Banking and Finance Law Daily HUD issues proposed changes to fair housing rule
Wednesday, January 8, 2020

HUD issues proposed changes to fair housing rule

By Nicole D. Prysby, J.D.

The proposed rule would revise the definition of affirmatively further fair housing (AFFH) and require jurisdictions to certify that they will AFFH by identifying concrete steps the jurisdiction will take over the next five years.

On Jan. 7, 2020, the Department of Housing and Urban Development announced that it proposed changes to HUD’s regulations regarding the reporting on program participants’ actions to affirmatively further fair housing. According to HUD, the current regulations for AFFH are overly burdensome and ineffective, and the proposal would establish a uniform reporting process that assesses program participants on the concrete actions they take to AFFH and by leveraging objective metrics for fair housing choice to assist HUD’s evaluation of such actions. Reaction to the proposal included public statements from Sen. Elizabeth Warren (D-Mass), Center for Responsible Lending, and National Community Reinvestment Coalition (NCRC), condemning the rule as a retreat in the effort to meet fair housing obligations. Comments on the proposed rule will be due 60 days after publication in the Federal Register.

HUD and recipients of HUD funding are required to certify that they will affirmatively further fair housing (AFFH), but the Fair Housing Act does not specify how the AFFH reporting should be made. In 2015, HUD published a final AFFH rule requiring HUD program participants to use a computer assessment tool to complete an Assessment of Fair Housing. In 2018, HUD effectively suspended the rule and removed the AFFH data and mapping tool.

The proposed regulation would revise the definition of AFFH, develop metrics to allow comparison of jurisdictions, and require jurisdictions to certify that they will AFFH by identifying concrete steps the jurisdiction will take over the next five years. Jurisdictions would need to report on their progress toward the commitments in their AFFH certification through the regular consolidated plan reporting and review processes. Public housing agencies would demonstrate their efforts to AFFH through their participation in the consolidated plan process. HUD will 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 five-year cycle) would be eligible for various incentives in HUD programs. HUD would focus remedial resources and potential regulatory enforcement actions on the lowest performers.

Reactions. Warren reacted to the proposed rule by releasing a statement condemning the proposal, calling it "a major retreat in the Federal Government's efforts to confront its history of discrimination and reverse that legacy so that all families, across all communities, have access to the resources they need to succeed." The Center for Responsible Lending also released a statement opposing the proposal, stating that it would reduce the financial pressure local governments, states, and public housing agencies have to meet their fair housing obligations.

The National Community Reinvestment Coalition (NCRC) released a statement that it is still analyzing the proposal, but the preliminary assessment is concerning because it does not address segregation and focuses on income without consideration of other barriers to affordable housing. Jesse Van Tol, CEO of NCRC said "You might as well take the words affirmatively and fair out of this and just call it the furthering housing policy [t]his rule certainly won’t have a positive impact on addressing America’s deep and unfair racial wealth divide, or persistent patterns of racial segregation that continue to create unfair and unjust life outcomes for people based on their zip code."

Companies: Center for Responsible Lending; National Community Reinvestment Coalition

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