"Promoting housing affordability by combating exclusionary housing policies"


HUD issues rule requiring more in-depth consideration of discriminatory and exclusionary housing conditions by applicants for federal housing funding


On July 8, 2015, the U.S. Department of Housing and Urban Development (HUD) issued a rule clarifying and strengthening its requirements that applicants for federal housing funding address discriminatory, exclusionary and other impediments to fair housing. HUD, Affirmatively Furthering Fair Housing (AFFH): Final Rule, 80 Fed. Reg. 42,272, 42,352 (July 16, 2015)

Under the rule, each applicant for federal housing funding will have to complete an Assessment of Fair Housing (AFH) identifying fair housing problems in the applicant’s area and contributing factors. The applicant must also commit to taking “meaningful actions” to address these problems.

HUD’s specific requirements for the AFH’s will be contained in an “Assessment Tool,” which HUD has not yet finalized. HUD has, however, provided an extended period for public comment on its currently proposed Assessment Tool, with the comment period extending through August 15, 2015. HUD, Affirmatively Furthering Fair Housing Assessment Tool; Solicitation of Comment, 80 Fed. Reg. 42,108 (July 16, 2015).

The actions expected of recipients of federal housing funding will vary, based on their area’s conditions. Among the possible actions are:

  • developing affordable housing, and removing barriers to the development of such housing, in areas of high opportunity;
  • strategically enhancing access to opportunity, including through:
    • targeted investment in revitalization or stabilization of racially/ethnically concentrated areas of poverty (“R/ECAPs”);
    • preservation or rehabilitation of existing affordable housing;
    • promoting greater housing choice within or outside of areas of concentrated poverty and greater access to areas of high opportunity; and
  • improving community assets such as quality schools, employment, and transportation.

24 C.F.R. § 5.150. HUD will provide each applicant with data covering its area, and applicants must use those data to help identify fair housing problems and to set goals and timetables for correcting problems that are within their control. HUD will not approve funding for a jurisdiction that does not submit an acceptable AFH. Applicants must provide opportunities for public participation in the development of the AFH and must submit a new AFH to HUD every five years.

The first required AFH from applicants will be not be until 2017 or later, and none will be required until at least nine months after HUD's publication of the applicable Assessment Tool. The rule, which will apply to both governmental and other applicants for federal housing funding, aims to improve on the current system, under which HUD grantees are required to prepare an Analysis of Impediments (AI) to fair housing choice. That process has been the subject of criticism. See, e.g., Government Accountability Office, HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans, (2010), posted at: http://www.gao.gov/assets/320/311065.pdf