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Affirmatively Furthering Fair Housing (AFFH)
Millions of families across the country struggle to find safe, decent, and affordable housing. Even when such housing is available, these units may not be located in areas with access to schools that serve student needs; good jobs; and easily accessible, reliable public transit options. The obligation to affirmatively further fair housing (AFFH) requires federal agencies and certain federal funding recipients to take proactive steps to address longstanding patterns of segregation, discrimination, and disinvestment. This page provides a basic introduction to the AFFH obligation, and will be periodically updated.
The Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., as amended, prohibits housing discrimination on the basis of race, color, religion, sex, familial status, national origin, and disability. However, the FHA does more than simply prohibit housing discrimination. The original FHA text instructs the HUD Secretary to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further” the policies of the FHA. 42 U.S.C. § 3608(e)(5). Importantly, other federal agencies (including the Treasury Department and the U.S. Department of Agriculture) also have affirmatively furthering fair housing obligations with respect to their “programs and activities relating to housing and urban development.” 42 U.S.C. § 3608(d).
However, the AFFH obligation extends beyond federal agencies. Recipients of certain types of federal funds—including state governments, insular areas, local governments, and public housing agencies (PHAs)—are subject to the AFFH mandate. Because of this obligation, federal funding recipients have been required to certify that they are affirmatively furthering fair housing. As part of the AFFH certification, previous HUD regulations required that its funding recipients take actions such as: (1) completing an Analysis of Impediments (AI); (2) taking steps to overcome the effects of identified impediments; and (3) keeping records of the analysis and actions taken to overcome the effects of the identified impediments. See, e.g., former 24 C.F.R. 91.225(a)(1) (Consolidated Plan regulations for local governments).
As outlined in a 2010 U.S. Government Accountability Office report, the AI process featured shortcomings that limited its effectiveness. For example, HUD did not require its funding recipients to submit their AIs to HUD for review as a matter of course. Because the AI process was not successfully achieving its intended purpose, in 2013, HUD proposed a regulation that would, among other changes, replace the AI with a more structured fair housing planning assessment that would be more directly linked to existing planning processes such as the PHA Plan and the Consolidated Plan.
AFFH Final Rule
In July 16, 2015, HUD published its AFFH Final Rule (AFFH Rule). It is important to remember that while the AFFH Rule is new, the AFFH obligation is not, as the AFFH obligation has its roots in the FHA text. Through the final AFFH Rule, HUD states that it is providing HUD funding recipients “with an approach to more effectively and efficiently incorporate into their planning processes the duty to affirmatively further the purposes and policies of the Fair Housing Act.” Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272, 42,272 (July 16, 2015). Put another way, the AFFH Rule is intended to assist HUD funding recipients in more fully complying with their longstanding AFFH obligations.
Specifically, AFFH Rule introduces a fair housing planning framework that will be incorporated into the existing Consolidated Plan and PHA Plan processes. Doing so will bridge fair housing planning to the investment and policy decisions that are made within these existing planning processes. A jurisdiction or PHA’s failure to complete and submit an AFH that is accepted by HUD could result in the delay or loss of HUD funds. See 24 C.F.R. § 5.162(d).
Major features of the AFFH Rule include
• Replacing the analysis of impediments (AI) with the Assessment of Fair Housing (AFH);
• Required HUD review and acceptance of the AFH as a condition of receiving HUD funds;
• Endorsing a “balanced approach” to affirmatively furthering fair housing by acknowledging that both place-based and mobility-based strategies can be consistent with the AFFH obligation;
• HUD’s provision of national, uniform data to better inform fair housing planning;
• Requiring meaningful community participation throughout the AFH process;
• Requiring funding recipients to engage in both local and regional fair housing analyses; and
• Encouraging HUD funding recipients to collaborate to submit joint or regional AFHs.
See also 80 Fed. Reg. 42,272, 42,273 (AFFH Rule preamble describing major provisions). A detailed summary of the AFFH Rule can be found in Section 18.104.22.168.3.1 of the 2016 Supplement to NHLP’s HUD Housing Programs: Tenants’ Rights.
The AFFH Rule became effective on August 17, 2015. Final implementation is ongoing, as the first AFHs were due in October 2016. Different HUD funding recipients (local governments, PHAs, insular areas, states) will be submitting their first Assessments of Fair Housing (AFHs) over the next several years. Please refer to NHLP’s AFFH Implementation Update (available below) for more information about HUD’s recently taken steps to implement the AFFH Rule.
