John Anthony SFL
How HUD Will Legally Enslave Your Community, by John Anthony
Local rule died in America on July 8, 2015. With it passes the rights of rural and
suburban communities to decide their own futures. The trigger was the final 377-page ruling from
HUD called Affirmatively Furthering Fair Housing [1] that attempts to remove
discrimination and achieve balanced and integrated living patterns.
As one blogger beams, “What could possibly be wrong with
helping low-income families to move into better neighborhoods?” In this case, everything.
AFFH is reminiscent of the old cartoon character Elmer Fudd,
who used his shotgun to abolish an annoying fly. He blew up furniture, broke windows and
destroyed his home, while the fly happily buzzed away. Like Elmer, AFFH leaves a destructive wake
and does little to solve the problem.
Affirmatively Furthering Fair Housing requires the agencies
that apply for HUD grants to perform massive demographic analyses locally and
again regionally to determine any imbalances in living patterns as defined by
HUD. Communities then resolve the
imbalances to HUD’s satisfaction.
Recipients must complete the analysis every five years. [2]
Communities receiving HUD grants must complete an Assessment
of Fair Housing that requires recipients to analyze occupancy data including,
race, color, religion, national origins, English proficiency [3] and more along
with a list of factors that might contribute to an imbalance of living patterns
between low, middle, and upper middle-income families. Imbalances might be the result of segregation
or disproportionate housing needs based on race, color, religion, national
origins and more.
Recipients then create a list of community assets such as
parks, recreation areas, schools and jobs along with a breakdown of any
barriers [4] that might prevent access by all community members. A barrier
might be as simple as an application requirement for public housing, home size,
or a neighborhood voicing resistance to having low-income housing next
door. Once the recipients identify the
barriers, they submit a mitigation plan for HUD’s approval.
Through each process step, HUD maintains control. The Assessment of Fair Housing even measures
the success of your community outreach against HUD’s own national
standards.[5] HUD provides, and communities
must use, nationally and regionally uniform data[6] to create their assessment.
Sound exhausting? You
are just beginning. AFFH also makes you provide a similar regional Assessment
of Fair Housing. As Stanley Kurz, author
of “Spreading the Wealth” explains,
“it’s not enough for, say, Philadelphia’s “Mainline”
Montgomery County suburbs to analyze their own populations by race, ethnicity,
and class to determine whether there are any imbalances in where groups live,
or in access to schools, parks, transportation, and jobs. Those suburbs are
also obligated to compare their own housing situations to the Greater
Philadelphia region as a whole.” [7]
If you think AFFH will not apply to your community, you are
wrong. The new regulation targets each
of the nation’s 74,000 census tracts[8] and applies to current, future and past
recipients of Community Development Block Grants, HOME Investment Partnerships,
Emergency Solutions Grants and Housing Opportunities for Persons with AIDS.
Given the scope of the analysis and the dual local and
regional requirements, virtually every recipient will require a discrimination
mitigation plan that can include additional affordable housing, additional
transportation choices or new hi-density structures, all paid for by the
communities.
Through AFFH, HUD guides the mitigation process and can
dictate where and how communities build homes and even who will live
there. To reduce disparities,
communities can be required to construct hi-density urban villages that
guarantee access to “community assets” for all residents. Some may be required to advertise in nearby
regions to attract sufficient families to eliminate HUD-defined imbalances.
Because the mitigation of local and regional imbalances are
part of every analysis, communities can join a regional consortium as a way to
receive Fair Housing certification.
Conversely, regions can fulfill their obligations by annexing suburbs
used in their analyses.
HUD generously states, “…joint and regional collaborations
are entirely voluntary.”[9] They are about as voluntary as keeping engine oil
in your new car. If communities balk at
annexation, HUD threatens to withhold or redirect their funds.
Affirmatively Furthering Fair Housing exposes current and
past [10] recipients of HUD Community Development Block Grants and other HUD
money to lawsuits by predatory third party opportunists.
HUD grant recipients must certify that they “…will take
meaningful actions to further the goals identified in [their fair housing
analysis]…and will take no action that is materially inconsistent with its
obligation to affirmatively further fail housing.”[11]
This important bit of legalese contained in the Federal
Register links fair housing to the Federal False Claims Act. It enables the government or a third party to
bring legal action in the event recipients “knowingly present or caused to be
presented…to the US government, a false claim for payment or approval.”
Example -
Westchester County New York was the first community sued
under a HUD-related false claims act by a third party. Greg Gurian of the Anti-Discrimination Center
of New York accused Westchester of falsely claiming to have removed barriers to
discrimination in the county’s HUD application.
