On September 26, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) published the proposed Affirmatively Furthering Fair Housing Assessment Tool. Comments are due by November 24. After receiving comments, HUD will consider them and solicit a second round of comments for an additional 30 days.
On July 19, 2013, HUD published the long-awaited proposed rule intended to improve jurisdictions’ and public housing agencies’ obligation to affirmatively further fair housing (AFFH). The proposed rule indicated that HUD would issue an Assessment Tool to be used by program participants to evaluate fair housing choice, identify barriers to fair housing choice, and set and prioritize fair housing goals to overcome those barriers. Issuing the Assessment Tool is one more necessary step before a final AFFH rule can be published.
The preamble appears to address three of the concerns expressed by NLIHC and other advocates in comments to the proposed AFFH rule. One concern was that the proposed rule did not seem to sufficiently present a balanced approach to AFFH. A balanced approach would be one that promotes greater mobility and that also recognizes that AFFH may entail devoting resources to improve areas of concentrated racial and ethnic poverty by preserving and improving affordable housing and by implementing investment policies that increase access to essential community assets for protected class residents who wish to remain in their communities. Two places in the preamble appear to address the balance concern, although without specifics:
“Addressing segregation and R/ECAPs requires a balanced approach that not only increases housing opportunities in integrated areas but also promotes integration by broadening housing opportunities in segregated areas and encouraging resident mobility.”
“Addressing disparity in access and exposure to adverse conditions requires a balanced approach that not only provides for strategic investment in areas that lack key assets or are exposed to adverse community factors, but also opens up housing opportunities in asset rich areas and provides for resident mobility.”
A second concern pertained to the need for benchmarks for each fair housing goal in an Assessment of Fair Housing (AFH). Benchmarks should specify actions and the timetable that a program participant plans to take for each action. The preamble and proposed Assessment Tool call for metrics, milestones, and timelines.
The third issue that concerns NLIHC and others was that the proposed AFFH rule seemed to allow program participants to merely have one goal for addressing fair housing. The preamble and proposed Assessment Tool appears to require at least one goal for each of a number of fair housing issues.
The preamble begins by discussing the sources of data that will be required to inform the AFH. HUD will provide nationally uniform data. Links to sample sets of HUD-provided data tables and maps are included in the Federal Register notice. Information will be provided for both the entitlement jurisdiction as well as its entire region. HUD stresses that program participants will be required to use existing and reasonably available local data and local knowledge to inform their assessments. Local knowledge is to be gained by the required community participation process.
If HUD finds that an AFH analysis is materially inconsistent with data readily available, or if the priorities or goals are materially inconsistent with available local data or knowledge, HUD may find the AFH to be substantially incomplete and unacceptable. According to the proposed regulations, without an accepted AFH, a Consolidated Plan cannot be approved and a program participant could not receive Community Development Block Grant, HOME, or some other HUD funds.
The preamble next describes the three main sections of the Assessment Tool: a description of the community participation process, a comprehensive analysis, and a presentation of fair housing goals and priorities. For the community participation section, program participants will be asked to describe outreach activities they undertook to encourage community participation in the development and review of the AFH. A summary of all comments received must be provided, along with a summary of comments not accepted and the reasons why. The draft Assessment Tool specifically directs program participants to describe efforts made to reach people who have limited English proficiency and people who have disabilities.
The analysis section has seven required elements, calling for local and regional descriptions and analyses of demographics and various “fair housing issues” that include segregation/ integration and racially or ethnically concentrated areas of poverty (R/ECAPs), disproportionate housing needs, disparities in access to community assets and exposure to adverse community factors, disability access, and fair housing compliance and infrastructure. For each of the fair housing issue elements, the Assessment Tool asks for an analysis of the “determinants,” HUD’s term for the factors that create, contribute to, or perpetuate a fair housing issue. For each of the fair housing issues, there is a list of possible determinants that program participants are to rank as highly significant, moderately significant, or not significant, and then explain the basis for the significance level.
For the demographic summary element, the Assessment Tool asks program participants to identify current demographic patterns as well as trends over the past ten years.
