The Department of Housing and Urban Development (HUD) recently unveiled its much-anticipated final rule to Affirmatively Further Fair Housing (AFFH). The updated regulations have been in the works for more than two years and are intended to provide program participants with clear guidelines and data to meet federal fair housing obligations.
“HUD will provide open data to grantees and the public on patterns of integration and segregation, racially and ethnically concentrated areas of poverty, disproportionate housing needs, and disparities in access to opportunity,” the agency stated.
Under the Fair Housing Act (FHA), recipients of federal housing and urban development funds must take actions to address segregation and related barriers for groups with characteristics protected by the statute. However, the FHA does not expressly address the precise scope of the fair housing obligations of HUD’s program participants.
Prior to the recently published rule, HUD directed participants in certain HUD programs to affirmatively further fair housing by undertaking an analysis of impediments (AI) that was generally not submitted to or reviewed by HUD. Rather, program participants, based on general guidance from HUD, were required to incorporate the analysis into their planning, take appropriate actions to overcome the effects of any impediments, and maintain records of such efforts.
Under the new regulatory scheme, the AI is replaced by a standardized Assessment of Fair Housing (AFH) through which program participants will identify and evaluate fair housing issues, and factors contributing to fair housing issues. To facilitate the process, HUD will provide local and regional data on integrated and segregated living patterns, racially or ethnically concentrated areas of poverty, the location of certain publicly supported housing, access to opportunity afforded by key community assets, and disproportionate housing needs based on classes protected by the FHA.
While the rule does not mandate specific outcomes for the planning process, HUD will review program participants’ assessments, prioritization, and goal setting to ensure it complies with specific parameters set forth in the regulation. The new rule will be phased in over time, with the first AFH due 270 days prior to the program year that begins on or after January 1, 2017. According to HUD, the agency will publish additional guidance and other resources in the coming months, all of which will be available on the HUD Exchange website: https://www.hudexchange.info/programs/affh/.
In other fair housing legal news, the U.S. Supreme Court recently ruled that the Fair House Act allows claims that cover practices that have a discriminatory effect, even if they were not motivated by an intent to discriminate, also known as “disparate impact” claims. You can find a full discussion of the Court’s decision on the Scarinci Hollenbeck Constitutional Law Reporter.
For more information about the new fair housing rules or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.