Analysis of Impediments to Fair Housing Choice
May 6, 2009
By Ed Gramlich, Director of Outreach, National Low Income Housing Coalition
States and local governments must certify that they are ‘affirmatively furthering fair housing’ in their Consolidated Plans (ConPlans) and Public Housing Agency (PHA) Plans. In order to comply, these jurisdictions must have an Analysis of Impediments to Fair Housing Choice, also known as an AI.
Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act) requires HUD to administer its programs in a way that affirmatively furthers fair housing. Three other laws require jurisdictions to certify (pledge in writing) that they are affirmatively furthering fair housing, often abbreviated as AFFH: AI requirements apply to the Community Development Block Grant (CDBG) program, programs such as HOME which are required to prepare a Comprehensive Housing Affordability Strategy (CHAS), and the Quality Housing and Work Responsibility Act of 1998 (QHWRA), which created the PHA Plan (for more information see related articles).
States must assure that units of local government receiving CDBG or HOME funds comply. Further, HUD’s Fair Housing Planning Guide states that the obligation to affirmatively further fair housing applies to all housing and housing-related activities in a jurisdiction, whether publicly or privately funded.
Analysis of Impediments
In the context of an AI, an ‘impediment’ to fair housing can be an action or an inaction that restricts housing choice, or that has the effect of restricting housing choice. Some policies or practices might seem neutral, but can deny or limit the availability of housing. Obvious impediments include outright discrimination based on race or ethnicity, refusing to rent to families with children, or insurance practices that reinforce segregated housing patterns. Less obvious impediments include lack of large rental units, inadequate multi-lingual marketing, zoning that limits group homes, and insufficient public transportation to areas with affordable housing.
AIs are their own separate documents, the content of which are not prescribed by HUD. They are available to the public. HUD’s Fair Housing Planning Guide defines an Analysis of Impediments as:
A comprehensive review of a jurisdiction’s laws, regulations and administrative policies, procedures and practices.
An assessment of how those laws, regulations and practices affect the location, availability and accessibility of housing.
An assessment of conditions, both public and private, affecting fair housing choice for all protected classes. The protected classes are: race, color, religion, sex, national origin, familial status (in other words, households with children) and disability.
An assessment of the availability of affordable, accessible housing in a range of unit sizes.
The Fair Housing Planning Guide explains that analyzing fair housing impediments and taking appropriate actions means:
Eliminating housing discrimination in the jurisdiction.
Promoting fair housing choice for all.
Providing housing opportunities for people of all races, colors, religions, genders, national origins, family types and disabilities.
Promoting housing that is structurally usable by all people, particularly those with disabilities.
Fostering compliance with the nondiscrimination features of the Fair Housing Act.
Tips for Local Utilization and Success
Advocates should be aware of and impress upon their jurisdictions that a judge has recently ruled that “the AFFH certification was not a mere boilerplate formality, but rather was a substantive requirement.” On February 24, 2009, U.S. District Judge Denise Cote, in U.S. ex rel. Anti-Discrimination Center v. Westchester County, New York, found that from April 2000 to April 2006 the county’s AI “utterly failed to comply with the regulatory requirement that it perform and maintain a record of its analysis of impediments to fair housing choice in terms of race. This failure is only compounded by the county’s failure to follow the guidance provided by HUD [in its Fair Housing Planning Guide].” Judge Cote also observed that “[t]he AFFH certification was not a mere boilerplate formality, but rather was a substantive requirement rooted in the history and purpose of the fair housing laws and regulations, requiring the county to conduct an AI, take appropriate actions in response, and to document its analysis.”
The name of the agency or department which will have an AI varies from locality to locality. Generally, the office that manages the CDBG program should be able to provide a a copy. In addition, advocates can contact the Fair Housing and Equal Opportunity (FHEO) staff at their HUD Field Office.
AIs are not sent in to HUD and they are not a formal piece of any CDBG document such as the ConPlan’s Annual Action Plan or Five-Year Strategy. However, a September 2, 2004, HUD Policy Memorandum says that a jurisdiction may include in its Annual Action Plan the actions it plans to take in the upcoming year to overcome the effects of impediments to fair housing. Note that this is only a ‘may,’ not a ‘must;’ plus, many jurisdictions do not know this Policy Memorandum exists. Also, some jurisdictions point to a part of their ConPlan or Action Plan called ‘barriers to affordable housing’ and claim that to be the AI. The law creating the CHAS (the statutory root of the ConPlan) requires such a discussion, but this is not an AI.
When are AIs written? According to the Fair Housing Planning Guide, AIs must be updated in cycle with the timeframe of a ConPlan. So, theoretically, if a jurisdiction has to come up with a new ConPlan every five years, then it should also revise its AI at the same time. However, the September 2, 2004, HUD Policy Memorandum merely states that a jurisdiction “should update, where appropriate, its AI…to reflect the current fair housing situation in their community.”
In a more positive vein, that Policy Memorandum implies that jurisdictions which do not make appropriate revisions to update their AIs could face problems. Advocates might want to be sure that their jurisdiction’s AI is up to date and reflects all impediments.
