Closed – HUD’s Thirty-Day Public Comment Period for AFH Assessment Tool

The comments below were submitted to HUD at the deadline yesterday 09-20-2016.  They don’t need much of an introduction, except to say such observations could only have only been uncovered by someone suspicious of HUD’s agenda and comments made by someone skeptical of the federal agencies tactics.  I guess that would be me.

HUD provided new revised instructions for the Assessment of Fair Housing (AFH) Tool in a Word document that showed the changes (i.e., Word track changes turned on), but it was necessary to also bring up the previous version in a window and view the changes side-by-side and record the pattern’s of changes to understand the motive of the wizard behind the curtain.

That said, don’t expect many comments, there were very few comments submitted for this 30-day comment period ending May 23.  Invitations (notifications) were sent to 1,194 entitlement communities (grant recipients), and 1,314 Public Housing Authorities, and for example, Civil Rights groups, and other third parties, including myself representing the AFFH.net Opposition Group.

There were 18 replies to the May 23 comment period, click https://goo.gl/i76p3H with 4 from Colorado (including my reply).  So what does this mean?  It means HUD and other federal agencies can get away with anything because there is very little public participation in the codification of federal regulations, i.e., permanent rules and regulations (sometimes called administrative law) published in the Federal Register by the executive departments and agencies, click https://goo.gl/sso0z7.

Following are the comments I submitted yesterday which will be published in the coming weeks:

AFH Assessment Tool Comment for Local Governments

This 30 day comment period is the second iteration of revisions HUD is making since the new AFFH rule was first published July 2015.  Each revision is worse if you believe in the authority of local government.  This revision increases the amount instructions by approximately 40%, from 18 to 25 pages over the previous revision and makes completing a Consolidated Plan much more rigorous and time consuming for entitlement communities.  For example, community participation, analysis using HUD provided data about protected classes and sexual harassment have been added where a simple description was previously required.

The extent of change in this latest revision is too much to describe in detail, however, the following provides a glimpse of what HUD has spent a year perfecting.

1. Inserting into descriptions and propagating the requirement to use “HUD provided data” where a mere description is no longer sufficient.
2. Adding “informed by community participation” requiring the local government to engage with organizations, including many third parties who might very likely file a lawsuit if they don’t believe the local government is doing enough in their opinion to affirmatively further fair housing.  Departing from the previous Analysis of Impediments to the new AFFH rule, HUD does not want to receive a report only compiled by and with the authority of local governments.
3. The phrase “for the jurisdiction and region” has been inserted and propagated throughout the document with the intent of regionalizing federal control as much as possible.

What HUD is not Disclosing about using the AFH Tool

HUD’s hidden weapon

The changes in this revision may not be immediately clear, but keep the following in mind.  Grants such as, HUD’s Community Development Block Grant, CDBG, contain many strict requirements that HUD has been lax about enforcing in prior years.   That is all changing.

• With the new AFFH rule HUD is now aggressively looking more closely at what constitutes a civil rights violation.
• According to HUD, it is “no longer sufficient to use grant money to combat discrimination.  Recipients must now provide proof they are working “proactively” to eliminate it.
• The agency’s new Assessment of Fair Housing, AFH, lists 40 “Contributing Factors” that might create fair housing issues in your community.  HUD expects the local government to find more.  A contributing factor might be as commonplace as “The opposition of community members to proposed or existing developments.”  Your community must create a plan that removes the contributing factors or face penalties.
• Because HUD requires applicants to involve civil rights groups, developers and other community members in defining potential “contributing factors,” their “meaningful participation” creates a legal liability against the community simply by completing the AFH, even if you are not approved for the grant.

To receive funds, applicants must develop a plan that addresses each of the potential areas of discrimination to HUD’s satisfaction, not necessarily that of the community.

Once a jurisdiction or public housing authority accepts a new grant that effect fair housing or urban development, the agency uses the threat of lawsuits and forfeiture of the grant money to gain control of local zoning laws. HUD can then direct local officials’ decisions, and thus coerce the community to join a region.

Statutory Protection from HUD (conceded when accepting grants)

In conclusion and taking these comments to the next level, provision 12711 below should and is intended to prohibit HUD’s intrusion into local government authority, but is lost in the detail and this tool clearly over steps the statutory boundary that defines what HUD shall not do with regard to “jurisdictional duly established authority”.  The Administrative Procedure Act, 5 U.S.C. §§ 701–706 (“APA”), and two other statutory provisions—42 U.S.C. §§ 12705 and 12711— prohibit HUD’s intrusion into local public policy.

TITLE 42 – THE PUBLIC HEALTH AND WELFARE
CHAPTER 130 – NATIONAL AFFORDABLE HOUSING
Sec. 12711. Protection of State and local authority

Notwithstanding any other provision of this subchapter or subchapter II of this chapter, the Secretary shall not establish any criteria for allocating or denying funds made available under programs administered by the Secretary based on the adoption, continuation, or discontinuation by a jurisdiction of any public policy, regulation, or law that is (1) adopted, continued, or discontinued in accordance with the jurisdiction’s duly established authority, and (2) not in violation of any Federal law.

Note that the term “Secretary” means the Secretary of Housing and Urban Development.

This provision should prohibit HUD’s intrusion into local public policy and is a factor clearly intended by Congress for HUD to consider in awarding grants.

The good news for local governments should be (but isn’t) that their application is not weakened by omitting references required by the tool when applying for grants.  On one hand this provision precludes HUD from requiring a jurisdiction to change its local policies—including its zoning laws—and on the other hand, omitting references required by the tool cannot be used by HUD to disqualify local government funding.
(reference: United States Court of Appeals, Second Circuit, COUNTY OF WESTCHESTER, Plaintiff–Appellant, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, i.e., Community Planning and Development Formula Grant Programs (“CPD funds”).

Using HUD’s own words regarding AFFH grants, recently when asked the question in an AFFH FAQ “Is HUD abandoning community revitalization and emphasizing disinvestment in areas of a community where residents are exposed to segregation or racially or ethnically concentrated areas of poverty?”, HUD’s reply regarding “community revitalization and emphasizing disinvestment” is:

“The duty to affirmatively further fair housing does not dictate or preclude particular investments or strategies as a matter of law.”

In conclusion, a word of warning is that local government should expect contradictory direction when seeking counsel from HUD about the Administrative Procedures Act and this provision where HUD’s authority is restricted.  In HUD’s own documentation about AFFH, HUD makes the following contradictory statements:

“This rule does not impose any land use or zoning laws on any government.”

However, a few paragraphs later:
“HUD will assist recipients to adjust their land use and zoning laws to meet their legal obligation …”

In summary, local governments should take the above Supreme Courts advice that “the receipt of federal funds is a consensual matter: the grantee weighs the benefits and burdens before accepting”  and any criteria such as defining investment objectives should not be used for planning purposes using HUD funds made available under the SCI grant program.

Smith Young
www.affh.net
President, AFFH.net Opposition Group