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HUD Replaces Affirmatively Furthering Fair Housing Rule with Preserving Community and Neighborhood Choice Rule

Published on July 23, 2020 by Jennifer Schwartz
HUD Replaces Affirmatively Furthering Fair Housing Rule with Preserving Community and Neighborhood Choice Rule

On July 23, HUD issued a new Preserving Community and Neighborhood Choice final rule, which repeals the 2015 Affirmatively Furthering Fair Housing final rule and the 1994 Analysis of Impediments requirements, returning to HUD’s pre-1994 understanding of the 1968 Fair Housing Act’s obligation to affirmatively further fair housing. The Preserving Community and Neighborhood Choice rule requires HUD grantees to certify they will use HUD funds to take active steps to promote fair housing. HUD will deem sufficient a grantee’s certification so long as the grantee proposes to take any action above what is required by statute to promote the attributes of fair housing. The rule defines fair housing as “housing that, among other attributes is affordable, safe, decent, free of unlawful discrimination, and accessible under civil rights laws.” The final rule is not subject to public notice or comments and will be effective 30 days after its publication in the Federal Register.

In the final rule, HUD states:

“The phrase ‘affirmatively furthering fair housing’ is vague and unclear. The ordinary meaning of the phrase does not invite a fundamental expansion of HUD regulations to include cumbersome policy, monitoring, or reporting requirements that will significantly affect the economy by impacting local zoning and development policies across the nation. Hanging a massively intrusive regulatory structure on such a cryptic, four-word phrase is inconsistent with the bedrock principles of separation of powers.”

The new final rule does not adopt the approach outlined in a proposed rule HUD published in January on which NCSHA submitted comments. That proposed rule would have required grantees to submit certifications that they would affirmatively further fair housing by addressing at least three factors, some or all of which could be from a list of possible factors HUD determined were common barriers to fair housing choice. The new final rule requires fair housing planning to be part of HUD program grantees’ annual Consolidated Plans.