Community Development

Federal Judge Dismisses AFFH Suit

~ Tushar Gurjal ~ Leave a comment

In an opinion published on Friday, a federal judge dismissed a suit brought by several fair housing organizations. The fair housing groups wanted HUD to reinstate the local government assessment tool as part of the Affirmatively Furthering Fair Housing (AFFH) process. The court found that the groups did not meet the requirements to sue and that even if they did, HUD should not be required to reinstate the local government tool.

After providing background information and describing the relevant law, the opinion discussed three issues. First, whether the fair housing groups had standing (i.e., met the legal requirements to sue); second, whether the fair housing groups were entitled to a preliminary injunction reinstating the assessment tool for local governments; and third, whether New York State could join the suit. The court found that the fair groups lacked standing (i.e., did not meet the legal requirements to bring suit); that even if they had standing, they were not entitled to a preliminary injunction ordering that the local government tool be reinstated; and that New York State could not join the suit.

Fair Housing Groups Lack Standing

The court found that the fair housing groups lacked standing and could not bring a suit. Although the court found multiple reasons why the fair housing groups lacked standing, the court focused most of its analysis on how there was a lack of injury to the fair housing groups by the withdrawal of the local government tool. The court found that the withdrawal of the local government tool did not impair the mission of the fair housing groups because many aspects of the AFFH rule remain in place, including the new community participation requirements, which give the fair housing groups continuing opportunities to participate in a more robust Analysis of Impediments (AI) process. The court also found that withdrawal of the local government tool did not cause a drain of the fair housing groups’ resources because they are engaged in the same types of activities that they were undertaking before the withdrawal of the local government tool and because withdrawal of the tool does not require that the groups spend more on operational costs. Finally, the court also found that the fair housing groups lacked the other elements of standing–causation and redressability.

Fair Housing Groups Not Entitled to a Preliminary Injunction

The court found that even if the fair housing groups had standing, they were not entitled to a preliminary injunction. Again, although there were several reasons why they were not entitled to a preliminary injunction, the court focused its analysis on showing why the fair housing groups were unlikely to succeed on the merits of the case. First, the court noted that withdrawal of the local government tool did not require notice-and-comment procedures (these are the procedures used in the informal rulemaking process when an agency is creating a regulation) because the local government tool is properly characterized as an “information collection” and not subject to notice-and-comment procedures. Second, the court found that the withdrawal of the tool was not arbitrary or capricious because HUD provided adequate reasoning for its decision to withdraw the local government tool (HUD noted the high failure rate of program participants to submit acceptable first-time submissions and the high costs of scaling up technical assistance for future submissions). The court also did not find the other factors needed for a preliminary injunction including a risk of irreparable harm, a balance of equities in favor of the fair housing groups, or an accord with the public interest.

New York State May Not Join the Suit

The court found that New York State may not join the suit because, like the fair housing groups, it lacked standing because of a lack of injury.

The full opinion can be found here.

HUD to Reopen AFFH Rule

~ Tushar Gurjal ~ Leave a comment

Earlier today, HUD published a press release announcing that it published a notice inviting public comment on amendments to its Affirmatively Furthering Fair Housing (AFFH) regulation.

[8/16/18 Edit – the notice has been published in the Federal Register. It can be found here. The comment due date is October 15, 2018.]

The Department wishes to receive comments on amending the rule so that it does the following:

  1. minimizes regulatory burden while more effectively aiding program participants to meet their statutory obligations;
  2. creates a process focused primarily on accomplishing positive results, rather than on analysis;
  3. provides for greater local control and innovation;
  4. seeks to encourage actions that increase housing choice, including through greater housing supply; and
  5. more efficiently utilizes HUD resources.

Currently, HUD has suspended the obligation of local governments to file Assessments of Fair Housing (AFHs) using the local government tool. The Department believed that the tool was “confusing, difficult to use, contained errors, and frequently produced unacceptable assessments, and otherwise required an unsustainable level of technical assistance.” There is currently a lawsuit brought by three civil rights groups filed against HUD on its action suspending requirements of the rule.

NAHRO will provide additional information to our members as we continue to read through the notice and as additional information becomes available.

The Department’s press release can be found here.

A pre-publication copy of the Advance Notice of Proposed Rulemaking can be found here.

[8/16/18 Edit – the published copy can be found here.]

