Summarizing Impact of the AFFH Rule, as considered by the Town of Parker

October 11, 2015

Letter Summarizing the Impact of the AFFH Rule

As considered by The Town of Parker, CO

INTENDED AUDIENCE: Colorado elected officials, policy makers, and support staff

PREREQUISITE: A minimal understanding of the new HUD AFFH Rule (suggest www.affh.net/about/ )

RE: /

• Letter of Understanding sent to Mayor and Town of Parker Council Members, October 2, 2015
• Email regarding consent on 4 points of clarification, October 7, 2015

Introduction

The intent of this letter is to provide HUD grantee’s with a jump start for reacting to HUD’s new AFFH rule as finalized as of 8 July pending posting in the federal register 16 July, 2015. The purpose is to share an understanding of how we as a group of citizens have learned, together with the Town of Parker, some of the impacts associated with receiving HUD sub-grants via Douglas County, the signatory of the HUD (CDBG) block grant. Although we believe we have made progress worth reporting here in clarifying the 4 points discussed below, this letter is not conclusive as the town continues to consult with legal counsel.

Our dialog with the town began over a month ago with special thanks to Mayor Waid for his direct involvement in making these contributions possible.

Dear Mayor Waid and Parker Town Council Members,

You’ve now heard from several (7) citizens speak at the podium opposed to the new Housing and Urban Development’s AFFH rule. We believe that together we have made significant progress, but as we continue to discover, the effect of the rule is far reaching. Our accomplishment thus far can be summarized in 4 points of clarification as discussed below.

Initially it was believed by the Town of Parker that the town had no role in accepting federal grants, that the responsibility was delegated to the county where the funds are received and managed as a block grant and then distributed as sub-grants. From a leadership perspective, the general view of receiving sub-grants was that grants are free money with no effect on town operations thereby not posing a hardship.

Clarification point #1

The extent of concern by the Town of Parker regarding private organizations receiving sub-grants is limited to not using grant funds for government operations.

To be clear, we are a motivated group of citizens opposing AFFH and have been inquiring about the role of Parker and the CDBG program because we consider the new AFFH rule a threat, first to the county, the signatory for receiving the block grant, but secondly to the Town of Parker receiving sub-grants. Specifically, the new AFFH tool will impose government processes that will obligate town resources and affect future government operations. The primary objection we have as citizens is the extreme focus placed by the tool on analysis of for the purpose of eliminating “racial imbalances” (this is the federal government’s language, not ours). Using these new tools to receive grants in the future will involve hundreds of hours of local resources analyzing and comparing our local demographic census statistics with regard to race, national origin, English language, and so forth. The long term outcome will be the controlling effect the federal government will have on planning by local governments receiving HUD grant funds.

Early in our investigation, the Town of Parker was informed about Jen Eby (who manages Douglas County HUD grants) that Douglas County is the signatory to the HUD block grant agreement, as are the Town of Parker, like the Town of Castle Rock, and cities of Lone Tree and Castle Pines; all receive sub-grants for sub-groups, but only if they vote yes to approve the group as a recipient. As part of our discovery process:

Clarification point #2

The Town of Parker votes on which community organizations can receive CDBG grants (private organizations). 

The new AFFH rule is a new phenomenon that will change the responsibility of grantee’s for receiving sub-grants that have previously had no impact on town operations. It’s no longer true that subsidies are free with no strings attached. The Town of Castle Rock, a nearby sister town in Douglas County on 18 August voted and declined the grants after making a very close inspection of the AFFH rule and a full understanding about the effect on its community groups. One of our lessons learned is that first, Castle Rock contains over 50,000 residents and large enough to independently vote on whether to receive block grants. Secondly, we learned that the Town of Parker is close to reaching the 50,000 threshold and will be faced with making the same decision. Upon learning the facts about the new rule, as citizens we believe the Town of Castle Rock acted responsibly in voting 5 – 1 against AFFH, thus declining federal grants.

