The Fate of Fair Housing

In July of last year, the U.S. Department of Housing and Urban Development (HUD) issued new regulations to strengthen fair housing requirements for localities that receive their funding. The new regulations, named the Affirmatively Furthering Fair Housing Final Rule (AFFH), were a legacy of the Obama Administration's sustained emphasis on fair housing. 

The goal of AFFH is to overcome historic patterns of segregation and reduce disparities in housing choice and access to opportunity. The overarching mission is expanded economic opportunity and enhanced quality of life. President Obama and HUD leadership believed that fair housing is critical to building complete communities with ladders to opportunity. The idea was that complete communities that provide equitable access to housing opportunities ensure that economic gains are broadly distributed and sustainable for groups traditionally left behind by economic growth.

Just four months later, America elected a President that is adamantly opposed to the fair housing approach of the previous administration. President Trump and his selection for HUD Secretary, Ben Carson, believe that localities should determine how they will address fair housing issues on their own, without top-down direction from the federal government. Indeed, fair housing seems to be squarely in the cross hairs as the HUD program most likely for significant alternation under the Trump Administration. 

Legislators have already begun to attack AFFH. The Local Zoning Decisions Protection Act of 2017 would nullify the AFFH Final Rule. While this is an immediate threat to AFFH, this act would need 60 votes in the Senate for passage and it would be difficult to secure votes from eight Democratic Senators.

It is unknown how this will play out over the next four years. Carson will be embarking on a "listening tour" at the start of his tenure, so he is not promising immediate action. Given that it would take some time for a large bureaucracy to change course, it will most likely be at least a year before there are major changes to the program. In the meantime, you should be aware of the following key elements of AFFH.

• Replaces requirements that a Participating Jurisdiction (PJs) complete an Analysis of Impediments to Fair Housing Choice (AI) with a more rigorous process called the Assessment of Fair Housing (AFH);

• Requires HUD to provide additional data that will help PJs improve fair housing assessment, planning, and decision making;

• Facilitates regional approaches to Fair Housing that encourage collaborations between jurisdictions and housing authorities; and

• Encourages greater public participation in AFH development.

A common misunderstanding is that AFFH gives HUD the authority to tell localities where they can build multifamily housing. However, this continues to be a local decision under AFFH.

Who is required to submit an AFH?

Jurisdictions that are required to submit Consolidated Plans for CDBG, HOME, ESG and/or HOPWA programs; and Public Housing Authorities receiving assistance under Sections 8 and 9.

When will PJs be required to implement AFFH plans?

Generally speaking, the first AFH must be submitted 270 days prior to the start of:

• For Insular Areas, States, and PJs with a FY 2015 CDBG grant of $500,000 or less, the program year on or after January 1, 2018 for which a Consolidated Plan is due; or

• For Public Housing Authorities, the program year on or after January 1, 2018 for which a 5-Year Plan is due; or

• For all other PJs, the program year on or after January 1, 2017 for which a Consolidated Plan is due.

For most program recipients, the next Consolidated Plan will be due in 2020, with the AFH due 270 days prior in 2019. It will be interesting to see if and how much AFFH is altered prior to 2018, when program recipients will need to begin working on an AFH in order to meet the deadline. Regardless, PJs should become familiar with AFFH, plan for compliance, and pay close attention to any program changes.

What will HUD look like under Carson?

This week Donald Trump announced his appointment of Ben Carson to be the new HUD Secretary. Because Dr. Carson has no housing policy experience whatsoever, there are many unknowns about how he would run the department. However, he has put forth his broader political philosophy about the limited role that government should play in assisting low-income people. For example, he has made some comments about how social safety net programs encourage dependence of low-income people on those programs. This has led to some concern that Carson would support cutting funding to existing HUD programs, or significant programming changes that would negatively impact the economic security of millions of Americans.

While we don't know exactly what types of interventions Carson would make to most HUD programs, he does seem to have a clear mandate to diminish efforts to promote fair housing. This was reported in recent articles by the New York Times and Washington Post. Carson views HUD's fair housing interventions as ineffective "social engineering" by government. The Washington Post article points out that it was government social engineering that created housing segregation in the first place. Obama's fair housing enforcement activities have been efforts to reverse the pervasive impacts of past government intervention in the housing market.

