HUD Replaces AFFH Rule with Preserving Community and Neighborhood Choice Rule

On July 23, HUD issued a new Preserving Community and Neighborhood Choice final rule, which repeals the 2015 Affirmatively Furthering Fair Housing (AFFH) final rule and the 1994 Analysis of Impediments requirements. This move is a return to HUD’s pre-1994 understanding of the 1968 Fair Housing Act’s obligation to affirmatively further fair housing.

The new Preserving Community and Neighborhood Choice rule defines fair housing broadly to mean housing that, among other attributes, is affordable, safe, decent, free of unlawful discrimination, and accessible under civil rights laws. It then defines “affirmatively furthering fair housing” to mean any action rationally related to promoting any of the above attributes of fair housing.

The Preserving Community and Neighborhood Choice rule requires HUD grantees to certify they will use HUD funds to take active steps to promote fair housing. HUD remains able to terminate funding if it discovers, after investigation made pursuant to complaint or by its own volition, that a jurisdiction has not adhered to its commitment to AFFH.

In the final rule, HUD states: “The phrase ‘affirmatively furthering fair housing’ is vague and unclear. The ordinary meaning of the phrase does not invite a fundamental expansion of HUD regulations to include cumbersome policy, monitoring, or reporting requirements that will significantly affect the economy by impacting local zoning and development policies across the nation. Hanging a massively intrusive regulatory structure on such a cryptic, four-word phrase is inconsistent with the bedrock principles of separation of powers.”