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Review of Selected Critical Comments on HUD’s Proposed AFFH Rule

This is a one of a kind assessment by the left wing organization Lawyers Committee for Civil Rights Under Law, clearly using insider information, attempting a fair assessment of the feedback to HUD during the 30-day comment period after the AFFH rule became official when posted on the federal register July 16.  Some of us would like an opportunity to make our own assessment with the same information, but nevertheless following is what is espoused as a summary.

click: “Review of Selected Critical Comments on HUD’s Proposed AFFH Rule

summarizing public comments, including those critical of HUD’s Proposed Rule on the duty to AFFH. The first, relatively brief, section, summarizes comments from various comparatively small stakeholders. The second section contains synopses of comments submitted by national organizations as well as some large players like New York City and the High-cost Cities Housing Forum.
Most commenters who represented organizations or state or local government agencies did not take the approach of declaring their opposition to the rule. Instead, the most common approach was to (1) not express general support for the Proposed Rule, (2) solely include criticism without accompanying praise, and (3) ask that HUD issue an Interim Rule rather than a Final Rule. A letter by the National Association for County Community and Economic Development (NACCED) and the National Community Development Association (NCDA), which was endorsed by the U.S. Conference of Mayors, the National Association of Counties, and the National
Association of Local Housing Finance Agencies, provided the most common talking points that turned up in the comments of states and localities. It is worth noting that the NACCED/NCDA letter – unlike many of the copycats – praised HUD for clarifying the duty to AFFH, but the criticisms in the letter still present the best vehicle for assessing opposition to the Proposed Rule. Prominent points in the letter include:
• The argument that Consolidated Plan programs inherently AFFH;
• The concern that HUD is attempting to impose requirements that go beyond what the Fair Housing Act demands;
• The role of purely private choice in establishing existing residential patterns;
• The concern that the HUD’s data driven approach might not work in states where very few people of color reside (e.g., Vermont, Maine, etc.);
• A request for an Interim Rule rather than a Final Rule;
• A request to fully integrate the AFH into the Consolidated Plan;
• Criticism of the requirement to consider data relating to issues other than but still related to housing such as education and transportation;
• The lack of control that program participants may have over barriers to fair housing in their communities (e.g, the inability of the entitlement jurisdiction to control the PHA);
• A call for CPD rather than FHEO to have responsibility for the AFH process;
• A call for the data criteria to be colorblind; and
• The need for more examples of issues, determinants, and goals.
The National Association of Housing & Redevelopment Officials (NAHRO) also submitted a comment letter with critical talking points that many PHAs incorporated into their comments. At this point, I have not been able to find NAHRO’s actual letter. Here is a sampling from one of the copycat submissions: the Okolona (MS) Housing Authority commented that the Proposed Rule failed to acknowledge the scarcity of PHA resources, imperiled any future investment in RCAPs, lacked a safe harbor for program participants whose AFHs had accepted, and could make it harder for local development proposals to score well under state QAPs because of higher land acquisition costs in high opportunity areas.  Here is a brief run-down of other critical comments:
• The right-wing Center for Equal Opportunity (Roger Clegg’s organization) urged that all AFFH efforts be colorblind.
• The Public Housing Authorities Directors Association commented on HUD’s lack of authority under the Fair Housing Act to require program participants to address concentrated poverty and disproportionate housing needs, the risk that the AFH process will undermine the investigation and enforcement of traditional individual discrimination complaints, unrealistic submission timetables that will be costly to comply with, and potential unintended consequences of compliance (e.g., accelerated gentrification and displacement, fewer total program beneficiaries because of the need to invest in high opportunity areas).
• The City of Seattle asked for clarification that investment in low-income communities of color is acceptable, requested syncing the AFH with the Consolidated Plan, and asked that it be allowed to use locally-generated data.
• The Erie, Pennsylvania Department of Economic and Community Development commented that the AFH submission deadline of 270 days before the Consolidated Plan was unrealistic and would force program participants to hire consultants instead of conducting AFHs in-house.
• The North Bend and Coos-Curry (OR) Housing Authorities commented that small rural PHAs in areas without entitlement jurisdictions do not have the capacity to conduct AFHs.
• The State of Minnesota criticized proposals for PHA-Consolidated Plan coordination, argued that the administrative costs of the Proposed Rule would be high, and argued that states have little to no control over localities.
• The State of North Dakota commented that the Proposed Rule betrayed a lack of understanding of rural housing issues and that the data tool was not relevant to rural areas.
• The Pennsylvania Department of Community & Economic Development commented on the high cost of administrative compliance, the “ineffective” nature of Moving to Opportunity-type programs, and the requirement of consideration of factors that are not mentioned in the Fair Housing Act.
• Pinellas County, Florida expressed concern that a local impediment such as a consortium participant’s zoning ordinance would affect the entire consortium’s funding and asked that HUD identify impediments or determinants for the program participants since HUD has the data already.
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