Affirmatively Furthering Affirmatively Furthering Fair HousingFair Housing

University of MD School of LawUniversity of MD School of Law

Melody Taylor-Blancher, Regional Director – Office of Fair Housing and Melody Taylor-Blancher, Regional Director – Office of Fair Housing and Equal Opportunity Equal Opportunity

April 12, 2013 April 12, 2013

HOUSING SEGREGATION HAS A HOUSING SEGREGATION HAS A HISTORYHISTORY

Housing segregation hurts schools: Report

Residential segregation halts social

mobility

RACIAL/ ETHNIC CONCENTRATION RACIAL/ ETHNIC CONCENTRATION CONTINUES CONTINUES

IT IS IMPORTANT TO KNOW….IT IS IMPORTANT TO KNOW….

•That the obligation to affirmatively further fair housing is imposed on HUD, and through HUD to recipients. However, the obligation applies to ANY activity relating to housing or urban development, federally funded or not, and funded by HUD or not.

•And that part of our obligation is to ensure that actions taken within our control “fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat.”

AFFH ADDRESSES DISCRIMINATION AND AFFH ADDRESSES DISCRIMINATION AND SEGREGATION SEGREGATION

•AFFH is both about addressing discriminatory actions and undoing the past history of segregation

•It is about removing barriers to fair housing choice and creating new ways to access housing choice

•It is a meaningful assessment of current behavior and past patterns of behavior

•It may be jurisdiction-wide or it can focus on one or more key issues within a jurisdiction

DEFINING AFFH……………………• Since 1968 the Department has been under an obligation to

affirmatively further fair housing in the programs it administers.

• The Fair Housing Act specifies that the Secretary of Housing and Urban Development shall administer programs and activities relating to housing and urban development in a manner that affirmatively furthers the policies outlined in section 808 (e) 5.

AFFIRMATIVELY FURTHERING FAIR HOUSING AND THE AFFIRMATIVELY FURTHERING FAIR HOUSING AND THE ANALYSIS OF IMPEDIMENTSANALYSIS OF IMPEDIMENTS

HUD Defines AFFH and the AI as:1. Conducting an analysis to identify impediments to fair housing

choice;2. Taking appropriate actions to overcome the effects of any

impediments identified through the analysis3. Maintaining records reflecting the analysis and actions taken.

AFFIRMATIVELY FURTHERING FAIR HOUSING AND THE AFFIRMATIVELY FURTHERING FAIR HOUSING AND THE ANALYSIS OF IMPEDIMENTSANALYSIS OF IMPEDIMENTS

HUD Interprets these objectives to mean: 1. Analyze and eliminate housing

discrimination in the jurisdiction;2. Promote fair housing choice for all persons;3. Provide opportunities for inclusive patterns of

housing occupancy regardless of the protected class (e.g., equitable disbursement of LIHTC properties)

4. Promote housing that is structurally accessible to, and usable by, persons with disabilities; and

5. Foster compliance with the nondiscrimination provisions of the Federal Fair Housing Act.

ANALYSIS OF IMPEDIMENTS ANALYSIS OF IMPEDIMENTS

•Purpose is to determine whether or not there are barriers to fair housing choice, and, if so, analyze the current manifestations of the barrier, the history of the barrier, and the extent to which the barrier adversely affects persons based on race, national origin, religion, sex, familial status and/or disability

•AIs in the past were not routinely reviewed by HUD however as we increase our efforts – AIs are/will be reviewed in tandem with the consolidated plan submission.

WHAWHAT ARE TRIGGERS FOR HUD TO INITIATE T ARE TRIGGERS FOR HUD TO INITIATE AN AFFH REVIEW? AN AFFH REVIEW? 1. It may be brought under a complaint that explicitly raises AFFH issues,

often in conjunction with claims under other laws, such as the Fair Housing Act, Title VI of the 1964 Civil Rights Act, Section 504 of the 1973 Rehabilitation Act or Section 109 of the Housing and Community Development Act; (West Chester, Sussex County)

2. It may be identified by an evaluation of issues in a complaint which has been filed or which is in investigation which raises AFFH issues although they are not explicitly a basis for the complaint;

3. It may be identified as part of, or during, a compliance review conducted under Title VI, Section 109, Section 504 or ADA Title II; or

4. It may be developed by FHEO as a result of an analysis of existing information including conclusion of a lawsuit, a judicial finding of a violation of one or more civil rights laws, review of an Analysis of Impediments (AI), Annual Action Plan, Consolidated Plan or CAPERS reports, a risk assessment, news reports, examination of complaint filings, a monitoring review or issues brought to FHEO's attention in some other way. (Joliette)

WHAT IS THE RELATIONSHIP BETWEEN AN AFFH REVIEW AND A WHAT IS THE RELATIONSHIP BETWEEN AN AFFH REVIEW AND A COMPLAINT UNDER THE FAIR HOUSING ACT?COMPLAINT UNDER THE FAIR HOUSING ACT?

