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The apartment industry is committed to equal housing opportunity for all without regard to race, religion, color, sex, national origin, handicap or familial status. However, NMHC continues to stress that any fair housing rules should not further hinder multifamily development—particularly during this time of constrained supply.
Read on for the latest legislative, regulatory and industry actions related to this topic.
NMHC Weighs in on AFFH Proposed Rule
NMHC again responded to HUD’s request for comment on a revised Affirmatively Furthering Fair Housing (AFFH) rule. This is the third time commenting on implementation of the AFFH program.
What This Means: NMHC and NAA have consistently raised concerns over the regulatory burdens imposed by the AFFH requirements and the lack of guardrails around data-collection efforts. While this newly proposed rule has incorporated many of our previous recommendations, we believe more can be done to better streamline the implementation of the program.
Why This Matters NMHC and NAA continue to support the original AFFH goal to reduce housing discrimination and promote fair housing. While we think this latest NPRM is a step in the right direction, several parts of the NPRM seem to encourage both public criticism and unnecessary litigation.
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Focusing on the True Barriers to Expanding Affordable Housing – addressing exclusionary zoning, permitting, environmental reviews, and high-cost developer fees.
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Considering a Pilot Program or Limited Approach to Determine Regulatory Impacts – Implementing pilot programs across the nation to understand regulatory best practices.
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Enacting Guardrails Around the Use of and Access to the Data Collected by HUD Pursuant to the NPRM – Provide safeguards for illegitimate litigation and provide a framework for PHAs to truly advance AFFH goals.
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Focusing on Housing Supply and Common Ground with Consumer Advocacy Organizations – Encourage more multifamily development to increase affordable options.
Biden Administration Moves Forward with New AFFH Rule
The Biden administration has taken the next step in restoring a previously proposed rule issued under President Obama that will require cities, counties and states that receive federal housing funds to examine patterns of residential segregation within their borders and take steps to uproot them—a mandate that was first established by civil rights-era legislation but has proved almost impossible to enact.
- What This Means: The new rule resembles the AFFH guidance set forth by HUD in 2015, but officials say this new version establishes a more streamlined process for:
- identifying civil rights concerns;
- and reporting progress toward desegregation under the rubric of "equity plans."
This follows similar efforts focused on housing equity from Fannie Mae and Freddie Mac.
- Industry Impact: The new rule is designed to identify and reward jurisdictions seeking to address fair housing challenges in their community, with the potential to lose access to billions of dollars of federal funding for those that fail to comply with the new fair housing rule. Officials say this framework will be easier for localities of different sizes to follow, and harder for them to ignore.
- NMHC's Viewpoint: NMHC is working through the new rule and intends to file comments. Although we are not directly the regulated party, we remain concerned about the rule’s potentially negative impact on our industry’s ability to deliver the housing necessary to close the supply-demand gap in communities across the country.
Learn more by reading the Administration’s press release and diving deeper into the proposed rule.
HUD Restores Affirmatively Furthering Fair Housing Rule
On June 9, HUD announced that Secretary Marcia Fudge will replace the Preserving Community and Neighborhood Choice Rule with the Obama-era Affirmatively Furthering Fair Housing Rule.
- What This Means: Per the final rule text, the new rule will “restore certain definitions and certifications that have been through notice-and-comment scrutiny and that are grounded in legal precedent to its regulations implementing the Fair Housing Act's requirement to affirmatively further fair housing (AFFH) and reinstate a process by which HUD will provide technical assistance and other support to funding recipients who are engaged in fair housing planning to support their certifications.”
- Industry Impact: The new rule requires that HUD program participants “take meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially or ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”
- NMHC's Viewpoint: NMHC has long supported the Fair Housing Act. However, we’ve continued to stress that, although well-intentioned, the Obama-era AFFH regulations actually made it more difficult to develop multifamily housing and further constrained supply—particularly in the underserved communities it aims to help.