Timing of Major Court Decision

Coincidentally, running in parallel with this discovery process, there has was a major decision, Sunday 25 September, by the Court of Appeals for the Second Circuit Court. Finally a decision has been reached on the long standing case between Westchester County, NY and HUD (www.affh.net/2015/09/30/decision-history-county-of-westchester-v-hud/). There are several lessons to be learned from the court’s decision about obligations for both county and municipalities receiving HUD grants. The first point that needs to be made based on Westchester County’s experience is that the county has learned the hard way that it’s better to decline HUD CDBG funds. The following extract taken from the notes in the Second Circuit Court of Appeals decision is both interesting and relevant for municipalities like the Town of Parker:

Supreme Court stated

This letter documents the first investigation by the Town of Parker into burdens and/or liabilities associated with accepting the grants.   Until now and because the AFFH rule is so new, the Town of Parker has not had that opportunity. In this regard, it’s worth noticing that the win for Westchester County is the courts clarification that there was “no finding” that Westchester engaged in discrimination. This clarification was then followed by the conclusion made by the County Executive.

“This is a big victory for Westchester County,” Astorino said. “This vindicates our fight to protect home rule and local zoning.”

To be clear, it was HUD’s ultimate goal in the lawsuit to find Westchester County guilty of racial discrimination. The take-away from this clarification is that towns, cities, and counties can oppose HUD and the AFFH rule without fear of being falsely accused of discrimination. However, the clarification is perhaps the only upside to the court’s decision. The downside is that the decision is that it demonstrates just how much control the federal government has over grants. In its decision the federal appeals court largely sided with HUD with the following conclusion.

“As a condition for the distribution of millions of dollars in … funds, HUD required the County to analyze whether the zoning laws in some of its municipalities were exclusionary and, if so, to develop a plan to encourage these municipalities to change their laws. When the County did not comply to HUD’s satisfaction, HUD withheld the County’s funding,” the judges wrote in the decision, which agreed with a lower-court finding that the federal agency had the right to withhold the funds.”

As homeowners the issue comes down to property rights and protecting one of our most important assets (aside from our children), and differentiating ourselves from possible future high density housing renters. Local zoning laws, like a double sided blade, can either protect or infringe upon our rights. The town council and the county commissioners are elected to protect our property rights which mean the residents of our current community must judge how well these elected policy makers perform. Since the Town of Parker is a growing community it’s fair for us to ask about future regulations and taxes that could come as a result of growth. It’s not an abstraction to project into the future that the HUD AFFH related regulations could affect home rule. In the past local governments may not have taken much interest in answering questions associated with accepting grants, but now taking the question to the next level, and at the risk of sounding mundane, Mayor Waid and each Town Council member agree with the following pledge:

Clarification point #3

To the best of our ability we will protect property rights of current citizens and our votes on zoning will not result in any additional regulations nor taxes.

The next and final point of clarification not only demonstrates how coercive HUD can be, but also how stealthy. The new rule only became official in July, however, HUD was requiring the Town of Parker to sign an agreement in June prior to the AFFH rule becoming known for complying with HUD’s certification using language in small print affixing “affirmatively furthering fair housing” to the Fair Housing Act. This obligation has now been clarified as follows.

Clarification point #4

The Town of Parker has been informed and [now] recognizes the potential burden associated with accepting HUD grants on behalf of community groups / private organizations.  Specifically, the town is aware of the liabilities and strings attached to the new AFFH rule as agreed upon between the Town of Parker, Douglas County, and HUD in the amendment to participate in the CDBG program June 15, 2015. 

Whether unknowingly or not, and we believe unknowingly, the Town of Parker signed and agreed to comply with AFFH as demonstrated by the following excerpts taken from records of the June 15 Town Council meeting. It’s called certification when a HUD recipient qualifies to receive a grant.

http://www.parkeronline.org/ArchiveCenter/ViewFile/Item/4318

2nd paragraph, Fair Housing

Smith and Rita Young

Reply to:

smithyoung@affh.net

References:
– previous email threads between Mayor Waid and rcsyoung@usa.net, and smithyoung@affh.net
– Proud Parker Patriots Facebook page
– Citizens speaking at the Town of Park public meeting 8 September 2015
– website: www.affh.net