The segregation, integration, and R/ECAP element asks program participants to identify neighborhoods that have high levels of segregation, including racially or ethnically concentrated areas of poverty. Unique issues faced by immigrant populations must be assessed by analyzing needs according to national origin and limited English proficiency. This element also asks for an examination of issues related to the location and demographic makeup of residents of publicly supported housing on a project-by-project basis. Program participants must also describe Housing Choice Voucher portability policies and any mobility counseling provided. As more clearly stated in the preamble, program participants are asked to assess their policies, procedures, and practices that might affect segregation and R/ECAPs. An assessment must also be made of other factors such as private investments, market forces, or negative community attitudes such as NIMBYism.
The disproportionate housing needs element of the proposed Assessment Tool asks a series of questions about households experiencing one or more housing burdens by race/ethnicity and family size. The housing burdens include: paying more than 30% of income for housing (“cost burden”) and paying more than 50% of income for housing (“severe cost burden”), living in overcrowded conditions (more than one person per room), and substandard housing conditions (incomplete plumbing or kitchen facilities).
The next element of the Assessment Tool concerns disparities in access to community assets, and exposure to adverse community factors. For different races, ethnicities, national origins, or family status, it asks for analyses of access to public transportation, quality schools, and jobs, as well as an analyses of exposure to poverty and environmental hazards.
The disability access element of the Assessment Tool asks for a description of the geographic distribution or concentration of people with disabilities, especially by age range. Program participants are asked if there is a sufficient number of affordable and accessible units in a range of sizes for people with various types of disabilities. For publicly assisted housing, there must be a discussion of admissions preferences and waitlist procedures. Three questions probe issues relating to Olmstead compliance, the obligation to ensure that people with disabilities live in apartments, family homes, or other non-institutional settings. Finally, this element asks about the extent that people with disabilities are able to access public buildings, transportation, and other facilities and services.
The fair housing compliance and infrastructure element of the Assessment Tool calls for a listing and summary of any unresolved administrative or judicial proceedings related to fair housing or other civil rights issues. Program participants are also asked to identify fair housing or civil rights agencies or organizations, describe their capacity, and discuss any steps taken to provide resources to them.
The final section of the Assessment Tool, the fair housing goals and priorities section, has a summary table listing each of the fair housing issues. For each fair housing issue, program participants must identify any fair housing determinants considered significant, and the level of significance (highly, moderately, or not significant). One or more goals must be described for each significant determinant, along with a discussion of how the goal relates to overcoming the determinant and related fair housing issue. A level of priority for each goal must be indicated (highest, moderate, lowest). The program participant must identify metrics, milestones, and timeframes, so that the public can evaluate performance. Finally, a reason must be provided for any highly or moderately significant determinant not being addressed by a goal.
A more detailed NLIHC preliminary summary of the proposed AFFH Assessment Tool is at http://nlihc.org/sites/default/files/Summary-Proposed_AFFH_Template.pdf.
The AFFH Assessment Tool Federal Register notice is at http://www.gpo.gov/fdsys/pkg/FR-2014-09-26/pdf/2014-22956.pdf
An easier to read version of the preamble is at http://www.ofr.gov/OFRUpload/OFRData/2014-22956_PI.pdf
Toward the end of the preamble there is a link to HUD’s Office of Policy Development and Research site which has the proposed AFFH rule, as well as:
- the actual proposed assessment tool, http://www.huduser.org/portal/publications/pdf/AFFH-Assessment-Tool-2014.pdf
- sample HUD-provided data tables, http://www.huduser.org/portal/publications/pdf/AFFH-Assessment-Tool-2014.pdf
- sample HUD-provided maps, http://www.huduser.org/portal/publications/pdf/AFFH-Template-Maps-2014.pdf
NLIHC’s Summary of the Proposed AFFH regulations and NLIHC’s formal comments regarding them are at http://nlihc.org/issues/affh
More information about AFFH is on page 204 of NLIHC’s 2014 Advocates’ Guide at http://nlihc.org/sites/default/files/2014AG-204.pdf