Public participation. Unfortunately, the regulations do not directly tie public participation in CDBG, the ConPlan or the PHA Plan with the AI. However, the Fair Housing Planning Guide offers a few words that advocates might be able to use: “Since the FHP [Fair Housing Plan] is a component of the Consolidated Plan, the citizen participation requirements for the Consolidated Plan apply.” The introduction to the Fair Housing Planning Guide stresses that: “…all affected people in the community must be at the table and participate in making those decisions. The community participation requirement will never be more important to the integrity, and ultimately, the success of the process.”
The Fair Housing Planning Guide also suggests that before developing actions to eliminate the effects of impediments, a jurisdiction “should ensure that diverse groups in the community are provided a real opportunity” to take part in the process of developing actions to be taken. HUD “encourages jurisdictions to schedule meetings [for public comment and input] to coincide with those for the Consolidated Plan,”
Monitoring Compliance
Before the start of the CDBG, HOME or public housing program year.
In order to get CDBG, HOME or public housing money, jurisdictions must certify that they are affirmatively furthering fair housing. All Annual Plans have this written certification, signed by the authorized official. There must be evidence that supports this pledge and such evidence must be available to the public.
HUD can disapprove a PHA Plan or a ConPlan (and therefore receipt of CDBG and HOME dollars) if a certification is inaccurate. The September 2, 2004, Policy Memorandum gives examples of ‘inaccurate:’
1. There is no AI;
2. The AI is substantially incomplete;
3. No actions were taken to overcome the impediments;
4. The actions taken were ‘plainly inappropriate’ to address impediments;
5. There are no records.
Another situation which could cause HUD to look more carefully at an AI is the failure to make “appropriate revisions to update the AI.” (September 2, 2004, Memorandum)
This can be an important advocacy tool in years between new five-year ConPlans and PHA Plans. If there are major changes in conditions for people who are members of protected classes, advocates should make sure the AI is revised to show those changed conditions. In general, if advocates think that a jurisdiction’s AI is inadequate or that the jurisdiction has not taken reasonable actions to overcome impediments to fair housing, they should write a complaint to the HUD Field Office.
CDBG regulations also allow a certification to be challenged if there is evidence that a policy, practice, standard or method of administration, although it seems neutral, really has the effect of significantly denying or adversely affecting fair housing for persons of a particular race, color, religion, sex or national origin.
At the end of the CDBG or HOME program year.
In the Annual Performance Report related to the ConPlan, called the ‘CAPER,’ a jurisdiction must include a summary of the impediments to fair housing, and it must have a description of the actions taken in the past year to overcome the effects of impediments (September 2, 2004, Memorandum).
If advocates think that the actions taken to overcome impediments to fair housing were inadequate, it is important to write a complaint to the jurisdiction and to send a copy to the HUD Field Office.
Records To Be Kept. CDBG regulations require jurisdictions to keep three types of records:
Documents showing the impediments, and the actions carried out by the jurisdiction with CDBG and other money to remedy or lessen impediments.
Data showing the extent to which people have applied for, participated in or benefited from any program funded in whole or in part with CDBG.
Data indicating the race, ethnicity and gender of those displaced as a result of CDBG use, plus the address and census tract of the housing to which they were relocated.
A February 9, 2007, Joint Memorandum from the Assistant Secretaries for HUD’s Office of Fair Housing and Equal Opportunities (FHEO) and Community Planning and Development (CPD), which administers CDBG and HOME, suggests that a jurisdiction keep for the record: copies of local fair housing laws and ordinances; the full history of the development of its AI; options available for overcoming impediments; a list of those consulted; planned actions and actions taken; and issues that came up when actions were carried out.
The Fair Housing Planning Guide also suggests that jurisdictions keep transcripts of public meetings or forums and public comments or input, a list of groups participating in the process, and a description of the financial support for fair housing, including funds or services provided by the jurisdiction.
For More Information
HUD’s Office of Fair Housing and Equal Opportunity (FHEO) www.hud.gov/offices/fheo/promotingfh.cfm.
HUD’s Fair Housing Planning Guide, Vol. 1 (#HUD-1582B-FHEO) is available at www.hud.gov/offices/fheo/images/fhpg.pdf. [Vol. 2 (#HUD-1582A-FHEO) is out of print. It was less useful because it was mainly samples.]
HUD’s Office of Affordable Housing has a good chapter summarizing the Fair Housing Planning Guide, “Affirmatively Furthering Fair Housing” (page 18) in Fair Housing for HOME Participants: www.hud.gov/offices/cpd/affordablehousing/library/modelguides/200510.pdf
September 2, 2004 Memorandum from HUD’s Community Planning and Development Office (CPD): www.hud.gov/offices/fheo/library/finaljointletter.pdf
February 9, 2007 Joint Memorandum from Assistant Secretaries for CPD and FHEO: www.hud.gov/offices/fheo/promotingfh/fairhousing-cdbg.pdf.
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