Last week the Treasury Department issued three long awaited civil rights related documents, echoing the 2015 Supreme Court decision in Inclusive Communities Project v. Texas, and emphasizing the applicability of the Fair Housing Act to the Low Income Housing Tax Credit:
1) Revenue Ruling 2016-29 confirms that the LIHTC statute does not require local support or contribution in state LIHTC plans (and the ruling helpfully notes that LIHTC is subject to the Fair Housing Act and its Affirmatively Furthering Fair Housing obligation);
2) Notice 2016-77 indicates that the required preference for a "Concerted Community Revitalization Plan" in projects selected in higher poverty census tracts has to be an actual plan, and must include something more than just the LIHTC project itself (the notice solicits comments by February 10 on what that "more" should include); and
3) a final Title VI regulation to implement the 1964 Civil Rights Act at the Department, which once again omits LIHTC from the list of covered Treasury programs. In spite of this disappointing outcome, the final Title VI regulation does hold open the possibility that LIHTC might be added to the list at a later date, and also states that "the absence of a program or activity from the list does not by such absence limit the applicability of Title VI to that program or activity" (!)
Fair Housing and GSE reform: Also last week, the Federal Housing Finance Agency issued its final "duty to serve" regulation, which includes incentives for Fannie Mae and Freddie Mac to support "residential economic diversity activity" in connection with mortgages on: (1) affordable housing in a high opportunity area; or (2) mixed-income housing in an area of concentrated poverty. See the final rule here (starting at page 173). For more context, see this March 2016 comment letter from civil rights and fair housing groups on the proposed rule.
The Coalition will be hosting Fair Housing Training to include an overview of the ICP v. TDHCA case in late summer or early fall. Stay tuned!