Using the Analysis of Impediments to Affirmatively Further Fair Housing

1. Using the Analysis of Impediments to Affirmatively Further Fair Housing NACCED's 36th Annual Community & Economic Development Conference Se Chancela Al-Mansour

2. Federal and State Fair Housing Laws • Federal • Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, and sex.

3. Federal law cont. • Fair Housing Amendments Act: Sept. 13, 1988—President Reagan signed the Fair Housing Amendments Act (FHAA) of 1988. FHAA added families with children (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18) and disabled persons as protected persons under the Fair Housing Act of 1968. Federal Fair Housing Act, 42 U.S.C § 3601

4. California state laws The Fair Employment & Housing Act (FEHA) [Gov. Code §§ 12900 et seq.] is the primary state law prohibiting discrimination in the sale, rental, lease negotiation, or financing of housing based on a person’s race, religion, national origin, color, sex, marital status, ancestry, family status, disability, sexual orientation, and source of income. In California, disability (physical and mental) is defined as a condition that limits a major life activity, without regard to mitigating measures[Gov. Code § 12926, subds. (i), (k), (l); § 12926.1].California’s definition of disability is broader than the federal definition, which requires a “substantial limitation.” The FEHA also incorporates the protections of the Unruh Act (discussed below) which includes medical condition as a protected category [Gov. Code § 12921(b).]

5. What Housing Is Covered? • The Fair Housing Act covers most housing. In California, the fair housing laws apply where there’s more than one unit that isn’t owner occupied. The provisions of the FEHA are generally applicable to any real property that is occupied or intended to be occupied as a home, residence, or sleeping place by one or more families.Only two categories of housing are expressly exempted. First, the FEHA does not apply to renting a portion of a single-family, owner-occupied house to one person.Second, religious organizations which own or operate housing accommodations for non-commercial purposes, either directly or through a related non-profit institution or organization, may give a preference to persons of the same religion. • Think outside the housing “box”. Fair housing laws can apply to any law, ordinance, city policy, or public funds spending that affects housing production, location, preservation, etc.

6. What Is Prohibited? • In the Sale and Rental of Housing:No one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap: • Refuse to rent or sell housing • Refuse to negotiate for housing • Make housing unavailable • Deny a dwelling • Set different terms, conditions or privileges for sale or rental of a dwelling • Provide different housing services or facilities • Falsely deny that housing is available for inspection, sale, or rental • For profit, persuade owners to sell or rent (blockbusting) or • Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing • Sexually harass, threaten or intimidate

7. Requirement to AFFH • Executive Order 12892Executive Order 12892, as amended, requires federal agencies to affirmatively further fair housing in their programs and activities, and provides that the Secretary of HUD will be responsible for coordinating the effort.

8. What Does Affirmatively Furthering Fair Housing Mean? • In general, using Federal financial assistance and other program resources to overcome barriers to fair housing choice • Three components: • Analysis of impediments • Action planning and implementation • Recordkeeping and assessment

9. In order to get CDBG, HOME or public housing money (and before the program year starts), 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.

10. HUD Regulations – Overview Federal programs subject to AFFH: • Public Housing Agency Plan: Public housing and housing choice vouchers • HOME • HOPWA • McKinney-Vento homeless assistance • Supportive housing for the elderly and persons with disabilities (202 and 811) • FHA-insured housing • CDBG and other Title I programs

11. Public Housing Agency • Public Housing and Rental Assistance Public Housing Agency (PHA) Plan Civil rights certification – that the PHA will affirmatively further fair housing – at 24 CFR § 903.7(o)(1) • AFFH regulations at 24 CFR § 903.7(o)(3) • Housing Choice Voucher and Project- Based Voucher – follow 24 CFR § 903.7(o) • HOME – affirmative marketing and minority outreach – 24 CFR § 92.351 • • HOPWA – affirmative outreach – 24 CFR § 574.603(b) • • McKinney-Vento Act – affirmative outreach • • FHA-insured housing – Affirmative Fair Housing Marketing Plan (AFHMP) – 24 CFR §§ 200.600- 640 • • Section 202 elderly and Section 811 disabled – AFHMP – 24 CFR § 891.155(a)

12. HUD Regulations for CDBG • Housing and Community Development Act of 1974 – § 104(b)“the grantee will affirmatively further fair housing” • Regulations at 24 CFR part 91§ 91.225(a)(1) (entitlement communities) • § 91.325(a)(1) (States) • § 91.425(a)(1) (consortia)

13. AFFH and CDBG continued: • Responsibility for fair housing planning • • AFFH certification • • Analysis of Impediments to fair housing choice in the jurisdiction, State, or jurisdictions covered by the consortium • • Appropriate actions to overcome the effects of impediments • • Recordkeeping on analysis and actions

14. Analysis of Impediments cont. • Analysis of Impediments (AI) is a review of impediments or barriers that affect the rights of fair housing choice. It covers public and private policies, practices, and procedures affecting housing choice. Impediments to fair housing choice are defined as any actions, omissions, or decisions that restrict, or have the effect of restricting, the availability of housing choices, based on race, color, religion, sex, disability, familial status, or national origin. The AI serves as the basis for fair housing planning, provides essential information to policy makers, administrative staff, housing providers, lenders, and fair housing advocates, and assists in building public support for fair housing efforts.

15. Conducting an analysis of impediments is a required component of certification and involves the following: • An extensive review of a State or Entitlement jurisdiction's laws, regulations, and administrative policies, procedures, and practices; • An assessment of how those laws affect the location, availability, and accessibility of housing; • An evaluation of conditions, both public and private, affecting fair housing choice for all protected classes; and • An assessment of the availability of affordable, accessible housing in a range of unit sizes.

16. 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, HUD 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.

17. 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.  HUD’s 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

18. What not to do: • Westchester County Doctrine • St. Bernard Parish

19. For more info please contact: The Housing Rights Center www.HOUSINGRIGHTSCENTER.org (800) 477-5977