While NYC takes a step forward in fair housing, the federal government takes a step back. This week, HUD released a notice of proposed rulemaking (NPRM) for changes, which we believe will be detrimental, to the Affirmatively Furthering Fair Housing (AFFH) rule. The AFFH rule is a legal requirement that federal agencies and federal grantees further the purposes of the Fair Housing Act. In 2015, the Obama Administration strengthened the oversight of the AFFH rule so it could become a more meaningful tool to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities that are free from discrimination.
HUD is now proposing to evaluate how program participants are carrying out their AFFH obligation as a threshold matter by using a series of data-based measures to determine whether a jurisdiction (1) is free of adjudicated fair housing claims; (2) has an adequate supply of affordable housing throughout the jurisdiction; and (3) has an adequate supply of quality affordable housing. Jurisdictions that score highly using these metrics (or through improvements over a 5-year cycle) would be eligible for various incentives in HUD 14 programs. HUD would focus remedial resources and potential regulatory enforcement actions on the lowest performers.
There are number of issues with this new approach. Regarding fair housing claims, many cases are settled and most do not even make it to court, making this an insufficient metric to determine a jurisdiction’s performance. Furthermore, jurisdictions that fund legal services for tenants and are actively fighting against fair housing violations like NYC might see their jurisdiction’s score penalized because they might have more of these cases that are adjudicated, while other jurisdictions with as many fair housing problems but no legal service funding may be seen as higher performers by comparison. Also, the new metrics around quality and supply of affordable housing may not be useful in determining if housing discrimination and segregation exist in a jurisdiction. The rule also relaxes oversight and reduces an agency’s obligation to find fair housing solutions only within their “sphere of influence” thereby disincentivizing cross-sector and state and local government collaboration.
This is not the Administration’s first attack on AFFH. In 2018, the administration suspended the obligation of local governments to file plans under the regulation and then withdrew a computer assessment tool required to be used by local governments in preparing those plans. Despite the suspended obligation, NYC spent the last two years preparing their AFFH related assessment and just released the draft yesterday as detailed above.
Once the proposed rule is published in the Federal Register, there will be a 60 day public comment period. NYHC plans to further analyze the proposed changes and will be submitting comments.