Since 2009, the U.S. Department of Housing & Urban Development (HUD) and various housing and community development stakeholders have grappled with the question of what it means to affirmatively further fair housing (AFFH). In some respects, HUD’s publication of a final AFFH rule on July 16, 2015 was the culmination of that process, 2 but the rule did not resolve all outstanding questions. In particular, the one point that has been reiterated by a range of groups with often competing interests is that no one is entirely clear how the framework that HUD has developed will work for states.3 To a certain extent, this gap in understanding is illustrated by the fact that the department still has not published a template for the required Assessment of Fair Housing (AFH) for states.4
This purported conundrum should not be hard to solve. The solution is to simply refocus the conversation on two closely related questions. First, what is the identity of the entity that is subject to the duty to AFFH? Second, what is the scope of that entity’s capacity, both in terms of planning and implementation? Agonizing over how states fit into HUD’s regulatory framework is grounded in a misappraisal of the answers to these two questions.
The answer to the first question is clear-cut: the entity is the state government as a whole and not the individual lead agency that develops the state’s Consolidated Plan and AFH. Each state government includes not only its state housing and community development department and its state housing finance agency, it also includes more far flung executive agencies, the legislative branch, and even the judiciary. If the most effective way to overcome a fair housing issue involves state legislative action, then the state legislature actually has an obligation to pass a bill and the governor has an obligation to sign it into law.5
"Overcoming Land Use Localism: How HUD's New Fair Housing Regulation Can Push States to Eradicate Exclusionary Zoning,"
University of Baltimore Journal of Land and Development: Vol. 5
, Article 3.
Available at: https://scholarworks.law.ubalt.edu/ubjld/vol5/iss1/3