While AFFH seems like a big-picture discussion, the implementation the final AFFH Rule can have tangible, on-the-ground effects for states, regions, and local communities. Therefore, as stakeholders prepare to engage in the AFH process, the dialogue should touch on questions such as: whether a PHA’s payment standard is sufficient such that voucher holders have realistic housing options in low-poverty areas; where new affordable housing units are needed; how to prevent involuntary displacement of current tenants and residents living in affordable housing; where investments in transportation and neighborhood amenities should be made; and others.
Affirmatively Furthering Fair Housing Basics: A Q&A
Q: What does the AFFH Final Rule (issued in 2015) do?
A: The AFFH Rule creates a new fair housing planning process intended to assist HUD funding recipients in assessing their compliance with longstanding obligations to affirmatively further fair housing choice. This new fair housing planning process, called the Assessment of Fair Housing (AFH), replaces the old Analysis of Impediments (AI) process.
The AFFH Rule requires jurisdictions and public housing authorities (PHAs) across the country to use the AFH process to examine barriers to fair housing choice and access to opportunity within their jurisdictions/service areas and regions. Specifically, HUD funding recipients complete a series of questions focused on fair housing issues including segregation/integration; racially and ethnically concentrated areas of poverty; disparities in access to opportunity; and disproportionate housing needs, and how these fair housing issues relate to individuals and families protected by the FHA. HUD funding recipients must consider HUD-provided data and maps, as well as locally obtained information, in answering the required questions. Ultimately, the objective of the AFH is to formulate locally- and regionally-driven goals that will eventually overcome those factors that are creating or perpetuating the above fair housing issues. These goals will inform decisions made in subsequent planning processes such as the Consolidated Plan and the PHA Plan.
Importantly, jurisdictions and PHAs must submit their AFHs to HUD for review and acceptance. This differs from the AI process, where funding recipients generally did not submit their AIs to HUD for review.
The AFFH Rule incorporates the AFH into broader existing planning processes, including the Consolidated Plan and the PHA Five-Year Plan. Failure to submit an AFH that is accepted by HUD could impact the receipt of HUD funds, including the loss of funding.
Note that successful completion of the AFH process does not necessarily mean that a jurisdiction has met its obligation to affirmatively further fair housing; instead, successful completion of the AFH simply means that the jurisdiction or PHA has met its obligations under the AFFH Rule.
Q: What entities have to complete an AFH?
A: The AFFH Rule, 24 C.F.R. § 5.154(b), states that the following recipients of HUD funds must submit an AFH to HUD:
(1) Jurisdictions (states, local governments) and Insular Areas that must submit a Consolidated Plan for the following programs:
- Community Development Block Grant (CDBG)
- HOME Investment Partnerships (HOME)
- Housing Opportunities for Persons with AIDS (HOPWA)
- Emergency Solutions Grants (ESG);
(2) PHAs that receive funding under Sections 8 or 9 of the United States United States Housing Act of 1937.
Q: What do HUD funding recipients, including jurisdictions and housing authorities, have to do as part of this AFH process?
A: Jurisdictions and housing authorities must fill out an AFH Assessment Tool, which asks a series of questions concerning fair housing choice and barriers to opportunity for groups protected by the Fair Housing Act. To help answer these questions, HUD is providing online data and maps that contain information about a range of topics such as concentrations of poverty, segregation, environmental hazards, and access to high-performing schools. These data and maps are based upon nationally available datasets.
Specifically, the AFFH Rule requires jurisdictions and PHAs to assess fair housing issues (including segregation/integration, racially and ethnically concentrated areas of poverty, disparities in access to opportunity, and disproportionate housing needs). Then, the AFFH Rule requires jurisdictions and PHAs to identify “contributing factors,” which are defined as factors that “create, contribute to, perpetuate, or increase the severity of one or more fair housing issues.” 24 C.F.R. § 5.152. The jurisdiction or PHA must also set priorities, justify those priorities, and engage in goal-setting to overcome the effects of identified contributing factors and their associated fair housing issues.
As jurisdictions and housing authorities develop the AFH, they must engage residents and organizations in the community and region. Communities and housing authorities are required to consider the information and input they receive from residents and others who are interested in this process. These pieces of information are referred to as “local data” and “local knowledge” in the AFFH Rule.
Note that jurisdictions and PHAs must hold at least one public hearing about the AFH and accept public comments on the draft AFH. The specific community participation requirements differ slightly between PHAs and jurisdictions. HUD has created two fact sheets – linked to below under the heading “HUD Community Participation Fact Sheets”-that more fully discuss the specific requirements.
