Federal Judge Dismisses AFFH Lawsuit, HUD Moves Forward with Amending Fair Housing Rule

Late last month a federal judge dismissed a lawsuit brought by fair housing advocacy groups asking for a preliminary injunction against HUD for withdrawing the Local Government Assessment Tool (Assessment Tool). Communities have been required to use the Assessment Tool to complete their Assessment of Fair Housing (AFH) and determine whether they are in compliance with the 2015 Affirmatively Furthering Fair Housing (AFFH) Rule. The 2015 AFFH Rule was designed to push communities to comply with a little-enforced provision in the 1968 Fair Housing Act that called on local governments to end residential segregation. The plaintiffs alleged that when HUD withdrew the online assessment tool, it effectively dismantled the AFFH Rule and therefore violated the Fair Housing Act. However, the court found that the plaintiffs did not have standing in the case.

HUD recently published a notice inviting public comments on further amendments to its AFFH regulations that are intended to: minimize regulatory burden while more effectively aiding program participants to meet their statutory obligations; create a process focused primarily on accomplishing positive results, rather than analysis; provide for greater local control and innovation; seek to encourage actions that increase housing choice, including through greater housing supply; and more efficiently utilize HUD resources. An article in The New York Times explores the potential impact of HUD Secretary Ben Carson’s plans to reform enforcement of the Fair Housing Act on the agency’s efforts to spur construction of mixed- income affordable housing across the country. Secretary Carson recently announced that the agency is planning to approach fair housing through the lens of expanding housing supply in general, rather than by addressing racially segregated housing patterns in particular. However, while most housing advocates agree that expanding the supply of affordable housing is critical, many are skeptical that lessening the focus on racial discrimination will still be aligned with the goals of the Fair Housing Act. The article notes that local policy decisions, driven by the demands of existing residents in communities, are restricting development in many neighborhoods, maintaining segregation and making it difficult to meet affordable housing needs.

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