FHEO will not accept a complaint directly under the Fair Housing Act that an entity has failed to affirmatively further fair housing because there is no authority in the Act to do so; a failure to affirmatively further fair housing violates 42 U.S.C. Section 3608 as a programmatic violation. (other civil rights authorities)

In a zoning or land use matter a Fair Housing Act complaint is accepted to establish a potential violation of one or more the Act's direct prohibitions, and an additional AFFH issue is raised to determine whether a recipient has failed to AFFH.

SUSSEX COUNTY CASE STUDY SUSSEX COUNTY CASE STUDY COMPLAINT SUMMARY

1. In November 2010 Diamond State Community Land Trust filed a complaint against Sussex County Council and Sussex County Planning and Zoning Commission alleging that both entities discriminatorily denied the preliminary subdivision plan approval for New Horizons a proposed development of 50 single-family affordable homes for low-and moderate families- many of whom were be people of color- and therefore violated the FHAct.

2. The complaint alleged that Sussex County was in violation of its duty to Affirmatively Further Fair Housing in violation of the FHAct Title VI and 109.

3. The complaint also named other aggrieved parties- minorities that would have benefited from the housing opportunity.

SUSSEX COUNTY CASE STUDY SUSSEX COUNTY CASE STUDY 1. Determining the Respondents (Primary

Recipient/Sub-Recipient)2. Notifications (CPD and Primary Recipient) 3. Investigating Title VIII and the other authorities

(Understanding the Framework for AFFH-e.g., did the jurisdiction in its denial of the subdivision limit housing choices or opportunities?; did this subdivision address an identified impediment? )

4. Going Beyond the Allegations- How were the aggrieved parties impacted by the action?

SUSSEX COUNTY CASE STUDY SUSSEX COUNTY CASE STUDY The investigation: •Review of Census Data to determine impacted vs nonimpacted areas; in which the proposed subdivision was to be built; transportation; areas of segregation •Review of the ordinance to determine whether the assertion that the DSCLT proposed subdivision met the standards of the ordinance or not. •The County asserted 6 reasons for denial. The investigator had to determine whether each assertion could be supported or refuted by evidence. •Interviews with the County Council and Planning and Zoning Board to assess their knowledge of AFFH or if they understood the duty to AFFH. •Review of the County Council Minutes and approvals of plans and disapproval of plans.

SUSSEX COUNTY CASE STUDY SUSSEX COUNTY CASE STUDY • Evaluation of historical data involving land use in Sussex County • Consolidated Plans, Annual Action Plan reviews • Review of CDBG files to determine beneficiaries (Hispanics were

not being served)• Evaluated the County’s AIs (for a period of 10-15 year period)• Evaluated the County’s affordable housing strategy to

determine if in fact it had been implemented and whether it intended to serve low-moderate income persons

• Interviews with Community Stakeholders• Site visits of the neighborhoods in which the development was

to be built- • Site visits of areas of concentration to determine the lack of

investment and prioritization of funds

SUSSEX COUNTY CASE STUDY SUSSEX COUNTY CASE STUDY Conclusion: Violations of Title VIII and Title VI (based on

race/national origin)1. Sussex County failed to AFFH in its denial of the proposed planned subdivision. The subdivision had it been approved would have addressed an identified impediment (one of the county’s greatest needs –a severe lack of affordable housing- having a disproportionate effect on racial and other minorites… 2. We determined that the zoning and land Use allegations in the case were meritorious – the case was referred to the DOJ3. FHEO issued a Letter of Findings to Sussex County and notifications were sent to the State as the primary recipient of the funds.

SUSSEX COUNTY CASE STUDY SUSSEX COUNTY CASE STUDY Conciliation Strategy: 1. DOJ and HUD sought to seek conciliation jointly

2. Resulted in the joint signing of a Decree and VCA

SUSSEX COUNTY CASE STUDY SUSSEX COUNTY CASE STUDY Remedies: 1. Relief to the complainant $750,0002. Approval of the subdivision plan which allows the build out of 50

affordable housing units in a high opportunity neighborhood. 3. Development of Affirmative Marketing Strategies for all of its

programs 4. Development of a priority fair housing plan to address impediments

from 1998 to current. 5. Development of strategies to increase housing opportunities

throughout the County taking into account the housing needs of African American and Hispanic residents that were disproportionately represented over the years.

6. 10-12 named historically segregated communities are to receive priority funding for infrastructure enhancements, investments to create economically diverse communities.

SUSSEX COUNTY CASE STUDY SUSSEX COUNTY CASE STUDY Relief Continued: 7. Revisions to MPHU to allow for persons at 50%-80% of the

median income the opportunity for homeownership.8. Hiring of a fair housing officer