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By combining HUD, DOT and
the EPA into a single Partnership for Sustainable Communities, President Obama
force-multiplied the regulatory power of these massive agencies. Increasing the Power of Federal Agencies.
The move embedded HUD’s
Livability Principles, which directs local zoning choices toward regions and
densified communities with smaller parcels of land, in all three agencies. By
claiming the change made it more efficient for government to protect the
environment, social equity and the economy, most Americans paid little
attention to its effect on private property. The executive branch’s new ability
to impose demands on local communities was nearly unprecedented.
The Department of
Transportation, redirected their funds toward “livability and sustainability
improvements.” These initiatives create “opportunities to connect mixed income
housing with transit or economic development initiatives to locate new jobs
within a region along highly accessible multimodal corridors.40” None of these
initiatives shows regard for individual property rights. Many are collectivist
solutions that are at the expense of private property.
The EPA changed their
decision-making process. Rather than base their actions and decisions on research
and science, in 2012 the agency incorporated feel-good “sustainability” as the
basis for their decision-making
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To assure no mistake about
their intent, the agency defines “sustainable” by quoting the UN’s 1987
Brundtland Report, Our Common Future.41
The EPA’s Clean Power Plan
will devastate energy producers and make electricity unaffordable for many
families. Yet, when asked by Congress for the science behind their actions, EPA
Director Gina McCarthy could not produce it. In 2015, based on nothing but “sustainability,”
the EPA deemed itself authority over all of the waters of the US, including
backyard ponds and dried-up streambeds.
Opponents have called this a
severe “blow to American’s property rights.” As agencies issue more
grants, communities find themselves with fewer and more restrictive choices. HUD’s Community Challenge
Planning grants use various ‘strings’ to coerce communities into adopting
“inclusionary zoning ordinances” and land acquisition, altering building codes
and boosting construction of mixed-use and affordable housing. In this grant,
HUD uses a point system weighted in favor of the Livability Principles to enable
applicants to win the funds. The only way to get the grant is to comply with HUD’s
restrictive Livability demands.
HUD’s
Untapped Authority
By 2011, the administration
realized that together, the 1964 Civil Rights Act and the 1968 Fair Housing
Act, gave HUD controlling authority the agency had barely tapped.
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For years, HUD awarded Community
Development Block Grants (CDBG) to recipients for a wide range of community
needs. While HUD provided recipients with guidelines for using the funds, in
general, the agency believed local communities were better equipped to decide
what to do with the money than the federal government. As a result, many of the
more stringent requirements of affirmatively furthering fair housing, as
required since the Fair Housing Act, were only sporadically enforced. For example,
many recipients never knew that once they accepted HUD CDBG funds for a project
related to fair housing or urban development, the government could then control
how recipients spent all other moneys related to these projects, whether public
or private. Though mostly ignored, this rule has been in HUD’s Fair Housing Planning
Guide since 1996.
A New York lawsuit was about
to change all of that. Westchester
County and the Launch of AFFH. In 2009, HUD intervened in a False Claims Act
lawsuit brought against
Westchester County by the Anti-Discrimination Center of Metro New York* (ADC) three
years earlier. ADC argued that for several years, the county had made false
statements on its HUD grant applications by agreeing they had met their
obligation to “affirmatively further fair housing” and removed all barriers to
minority discrimination.
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The courts decided against
Westchester, ordering them to return $30 million in HUD funds and build 750 new
affordable homes, most in white and wealthier areas. The court further decided
that, since Westchester had a very small African-American community, the county
would have to market in nearby counties to import minority families.
Outraged, in 2009 the county
sought HUD’s assistance to lessen the settlement. Rather than assist the
county, HUD saw this as an opportunity to become more aggressive. They imposed
additional burdens on Westchester including that the required minority homes be
built near “above average” schools and that a court appointed monitor should
oversee the county’s implementation of the plan. The case was finally resolved
in September of 2015 and HUD won on most counts.
*Note:
The law firm of Allen, Relman, Dane and Colfax represented ADC in this case. As
a leading plaintiff’s civil rights law firm, you will find them quoted
throughout this report. There are three relevant points in this case.
First, the court ordered
Westchester to pay $30 million from their own county budget to build 630 of the
minority homes and affirmatively further fair housing. Second, HUD failed in
their attempt to prove that Westchester engaged in any discrimination.
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As the court notes : “It bears emphasizing that this decision
does not mean that any of Westchester
County’s municipalities violated the Fair Housing Act or engaged in discrimination on the basis of
race. In short, there has been
no finding, at any point, that Westchester actually engaged in housing
discrimination.” This is a critical point. Even though the discrimination
charges failed, the False
Claims Act charges were spectacularly successful.
The third is the most
important lesson for other HUD entitlement communities. The attorneys used Westchester’s False Claims Act lawsuit as a test case to use in bringing
other HUD recipients into
compliance with AFFH.