Q: How does HUD define “local data” and “local knowledge”?
A: The terms “local data” and “local knowledge” are defined in 24 C.F.R. § 5.152.
“Local data” includes “metrics statistics, and other quantified information, subject to a determination of statistical validity by HUD, relevant to the [funding recipient’s] geographic areas of analysis, that can be found through a reasonable amount of search, are readily available at little or no cost, and are necessary for the completion of the AFH.”
HUD makes clear in the AFFH Rule preamble that, by using the phrase “subject to a determination of statistical validity by HUD,” HUD is reserving the right to reject local data that it finds to be invalid, but is not saying that it will conduct a “rigorous statistical validity test for all local data.” 80 Fed. Reg. 42,272, 42,306.
“Local knowledge” is a very broad term and includes “information to be provided by the program participant that relates to the participant’s geographic areas of analysis and that is relevant to the program participant’s AFH, is known or becomes known to the program participant, and is necessary for the completion of the AFH.”
Q: Is the AFFH Rule turning over zoning and other local decisions to HUD?
A: No. This is a misconception about the AFFH Rule.
In fact, the AFFH Rule, and the AFH process, are firmly rooted in state, regional, and local circumstances. The goals that emerge from this AFH process are jurisdiction-specific; this is why HUD requires jurisdictions and housing authorities completing the AFH to consider local data and local knowledge, including such data and knowledge obtained through community participation. The AFH process is grounded on the premise that the persons who know their communities best are those who reside there. That said, zoning and other laws, policies, and practices cannot run afoul of the Fair Housing Act or other civil rights laws. The AFFH Rule does nothing to change those existing legal requirements; instead, the Rule requires HUD funding recipients to engage in a meaningful assessment of the extent to which their existing laws, policies, and practices are meeting their longstanding duty to affirmatively further fair housing. The Rule itself does not specify specific goals or strategies that must be taken to address identified fair housing barriers.
As HUD states in the preamble to the AFFH Rule (80 Fed. Reg. 42,272, 42,309):
HUD agrees that determinations about the goals, priorities, strategies, and actions that a community will take to affirmatively further fair housing should be made at the local level. This rule does not impose any land use decisions or zoning laws on any local government. Rather, the rule requires HUD program participants to perform an assessment of land use decisions and zoning to evaluate their possible impact on fair housing choice. This assessment must be consistent with fair housing and civil rights requirements, which do apply nondiscrimination requirements to the land use and zoning process. However, this rule does not change those existing requirements under fair housing and civil rights law. Instead, the purpose of this assessment is to enable HUD program participants to better fulfill their existing legal obligation to affirmatively further fair housing, in accordance with the Fair Housing Act and other civil rights laws.
Q: I’m a legal services attorney/housing advocate. How does the AFFH regulation relate to my work?
A: The AFH process presents an important opportunity to voice your views about how policies and practices that impact the populations you serve either advance or deny fair housing choice. For example, if overly restrictive criminal records policies, source of income discrimination, unequal municipal services and infrastructure, lending discrimination, lack of investment in underserved neighborhoods, and other policies and practices impact your clients, the AFH process provides an opportunity for affected populations and their advocates to raise these concerns. Advocates who serve public housing residents and Voucher holders should consider evaluating planning documents such as the Admissions and Continued Occupancy Policy (ACOP) or the Administrative Plan in order to use the AFH process to raise concerns about PHA policies that adversely affect your clients who belong to FHA-protected classes.
Additionally, given the importance of community input in this process, advocates will play a key role both in both helping shape the AFH itself, and also serving as a bridge between the AFH process and the communities you serve. Jurisdictions and PHAs must consider your feedback, and if your feedback is not incorporated, the final AFH must explain why. See 24 C.F.R. § 5.154(d)(6).
Q: I am a tenant/resident. How does the AFFH regulation affect me?
A: The AFH process will play a key part in identifying barriers to fair housing choice and access to community assets such as good schools, public transportation, and jobs.
Barriers to fair housing choice can include discrimination by housing providers, lack of public investment, or lack of access to high-performing schools. Based on the assessment, communities and housing authorities will develop goals to address these barriers.
Importantly, the AFH process has the potential to affect future funding and policy decisions at the local and regional level. For example, the AFH could influence the decisions a locality makes about what neighborhoods receive investment dollars, and which do not. These funding and policy decisions affect communities and residents directly.
The AFH requires jurisdictions and housing authorities to consider the input you provide, and so it is very important to voice your opinions about what you like about your community and what could be improved upon. Your feedback about current laws, policies, or investment decisions will be crucial to ensuring that the goals resulting from the AFH process promote greater opportunities for all families in the jurisdiction and region – particularly those families who historically have been denied housing and other opportunities.