Trump emphasized the fact that Carson grew up in inner city Detroit, and therefore has the necessary experience to address problems that vex such cities. However, Carson has not been involved in efforts to address inner city problems at a scale anywhere close to what he will be charged with at HUD. He understands that there are problems, but he doesn't have any experience with successful solutions, nor has he established the relationships across business, government and grassroots organizations that are necessary to implement them.

Carson is obviously a very bright and talented surgeon. Questions linger about how applicable this knowledge is to what will be required at HUD. A brilliant technician is not necessarily a brilliant administrator. The two require very different skill sets and approaches. I believe Carson's success as HUD Secretary will depend on how willing he is to keep an open mind, re-evaluate some of his philosophical beliefs, and lean on professionals within the department that have a much deeper understanding of housing policy and how it impacts American households.

How Will the Presidential Election Impact Housing?

Have you heard candidates acknowledge the affordable housing crisis on the campaign trail? An Ipsos poll conducted this summer found that 76% of likely voters would be more likely to support a candidate who made housing affordability a campaign focus. Yet, as we near election day, you probably won't hear much about housing policy. In fact, there has been limited discussion and information about housing throughout the entire campaign season (see the Huffington Post article on this topic). This despite the heavy coverage of housing issues in the news over the past year, most prominently the rapid increase in housing costs and the pervasiveness of homelessness. As has been often reported, housing affordability has fallen to crisis proportions in most major metros across the country.

In this blog, I try to uncover any evidence of housing policy plans in the Clinton and Trump platforms. Where policy does not exist, I will attempt to conjecture based on the candidates comments, background, and the impact of other related policy statements.

While there was essentially no discussion on this issue in the presidential debates, the Clinton campaign has articulated a couple public statements about their housing policy. These can be found in a September 21, 2016 New York Times editorial written by Hillary Clinton titled "My Plan for Helping America's Poor", and an August 12, 2016 CNN editorial written by Tim Kaine titled "How to Make Housing Fair in America".

In Clinton's editorial, she calls for a "national commitment to create more affordable housing", noting that 11.4 million households spend more than half of their income on rent. She outlines a plan to address this that includes expanding Low Income Housing Tax Credits in high cost areas to increase affordable housing supply. As a broader strategy for addressing poverty, Clinton wants to direct 10% of federal investments to communities where 20% of the population has been living below the federal poverty threshold for 30 years. While not specifically stated, this targeting formula might apply to HUD community development programs such as the Community Development Block Grant.

In Kaine's editorial, he shares his experience fighting racial discrimination in housing as an attorney in Richmond, Virginia. He states that home is foundational to the quality of our lives as a significant determinant in the access to jobs, schools, air quality and other factors. After pointing out that the federal government brought a housing discrimination suit against Trump's company for systematic racial discrimination practices in 39 of his rental properties, Kaine goes on to describe how he will enforce the Fair Housing Act to fight discrimination. In addition to expanding Low Income Housing Tax Credits, Kaine wants to increase rental assistance through Section 8 housing vouchers, provide more support for public housing and link that support to economic development initiatives, and provide downpayment assistance for first-time home buyers.

Hillary Clinton's voting record in the Senate demonstrates that she is a supporter of existing affordable housing programs. She was also a co-sponsor to the bill that established the National Housing Trust Fund, which allocates a small portion of revenue generated by Fannie Mae and Freddie Mac to subsidize housing targeted to extremely low income households.

The 2016 Democratic Party Platform includes a strategy to preserve and increase the supply of affordable rental housing by expanding incentives that ease local barriers to development, increasing funding to the National Housing Trust Fund, supporting the Neighborhood Stabilization Program that rehabilitates foreclosed homes, and increasing funding for maintenance of public housing and for rental assistance. The platform also commits to enhancing support for programs that address homelessness, especially for the chronically homeless, veterans and families. The Democratic Party plans to bolster programs that assist first-time home buyers, including protecting home buyers from predatory lending by defending the work of the Consumer Financial Protection Bureau. The platform also commits to strengthen and enforce the Fair Housing Act.

The Trump campaign has provided virtually no information on their plans with regard to housing. Therefore, we are left to conjecture how Trump might approach housing based on the information available. Donald Trump's father, Fred Trump, was a real estate developer that built housing and helped Donald get started in the business. Fred Trump built 27,000 low-income affordable units in the New York area. Donald Trump has not played up this accomplishment, nor has he spoke to the issue of affordable housing.

