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Knox County Tennesee

Historic Overview

Provisions to affirmatively further fair housing (AFFH) are principal and long-standing components of HUD’s housing and community development programs. These provisions flow 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.

HUD’s housing and community development program regulations, handbooks, and notices interpret the statutory requirement in specific standards that State and Entitlement jurisdictions and HUD-assisted/insured housing providers must meet or actions they must take. Depending on the HUD housing or community development program, HUD interpretations include:

  • Site and neighborhood standards
  • Affirmative fair housing marketing requirements
  • The equal housing opportunity component of the Administrative Plan in the Section 8 Certificate and Housing Voucher Programs
  • Tenant selection and assignment criteria (including criteria relating to the operation of preferences)
  • Fair housing advertising
  • Program accessibility, including physical accessibility for persons with disabilities
  • Accessible communications
  • Reasonable accommodations

In its community development (CD) programs, HUD has strongly encouraged:

  1. The adoption and enforcement of State and local fair housing laws
  2. The reduction of separation by race, ethnicity, or disability status

HUD Community Planning and Development (CPD) programs include:

  • Community Development Block Grant (CDBG)
  • Home Investment Partnership (HOME)
  • Emergency Shelter Grant (ESG)
  • Housing Opportunities for Persons with AIDS (HOPWA).

The CDBG program contains a regulatory requirement to affirmatively further fair housing based upon HUD’s obligation under Section 808 of the Fair Housing Act. The CDBG regulation also reflects the CDBG statutory requirement that the grantees certify that they will affirmatively further fair housing. The HOME program regulation states the statutory requirement from the Comprehensive Housing Affordability Strategy (CHAS) that the jurisdictions must affirmatively further fair housing.

Through its CPD programs, HUD’s goal is to expand mobility and widen a person’s freedom of choice.

The Department also requires CD grantees (those State and Entitlement jurisdictions that administer the above identified CPD Programs) to document AFFH actions in the CDBG and CHAS annual performance reports that are submitted to HUD.

Definition of Affirmatively Furthering Fair Housing
The extent of the AFFH obligation has never been defined statutorily. However, HUD defines it 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
  3. Maintain records reflecting the analysis and actions taken in this regard.

HUD interprets those broad objectives to mean:

  • Analyze and eliminate housing discrimination in the jurisdiction
  • Promote fair housing choice for all persons
  • Provide opportunities for inclusive patterns of housing occupancy regardless of race, color, religion, sex, familial status, disability and national origin
  • Promote housing that is structurally accessible to, and usable by, all persons, particularly persons with disabilities
  • Foster compliance with the nondiscrimination provisions of the Fair Housing Act.

Legislative changes in HUD programs and subsequent HUD program regulations require CD grantees to certify that they will affirmatively further fair housing as part of the obligations assumed when they accept HUD program funds.

Applicability
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.

Fair Housing Review Criteria
In 1988, HUD developed Fair Housing Review Criteria (24 CFR 570.904 (c)) which described the activities that the Department deemed acceptable in reviewing CDBG Entitlement grantees’ AFFH performance. The criteria stated that, absent independent evidence to the contrary, if grantees conducted an Analysis of Impediments to Fair Housing Choice (AI) and took actions to address any identified impediments, HUD would presume that they had met their AFFH certification.

In 1992, as part of the regulations for the CHAS required by Congress in the National Affordable Housing Act of 1990 (NAHA), HUD referenced the Fair Housing Review Criteria as a means for Entitlement jurisdictions to take a more coordinated approach to their fair housing efforts (24 CFR 91.21(e)). Similarly, in 1992, HUD further defined the AFFH role of State CDBG grantees and State-funded jurisdictions in the Department’s State CDBG regulations (24 CFR 570.487(b)).

Certification to Affirmatively Further Fair Housing
Since 1983, the CDBG statute has contained a requirement that the grantee certify that it will affirmatively further fair housing. This requirement was not reflected in regulations until 1988 (24 CFR 570.303(d)). In addition, the CHAS statute, enacted in 1990, requires a certification by the jurisdiction that it will affirmatively further fair housing as part of the CHAS. The two statutes contain different language on acceptance of the certification. The CHAS statute at Section 104(21) defines the term “certification” to be:

  • A written assertion
  • Based on supporting evidence
  • Available for inspection by the Secretary, the Inspector General and the public
  • Deemed accurate for purposes of this Act unless the Secretary determines otherwise after:
  1. Inspecting the evidence
  2. Providing due notice and opportunity for comment.

However, with the Consolidated Plan, the acceptance of certifications and the definition of certification is the same for both certifications.

Consolidated Plan/Fair Housing Planning
In 1995, HUD published a rule consolidating the CHAS, the community development plan (required for the CDBG program), and the submission and reporting requirements for the four community development formula grant programs (CDBG, HOME, ESG, and HOPWA) into a single plan—the Consolidated Plan.

As part of the Consolidated Plan, grantees will submit an AFFH certification which requires them to undertake FHP through:

  1. The completion of an AI
  2. Actions to eliminate any identified impediments
  3. Maintenance of AFFH records.

As with consolidated planning, the Department encourages multiple jurisdictions in metropolitan areas or regions to consult with one another and initiate metropolitan areawide or regionwide FHP.