After the 2009 settlement,
then HUD deputy secretary Ron Sims made HUD’s intentions clear: “We’re clearly messaging other jurisdictions
across the country that there
has been a significant change in the Department of Housing and Urban Development, and we’re going to
ask them to pursue similar
goals as well,”
HUD wasted no time pursuing
those “goals”. Westchester’s False Claims Act (FCA) settlement became the
foundation for a new HUD ruling, Affirmatively Furthering Fair Housing and
other cities were already in the agency’s sights.
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How
HUD’s AFFH Devastates
Property Rights
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Affirmatively Furthering
Fair Housing is a term HUD has used for decades. On July 16, 2015, AFFH became
the basis for a new rule adding severe strings to housing and urban development
grants. These new stipulations shake the very foundation of private property
ownership. As important as private property is to individual freedom, most
landowners must still balance their rights between those of other members of
the community. If your neighbor installs a 450’ tall windmill on his property,
it can create noise pollution, increased danger, and reduce the value of
neighbors’ home.
That is why local land use
and zoning laws are so important. They resolve issues locally to protect both
individual property owners and the community. Because these laws directly affect
where and how you will live, the value of your home and what it will cost to
maintain, it is vital for community members to keep decisions at the local
level and to keep a watchful eye over the local officials who make them. HUD is about to change that.
Under their new,
Affirmatively Furthering Fair Housing regulation, if public officials or public
housing authorities accept HUD grants that effect fair housing or urban development,
your community can lose its control over local zoning and land use, and be
forced to join a region, even if that is against your community’s wishes. In
some cases, the government can even coerce communities into reversing voters’ decisions.
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The reasoning behind HUD’s
heavy-handedness seems logical on the surface. The Civil Rights Act of 1968,
often called the Fair Housing Act, was a follow up to the original 1964 Civil Rights
Act. The 1968 legislation was Congress’ response to the assassination of civil
rights leader Martin Luther King. The purpose of the Fair Housing Act was to
end housing discrimination against minority groups. In HUD’s words, “the Fair
Housing Act protects people form discrimination when they are renting, buying
or securing financing for any housing.”
Congress passed several Fair
Housing related laws. In 1974, Community Development Block Grant program
expanded HUD’s role by providing funds for communities to build and restore
affordable housing. In spite of the advances in providing affordable housing,
by 2013, the Obama administration concluded HUD had not done enough to eliminate
America’s “legacy of housing discrimination and segregation.” The President
believed that HUD had not been aggressive enough in managing how local
communities spend the federal grant money.
AFFH
Hidden from the Public Agency Tyranny Page | 32
To address this, in April of
2013 HUD announced its proposal to create a massive new integration plan that
would target the recipients of HUD housing funds in over 1200 communities.52 That
plan was called Affirmatively Furthering Fair Housing. Because of the plan’s
political volatility, the administration shielded it from public view for over
a year. They withheld the proposal from the spring 2012 Unified Agenda announcement
and again from the fall 2012 Unified Agenda. The Office of Management and
Budget finally released the proposal to the public on December 21, 2012, during
the Christmas holiday, after government operations had shut down. Because of
the timing of the release, AFFH received little notice. The administration
published the proposed rule in the Federal Register, July 19, 2013 and public
comments ended September of 2013. (An additional period of comments ran from
January 15, 2015 to February 17, 2015.) HUD received over 1000 comments from
supporters and opponents of the plan.
A
Tricky Review Process
In spite of the extended comment
period, a review of HUD’s responses in the Federal Register reveals that the
agency engaged in deceptive assurances to opponents’ concerns.
For
example, when commenters wrote, “HUD’s rule is an effort to impede local
control on zoning,” the agency replied, “This rule does not impose any land use
decisions or zoning laws on any local government.”
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However,
HUD reverses their assurance several paragraphs later when it states the agency
will “assist recipients to adjust their land use and zoning laws to meet their
legal obligation to affirmatively further fair housing.” In other words, it is
technically true that HUD does not impose new zoning laws themselves; instead,
they “obligate” you to impose them.
Affirmatively Furthering
Fair Housing is not a HUD grant. Rather, it adds additional requirements to what
you can and cannot do with funds received from other HUD grants. The effected
grants are :
• Community Development
Block Grant (CDBG)
• HOME Investment
Partnerships (HOME)
• Emergency Solutions Grants
(ESG)
• Housing Opportunities with
Persons with Aids (HOPWA)
It is vital for public
officials, community members, and especially property owners, to understand
that a recipient’s obligation to affirmatively further fair housing does not
stop with the grant money.
According to the Fair
Housing Planning Guide, The
recipient’s strategies and actions “will be accomplished primarily by making
investments with federal and other resources.” Attorneys Allen, Relman,
Dane and Colfax explain : “Although
the grantee’s AFFH obligation arises in connection with the receipt of Federal funding, its AFFH
obligation is not restricted to
the design and operation of HUD-funded programs at the State or local level. The AFFH obligation extends
to all housing and housing-related activities in the grantee’s jurisdictional
area whether publicly or
privately funded.”
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If your community accepts a
HUD grant to build affordable housing and a private citizen donates money to
improve the parks in your community that private money falls under the
affirmatively furthering fair housing obligation.