In 1973, the U.S. Department of Justice charged that the Trump family business violated the Fair Housing Act while Donald was President of his father's company. The charge found that the Trumps employed racially discriminatory practices in 39 of their apartment buildings in New York City, as reported by Politifact.

The 2016 Republican Party Platform includes a section titled "Responsible Homeownership and Rental Opportunities" that generally addresses housing issues without getting into policy specifics. It advocates for scaling back the federal role in the housing market, particularly Fannie Mae and Freddie Mac, and proposes a critical review of how federal regulations increase the cost and limit the supply of housing. It also also encourages reforms to mortgage practices that provide clear and prudent underwriting standards. It is unclear how these reforms would come about and who would implement them.  Finally, the platform stresses that zoning decisions must remain under local control, and that federal efforts to address economic and racial segregation and discrimination through Affirmatively Furthering Fair Housing regulations do not address discrimination as much as seek to usurp self government.

One could project that given his family's background in low-income housing development, Donald Trump may be favorably disposed to supporting the Low Income Housing Tax Credit program. However, Trump has also talked about simplifying the tax code and eliminating numerous tax credits on the campaign trail.

While it is difficult to forecast how Trump would treat existing housing programs if he were elected, his tax plan would probably severely reduce the availability of funds for programs that assist low-income households. Politifact reports that the conservative Tax Foundation estimated that Trump's proposed tax cuts for the wealthy would reduce federal revenue by $4.4 to $5.9 trillion. After incorporating projected economic growth resulting from the tax cuts, the Tax Foundation estimate of the reduction in federal revenue is reduced to $2.6 to $3.9 trillion. The Committee for a Responsible Federal Budget estimated that Trump's tax plan would increase the federal deficit by $5.3 trillion over the next decade. The same study estimated that Clinton's tax plan would increase the federal deficit by $200 billion over the same period. The Committee for a Responsible Federal Budget study does not project new revenue from economic growth that results from tax cuts.

For other sources on each presidential candidate's positions on housing policy:

•  CNBC did an overview that focused on how each candidate would approach opening up the market through regulatory reform.

• Novogradac's Washington Wire tracks the politics of housing on the campaign trail.

• National Low Income Housing Coalition: Housing and the Election

Utility Benchmarking: Making Housing More Cost-Effective and Energy-Efficient

If you work in the affordable housing industry, you are probably familiar with Utility Allowances. When tenants pay for their own utilities, the maximum rent that can be charged for their assisted unit is reduced by the amount of their typical monthly utility bills. The idea is that affordable rent should include utilities costs that tenants pay out of their own pocket.

In the past, the Utility Allowances have been uniformly set by unit type (studio, one-bedroom, etc.) and metropolitan area every year, and published by the local housing authority. This standardized formula has not accounted for differences in location within a metro area, and more importantly, variations in building types and systems. Improvements in green building, energy efficient heating and cooling systems, and solar energy generation have dramatically reduced utility costs compared to buildings without these improvements.

In response to these changes in the construction industry, HUD is now preparing to implement a new system for calculating utility allowances called "Utility Benchmarking". This new system will shift the responsibility for calculating the utility allowances from HUD to affordable housing owners. HUD will require affordable housing owners to track, analyze and report utility consumption and costs for each property according to established standards. New utility allowances appropriate for each property will then be set by using the data collected for that property.

Utility Benchmarking will provide a number of benefits to affordable housing owners and their tenants. First, it should help owners identify inefficient utility systems, equipment and operations practices. This will provide valuable information for physical needs assessments and planned rehabilitations. Second, Utility Benchmarking will provide greater incentive for affordable housing owners to incorporate green building materials and energy efficient systems into their buildings. In the long run, this should lead to lower operations costs and more financially sustainable projects.

Affordable housing building owners should begin preparing now for Utility Benchmarking. HUD recently posted information about it on their HUDdle Blog. You can also go to their Utility Benchmarking web page for information on how to get started, training opportunities, and new policies and incentives.

How Do Communities Access Federal Funding for Homelessness?

