HUD published a notice in the Federal Register on January 5 suspending most local governments’ obligation under the Affirmatively Furthering Fair Housing (AFFH) rule to submit an Assessment of Fair Housing (AFH) until after October 31, 2020, and in many cases after 2025. The AFFH rule requires local governments to conduct an Assessment of Fair Housing using an “Assessment Tool” to assist them in meeting their obligation to affirmatively further fair housing. The suspension effectively postpones implementation of the AFFH rule until 2025 for a large majority of jurisdictions. Based on a review of the first 49 AFH initial submissions, HUD claims that many local governments need additional time and technical assistance to adjust to the AFFH process instituted in 2015.
After years of engagement with stakeholders, HUD finally published the long-awaited AFFH rule on July 16, 2015 (see Memo, 7/13/15). The Fair Housing Act of 1968 requires jurisdictions receiving federal funds for housing and urban development to affirmatively further fair housing. The Fair Housing Act not only makes it unlawful for jurisdictions to discriminate, but also requires jurisdictions to take actions to undo historic patterns of segregation and other types of discrimination, as well as to promote fair housing choice and to foster inclusive communities. Although AFFH has been law since 1968, meaningful regulations providing jurisdictions with guidance on how to comply had not been promulgated.
The AFFH rule requires local jurisdictions receiving more than $500,000 a year in Community Development Block Grant (CDBG) funds to submit their first AFH 270 days before their program year that begins on or after January 1, 2017 for which a new Consolidated Plan is due. In addition, the AFFH rule (as modified by an October 24, 2016 Federal Register notice) requires local governments that receive $500,000 or less in CDBG each year to submit an AFH when they have to prepare a new Consolidated Plan in a program year that begins on or after January 1, 2019.
The vast majority of local governments renew their Consolidated Plans on a five-year cycle that had them renewing their Consolidated Plans in 2015, with an estimated 60% of those renewing by July 1, 2015; consequently they did not need to submit an AFH until their next new Consolidated Plan in 2020. The AFFH rule would require those July 1 program-year local governments to submit an AFH 270 days before, or around October of 2019 – well before the new suspension date of October 31, 2020. The local governments with the latest program-year start dates, October 1, 2015 (an estimated 12% of 2015 jurisdictions), would be required to submit an AFH around January of 2020 – again, well before the suspension date of October 31, 2020.
Two additional groups of local governments will also be subject to the suspension: those that have prepared an AFH but have not yet submitted it to HUD and those that are preparing to re-submit an AFH that HUD found had deficiencies when first submitted.
Advocates estimate that approximately 900 jurisdictions make up all four of the above categories of local jurisdictions affected by the suspension. There are approximately 1,200 local governments that submit a Consolidated Plan.
Because HUD’s Federal Register notice postpones jurisdictions’ requirement to submit an AFH until their required AFH submission date that falls after October 31, 2020, HUD is effectively postponing implementation of the AFFH rule for a large majority of jurisdictions until 2025.
Local governments that have already submitted an AFH accepted by HUD must continue to execute on the goals of that accepted AFH.
The legal obligation to affirmatively further fair housing continues for all. Until a local government is required to submit an AFH according to the suspension date, however, their AFFH obligation reverts to the previous, grossly inadequate protocol of certifying that they are affirmatively furthering fair housing, which simply means conducting an analysis of impediments (AI) to fair housing choice, taking appropriate actions to overcome the effects of any impediments, and keeping records reflecting the analysis and actions. (Local governments that already have an accepted AFH are not required to conduct a separate AI.)
The AFFH rule was designed to address the many problems of the old AI protocol, including:
- There was previously no regulatory guidance and therefore no clarity about what constitutes an impediment to fair housing choice or an appropriate action to overcome it.
- Public participation was not required when drafting an AI.
- The AI was not submitted to HUD for review.
- The AI was not directly linked to a jurisdiction’s Consolidated Plan.
- The AI had no prescribed schedule for renewal; consequently, many were not updated in a timely fashion.
In the Federal Register notice, HUD claims that, based on reviews of the 49 initial AFHs submissions, local governments need additional time and technical assistance to adjust to the AFFH process and complete AFH submissions that can be accepted by HUD. The notice indicates that some local governments had difficulty developing goals that could be reasonably expected to result in meaningful actions to overcome the effects of fair housing issues. According to HUD, some local governments had difficulty developing metrics and milestones that would measure their progress toward affirmatively furthering fair housing.
Thirty-five percent of the 49 submissions (17 submissions) were not accepted when first submitted. HUD does not discuss why they were not accepted or how meaningful the deficiencies were. Misinterpretations and mistakes are to be expected when a new process is instituted, and the rule provides for re-submission based on HUD guidance.
The provisions of the Notice are effective immediately.
For information about the AFFH rule, see page 7-5 of NLIHC’s 2017 Advocates’ Guide.
For information about the AI process, see page 7-16 of NLIHC’s 2017 Advocates’ Guide.