- What Now: HUD has opened a comment period through July 12 and the final rule will take effect July 31. Having previously weighed in with both the Obama Administration and Trump Administration, NMHC plans to again submit comments that advocate for changes to AFFH that focus on growth, expanding supply, eliminating regulatory burdens and correctly addressing housing affordability in every community.
Learn More: Read HUD’s new rule here. >>>
HUD Replaces Affirmatively Furthering Fair Housing Rule with Preserving Community and Neighborhood Choice Rule
On July 23, HUD released a final rule that will replace the Obama-era Affirmatively Furthering Fair Housing Rule.
- What This Means: Per HUD’s final rule text, the Preserving Community and Neighborhood Choice Rule “repeals the 2015 AFFH rule and its related accretions. The new rule returns to the original understanding of what the AFFH certification was for the first eleven years of its existence: AFFH certifications will be deemed sufficient provided grantees took affirmative steps to further fair housing policy during the relevant period.”
- NMHC's Viewpoint: We believe this new rule takes critical steps towards to increase supply and eliminate regulatory burdens—therefore relieving housing affordability constraints in communities nationwide.
- Industry Impact: The new rule will take effect on September 8 and NMHC will work with HUD to ensure seamless industry implementation.
Access the new rule to learn more. >>>
NMHC Makes Recommendations on Affirmatively Furthering Fair Housing Revisions
NMHC, NAA and the National Leased Housing Association (NLHA) submitted comments on October 15 on how best to revise the Affirmatively Furthering Fair Housing (AFFH) rule in a way that will reduce obstacles to the development of additional housing and to promote creation of urgently needed multifamily housing around the country.
- What This Means: Secretary Carson, in HUD's August Notice announcement, acknowledged the fact that the current AFFH rule could be impeding the creation of more affordable housing rather than helping to expand the supply: “It is ironic that the current AFFH rule, which is designed to expand affordable housing choices, is actually suffocating investment in some of our most distressed neighborhoods that need our investment the most.”
In addition to submitting comments on AFFH, NMHC/NAA were invited to participate in a series of listening sessions held in August and September regarding AFFH as it relates to regulatory barriers for housing production and preservation. These sessions were held in Boston, Seattle, Denver and Washington, D.C.
Read our comment letter to learn more about our recommendations. >>>
HUD Proposes Changes to AFFH
HUD announced in August that it will seek public comments regarding amendments to its Affirmatively Furthering Fair Housing (AFFH) regulations.
- What This Means: NMHC has long advocated for an AFFH implementation that is pro-growth, expands supply, eliminates regulatory burdens and correctly addresses housing affordability in every community. For these reasons, we applaud Secretary Carson’s announcement that HUD will be pursuing new rulemaking regarding AFFH regulations.
- Industry Impact: HUD’s recent announcement and the move to rework the rule is a positive step forward for the multifamily industry that is pro-growth, prioritizes increased supply and eliminates regulatory burdens.
- NMHC's Viewpoint: As the process for implementing AFFH moves forward, NMHC/NAA will continue to strongly support AFFH’s mission and will encourage HUD to promote new development of rental housing and avoid endorsing local policies with harmful unintended consequences.
NMHC and NAA released a press statement in support of this proposal—access it here. >>>
NMHC Meets with HUD Leadership on Fair Housing Priorities
Earlier this month, NMHC/NAA attended a high-level meeting at the U.S. Department of Housing and Urban Development to discuss the industry’s fair housing priorities.
- What This Means: The roles of Assistant Secretary for Fair Housing and Equal Opportunity and General Counsel have recently been filled and NMHC/NAA are hopeful that HUD can now turn its attention to clarifying and addressing the issues specific to fair housing that have had the unintended consequence of negatively impacting the safety and affordability of housing.
- Industry Impact: The apartment industry is committed to equal housing opportunity for all without regard to race, religion, color, sex, national origin, handicap or familial status. However, more guidance and clarity are needed from HUD on specific fair housing program areas.
- NMHC's Viewpoint: NMHC highlighted three issues of pressing concern to the industry - emotional support animals, disparate impact liability and resident criminal screening. HUD has been hampered in their efforts to address issues due to a slow appointment process in key agency positions.
