NCRC comment on Notice of Proposed Rulemaking, AFFH: Streamlining and Enhancements

March 16, 2020

Regulations Division, Office of General Counsel
Rules Docket Clerk
Department of Housing and Urban Development
451 Seventh Street SW, Room 10276
Washington, D.C. 20410-0500

Re: Docket No. FR-6123-P-02
Notice of Proposed Rulemaking
Affirmatively Furthering Fair Housing: Streamlining and Enhancements

Dear Assistant Secretary Farias:

On behalf of the National Community Reinvestment Coalition (NCRC), thank you for the opportunity to comment on the notice of proposed rulemaking (NPRM) on the Affirmatively Furthering Fair Housing (AFFH) regulations. For more than 25 years, NCRC’s mission has been to create opportunities for people and communities to build and maintain wealth. We work with community leaders, policymakers and financial institutions to champion fairness and end discrimination in lending, housing and business. We regard AFFH as a crucial tool for helping jurisdictions to address these goals. As such, we encourage HUD to maintain the AFFH program in its current form, rather than adopting the proposed rule, which would eliminate critical fair housing requirements.

NCRC is devoted to helping communities create opportunities for all of their residents, regardless of class, race, or other protected characteristics. NCRC fully supports the 2015 AFFH rule, which requires recipients of HUD funding to show that they are taking affirmative measures to resolve segregated living patterns and disparities in housing needs. As part of our commitment to promoting fair housing, we have provided assistance to community leaders in New Orleans and Tampa to help them satisfy their Assessment of Fair Housing obligations under the 2015 AFFH framework.

We have witnessed firsthand how AFFH allows community leaders and stakeholders to better understand patterns of segregation and inequality in their jurisdictions, and devise solutions. NCRC is deeply opposed to the Notice of Proposed Rulemaking (NPRM), as it would allow jurisdictions to receive federal housing money without taking any steps to learn more about these patterns of discrimination.

The Fair Housing Act Requires That Affirmative Measures Be Taken to Address Segregation and Inequality

The Fair Housing Act of 1968 contains a requirement that HUD will affirmatively further the Act’s policies in its programs and activities, and that recipients of HUD funding will take affirmative steps to further fair housing goals. Patterns of segregation and discrimination continue to plague our cities, as banks close branches disproportionately in communities of color, and many inner-city residents find themselves without access to quality schools, health care or transportation. These inequities were created and enabled by decades of discriminatory government policies.

The Fair Housing Act has been one of our greatest weapons in combating this inequality, and AFFH has been a vital resource for creating awareness of how little opportunity is available in low-to-moderate income neighborhoods and communities of color. The 2015 AFFH rule created a Fair Housing Assessment Tool, which allowed lawmakers to see for themselves the deep patterns of inequality in their jurisdictions. HUD has since eliminated this mapping tool, and is now seeking to remove incentives for HUD recipients to take affirmative measures to combat inequality, despite the Fair Housing Act’s clear requirements.

The Fair Housing Assessment Tool should be restored, so that jurisdictions can use it to gain a greater understanding of how to integrate their communities. This tool has given tremendous insight to lawmakers and community leaders regarding where to place banks, community centers, and transportation routes, in order to provide opportunities for residents who need it the most. In our increasingly data-driven society, it does no good to deprive cities of data that helps them to better analyze patterns, trends and conditions.

The NPRM Removes Fair Housing Requirements from Affirmatively Furthering Fair Housing, Thus Ignoring the Mandate of the Fair Housing Act

The NPRM is focused almost entirely on affordable housing, and largely ignores the fair housing requirements of AFFH. There is an obligation under AFFH for jurisdictions that receive HUD funding to take affirmative measures to achieve fair housing, and jurisdictions will be able to ignore this obligation, as the NPRM changes the definition of AFFH to focus on housing choice rather than fair housing.

NCRC recognizes that lack of affordable housing is a major issue affecting millions of Americans, and applauds efforts to improve affordable housing supply in our nation’s communities. Some land use and zoning restrictions can have an exclusionary effect, and eliminating these types of restrictions is a strategy that could alleviate barriers to home ownership for Americans with low-to-moderate incomes.

However, deregulation, as this NPRM proposes, is no guarantee that jurisdictions or housing providers will honor their fair housing obligations. To put it simply, affordable housing is not a substitute for fair housing. Attempting to increase the supply of affordable housing will not, in and of itself, eliminate the harmful effects caused by decades of redlining and related policies once endorsed by the US government. It will also not eliminate the rampant discrimination that currently exists in the nation’s housing markets.

The NPRM would allow a jurisdiction with massive racial and ethnic disparities, and severe lack of opportunity for residents with low-to-moderate incomes, to receive HUD funding without taking steps to affirmatively address these issues. It would not even require the jurisdiction to take note of the patterns of inequality and segregation in its communities.

The NPRM requires that jurisdictions receiving HUD funding must submit at least three measurable goals that they plan on reaching, or obstacles to fair housing choice that they plan to address, in order to increase fair housing choice. This conflates the issue of fair housing with the issue of housing choice.