Q: Why is community involvement important to this process?
A: Community involvement is key to providing an inclusive, meaningful AFH that represents the experiences and feedback from a wide range of community stakeholders, especially members of protected classes under the Fair Housing Act. Providing information about what is working and what is not in communities helps identify where changes need to be made, and where good policies or practices should continue.
The data and maps that jurisdictions and PHAs will review in completing their AFHs provide important and useful information. However, these data sources cannot tell the whole story of your community, region, or state. These datasets and maps do not account for insights that cannot be easily captured by national data sets: For example, do current transit routes connect residents with the places they need to go, such as school, places of worship, retail, and work? Do schools in my neighborhood adequately serve the needs of local children? Do landlords in a particular jurisdiction accept Section 8 vouchers? Why are large families in a particular area having difficulties locating housing?
Recognizing that the HUD-provided data and maps do have limitations, HUD also requires jurisdictions and PHAs to consider local data and local knowledge. The community participation element of the AFH process is an important source for such local data and local knowledge.
Q: Does affirmatively furthering fair housing mean that investments
—including investments in affordable housing—cannot be built in historically disinvested areas?
A: No. The AFFH Rule endorses what it terms a “balanced approach.” A balanced approach means that both mobility-based strategies (reducing barriers for families who wish to move to lower poverty areas) and place-based strategies (promoting economic development in historically disinvested areas) can be consistent with the duty to affirmatively further fair housing. The appropriate “balance” of these strategies is based upon local and regional circumstances.
The AFFH Rule preamble states that the “duty to affirmatively further fair housing does not dictate or preclude particular investments or strategies as a matter of law.” 80 Fed. Reg. 42,272, 42,279. The preamble notes that a balanced approach “would include, as appropriate, the removal of barriers that prevent people from accessing housing in areas of opportunity, the development of affordable housing in such areas, effective housing mobility programs and/or concerted housing preservation and community revitalization efforts, where any such actions are designed to achieve fair housing outcomes.” 80 Fed. Reg. at 42,279. The preamble does note that fair housing issues could arise if a funding recipient relies "solely on investment in areas with high racial or ethnic concentrations of low-income residents to the exclusion of providing access to affordable housing outside of those areas.” 80 Fed. Reg. at 42,279 (emphasis added). The preamble continues:
"For example, in areas with a history of segregation, if a program participant has the ability to create opportunities outside of the segregated, low-income areas but declines to do so in favor of place-based strategies, there could be a legitimate claim that HUD and its program participants were acting to preclude a choice of neighborhoods to historically segregated groups, as well as failing to affirmatively further fair housing as required by the Fair Housing Act."
Furthermore, the preamble states that place-based and mobility-based strategies are not necessarily mutually exclusive.
Q: What happens to the Analysis of Impediments (AI)?
A: The AI is being replaced by the AFH. However, until a program participant’s first AFH is due, HUD funding recipients must comply with the AI requirements that existed before the effective date of the AFFH Rule. See 24 C.F.R. §§ 5.151; 5.160(a)(3).
Q: What are some ways to get involved in the AFH process?
A: There are a number of ways to get involved in the AFH process. Advocates, residents/tenants, and other stakeholders are encouraged to begin participation as early as possible to ensure your input is included at various points in the AFH’s development. For more information, please see the Advocate Checklist included in the NHLP AFFH Resources section below. Ways to get involved in the AFH process include actions such as:
• Reaching out to your local jurisdiction or housing authority and finding out important information about the AFH process, including:
Whether the jurisdiction or PHA is entering into a joint/regional submission, which can affect the AFH due date;
Confirmation of the AFH due date;
A projected timeline for the AFH process, including when a draft AFH can be expected;
Whether the applicable citizen participation plan has been updated, and if not, when such an update can be expected (jurisdictions only)
• Working with other residents, community advocates, and other stakeholders to ensure that the AFH reflects a true snapshot of your community;
• Attending public meetings, listening sessions, and hearings about the AFH process; and
• Reviewing the AFH draft and providing input by writing a letter or speaking at a meeting or hearing.
Affirmatively Furthering Fair Housing Rule: HUD Resources
AFFH Final Rule (July 2015)
This document includes the text of the final AFFH Rule and the preamble. In the preamble, HUD responds to public comments and provides additional valuable context for various provisions in the final AFFH Rule.
