12.22.2020 0

Congress defunds Obama-Biden fair housing rule that almost ended local zoning—again

By Robert Romano

Congress has once again defunded the Obama era Affirmatively Furthering Fair Housing regulation in the $1.4 trillion annual omnibus appropriations bill.

This was the 2015 rule that conditioned receipt of $3 billion of annual community development block grants on rezoning neighborhoods along racial and income guidelines that nearly ended local zoning authority.

Fortunately, it was rescinded in July by the Trump administration, under a new rule, called Preserving Community and Neighborhood Choice, which states, “It must be local governments, not HUD, that exercise control of administering local housing policies, including zoning and development policies that are unique to a particular community.”

This differed drastically from the original 2015 regulation that had included an explicit requirement calling for changes to local zoning, stating, “This final rule, and Assessment Tools and guidance to be issued, will assist recipients of Federal funding to use that funding and, if necessary, adjust their land use and zoning laws in accordance with their existing legal obligation to affirmatively further fair housing.”

For now, under President Donald Trump and Department of Housing and Urban Development Secretary Ben Carson, local control of zoning has been restored.

But a Biden administration would change all that. On Joe Biden’s campaign website, it stated, “Biden will implement the Obama-Biden Administration’s Affirmatively Furthering Fair Housing Rule requiring communities receiving certain federal funding to proactively examine housing patterns and identify and address policies that have a discriminatory effect.”

This is why Congress’ move to defund the original Affirmatively Furthering Fair Housing regulation, in the 2017 omnibus, the 2018 omnibus, the 2019 omnibus, and the Consolidated Appropriations Act of 2020 — and now in the 2021 omnibus, too — is so critical.

It states, “None of the funds made available by this Act may be used by the Department of Housing and Urban Development to direct a grantee to undertake specific changes to existing zoning laws as part of carrying out the final rule entitled ‘Affirmatively Furthering Fair Housing’ … or the notice entitled ‘Affirmatively Furthering Fair Housing Assessment Tool’…”

This law may be all that stands in the way of a Biden presidency renewing the federal war on suburbs, eliminating one of the most important responsibilities of local government — zoning. It was originally drawn from a provision by Sen. Susan Collins (R-Maine) passed the Senate easily 87 to 9 in 2016 that barred the regulation from being used to affect local zoning.

Congress should leave the Collins amendment defund in place indefinitely. It should become a permanent fixture on HUD appropriations bills.

Biden believes that the authority of local governments to zone, in itself, is discriminatory. But zoning does not tell people where to live. People will just move if they don’t like their neighborhoods, making regulation along these lines a case of whack-a-mole, with people shifting around and “discriminatory” patterns reemerging after years.

But really it’s just the way labor markets work. Americans move around and find new jobs in different towns all the time.

Besides, under federal law, individual cases of housing discrimination have been prosecuted since the Fair Housing Act was adopted in 1968. HUD should just investigate those cases.

It is overreach beyond belief to say that the individual housing choices of tens of millions of Americans can ever be dictated by federal fiat. But that is just what Biden is aiming to do

This comes down to whether the American people want the power to govern their own communities — or if they prefer to abolish local government. Thanks to President Trump, Secretary Carson and Congress’ leadership, for another year, regardless of who sits in the White House, the decision will still be up to local representatives do their jobs. The question is for how much longer.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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