HUD Issues Proposed Affirmatively Furthering Fair Housing Rule

HUD recently issued a proposed Affirmatively Furthering Fair Housing (AFFH) rule, which seeks to provide state and local governments with clearer guidance on how to improve affordable housing choices.

The AFFH rule, initially published in 2015, was designed to provide HUD program participants with a revised planning approach to assist them in meeting their legal obligation to affirmatively further fair housing.  However, HUD has since found that its current regulations do not effectively meet its goals and has made various revisions and attempted additional revisions related to the rule over the years.  See WBK’s prior article on HUD’s issuance of a notice soliciting public comment on certain proposed amendments to the AFFH regulations.

HUD’s recently proposed rule would, for example: (i) establish a uniform reporting process; (ii) revise the definition of AFFH; (iii) develop metrics to allow comparison of jurisdictions; and (iv) require jurisdictions to certify that they will affirmatively further fair housing by identifying at least three fair housing choice obstacles or goals and concrete steps the jurisdiction will take over the next five years to address them.  HUD provides that it “intends this regulation to promote and provide incentives for innovations in the areas of affordable housing supply, access to housing, and improved housing conditions.”

Among other things, HUD’s proposed rule intends to encourage local experimentation and proposes to reward certain “outstanding AFFH performers” by providing various incentives.  Outstanding AFFH performers could be eligible for certain benefits during the two year period following the approval of the jurisdiction’s consolidated plan, which may include: (i) preference points on Notices of Funding Availability; (ii) eligibility to receive additional program funds; and (iii) advantages in grant competitions.  The proposed rule also addresses treatment of “low-ranking jurisdictions.”  According to HUD, it does not seek to punish jurisdictions for implementing creative strategies that turn out not to be effective, and it will seek to encourage jurisdictions to share the lessons learned by both successful and unsuccessful efforts.

HUD also is seeking comment on 30 questions included in the proposal discussion.  Comments regarding the proposed rule and questions are due by March 16, 2020.