Affirmatively Furthering Fair Housing Rule Guidebook (December 2015)
This Guidebook provides guidance to HUD funding recipients about the AFH process. Note that Section 5 of this guidance is geared toward funding recipients using the Local Government Assessment Tool to complete their AFHs.
Even though the Guidebook is written for HUD funding recipients, this guidance includes helpful discussions about topics of interest to advocates such as community participation and goal-setting in the context of the AFH process. Advocates may find the Guidebook to be a useful resource to cite to in advocacy efforts such as comment letters.
The HUD AFFH Data and Mapping Tool provides a series of maps and tables that HUD funding recipients will be using to complete their AFHs. Currently, the Data and Mapping Tool only contains maps and tables for local jurisdictions that are required to submit an AFH.
HUD AFFH FAQs (September 2016)
HUD has developed a series of FAQs, arranged by topic, on its HUD Exchange website. Note, however, that these FAQs are written for jurisdictions and PHAs that have to conduct an AFH. These FAQs are searchable by keyword.
HUD AFFH Field Points of Contact (Per Region) (Published in 2016)
HUD Community Participation Fact Sheets
These fact sheets provide quick reference resources outlining community participation requirements for PHAs and jurisdictions, and include relevant citations.
The AFFH section of the HUD Exchange website serves as HUD’s clearinghouse of HUD-issued resources and announcements related to implementation of the AFFH rule.
Anyone interested can also find out information about signing up for HUD’s AFFH e-mail mailing list here.
This guidance was issued by HUD’s Office of General Counsel, and discusses potential fair housing implications that may arise when nuisance and crime-free ordinances are enforced, particularly against groups such as domestic violence survivors and other victims of crime. Notably, this guidance states, on pages 11-12, that one step a local government could make toward meeting its AFFH obligations “is to eliminate disparities by repealing a nuisance or crime-free ordinance that requires or encourages evictions for use of emergency services, including 911 calls, by domestic violence or other crime victims.”
Affirmatively Furthering Fair Housing Rule: NHLP Resources
AFFH Implementation Update (October 2016)
This update outlines the steps that HUD has taken to implement the AFFH Rule, and includes citations and links to additional HUD resources.
AFFH Glossary (October 2016)
This resource defines several key terms related to the AFFH rule.
Advocate Checklist (November 2016)
This resource provides a series of considerations for advocates to think about as they prepare to engage in the AFH process.
Select NHLP Presentations on Affirmatively Furthering Fair Housing
This presentation provides a basic overview of the legal framework concerning the duty to affirmatively further fair housing, an overview of the AFFH final regulation, and an introduction to the AFH Assessment Tool. Additionally, this presentation also introduces the AFFH Rule’s community participation requirements.
This presentation examines the AFH Assessment Tool for Local Governments (issued in December 2015) in-depth; provides an overview of the AFFH Data and Mapping Tool; and builds upon Part I’s discussion of community participation by detailing the community participation and consultation requirements under the AFFH Rule.
Language Access and Housing (May 2016)
This presentation for the National Language Access Advocates Network (N-LAAN) includes a discussion of how the AFFH rule can be used as a tool for advocacy on behalf of limited English proficient (LEP) populations. This presentation identifies the HUD-provided maps and data concerning LEP populations that HUD will be requiring jurisdictions and PHAs to consider in their AFHs.
This presentation comprised part of a broader panel at the 2016 National Legal Aid & Defender Association Litigation and Advocacy Leaders Conference. The focus of the discussion was how the AFH provides a new opportunity for cross-sector approaches to addressing policies and practices that perpetuate systemic inequities.
Select NHLP Comment Letters Related to AFFH
Included below are a series of NHLP comments regarding the AFFH Rule and its implementation.
Assessment Tool Comments
NHLP Comments on Local Government Assessment Tool Renewal: 30-Day Notice (September 2016) | Federal Register Notice (August 2016)
NHLP Comments on Local Government Assessment Tool Renewal: 60-Day Notice (May 2016) | Federal Register Notice (March 2016)
NHLP Comments on Draft PHA Assessment Tool: 30-Day Notice (October 2016) [link to document] | Federal Register Notice (September 2016)
NHLP Comments on Draft PHA Assessment Tool: 60-Day Notice (May 2016) | Federal Register Notice (March 2016)
NHLP Comments on Draft State/Insular Area Assessment Tool: 30-Day Notice (October 2016) | Federal Register Notice (September 2016)
NHLP Comments on Draft State/Insular Area Assessment Tool: 60-Day Notice (May 2016) | Federal Register Notice (March 2016)
AFFH Proposed Rule Comments
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