HUD Begins EnVision Center Demonstration

~ Tushar Gurjal ~ Leave a comment

In a press release earlier today, HUD announced the names of the first 17 communities that will receive EnVision Center designations. EnVision Centers are centralized hubs that serve to support four pillars of self-sufficiency: 1) Economic Empowerment; 2) Educational Advancement; 3) Health and Wellness; and 4) Character and Leadership. The EnVision Centers will partner with “federal agencies, state and local governments, non-profits, faith-based organizations, corporations, public housing authorities, and housing finance agencies” and will leverage these “public-private partnerships” to connect households with services to promote self-sufficiency.

HUD plans to develop tools to track and measure resident outcomes and services to ensure that EnVision Centers are able to monitor progress.

NAHRO’s comments on the EnVision Center Demonstration can be found here.

HUD’s full press release can be found here.

The full list of communities receiving the Envision Center designation can be found by clicking below.

Continue reading →

FY 2018 Housing Trust Fund Allocations Announced

~ Georgi Banna ~ Leave a comment

On June 5, HUD will allocate more than $266 million in FY 2018 formula funds to eligible grantees of the National Housing Trust Fund (HTF) program. The HTF is a non-appropriated federal resource that complements existing Federal, State and local efforts to preserve and expand the nation’s supply of affordable homes for very low-income (VLI) and extremely low-income (ELI) households, as well as families experiencing homelessness. Authorized in 2008, lawmakers sought to establish a permanent source of affordable housing funding through annual contributions from Fannie Mae and Freddie Mac (GSEs). Eight years later, the HTF was finally capitalized through its inaugural FY 2016 allocations. HTF grantees include the 50 states, District of Columbia, and five U.S. Insular Areas. Grantees may distribute funds through subgrantees (a unit of general local government or State agency) or directly fund projects proposed by eligible recipients (including PHAs), or a combination of both.

 FY 2018 Housing Trust Fund Allocations

State / Territory

 FY18 Allocation % Change (FY17 to FY18)

California

$36,616,277

58%

New York

$22,171,681

50%

Texas

$12,279,085

39%

Florida

$10,442,914

36%

Illinois

$9,812,230

37%

Pennsylvania

$7,759,948

32%

New Jersey

$7,726,903

38%

Ohio

$6,971,712

27%

Michigan

$6,004,558

24%

Massachusetts

$5,720,333

24%

North Carolina

$5,874,191

32%

Georgia

$5,705,499

29%

Washington

$5,197,313

26%

Virginia

$4,672,562

22%

Wisconsin

$4,117,505

18%

Indiana

$3,937,462

17%

Missouri

$3,970,270

18%

Arizona

$3,997,777

21%

Tennessee

$3,688,511

17%

Colorado

$3,563,587

13%

Oregon

$3,654,189

16%

Minnesota

$3,445,781

10%

Maryland

$3,578,771

17%

Connecticut

$3,269,474

9%

Louisiana

$3,068,829

2%

South Carolina

$3,007,655

0%

Alabama, Alaska, Arkansas, Delaware, District Of Columbia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Maine, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Rhode Island, South Dakota, Utah, Vermont, West Virginia, Wyoming

$3,000,000 (Required State Minimum)

Puerto Rico

$1,253,357

 42%

American Samoa

$11,995

54%

Guam

$97,028

54%

Northern Marianas

$53,415

54%
Virgin Islands

$104,591

54%
Total $266,775,403

22%

HUD to Withdraw AFFH Local Government Assessment of Fair Housing (AFH) Tool

~ Tushar Gurjal ~ Leave a comment

Moments ago, in an email from HUD Exchange, HUD announced that it plans to withdraw the assessment tool for local governments. According to HUD, “the current iteration of the Tools is substantively deficient and unduly burdensome because it resulted in great expense to program participants and HUD, yet it is not adequately guiding participants through the creation of acceptable Assessments of Fair Housing (AFHs).” Local governments must still comply with their obligation to affirmatively further fair housing.

HUD has posted pre-publication copies of three notices:

  1. Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments – This notice withdraws the current local government assessment tool because it is “substantively deficient and unduly burdensome”;
  2. Affirmatively Furthering Fair Housing: Withdrawal of Notice Extending the Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants – This notice withdraws the previous notice (published on Jan. 5, 2018; 83 Federal Register 683) which extended the submission deadline for AFHs; and
  3. Affirmatively Furthering Fair Housing (AFFH): Responsibility to Conduct Analysis of Impediments – This notice notes that local governments still have an obligation to affirmatively further fair housing and must conduct an Analysis of Impediments (AI).

