NCSHA Submits Comments to HUD on Affirmatively Furthering Fair Housing

Today is the deadline for stakeholders to submit comments to the Department of Housing and Urban Development (HUD) on its 2023 overhaul of the Affirmatively Furthering Fair Housing (AFFH) regulations. The proposed rule, issued in January, would build upon the 2015 AFFH rule adopted under the Obama Administration. The Trump Administration suspended implementation of the 2015 rule and later promulgated a final rule — the Preserving Community and Neighborhood Choice (PCNC) rule — repealing and replacing the 2015 AFFH rule. The Biden Administration in 2021 repealed the PCNC rule and restored certain aspects of the 2015 AFFH rule, announcing it would reexamine the 2015 rule and develop a new rule in its place.

In its submitted comments, NCSHA applauds HUD for repealing the 2020 PCNC rule, which we believe would not have resulted in meaningful planning and strategies to meet the statutory obligation to affirmatively further fair housing, and for seeking to streamline and improve the 2015 AFFH rule rather than reinstating it without critical examination and revisions to reduce its substantial burden on HUD program participants. In general, NCSHA believes HUD has taken substantial steps towards improving the process for fair housing planning. However, NCSHA also believes HUD can and should do more to further streamline aspects of the rule, clarify program participants’ responsibility, and reduce duplication of efforts and better coordinate planning when different HUD program participants serve the same geographic areas.

Highlights of our comments follow:

• HUD should align its expectations with program participants’ ability to effect change. In particular, some of the most impactful policy changes to facilitate fair housing are local zoning, permitting, and taxation policies, all of which states have limited ability to affect.
• HUD should acknowledge the unique challenges of fair housing planning in rural areas, especially when data is less robust than it is in other areas. It is important that fair housing planning not result in disincentives for states to invest in rural areas, even if those areas do not have the community assets available to other more urban areas.
• HUD should clarify how state program participants can work with local program participants, including both local governments and public housing authorities, to submit joint equity plans when these entities serve the same geographic areas. Joint equity plans potentially could reduce duplication of efforts and allow for better coordination of resources towards common goals. HUD should provide technical assistance and further flesh out how joint equity plans could be conducted.
• HUD should give states the option of conducting their analysis using Public Use Microdata Areas (PUMAs) as an alternative to a county-by-county approach. PUMAs are non-overlapping, statistical geographic areas that partition each state into geographic areas containing no fewer than 100,000 people and are used by the U.S. Census Bureau for the tabulation and dissemination of decennial census and American Community Survey data. Because the building blocks of PUMAs are census tracts, they can be ideal for planning purposes but are not necessarily consistent with county boundaries.

NCSHA’s letter also urges HUD to provide a crosswalk between the content requirements for the Equity Plan and the respective data provided by HUD, to better integrate AFFH with other HUD planning efforts, and not to require state program participants to conduct an analysis beyond their state borders.