HUD’s
Fair Housing Assessment – Instrument of Coercion
As mentioned earlier, under
AFFH, HUD can force your community to alter your land use and zoning laws,
overturn voters’ decision and coerce your community into joining a region. Here
is how the coercion occurs. Under HUD’s new rule, it is no longer sufficient
for communities who accept AFFH related grant money to refrain from
discrimination. They must take ‘meaningful
actions” to end it. According to the ruling, grant recipients
must take… “proactive steps to address
the issues of segregation and related barriers, particularly as reflected in racially and ethnically concentrated
areas of poverty.”
To assure recipients take
these steps, HUD requires grant applicants to complete an Assessment of Fair
Housing (AFH) as part of the application process. This assessment replaces the
older Assessment of Impediments (AI) and requires far more community data. HUD
estimates completion of the form will require approximately 200 hours, though
some communities claim it can take substantially longer.
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Completion of the AFH
involves a house-by-house analysis of community data including race, ethnicity,
and concentrated areas of poverty, Limited English Proficiency, persons with
disabilities and more.
Next, the AFH requires a
full listing of community resources. These include “proficient” schools, jobs,
transportation, housing, parks and recreational activities.
Finally, you will itemize
any barriers that could make it harder for protected groups to access the
community resources. HUD even provides a list of 40 barriers, or “contributing
factors” recipients must agree to reduce or eliminate to qualify for the grant.
Some “contributing factors” are as commonplace as community opposition to
affordable housing; your community’s current zoning laws, or the failure of
your community to cooperate with a region. HUD not only expects you to remove
these barriers, they expect you to find and resolve even more. “Beyond the HUD-provided data, provide additional
relevant information, if any, about disparities in access to opportunity in the
jurisdiction and region affecting groups with other protected characteristics.
The
program participant may also describe other information relevant
to its assessment of disparities in access to opportunity.” Allen, Relman, Dane and Cofax make
it clear that HUD expects applicants
to identify all impediments experienced by all protected classes, and must keep records of this analysis:
Agency Tyranny Page | 36
“–
Whether created by public or private sector, impediments must be analyzed
“–
Impediments may include actions or policies that discriminate on the basis of
protected class, whether by way of intentional discrimination or disparate
treatment
“–
A recipient is not excused from such an analysis by identifying the “greatest”
or “most challenging” impediment; it must analyze everything it finds”.
HUD expects recipients to do
more than complete the AFH. They expect deep community participation. According
to HUD’s directions…III. Community
Participation Process
1.
Describe outreach activities undertaken to encourage community participation in
the AFH process. Identify media outlets used and include a description of
efforts made to reach the public, including those representing populations that
are typically underrepresented in the planning process such as persons who
reside in areas identified as R/ECAPs, persons who are limited English
proficient, and persons with disabilities.
2.
How successful were those efforts at eliciting community participation?
3.
Summarize all comments obtained in the community participation process. Include
a summary of any comments or views not accepted and the reasons why.
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In addition, the new
Assessment of Fair Housing has other serious effects. Douglas County CO, has received
HUD CDBG for years. They strive to be inclusive and a model of the type of
community HUD desires.62 However, when the county first reviewed HUD’s
Assessment of Fair Housing Tool, commissioners were surprised at what it
contained.
Castle Rock, Co, a town in
Douglas, seeing the restrictions, rejected the HUD grant money for 2016. Meanwhile,
Douglas County conducted a thorough review of the Tool and concluded HUD’s
Assessment of Fair Housing will “negate the county’s rights” and “seriously
hamper our ability to…manage local affairs...” They noted that organizations
such as NACo, NAHRO, NACCED, and NCDA submitted concerns during the initial 60‐day comment period (ending November 25, 2014)
that went largely unaddressed.
“The
Tool does not clearly define the intent of what it means to affirmatively
further fair housing. “The information and definitions provided are vague,
subjective and therefore open to interpretation.” “After reviewing the
contributing factors identified in the Tool we find many to be contradictory in
nature. Addressing one contributing factor may actually create barriers to furthering
fair housing in another contributing factor.” 64
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Setting
the Table for a Civil Rights Lawsuit
HUD expects you to invite
civil rights advocates, affordable housing developers, community development organizations
and any interested members of the public, to participate in identifying
potential areas of discrimination. In
completing the AFH, each contributing factor you identify is a potential area of discrimination. You are identifying potential discriminatory
areas
side-by-side with the very civil rights and activist groups most inclined to sue your
community for discrimination. It is hard to impress enough how
effectively the mere process of applying for these AFFH related funds sets
the table for a costly civil
rights lawsuit.65
Coercing
Communities to Join a Region
Throughout the Assessment of
Fair Housing Tool, HUD mentions the word regions over 70 times. This is for
good reason. Though HUD never says as much, by creating your required plan to
remove the contributing factors to discrimination, you are automatically self-annexing
into a region. Here is how it happens. Applicants must use HUD’s own data tables,
and their jurisdictional and regional trend maps to design your plan to remove
the barriers and create an “integrated and balanced lifestyle.”66 (HUD does
allow applicants to provide their own data, but must approve it first.) Agency
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