Affirmatively Furthering Fair Housing in California: A Bumpy Rollout or a Flawed Approach?

As currently defined by the Department of Housing and Urban Development (HUD), Affirmatively Furthering Fair Housing (AFFH), part of the Fair Housing Act, has four goals: “a) addressing significant disparities in housing needs and in access to opportunity, b) replacing segregated living patterns with truly integrated and balanced living patterns, c) transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and d) fostering and maintaining compliance with civil rights and fair housing laws.” Though the last goal has seen the most progress since the Fair Housing Act was passed in 1968, achieving the first three goals demands a dramatic transformation of American cities and requires many politically difficult decisions.

In 2018, California’s legislature codified the federal AFFH rule in state law, yet implementation has been bumpy. Only a dozen of the nearly 200 jurisdictions in Southern California required to submit housing plans had submitted such plans by October 2021, and inadequate AFFH sections in these plans have been a major challenge. In our ongoing research, we have undertaken both case studies of AFFH implementation in seven Southern California cities and an analysis of trends in state oversight of AFFH. Our preliminary findings suggest that though the state’s late release of guidance on the new AFFH requirements has contributed significantly to the bumpy rollout, the state’s approach to implementing AFFH has been the bigger challenge. At least some (possibly many) jurisdictions are doing the minimum to comply with the law, rather than using this opportunity to try to achieve ambitious AFFH goals. We argue therefore that without the state creating binding minimum expectations for goals and suggested steps to achieve them, the impacts of California’s AFFH rule will likely be minimal.

California's AFFH implementation may have greater impact than federal implementation

A state AFFH mandate may have more potential to “replace segregated living patterns with truly integrated and balanced living patterns” than the federal rule because states have the unique authority to directly intervene in local planning and zoning, rather than just withholding funding. The housing planning framework in California increases this potential impact. California requires local governments to periodically update the housing element of their general plans. Local governments have to identify in their plans specific parcels appropriate for low-income housing development; if they cannot, they must rezone land to create the potential. This creates an obvious opportunity to advance parts of AFFH by ensuring new low-income housing sites are in localities’ high-resource neighborhoods, mitigating the tangible impacts of segregation. On the other hand, California’s AFFH may have less potential to “transform racially and ethnically concentrated areas of poverty into areas of opportunity” given that the housing element is not a budget document, and this transformation requires community investment.

AFFH’s bumpy rollout in California has hindered progress toward the policy’s goals

Unfortunately, achieving the AFFH process envisioned by the state, let alone the AFFH goals themselves, appears unlikely in California—at least right now. As previously mentioned, the state failed to provide timely AFFH guidance to local governments. For example, 191 local governments in Southern California had to submit their housing plans to the California Department of Housing and Community Development (HCD) for review by October 15, 2021 (table 1). Although the state clarified in April 2020 that jurisdictions would have to include in their plans AFFH analyses and programs similar to those required by the 2015 HUD rule, it did not release detailed guidance on how to address this requirement until April 23, 2021. By that point, most jurisdictions had already started drafting their housing elements and many had already submitted their plans for preliminary review.

Thus, only a handful of the region’s nearly 200 jurisdictions passed the state’s review of the AFFH sections in their housing elements by the February 2022 deadline. We read the HCD review letters and found that most jurisdictions’ housing elements either lacked an AFFH analysis section or lacked several required components specified in the April 2021 guidance. Most jurisdictions’ AFFH programs also did not contain sufficient detail. Notably, HCD recently rejected Los Angeles’ housing plan because its AFFH programs were insufficient, despite experts having praised the housing plan for going beyond state guidance to accurately project development potential and propose necessary rezoning.

Is the current procedural logic of AFFH unattainable?

California’s implementation of AFFH suggests that the current procedural logic of AFFH may be flawed in practice. The logic is that given differing histories of segregation and varied present-day housing challenges, each locality should first analyze its own context with local knowledge. Only after this analysis can local governments develop appropriate programs to work against past practice and toward a vision of fair housing. We don’t dispute the importance of local knowledge in crafting policy to remedy the harms of segregation, especially for the AFFH goal of “transforming racially and ethnically concentrated areas of poverty into areas of opportunity.” But the current procedural logic presumes all local governments have technical abilities and resources and a willingness to make politically difficult changes. In fact, the combination of resources and appetite to make needed changes may exist in only a few places. Consider, for example, our analysis of the draft housing plan in Santa Monica, one of the few places where we’ve observed constituents strongly advocating for AFFH; it found that sites for low-income housing in Santa Monica are nonetheless disproportionately located in lower-income neighborhoods.

Thus, though California appears to be taking seriously the requirement that jurisdictions have AFFH analyses and programs in their housing elements, AFFH’s impact may still be minimal because the state did not set minimum binding expectations about what local AFFH programs should achieve. In most cases, HCD’s feedback on jurisdictions’ housing elements used boilerplate language noting the missing components and that the housing element must contain “actions sufficient to overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity.” But what “sufficient” means is unclear. In the jurisdictions we are studying, public involvement to develop a shared vision of fair housing is scant. Most smaller jurisdictions rely on outside consultants to write housing elements, which can pervert the procedural logic of the AFFH process. The consultants are often the only ones who understand the technical requirements of AFFH, thus in effect, they are creating cities’ visions of fair housing, not cities’ residents, elected officials, or even planners.

Conclusion: AFFH implementation remains insufficient to the task

In sum, the implementation of AFFH in California’s statewide housing planning system does not appear to be generating significant change in local governments’ exclusionary zoning practices, except in a few cases. In their research on HUD’s AFFH rule, Steil and Kelly found that requiring localities to set concrete actions and timelines for AFFH implementation led to better outcomes than previous implementation efforts. This resonates with our findings thus far in California, but it raises a question: Is it enough to do “better”? Given the deeply entrenched segregation in US land-use plans, the reforms we’ve observed are not sufficient to achieve the “integrated and balanced living patterns” envisioned by the Fair Housing Act. To ensure they are, the state should be setting clear minimum expectations on local reforms and programs, specifying the share of sites for low-income housing development that must be located in high-opportunity neighborhoods, and they should require the use of metrics that can track progress toward the goal of desegregated cities.

Table 1. Timeline of California's Affirmatively Furthering Fair Housing Efforts