The email notes that applicable program participants should update their AIs in accordance with the HUD Fair Housing Guide.

NAHRO will keep our members informed as we learn additional details.

FY19 House T-HUD Appropriations Bill Released; HUD Programs Receive Level Funding/Slight Increases

~ Georgi Banna ~ Leave a comment

On May 15, the House Appropriations Transportation, Housing and Urban Development (T-HUD) Subcommittee released its draft FY 2019 appropriations bill. Overall, the bill received an additional $1.5 billion increase to its allocation compared to FY 2018, an achievement considering several spending bills have been level funded and T-HUD was expected to have a similar fate.  A summary is below; NAHRO will release a more detailed analysis soon.

The FY 2018 omnibus bill marked the first significant increase to HUD funding in nearly a decade; NAHRO and its members should be proud that the House bill preserves many of those funding increases in a highly competitive appropriations season.

Most programs within HUD received level funding or a slight increase, with the unfortunate exception of the HOME Investment Partnerships program. HOME was cut by 12 percent compared to FY 2018.

  • Public Housing Capital Fund: $2.75 billion, level funding – including a new $30 million set-aside for competitive grants for the demolition of the most distressed public housing units
  • Public Housing Operating Fund: $4.55 billion, level funding
  • Choice Neighborhoods:$150 million, level funding
  • Section 8 Housing Assistance Payment Renewals:$20.107 billion, a 2.6 percent increase
  • Mobility Demonstration: $50 million for a new mobility demonstration program
  • Ongoing Administrative Fees: $1.73 billion, level funding
  • Family Self-Sufficiency: $75 million, level funding
  • Section 8 Project-Based Rental Assistance: $11.747 billion, a 2 percent increase
  • Community Development Block Grant:$3.3 billion, level funding
  • HOME Investment Partnerships:$1.2 billion, a 12 percent decrease
  • Housing Opportunity for Persons with AIDS:$393 million, a 5 percent increase
  • Homeless Assistance Grants:$2.546 billion, a 1 percent increase

As the FY 2019 appropriations process moves forward, NAHRO will focus advocacy efforts on the HOME program to ensure that the cuts proposed by the House are not enacted. NAHRO will also advocate for increased funding and flexibility for HCV Administrative Fee funds as level funding does not take into account the addition of new vouchers and the increased need for resident opportunity resources.

The bill will be brought before the House T-HUD Subcommittee on May 16 for consideration. No amendments are expected. It’s likely that the full House Appropriations Committee will vote on the bill next week. The timeline for a floor vote is unclear, though Congress typically tries to move as many bills through the process as possible before the August recess.

The Senate T-HUD bill is expected to be considered before the Senate T-HUD Subcommittee during the week of June 4.

Groups sue HUD over AFFH

~ Tushar Gurjal ~ Leave a comment

Earlier today, three groups (the National Fair Housing Alliance [NFHA], the Texas Low Income Housing Information Service, and Texas Appleseed) filed a complaint in Federal Court (the United States District Court for the District of Columbia) against HUD regarding its recent actions to extend the deadline for local governments to submit their Assessments of Fair Housing (AFHs).

The complaint states that HUD “published a three-page notice . . . suspending the key requirements of the [Affirmatively Furthering Fair Housing (AFFH)] rule” (HUD characterizes this action as an “Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants“). The action caused “irreparable and ongoing injury” for the three groups suing. As a result of HUD’s action, Texas Appleseed and the Texas Low Income Housing Information Service will have to “divert [mission-critical] resources” to “remedying the effects of [HUD’s] actions.” Additionally, NFHA will have to “divert resources to assisting its members around the country . . . to combat the effects of [HUD’s] actions.”

