The basis for Affirmatively Furthering Fair Housing (“AFFH”) flows from the mandate of Section 808(e)(5) of the Fair Housing Act which requires the Secretary of HUD to administer the Department’s housing and urban development programs in a manner to affirmatively further fair housing. The obligation to AFFH has never been defined statutorily. However, HUD defines it, in their Consolidated Plan Final Rule (24 CFR Part 91), as requiring a grantee to:
1) Conduct an analysis to identify impediments to fair housing choice within the jurisdiction;
2) Take appropriate actions to overcome the effects of any impediments identified through the analysis; and
3) Maintain records reflecting the analysis and actions taken in this regard.
The documentation that is required and available will differ in the entitlement jurisdictions from the non-entitlement jurisdictions. Entitlement jurisdictions are those who directly receive federal funds, such as CDBG, HOME, and ESG. Non-entitlement jurisdictions receive their share of federal funds from the Commonwealth of Pennsylvania.
Entitlement Jurisdictions are required to produce the following documents:
- Consolidated Plan – a document written by a State or local government describing the housing needs of the low- and moderate-income residents, outlining strategies to meet the needs and listing all resources available to implement the strategies.
- Analysis of Impediments to Fair Housing Choice (AI) – a review of impediments or barriers that affect the rights of fair housing choice. Serves as the basis for fair housing planning.
- Annual Action Plan – these plans lay out how the grantees plan to achieve the overall objectives in their Consolidated Plans in the coming fiscal year.
- Consolidated Annual Performance and Evaluation Report (CAPER) – reports on the progress they have made in carrying out the activities described in their Annual Action Plan.
The AI has been defined by HUD as “A comprehensive review of potential impediments and barriers to the right to be treated fairly when seeking housing. The AI is expected to cover public and private policies, practices, and procedures affecting housing choice and assess how they all affect the location, availability, and accessibility of housing. Grantees are also to develop strategies and actions to overcome these barriers based on history, circumstances, and experiences. The AI is a tool that is intended to serve as the basis for fair housing planning; provide essential information to policymakers, administrative staff, housing providers, lenders, and fair housing advocates; and assist in building public support for fair housing efforts.”
HUD has provided guidance regarding what information is required in each of these documents as well as a suggested format.
“A Desk Guide for Using IDIS to Prepare the Consolidated Plan, Annual Action Plan, and CAPER/PER” is available on HUD’s website, as is the “Fair Housing Planning Guide,” which provides guidance on the AI.
On July 8, 2015, HUD announced the final rule on AFFH. This rule provides an improved structure and process whereby HUD will provide the program participants with guidance, data, and an assessment template from which they would complete an assessment of fair housing (AFH), which would replace the AI. This assessment would then link to Consolidated Plans, Public Housing Authority Plans, and Capital Fund Plans, meaningfully informing resulting investments and related policies to affirmatively furthering fair housing. More information regarding this rule can be found HERE.
Non-Entitlement Jurisdictions in Pennsylvania are required to produce the following:
- Comprehensive Plan – a land use and growth management plan prepared by the county planning commission and adopted by the county commissioners which establishes broad goals and criteria for municipalities to use in preparation of their comprehensive plan and land use regulation.
The requirement for a Comprehensive Plan is located in Section 301(a) of the Pennsylvania Municipalities Planning Code (“MPC”). The MPC also provides the nine components that are required in each Comprehensive Plan.
The Code requires the following elements in the “Housing” component of the plan.
- Inventory of Housing Stock
- Housing Characteristics
- Housing Types
- Housing Occupancy and Vacancy Study
- Housing Quality Value and Needs Assessment
- Housing Needs and Affordability
- Future Housing Needs
- Residential Neighborhood Patterns
- Housing Ownership and Funding
All recipients of federal funds, entitlement jurisdictions as well as non-entitlement jurisdictions must make certain certifications in their reporting to either HUD or the Pennsylvania Department of Community & Economic Development (“DCED”). These certifications differ depending on the jurisdiction’s classification of entitlement or non-entitlement.
Entitlement Jurisdictions: The following Certifications are required under 24 CFR 91.225
- General Certifications
- Affirmatively furthering fair housing
- Anti-displacement and relocation plan
- Authority of jurisdiction
- Consistency with plan
- Acquisition and relocation
- Section 3
- CDBG Certifications
- Citizen Participation
- Community development plan
- Following a plan
- Use of funds
- Excessive force
- Compliance with anti-discrimination laws
- Compliance with lead-based paint procedures
- Compliance with laws
Non-Entitlement Jurisdiction: DCED in their 2011 CAPER identified the following action steps that must be undertaken by grant recipients to affirmatively address barriers to fair housing within their respective communities:
- Advertising and publicizing that the agency adheres to Equal Housing Opportunities (using the Equal Opportunity Logo and the Equal Housing Opportunity statement).
- Designating a Fair Housing Officer for any housing-related bias or discrimination complaint.
- Referring complaints and assist in filing complaint with either HUD or PHRC.
- Advertising the availability of housing and related assistance to population groups that are less likely to apply, both minority and non-minority groups, through various forms of media and using the variety of languages spoke by eligible families within the service area.
- Developing an Affirmative Marketing Plan, including outreach to organizations and locations that have contact with protected classes.
DCED will also expect federal grantees performing housing activities to identify one or more of the following activities to affirmatively further fair housing:
- Providing training/educational programs about fair housing for financial, real estate, and property management professionals at local firms, including their obligations to follow non-discrimination laws.
- Developing mandatory employee acknowledgment that housing and lending professionals will adhere to affirmative-marketing plans and fair housing laws.
- Conducting meetings with advocacy groups on the availability of housing and determine housing needs to plan future projects.
- Establishing and/or funding fair housing organizations in areas where there are no such organizations, community-housing resource board or local human relations commission.
- Conducting fair housing testing to assure that local housing providers and/or lenders do not discriminate.
- Assisting Housing Choice Voucher program participants to help them find housing outside of minority and/or poverty concentrated areas.
- Conducting outreach to housing providers and housing developers to discuss housing needs in minority and poverty concentrated areas.
- Incorporating universal design as part of housing construction and/or provide accessible units at a level that is greater than that required by Section 504 or the ADA.