HUD Comment Letter on Reducing the AFFH Regulatory Burden

Ariel Pereira
Associate General Counsel for Legislation and Regulations
Regulations Division
Office of General Counsel
Department of Housing and Urban Development
451 7th Street SW., Room 10276
Washington, DC 20410-0001

RE: Docket No. FR-6030-N-01 Reducing Regulatory Burden: Enforcing the Regulatory Reform Agenda Under Executive Order 13777

Dear Ms. Pereira:

Douglas County, Colorado has the following comments in response to the notice of proposed information collection (FR-6030-N-01) entitled “Reducing Regulatory burden: Enforcing the Regulatory Reform Agenda Under Executive Order 13777”, a 30-Day Notice Under Paperwork Reduction Act of 1995, published in the Federal Register on May 15, 2017. Our comments will focus on the excessively burdensome and ineffective regulations that now govern the Fair Housing Act. This includes the Affirmatively Furthering Fair Housing (AFFH) Final Rule and the Assessment of Fair Housing (AFH) Tool, imposed by the Department of Housing and Urban Development (HUD) on grantees who administer Community Development Block Grant (CDBG) funds. Douglas County believes that the final rule and AFH tool create unfunded mandates, increasing the administrative burden on jurisdictions, making it impossible to successfully further fair housing and implement community development programs with HUD grants.

Douglas County is concerned with HUDs reinterpretation of fair housing choice to include access to opportunities and community assets. By using this new rule and tool to impose their perspective of fair housing on local governments, HUD is limiting a community’s ability to respond to the unique needs of their residents. These regulations will interfere with local decision making on many levels including: zoning, capital improvements, and the location of affordable housing.

Douglas County feels so strongly about maintaining local control and resisting federal overreach that we opted out of the CDBG program in June of 2016. The County would re-establish the CDBG program if HUD makes significant changes to return to the original intent of the AFFH rule; with an improved process that allows communities to receive input and be responsive to identified needs without impacting their local control. HUD should focus on developing an AFH tool that provides the guidance and technical assistance necessary to successfully support grantees without influencing what should be a community’s unique analysis. Douglas County is willing to offer solutions to these onerous regulations and if asked, will participate in the Regulatory Task Force charged with identifying agency regulations that should be repealed, replaced or modified as directed in Executive order 13777.

BACKGROUND

In September of 2010, the Government Accountability Office (GAO) issued a study determining HUD should enhance its requirements and oversight of jurisdictions fair housing plans, known as the Analysis of Impediments to Fair Housing Choice (Al). The GAO recommended that “HUD should establish standards for grantees to follow in updating their Als and the format that they should follow in preparing the documents”.

Douglas County agreed with the GAO findings. However, the Obama Administration used HUDs poor performance and lawsuits from advocacy groups to justify implementing a tool to prescribe living patterns and impose their version of balanced communities. Instead of providing clarity and support to grantees overseeing programs, HUD imposed an onerous set of requirements developed in a vacuum, with negligible input from the rural and suburban areas of the U.S.

EXCESSIVELY BURDENSOME REGULATIONS

The Obama administration manipulated the GAO decision, and used it as an excuse to further the administration’s social engineering agenda. Douglas County expressed our concerns each time a revised and more onerous set of AFFH regulations were published in the Federal Register. The AFH tool was promoted as a mechanism to save time, money and decrease the administrative burden of AFFH. Unfortunately, the AFH tool does not accomplish these noteworthy objectives.

HUD estimated it would take 240 hours for an entitlement jurisdiction to complete an AFH. Douglas County maintained, in previous public notice comments, that this estimate was low and would be inadequate to meet the expectations of the AFH. On March 14, 2016, HUD revised the citizen participation plan requirements to reflect the new AFH requirements. With this revision, HUDs estimate of 240 hours to complete the AFH is now woefully inadequate. Douglas County supports a robust and transparent public participation process, and our outreach efforts have consistently exceeded HUD requirements. However, the new AFH participation requirements will further add to the administrative burden currently imposed on grantees. Based on our conservative estimates, 240 hours accounts for only 50% of the time it would take Douglas County to complete the AFH tool.

As it now stands, completing an AFH will be an onerous administrative burden for any grantee stretched thin by current federal requirements. Jurisdictions receiving HUD funds will likely be forced to hire additional staff or a consultant, with no additional administrative allowance from the grants. Consultants estimate a cost of $100,000 to complete an AFH for a large city or county and up to $50,000 for a medium sized city or county. This is more than double the cost Douglas County paid a consultant to complete our 2011 Al, which included a robust citizen participation component.

INEFFECTIVE ASSESSMENT OF FAIR HOUSING

The AFH tool was developed as a one-size fits all reporting instrument that promotes a regional approach, regardless of location, size, density or resources. The urban centric tool is well suited for dense east coast cities, but is largely inappropriate for the mid-western and western portions of the nation with rural and suburban areas like Douglas County. The AFH tool is a grave overreach of the federal government and manipulates the original intent of the Fair Housing Act. Requiring the use of this tool results in an ineffective unfunded mandate that will ultimately lead to diminished local control.

In addition, Douglas County questions why market driven factors are included on the list of contributing factors outlined in the AFH tool. Local governments are limited in their influence over the market, and should not be held accountable through this tenuous connection to an Act that is meant to provide fair and equal access to housing. By including a list of predetermined contributing factors HUD introduces predisposed biases and assumes a fair housing impact that may or may not exist. A mere correlation to contributing factors does not necessarily indicate discrimination or impact housing choice.    HUD’s inclusion of contributing factors in this assessment tool implies barriers that should be left to jurisdictions to independently determine based on local input.

Douglas County, Colorado champions the repeal of the new AFFH regulations as these grant funds provide vital services that help our vulnerable residents succeed. We are willing to participate in developing a clear and reasonable process to AFFH with relevant measures that do not interfere with local control. We suggest HUD include local practitioners as part of the Regulatory Task Force created to evaluate existing regulations. We respectfully request you return to an AFFH process that will not add an unwarranted administrative burden, squelching the autonomy that makes our program responsive, unique and successful.

Thank you for this opportunity to comment.

Sincerely,

Jennifer L. Eby, AICP, Assistant Director of Community and Resource Services
100 Third Street
Castle Rock, CO 80104
jeby@douglas.co.us

cc:
Roger A. Partridge, Chair, Douglas County Commissioner
David A. Weaver, Douglas County Commissioner
Lora L. Thomas, Douglas County Commissioner
Douglas J. DeBord, County Manager
Wendy Holmes, Director of Public Affairs
Terence T. Quinn, AICP, Director of Community Development
Tina Dill, Community and Resource Services Manager