This post is intended to provide general information about how communities can access federal funding for homelessness. This money is distributed through the U.S. Department of Housing and Urban Development (HUD), and more specifically through HUD's Continuum of Care (CoC) program. First, I'll provide a brief description of the process in which the funds are allocated and managed. Second, I'll summarize the legislation and implementing regulations of the CoC Program. Third, I'll point out what communities need to do to position themselves to secure CoC funding.

Every year HUD releases its CoC NOFA for homeless housing and services. In order to receive this funding, HUD requires that communities establish CoCs, which are local coordinating bodies that consist of government and nonprofit agencies focused on ending homelessness in their community. The CoC has a governing body, usually called a "Council" that directs the business of the CoC. Different roles are assigned to participating CoC entities. The two most important roles are the Collaborative Applicant that is responsible for submitting an application to HUD on behalf of the CoC, and the Homeless Management Information System (HMIS) Lead that is responsible for managing a homeless information database. One of the CoC's primary roles is the review and ranking of individual project applications within its jurisdictions, which are then presented by the Collaborative Applicant in the CoC's Consolidated Application. This structure, and supporting policies and procedures, must be in place before communities secure CoC funds.

The HUD CoC program is governed by the HEARTH Act, which became law in 2009. This law amended the McKinney-Vento Homeless Assistance Act by consolidating three separate homeless assistance programs into a single grant program. The HEARTH Act also codifies the CoC planning and administration process as described above. The stated goals of the HEARTH Act are to promote community-wide commitment to ending homelessness, provide funding to quickly rehouse homeless individuals and families, promote access to other mainstream assistance programs for homeless persons, and optimize self-sufficiency among homeless persons. The "Interim Rule" (24 CFR 578) consists of the HEARTH Act implementing regulations.

HUD has prioritized CoC funding to align with the goals of the federal plan to prevent and end homelessness- "Opening Doors: Federal Strategic Plan to Prevent and End Homelessness". The most currently relevant goal of this plan is to end Chronic Homelessness in 2017. Chronically Homeless persons are defined by HUD as persons who have a disability that have been continuously homeless for at least 12 months or that have been homeless on at least four separate occasions in the last three years. See the complete definition here. The plan identifies the following strategies for meeting this goal:

• Reallocate existing CoC funding to projects that house Chronically Homeless individuals.
• Prioritize existing permanent supportive housing beds for Chronically Homeless individuals with the greatest needs.
• Engage Chronically Homeless individuals through street outreach and standardize assessment and placement in a way that makes it easier to access housing.
• Implement community-wide "Housing First" programs that lower barriers to accessing housing.
• Request additional funding from Congress to build more permanent supportive housing units.

This year's CoC NOFA competition rewards communities that are taking concrete steps to implement the first four strategies listed above. CoCs must demonstrate progress through outcomes that are recorded in HMIS. Projects requesting annual renewals for rental assistance and/or supportive services must demonstrate that they are prioritizing available beds for Chronically Homeless individuals. In addition, new projects requesting funds must serve the Chronically Homeless with permanent supportive housing or rapid-rehousing using a Housing First model.

For more general information, check out HUD's Introductory Guide to the CoC program. As you can see, HUD has a very specific, prescriptive way that they want to fund projects that address homelessness. You will want to understand what will be required and whether your community has the capacity to deliver it before you pursue this funding.

A New Strategy to Reduce Homelessness

A number of strategies to address homelessness have been debated and attempted in cities across the nation. These have included everything from criminalizing homelessness to legalizing homeless encampments, and from building tiny house villages to implementing aggressive street outreach and housing first placement.

San Francisco has been breaking ground on a uniquely new strategy called the "Navigation Center". This is a one-stop complex where homeless individuals are welcomed for short stays without placing barriers to their entry. The approach is welcoming and accommodating, which creates an atmosphere of trust that helps people change their living situation. The goal is to warm people up to accessing housing and services, which is often an obstacle to helping them off the streets, especially for chronically homeless individuals with substance abuse and/or mental health issues. During stays, homeless individuals are assisted through proactive one-on-one interaction with case managers and counselors who identify appropriate supportive housing and help them move in.

This model has already demonstrated success in moving people off the streets, and it will be formalized within a new City Department of Homelessness and Supportive Housing, and supported by new City funding targeted to producing new supportive housing units. The first Navigation Center was established in the Mission about a year ago and offers 75 beds. The Mission Navigation Center had served 468 individuals as of early May of this year. About 84% of those individuals served had moved into permanent housing. A second Navigation Center opened in a renovated hotel in Civic Center that will offer 93 beds.

