New Housing and Urban Development rules to address segregation strip local governing bodies of control and place it in the hands of bureaucrats in Washington D.C. But local communities can avoid the rules simply by rejecting federal funding.

In fact, adoption of these new HUD rules as already created a backlash, with at least four local communities rejecting HUD funding in order to avoid the onerous regulations.

The new HUD rules known as Affirmatively Further Fair Housing (AFFH) total 377 pages. These regulations “require program participants receiving Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), Emergency Solutions Grants (ESG), and Housing Opportunities for Persons With AIDS (HOPWA) formula funding to undertake an analysis to identify impediments to fair housing choice within the jurisdiction and take appropriate actions to overcome the effects of any impediments, and keep records on such efforts.”

These rules give the federal government the leverage to exercise a great deal of control over local planning and development decisions to accomplish wide-ranging goals. The summary of the rules hint at the broad outcomes HUD seeks to achieve.

“Through this final rule, HUD provides HUD program participants with an approach to more effectively and efficiently incorporate into their planning processes the duty to affirmatively further the purposes and policies of the Fair Housing Act, which is title VIII of the Civil Rights Act of 1968. The Fair Housing Act not only prohibits discrimination but, in conjunction with other statutes, directs HUD’s program participants to take significant actions to overcome historic patterns of segregation, achieve truly balanced and integrated living patterns, promote fair housing choice, and foster inclusive communities that are free from discrimination.”

Under AFFH, cities receiving these funds must conduct a detailed analysis of housing occupancy by race, ethnicity, national origin, English proficiency, class and other criteria. They must also identify factors such as “lack of regional collaboration,” public housing admission criteria and zoning laws that create “imbalances in living patterns.” Finally, they must analyze “community assets” such as schools, public transportation, parks and jobs, and explain any disparities in access to them based on race, ethnicity, etc. The local government then must create a plan to address any disparities, subject to HUD approval.

The rules provide HUD an avenue to intervene in a broad range of local concerns including public transportation, schools, zoning, land use and other policy areas. Vague language such as “imbalances in living patterns,” and “disparities” create wide latitude for federal intervention into local decision making.

The rules also aggressively promote regionalism. One of the stated goals of AFFH is to “Encourage and facilitate regional approaches to address fair housing issues, including collaboration across jurisdictions and PHAs (Public Housing Agencies).”

Practically speaking, this means a major city like Philadelphia will have to analyze disparities within its city limits, while suburbs will analyze their own. In addition, Philadelphia and the suburbs will have to analyze any disparities as compared with each other.

According to National Review, the Obama administration has long wanted to implement a vision former Albuquerque mayor David Rusk laid out in Cities Without Suburbs. Initially, proponents of this idea hoped to accomplish their goal by simply having cities annex their suburbs. Recognizing that was a political non-starter, they settled on measures designed to create de facto annexation over time.

The plan has three elements: 1) Inhibit suburban growth, and when possible encourage suburban re-migration to cities. This can be achieved, for example, through regional growth boundaries (as in Portland), or by relative neglect of highway-building and repair in favor of public transportation. 2) Force the urban poor into the suburbs through the imposition of low-income housing quotas. 3) Institute “regional tax-base sharing,” where a state forces upper-middle-class suburbs to transfer tax revenue to nearby cities and less-well-off inner-ring suburbs (as in Minneapolis/St. Paul).

If you press suburbanites into cities, transfer urbanites to the suburbs, and redistribute suburban tax money to cities, you have effectively abolished the suburbs. For all practical purposes, the suburbs would then be co-opted into a single metropolitan region. Advocates of these policy prescriptions call themselves ‘regionalists.’

AFFH goes a long way toward achieving the regionalist program of Obama and his organizing mentors. In significant measure, the rule amounts to a de facto regional annexation of America’s suburbs.

Essentially, AFFH serves as a tool to socially engineer cities based on federal guidelines. As John Anthony with Sustainable Freedom Lab points out, these rules can lead to federal will overruling the will of local voters.

“The mechanism the agency uses to assert its force is the threat of grant withdrawal or of a compliance review that includes explicit references to investigations of civil rights violations. For example, in the case of Rockford Illinois, the town council and community voters decided against a new proposed affordable housing complex in the New Town Center in 2015. Unhappy with this decision, HUD threatened the community with a compliance review in which they suggested there may be possible violations of the Fair Housing Act and the Civil Rights Act, and that their findings would be turned over to the Department of Justice. After hiring attorneys the town came to the conclusion they were better off to simply comply with HUD. As a result, the affordable housing units proceeded and the will of the voters was overturned.”

National Review provides a glimpse into how this kind of federal intervention into local decision-making could play out.

So if some Montgomery County’s suburbs are predominantly upper-middle-class, white, and zoned for single-family housing, while the Philadelphia region as a whole is dotted with concentrations of less-well-off African Americans, Hispanics, or Asians, those suburbs could be obligated to nullify their zoning ordinances and build high-density, low-income housing at their own expense. At that point, those suburbs would have to direct advertising to potential minority occupants in the Greater Philadelphia region. Essentially, this is what HUD has imposed on Westchester County, New York, the most famous dry-run for AFFH.

In other words, by obligating all localities receiving HUD funding to compare their demographics to the region as a whole, AFFH effectively nullifies municipal boundaries.

Some will undoubtedly argue that the rules will achieve desirable outcomes. Even so, these decisions should happen at the local level. The federal government has no constitutional authority to socially-engineer American cities. And really, who wants some politically-motivated, inside-the-beltway suits dictating policy in Topeka, Kansas?

Of course, local governments don’t have to tie this federal millstone around their neck. They can completely avoid these federal rules by simply rejecting the funding. The bottom line is if local communities want local control, they must resist the federal carrot. If they give in to the allure of easy money, the stick will surely follow.

Mike Maharrey

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