Implementing Affirmatively Furthering Fair Housing Requirements in California

Implementing Affirmatively Furthering Fair Housing Requirements in California

The guidance memorandum provides instructions, suggestions, and data for local California governments to comply with the state’s AFFH requirements.

Congress passed the Fair Housing Act of 1968 with the goal of eliminating discriminatory housing policies and disparate treatment of homebuyers and renters based on race, religion, and national origin; later updates to the act expanded these protections to include discrimination based on sex, disability, and familial status. In addition, the act required federal government action to eliminate discrimination and segregation in housing, effectively mandating efforts to undo the legacy of housing discrimination from the years before the act’s passage. Since 1996, HUD has implemented this mandate by requiring jurisdictions that receive federal funding to complete analyses of local impediments to fair housing, although HUD did not require localities to submit the analyses for review or to verify that they were achieving their goals. In 2015, HUD borrowed a term from the Fair Housing Act and adopted the Affirmatively Furthering Fair Housing (AFFH) rule to encourage localities to take meaningful steps to eliminate impediments to fair housing. The AFFH rule required an analysis of local fair housing issues and required jurisdictions to take specific steps to remedy those issues; localities had to submit both the initial study and annual reports on remedial actions to HUD for approval and verification. This rule was suspended in 2017, replaced in 2020, and revived in 2021. In 2023, HUD proposed a new AFFH rule that would expand the reinstated rule.

In response to the original rule’s 2017 suspension, California passed Assembly Bill 686 in 2018 to add AFFH requirements to the state’s existing fair housing and civil rights legislation. The bill requires state and local agencies to combat discrimination against the state’s protected classes and to overcome past segregation and foster greater inclusivity. These agencies are prohibited from acting in ways inconsistent with the bill, which must be interpreted in a manner consistent with the 2015 federal AFFH rule. The bill also amends the state’s land use and planning legislation to require jurisdictions to address AFFH requirements in the housing element of their general plans.

To help local governments understand the bill’s specific requirements, the California Department of Housing and Community Development (DHCD) has assembled information and a guidance memorandum that outlines processes and explains the scope and nature of the AFFH requirements. The multistep process, from performing meaningful community outreach to setting goals and actions, has long been standard planning practice. The memorandum, however, outlines how jurisdictions should include AFFH requirements in these practices.

The memorandum requires jurisdictions to inventory and analyze sites in terms of the jurisdictions’ responsibility to affirmatively further fair housing. This evaluation must consider issues of segregation and integration, racially and ethnically concentrated areas of poverty, access to opportunity, and disproportionate housing needs. In addition, the guidance memorandum requires jurisdictions to identify factors that affect fair housing. The memorandum offers many examples of barriers to fair housing found in local land use policies, such as the predominance of single-family zoning districts in racially concentrated areas of affluence, the absence of antidisplacement regulations, and burdensome procedures to justify reasonable accommodations for persons with disabilities. Common investment barriers include the lack of multilingual tenant counseling and the absence of infrastructure investments in disadvantaged communities. A jurisdiction must prioritize these contributing factors to determine which ones most constrain housing choice or access to high-resource areas. Based on these priorities, jurisdictions must pursue strategies consisting of “meaningful actions” that focus resources in ways that most effectively achieve fair housing goals. These actions must, for example, provide transformative resources in a racially concentrated area of poverty or foster stability for existing residents in a gentrifying neighborhood. The strategies must include concrete steps, timelines, and measurable outcomes. The memorandum suggests “rezone 50 acres to the high-density district by October 2021” as an example of a correctly worded action statement.

In addition to a broad discussion to help jurisdictions construct action strategies, the memorandum offers more general assistance, including compliance checklists, formulas to aid analysis, and definitions of key terms. The document’s appendices offer a directory of fair housing organizations throughout the state; a list of pertinent laws, policies, and plans; and an extensive bibliography. As HUD did with the 2015 AFFH rule, DHCD provides online data that jurisdictions can use to complete the assessments that the memorandum requires. The primary mode of accessing this information is an interactive data viewer that displays maps and spreadsheets. The maps identify patterns of segregation and integration, concentrations of poverty and affluence, and disproportionate housing needs and displacement. Specific datasets include fair housing complaints, subsidized housing, and displacement risk. DCHD has also made available opportunity maps released in partnership with the state’s Tax Credit Allocation Committee. The maps and accompanying data identify census tracts in four levels of opportunity using evidence-based measures of economic, health, and education characteristics.

Click here to access California’s Assembly Bill 686 and information about how it addresses regulatory barriers. Find more plans, regulations, and research that state and local governments can use to reduce impediments to affordable housing at HUD USER’s Regulatory Barriers Clearinghouse.

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