The groups believe that HUD erred in three ways. First, “[b]y failing to engage in notice-and-comment rulemaking before delaying and altering the AFFH Rule, HUD failed to observe procedures required by law, in contravention of the [Administrative Procedure Act].” Second, “HUD’s delay of the Rule is arbitrary, capricious, or an abuse of discretion, in contravention of the [Administrative Procedure Act]” because HUD’s rationale for extending the deadline (inadequate technical assistance among other reasons) does not explain why HUD cannot improve its technical assistance or why it is acceptable to go back to the previous regulatory framework (i.e., the Analysis of Impediments). Third, “HUD’s effective suspension of the AFFH Rule violates the Fair Housing Act, in contravention of the [Administrative Procedure Act].” Here, the complaint states that HUD is violating its own “affirmative obligation under the Fair Housing Act to ensure that federal housing programs are administered, and federal housing funds spent, in a manner that furthers fair housing.”

The complaint asks that the Court do five things. First, enter a declaratory judgment that HUD’s action is “arbitrary, capricious, an abuse of discretion or contrary to law, and without observance of procedure required by law.” Second, issue preliminary and permanent injunctions requiring HUD to suspend its notice extending the deadline for submission of AFHs for local governments and implement and enforce the requirements of the AFFH rule moving forward. Third, direct HUD to take affirmative steps to remedy the harms caused by the extension. Fourth, award the groups attorney’s fees and costs. Fifth, award any other relief that may be “just and equitable.”

The full complaint can be found here.

This Tuesday!! NAHRO e-Briefing – RAD: Program Updates and PHA Experiences

~ Georgi Banna ~ Leave a comment

RAD: Program Updates and PHA Experiences
A NAHRO Professional Development e-Briefing
Tuesday, February 13, 2018
1:30 – 3:00 pm EST

Register Now Button

The Rental Assistance Demonstration (RAD) continues to be a critically important tool for housing authorities looking to pursue innovation while renovating and preserving their local affordable housing stock. As we begin 2018, join the NAHRO Policy Team for an in-depth review of the current status of RAD. Participants will also hear from PHAs that have gone through the RAD conversion process. These RAD agencies will discuss why RAD worked for them, explain how they chose between Project Based Vouchers (PBV) or Project Based Rental Assistance (PBRA), and share lessons learned and best practices. Whether your agency is a RAD veteran or exploring whether RAD is a viable option for the future, don’t miss this opportunity to have your questions addressed by industry experts during this interactive online training.

Only $95 for NAHRO members!

Registration closes Monday, February 12 at 11:59 ET pm. 

Register Now Button

Reminder: Whether you’re watching alone or with an audience of 100, only one registration per connected device is required, making NAHRO Professional Development’s e-Briefings an outstanding value! Can’t attend the session at the scheduled time? Register anyway, and we will email you a link to the archived recording as soon as it’s ready to be stream.

HUD to Release CDBG-DR Notice for 2017 Disasters

~ Georgi Banna ~ Leave a comment

HUD has posted a pre-publication copy of the “Allocations, Common Application, Waivers, and Alternative Requirements for 2017 Disaster Community Development Block Grant Disaster Recovery Grantees” notice. The notice is to be published in the Federal Register and will be applicable five days after being published.

As HUD’s summary states, “This notice allocates $7.39 billion in Community Development Block Grant disaster recovery (CDBG-DR) funds appropriated by the Supplemental Appropriations for Disaster Relief Requirements, 2017, for the purpose of assisting in long-term recovery from 2017 disasters. This notice describes applicable waivers and alternative requirements, relevant statutory provisions for grants provided under this notice, the grant award process, criteria for action plan approval, and eligible disaster recovery activities. Given the extent of damage to housing in the eligible disaster areas and the very limited data at present regarding unmet infrastructure and economic revitalization needs, this notice requires each grantee to primarily consider and address its unmet housing recovery needs.”

Breakdown of the $7.39 billion:

  • State of Texas – $5,024,215,000
  • State of Florida – $615,922,000
  • Commonwealth of Puerto Rico – $1,507,179,000
  • United States Virgin Islands – $242,684,000

Congress continues to discuss additional supplemental distaster funding for the 2017 disaster. NAHRO is following these discussions and will share additional information as it becomes known.

HUD Publishes New AFFH FAQ

~ Tushar Gurjal ~ Leave a comment

On Friday, HUD sent an email announcing a new list of Frequently Asked Questions (FAQ) that responds to the new notice delaying the submission date for the local government Assessment of Fair Housing (AFH). HUD “strongly encourages program participants to visit [the FAQ].” The new notice can be found on the Affirmatively Furthering Fair Housing (AFFH) HUD Exchange webpage.

The FAQ can be found here.