Purpose of AFFH Build “inclusive and sustainable” communities Fair Housing Act requires HUD to “administer [housing] programs…in a manner affirmatively to furthering the policies of [the Fair Housing Act]”
Fair Housing Act Civil Rights Act Protected classes: Race Color National origin Religion Sex Familial status Handicap (physical/mental disability)
Who has to AFFH? Recipients of federal funds Programs and activities relating to housing and urban development Analysis of impediments extends to all public and privately funded housing and housing-related activities in grantee’s jurisdiction
Affirmatively Furthering Fair Housing (AFFH) Grantees required to: Conduct analysis to identify history/impediments to fair housing Take actions to overcome impediments identified Maintain records of analysis and actions taken 24 C.F.R. §91.225,325,425
Impediments Not only an issue of racial discrimination Housing patterns are entwined with other issues: Public transportation Public education Employment opportunities Zoning, land use and development Mortgage lending Crime and domestic violence
Fair Housing Planning Conduct an Analysis of Impediments – list identifiable barriers Develop an Action Plan of steps to address the impediments Report the activities conducted during the action plan time period and the results of the activities Evaluate – was it effective? Adjust as needed
Obligations of Recipients of Funding Ensure sub-recipients comply with certifications that they are affirmatively furthering fair housing Can require specific activities of sub-recipients to ensure they promote fair housing choices Can have sub-recipients conduct their own AIs
Recipients’ AFFH Obligations Analysis of impediments involves an assessment of conditions - both public and private - affecting fair housing choice for all protected classes. Impediments are actions, omissions or decisions which restrict housing choices or the availability of housing choices based on: race, color, religion, sex, disability, familial status, national origin Includes policies, practices, or procedures that appear neutral on their face
AFFH Activities Translation of fair housing information Providing translation services Publications targeting members of the protected classes – e.g. non-English speaking, disabled, DV victims Addressing clear and obvious segregation based on race or national origin (found to be core purpose of the AFFH requirement)
Westchester False Claims Act Case Westchester County, New York received $50 million in CDBG funds from 2000 to 2006 Sued for “falsely” certifying that it was meeting its obligations to affirmatively further fair housing (False Claims Act) County failed to conduct a meaningful Analysis of Impediments Focused instead on affordable housing, without regard to race. It never took actions to address its highly segregated housing patterns. Treble damages – “relator” also entitled to damages
Westchester County Analysis of Impediments (AI) County is part of one of the wealthiest and most racially segregated regions in the country AIs did not identify any impediments on the basis of any protected class No mention of housing discrimination or residential segregation County did not identify or analyze community resistance (NIMBY) to integration on the basis of race and national origin as an impediment.
Westchester County’s Defenses Lack of vacant land High cost of land precludes development of affordable housing High construction costs Lengthy review process Limited interest by landlords and developers Limited availability of funds Local opposition - NIMBY Discrimination is income based not racial Race is not a critical impediment to fair housing
Westchester had not... Analyzed effect of affordable housing that had been built on racial diversity and segregation Recognized that race discrimination and segregation were impediments Addressed how discrimination affected all the protected classes in the county Found that any municipalities had failed to AFFH Taken action if a municipality opposed AFFH
Court - AFFH Obligations AFFH means... to provide opportunities for inclusive patterns of housing occupancy regardless of race, color, religion, sex, familial status, disability and national origin HUD Fair Housing Planning Guide at 1-3.
Settlement $62,500,000 (includes attorney fees and “relator’s share”)
Just Build More Affordable Housing? Providing more affordable housing for a low income racial minority will improve the minority’s housing stock but may do little to change pattern of discrimination or segregation Addressing that pattern - necessitate an analysis of where the additional housing is placed.
HUD Reviving AFFH Enforcement HUD has increased emphasis on monitoring compliance related to affirmatively furthering fair housing Increased staffing for enforcement Developing new regulations Revising planning guide & providing technical assistance to grantees