” communities in the nation, to see how far we have to go. Local ordinances and zoning make it impossible to create affordable housing in most of the “high opportunity” neighborhoods in the city. San Francisco is hardly alone. The AFFH rule was meant to address this, but some have suggested that its approach has made this important work more difficult.
NHC has been at the forefront of affordable housing advocacy since it was founded in 1931. We were also one of the leading proponents of the Fair Housing Act in 1968. Our members have broad and deep experience investing in, developing, building and managing affordable housing throughout the country. Many of those members are deeply concerned about the intent of the Trump administration’s AFFH initiative. Others have noted that the 2015 regulation is in need of improvement. The fact that the president has a lifelong reputation as an opponent of fair housing gives all of us great concern.
NHC’s Policy Committee will work with all interested members to craft our response to the AFFH ANPR and offer HUD our collective experience on what elements of the AFFH must be preserved and which – if any – elements require revision.