HUD Issues New Proposed Fair Housing Rule
HUD last week published its proposed Affirmatively Furthering Fair Housing rule, which it said is intended to offer “clearer guidance” to states and local governments to help them improve affordable housing choices in their community.
The proposed rule (https://www.hud.gov/sites/dfiles/GC/documents/Pre-PubPropRule1-7-20.pdf.pdf) would discontinue rules promulgated by the Obama Administration that require communities to address racial discrimination issues in housing. The rule proposes to reduce regulatory burdens to governments by eliminating an assessment tool used to map racial segregation under the 2015 AFFH rule.
“HUD’s commitment to Fair Housing remains as steadfast as ever before, and this improved rule reaffirms our mission of giving people more affordable housing options in communities across the country,” said HUD Secretary Ben Carson. “By fixing the old Affirmatively Furthering Fair Housing rule, localities now have the flexibility to devise housing plans that fit their unique needs and provide families with more housing choices within their reach.”
Carson added the proposed rule enables local governments “to make housing decisions that meet their unique needs, not a mandate from the federal government. Having said that, if a community fails to improve housing choice, HUD stands ready to enforce the Fair Housing Act and pursue action against any party that violates the law.”
HUD published its final AFFH rule in July 2015. The stated purpose of that regulation was to provide HUD program participants with a revised planning approach to assist them in meeting their legal obligation to affirmatively further fair housing.
However, a HUD analysis found in contrast to its stated goals, the AFFH rule proved “ineffective, highly prescriptive and effectively discouraged the production of affordable housing.”
In January 2018, HUD suspended the obligation of local governments to file plans under the regulation and, in May 2018, withdrew a computer assessment tool required to be used by local governments in preparing those plans. HUD found that rather than assisting local governments in formulating acceptable fair housing assessments, the ‘Local Government Assessment Tool’ was “confusing, difficult to use, contained errors, and frequently produced unacceptable assessments.” Litigation challenging HUD’s actions was dismissed.
HUD said it received more than 700 public comments in response. “Many expressed support for the 2015 final rule and urged HUD to continue to implement its requirements,” HUD said. “These commenters cited the need for a way to enforce the AFFH requirement and cited the significant use of resources and public input that went into the creation of the 2015 rule. These commenters found the early results of the rule ‘promising’ and believed that improving the tools would ease the burdens and improve the process.”
However, HUD also noted a “large number” of commenters opposed the 2015 rule. “Some objected to the idea entirely, citing concerns for local control of zoning,” HUD noted. “Others felt that the requirements of the rule were too onerous, specifically the level of public participation needed and the scope of data that program participants were required to address. Commenters asked that program participants and PHAs be given broader discretion in their planning. Multiple commenters suggested that instead of the 2015 rule’s approach, HUD should find ways to use the AFFH process to provide incentives to increase housing supply and remove restrictive zoning regulations.”
“After reviewing public comments and holding listening sessions across the country, HUD is proposing an improved AFFH rule so it can be used by communities to promote more fair housing options,” HUD said.