Westchester lost their main case, was placed under court
monitoring and ordered to build millions of dollars of new affordable homes. Gurian
fared well for his troubles. According
to court documents, he will receive $7,500,000 and his attorney another
$2,500,000 once the US Treasury receives Westchester’s settlement[12].
Thanks to AFFH, recipient communities will have lawsuit
targets on their backs. The rule’s wording has created a hunting ground for
predatory third parties to “get rich” suing recipients who fail to meet the
commitments they made to the US government.
Merely completing the Assessment of Fair Housing can create
legal vulnerabilities. In June of 2015, the Supreme Court ruled that even
agencies with neutral policies and practices that have an unintended adverse
impact on protected groups, are still liable under the Fair Housing Act.
Example –
The Texas Department of Housing and Community Affairs
offered low-income housing credits to residents in poor African-American areas
as a way to help gain home ownership. A
local group, the Inclusive Communities Project, sued the agency, alleging they
allocated too many tax credits in poor areas and not enough in wealthy white neighborhoods,
thereby creating a “disparate impact.”
The SCOTUS ruled in favor of the ICP arguing that even an unintentional
“disparate impact,” resulting from seemingly beneficial efforts can be in
violation of the Fair Housing Act.[13]
While there are limitations on the court’s ruling, any agency
that completes the Analysis of Fair Housing, is arming third parties with
evidence of “disparate impact” and is vulnerable to a lawsuit.
Proponents of Affirmatively Furthering Fair Housing want you
to think that those favoring the program help minorities, while the opposition
allows poor families to suffer in poverty and discrimination. The opposite is
true.
By herding African-Americans, other minorities and
low-income families like cattle, the government is resigning them to a future
worse than poverty. They have lost their rights, their choices, and their
ability to excel through self-determination and personal growth. Those who
believe AFFH helps poor and minorities are thinking only of the grand Oz-like
scheme and ignoring the gritty reality of life under centralized rule.
Under AFFH, local officials’ hands are tied accommodating
draconian federal requirements. This diminishes their ability to represent
their constituents. As regions fulfill
their AFFH obligations, suburbs will find themselves annexed with little
ability to refuse.
Congress could eliminate AFFH by sponsoring a bill with
enough votes to override a presidential veto.
With the 2016 election in gear, if enough Americans understood this
ruling, that might be possible.
Affirmatively Furthering Fair Housing may be an attempt to
create balanced living patterns. Rather than remove discrimination, AFFH
leverages it to codify oppression.
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[2] http://www.fhco.org/pdfs/AFFHJeffrey1.pdf http://americanpolicy.us1.list-manage.com/track/click?u=3af5d41d21ad9fce53c86ba9d&id=1da2850134&e=f577899cf6>
[3] Federal Register
/ Vol. 80, No. 136 / Thursday, July 16, 2015 / Rules and Regulations 42342
[4] Federal Register
/ Vol. 80, No. 136 / Thursday, July 16, 2015 / Rules and Regulations 42348
[5] http://www.fhco.org/pdfs/AFFHJeffrey1.pdf http://americanpolicy.us1.list-manage.com/track/click?u=3af5d41d21ad9fce53c86ba9d&id=08ce006b54&e=f577899cf6>
[6] http://www.huduser.org/portal/publications/pdf/AFFH-Assessment-Tool-data-tables.pdf http://americanpolicy.us1.list-manage1.com/track/click?u=3af5d41d21ad9fce53c86ba9d&id=0b7e51ff29&e=f577899cf6>
[7] http://www.nationalreview.com/corner/421389/attention-americas-suburbs-you-have-just-been-annexed-stanley-kurtz
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[8] Federal Register /Vol. 80, No. 136 /Thursday, July 16,
2015 /Rules and Regulations 42339
[9] Federal Register /Vol. 80, No. 136 /Thursday, July 16,
2015 /Rules and Regulations 42319
[10] http://www.cdpublications.com/hud-unveils-massive-integration-plan-71 <http://americanpolicy.us1.list-manage.com/track/click?u=3af5d41d21ad9fce53c86ba9d&id=7b56513e14&e=f577899cf6>
[11] Federal Register /Vol. 80, No. 136 /Thursday, July 16,
2015 /Rules and Regulations 42285
[12] http://www.clearinghouse.net/chDocs/public/FH-NY-0012-0009.pdf
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[13] http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf
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The only way to ‘extinct’ programs like Affirmatively
Furthering Fair Housing is for more Americans to understand the price they will
personally pay in higher taxes and lost opportunities and choices. Shattering America’s Trance workshops teach
activists how to slice through progressive rhetoric and share real news with
the broader community. Our methods use
non-political terms that build action-minded community coalitions.
Contact me to see how easy it is to host a workshop in your
area.
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