Under this framework, it would be entirely possible for a jurisdiction to submit three goals that have nothing to do with preventing segregation, race, or discrimination against any protected classes. A jurisdiction could satisfy the NPRM’s requirements simply by eliminating regulations designed to promote fair housing.

The NPRM purports to encourage fair housing goals by ranking jurisdictions, and declining to reward jurisdictions with an “outstanding” ranking if adversely adjudicated fair housing complaints have been brought against them within the past 5 years by or on behalf of HUD or the Department of Justice. However, this is not an accurate metric of whether a jurisdiction has fulfilled its fair housing obligations. Many jurisdictions have violated civil rights laws, and settled the resulting claims before a ruling could be issued. Under the proposed framework, these jurisdictions would be still be eligible for an “outstanding” ranking.

In addition, many of the most vulnerable victims of discrimination are not aware that their rights have been violated. These victims do not file complaints, and the jurisdictions that have violated their rights are not subjected to adverse adjudications.

Public participation in AFFH is another area of great concern for NCRC. The 2015 rule required public participation in the AFH process in order to tailor appropriate solutions for barriers to fair housing. The mandatory public hearings required under the 2015 rule allowed for considerable community input into the submitted document. The NPRM does not require any public participation beyond the consolidated plan process, which will not ensure as much community input, as not all benefactors of HUD funds are required to submit a Consolidated Plan.

We are opposed to this proposal, and urge the agency to renew its commitment to fair housing, rather than replacing fair housing with the concept of “housing choice.” In response to some of the questions asked by the agency, we offer the following:

Question 1 on the Number of Goals: Is three an appropriate number of goals a jurisdiction should submit? If not, what would be a more suitable number? Would a higher number more appropriately hold jurisdictions accountable to AFFH without imposing an undue burden?

Answer: Selecting an arbitrary number of AFFH goals for a jurisdiction is meaningless if the goals are not tied to fair housing. The 2015 Rule required jurisdictions to make goals involving affirmative steps to address segregation, inequality and discrimination in their communities. These are the intended goals of AFFH, and jurisdictions should not be able to receive HUD funding if they are not taking steps to address them.

Question 2 on Standards: How should HUD balance requiring overly prescriptive standards with ensuring integrity for data sources that support such goals?

The 2015 AFFH rule did not contain overly prescriptive standards. It allowed local jurisdictions to choose their AFFH goals, and how to achieve them, with the help of community participation. We encourage HUD to maintain the standards of the 2015 rule.

Question 4 on Factors: Are there other factors, in addition to the ones listed in this proposed regulation, which are generally considered to be inherent barriers to fair housing?

Certain types of land use and zoning restrictions can be barriers to fair housing. For example, restrictions on multi-family housing in wealthy, majority-white areas often prevent people of color from moving into these communities. Some zoning restrictions go even further, and prevent the construction of affordably-priced single-family units. Removing these restrictions can have a positive effect on fair housing.

However, the proposed regulation ignores the barriers caused by redlining, lack of credit, health care, educational opportunities, and access to transportation for individuals in low-to-moderate income communities and communities of color. These are the very barriers that AFFH was meant to eliminate. The data provided by HUD for the AFH’s provided all submitters a baseline understanding of highlighted problems in their jurisdictions. The loss of this data hurts submitters, as they will lose this insight into housing barriers and their interconnectedness.

Question 10 on Ranking Non-CDBG Jurisdictions: Should HUD also rank non-CDGB jurisdictions that still submit consolidated plans? What are the potential obstacles or problems with those rankings?

All jurisdictions that receive HUD funding should be required to submit consolidated plans. These plans should not be limited to jurisdictions that receive CDBG funding.

Question 12 on Adjudicated Civil Rights Cases: HUD is concerned that taking into account adversely adjudicated civil rights cases that were not brought by HUD or DOJ will encourage jurisdictions to settle civil rights claims rather than risk an adverse ruling that would affect the jurisdiction’s standing with HUD. HUD seeks comment on whether, and if so how, it could take these cases into account without unduly influencing civil rights litigation.

HUD is correct that the system described in the NPRM would likely give jurisdictions an incentive to settle civil rights cases. HUD should not rely on adversely adjudicated civil rights cases as the sole indicator of whether a jurisdiction is complying with its civil rights obligations enough to deserve a ranking of “outstanding.” Jurisdictions that collect HUD funding should be encouraged to go above and beyond merely avoiding active discrimination, and undergo regular assessments of fair housing to determine how they can affirmatively take steps to remedy discrimination.

Conclusion

HUD should not implement the NPRM in its current iteration as it fails to uphold a key provision of the Fair Housing act – the obligation to affirmatively further fair housing. Abandoning the fair housing aspect of the rule, and focusing only on deregulation, will not serve to make housing fairer or more affordable. HUD should continue to implement its 2015 AFFH rule.

Sincerely,
National Community Reinvestment Coalition

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