26 Jul BREAKING NEWS UPDATE! HUD’s Disturbingly Worthless Words
I just returned from the high energy Media Row at the 2016 GOP Convention in Cleveland, OH. It was awesome to rub shoulders with the likes of Former Ambassador John Bolton and OK Governor, Mary Fallin. It also gave me the opportunity to reach radio and TV broadcast stations nationwide to spread theword about HUD’s outrageous expansion of authority under AFFH. This edition exposes a serious pitfall communities may encounter as you research HUD’s dramatic evolution.
When public officials first learn how HUD’s new Affirmatively Furthering Fair Housing (AFFH) rule can force communities to overturn voters’ decisions and ignore their own zoning laws, often their first comment is, “Let’s check with HUD. We can’t afford to lose the grant money.”
Officials are rightly worried. HUD’s own documents show the agency has markedly increased their legal actions against grant recipients.
But, according to the Ninth Circuit Court, assurances from federal agency representatives may not be worth much:
In 1999, Big Meadows Grazing of Flathead County, Montana entered into a conservation easement with the US. Department of Agriculture. Prior to signing the contract, agency representatives assured Big Meadows that both parties would participate in restoration activities on the “eased” land. They estimated a needed riparian fix would cost $80,000. The government even provided a “manual” outlining the intended work and relationship.
Several months later, over Big Meadows’ objections, the government completed a massively larger “fix” than discussed, and billed the grazing association for $486,000. Outraged at what they considered deception, Big Meadows sued the government.
The results were devastating.
The court decided that “the Manual cannot bind the government because it… [was not] promulgated according to the Administrative Procedure Act.” As for the assurances of cooperation from government representatives, the court was blunt, “We will not review allegations of noncompliance with an agency statement that is not binding on the agency.”
Assurances, written notes and even manuals offered by federal representatives, unless they are in compliance with the Administrative Procedure Act, which includes entry into the Federal Register, are nothing more than non-binding words.
As Big Meadows learned, those words can be costly.
Affirmatively Furthering Fair Housing is a binding rule with the force of law. It relies on grassroots civic groups and legal advocates to compel local communities to bend their zoning laws to the government’s will.
Worse, as Douglas County, CO discovered, HUD’s legal requirements are amoving target, hard to define and harder to hit.
No matter what your HUD representative says, in a court of law, it is the contract that matters.
HUD representatives offer grantee communities much AFFH advice. Some is valuable and others misleading. Here are the two most frequently cited remarks our members have shared regarding HUD advice, and PVD’s response.
“Our HUD representative told us we did not have to worry about our Community Development Block Grant funds under AFFH, because our community has a much different situation than Westchester County.” (Westchester was the first county sued under the False Claims Act for failure to affirmatively further fair housing. It became the basis for HUD’s new litigious direction.)
Every jurisdiction that has faced HUD actions from compliance reviews to lawsuit intervention is unique. Westchester County, Marin County, Rockford, IL, Dubuque IA, among many others are each different situations resulting in various legal actions based on the False Claims Act, supposed civil rights violations and Disparate Impact issues.
To suggest that your community can accept CDBG grants that fall under AFFH with little concern because it is unique is misleading.
“AFFH should not be a large concern because your community is already in compliance.”
There is little way for HUD to know if you are in compliance until you complete the new Assessment of Fair Housing (AFH). Even then, according to the Federal Register, HUD’s acceptance of an AFH “does not mean that HUD has determined that a jurisdiction has complied with its obligation to affirmatively further fair housing under the Fair Housing Act; has complied with other provisions of the Act; or has complied with other civil rights laws, regulations or guidance.” §5.162(a)(2)
In addition, AFFH requires that instead of refraining from discrimination in housing as in the past, fund recipients must now work to end it by taking steps that go far beyond the construction of affordable housing.
Finally, HUD’s new expansive interpretation of the Fair Housing Act allows the agency to oversee community economic diversity, classroom socioeconomic diversity, encourage planned communities to foster upward mobility for low-income families and involve the Department of Transportation to assist in reducing poverty by “establishing access points for opportunity and mobility.”
Using AFFH as a platform, HUD has expanded affordable housing into large scale social engineering.
Stay informed and stay in control,
John Anthony, Founder
Sustainable Freedom Lab and Property Value Defense
*Property Value Defense relies on your generous gifts to support our research to expose the federalization of local rule and educate communities about the importance of property rights.