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Will the AFFH Stay Dead?

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eye on the news

Will the AFFH Stay Dead?

The Trump administration eliminates a wrongheaded Obama-era housing rule—but November’s election will decide its ultimate fate. July 23, 2020
Politics and law

On Thursday, the Trump administration announced the rollback of a Department of Housing and Urban Development regulation, enacted by the Obama administration, that pressured suburbs to permit the construction of low-income housing. Trump previewed his decision on the Affirmatively Furthering Fair Housing rule last month, when he tweeted: “At the request of many great Americans who live in the Suburbs, and others, I am studying the AFFH housing regulation that is having a devasting impact on these once thriving Suburban areas . . . Not fair to homeowners. I may END!”

It’s the latest chapter in a policy fight that has racialized a sound and bipartisan idea: encouraging suburbs to permit the construction of less costly housing for a range of income groups, not through public or subsidized projects, but through the private market. Trump’s proposal could be a step in that direction, but only if he prevails in the November election. A Joe Biden victory would likely mean that the suburbs see a restoration of the Obama-era rule.

Finalized in 2015, AFFH was intended to pressure suburbs receiving HUD funding to build low-income rental housing specifically marketed to minority tenants. The rule was modeled on a successful legal action against New York’s suburban Westchester County, which was deemed discriminatory for lacking an adequate plan for low-income residents to find housing in such affluent enclaves as Chappaqua, home to Bill and Hillary Clinton. Then HUD undersecretary Ronald Sims described the Obama policy as a step toward ensuring that no child’s prospects were defined by zip code.

An effort to disperse the poor from dangerous inner-city neighborhoods, AFFH was always a limited and misguided policy. The high costs of land and construction meant that the rule would serve only a small number of households; the policy’s real purpose, it appeared, was to ensure that the wealthy would provide their “fair share” of housing. Nor was AFFH a healthy approach to encouraging upward mobility. By making poverty the criterion to qualify, it ignored how the surest route to socioeconomic progress entails work, saving, and a two-income married household; the idea that “zip code is destiny” is a classic error of cause and effect. The rules governing subsidized housing discouraged upward mobility by tying rent to income, raising rent when income rises. Finally, AFFH’s expansive definition of fair housing—going far beyond the common-sense idea that no one who can afford to buy or rent property should be refused based on race—is a recipe for social tension. Racial comity is far more likely when neighbors share economic and educational backgrounds.

Revising the rule so that municipalities can avoid HUD sanctions based on any policy that improves “affordability, decency, safety, and accessibility” makes sense, though courts may reject the revision as not closely related to fair housing. Meantime, the administration has turned its back on thoughtful replacement language that would have made it possible for municipalities to comply with the AFFH rule through what might be called the Levittown approach—permitting small homes on affordable small lots. That proposal, which was advancing under the radar, would have improved the AFFH rule without much fanfare. But for political reasons, avoiding fanfare clearly wasn’t Trump’s goal. One fears, then, that the new Trump rule will either fall prey to a court challenge or be quickly revoked by a Biden administration and a Democratic Congress.

The entire AFFH episode shows that HUD—originally chartered to improve low-income urban neighborhoods—has wandered into fraught local terrain that it should avoid. Liberals aren’t wrong that large-lot suburban zoning is “exclusionary,” and conservatives aren’t wrong that subsidized housing has failed. What we need instead is a movement led by thoughtful national groups, such as the Conference of Mayors or the League of Cities, to persuade the thousands of local planning and zoning boards nationwide that it’s in the long-term interest of their communities—and the country—to permit the construction of new housing and the adaptation of existing housing. They should do so to provide homes both for young adults who grew up in expensive towns and for local teachers, firefighters, and police officers. In the process, they would create racial and socioeconomic diversity. What we don’t need is heavy-handedness from Washington.

Photo: Alex-Potemkin/iStock

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