The Department of Homelessness and Supportive Housing has plans to develop three more Navigation Centers. These centers will be the organizing force for a completely redesigned homeless services system. One of the aims is to attract people out of homeless camps that are often dangerous, unhealthy, and have negative impacts on the surrounding neighborhood. The key to making the centers successful is producing an adequate number of affordable housing units that will provide permanent destinations for visitors. San Francisco has made some progress in that regard by using bond financing to generate $810 million for affordable housing last year. Part of the bond financing was approved through a proposition last November with 75% of voters favoring the measure.

Most cities don't have the political will right now to implement a similar program in type or scale to San Francisco. However, if it becomes a successful model that can show public cost savings to taxpayers, then the Navigation Center approach may become replicable elsewhere. It is now well documented that placing a homeless individual in subsidized supportive housing is generally much less expensive than leaving that individual on the streets in terms of public costs. Further, these studies typically do not consider the broader positive impacts to the local economy. I will be tracking the success of San Francisco's Navigation Centers to see how this strategy might demonstrate a solution to the problem of homelessness on a large scale.

The Great Debate on Solving California's Housing Crisis

For the first time in recent memory, there is a broad consensus in California that we have a housing crisis. Numerous media and research reports show that we are not building anywhere near enough units to house the growing population, and that a significant portion of the population cannot afford to live in the state. There is general agreement that the housing crisis is a drag on the economy, deteriorates our quality of life, and is a problem that must be solved.

Now that the problem has been identified, a debate is underway about how to solve it. Is it a problem of inadequate housing supply overall, or should resources be targeted to those with the lowest incomes? Can the problem to solved with government resources, or should the private sector take on the responsibility? Is the problem overregulation, or inadequate funding? Should we be increasing the supply of housing, or addressing households' ability to afford it?

Jerry Brown initiated the debate in earnest when he presented his budget, which included a provocative proposal to deregulate the permitting process for affordable housing development. Developers that commit to make 10%-20% of a project's units affordable to low income households would be entitled to build by right on properties zoned for high density residential, without requiring a permit and associated discretionary local reviews.

Some have questioned the effectiveness of Governor Brown's proposal. The greatest concern is whether jurisdictions will cooperate. The Governor's proposal does not address the problem of cities that do not have adequate land zoned high density residential in the first place. Communities may also re-zone high density residential land to other uses. While State Housing Element law requires communities to zone adequate land for high density housing, there is no straightforward way to ensure compliance other than extended inter-jurisdictional wrangling and protracted lawsuits.

Meanwhile, the legislative branch wants to allocate funds to subsidize the development of affordable housing. The Senate passed a bill to put a $3 billion bond for housing on the November ballot. It still requires approval of two-thirds of Assembly members and the Governor. The Assembly is proposing an allocation of $650 million for a range of affordable housing programs. However, the Governor has stated that he does not believe that allocating funds to affordable housing will make an impact that is worth the expenditure. He has voiced support, however, for housing subsidies and services targeted to homeless individuals.

Yet another approach being debated is to not incentivize private sector development, but require the private sector to set aside affordable housing units through inclusionary zoning. San Jose's inclusionary ordinance was recently upheld by the courts after a long legal battle with home builders. The housing market in San Jose is so expensive that government subsidies are currently far inadequate to address it without assistance from for-profit developers.

San Francisco, another one of the most expensive housing markets in the country, has arguably the greatest challenge of any California city in addressing housing needs. Proposition C will give voters the opportunity to vote for a revision of the current inclusionary housing ordinance that would raise the required affordable housing unit set-aside for market rate developments from 12.5% to 25% of all units in a project. The big question is whether this will reduce overall production if it becomes more difficult for projects to pencil financially.

The positive in all of this is that solutions are being debated. For too many years there has not even been a consensus acknowledgement that housing affordability is a widespread problem. We won't ultimately know what strategies will be most effective in addressing the problem until they are implemented and assessed. The crisis has reached a stage where elected leaders are finally willing to propose creative and bold solutions. That is movement in the right direction. If some of these initiatives are implemented, we will know much more about how public policy can improve the housing situation in the coming years.