On November 14, 2016, HUD issued new guidance on fair housing, civil rights and relocation issues in the Rental Assistance Demonstration (“RAD”) program – one of HUD’s most significant housing preservation initiatives in recent years. Notice H 20-16-17/PIH 2016-17 (HA) (the “2016 Notice”), at 81 Fed. Reg. 79514. The 2016 Notice will shape important aspects of RAD proposals, so persons interested in RAD should be familiar with these requirements.
Fair housing and civil rights issues – especially those relating to site selection – have proven to be a troublesome aspect of the RAD program. Many units of existing affordable housing are located in areas with high concentrations of minority populations, so preserving that housing may tend to reinforce existing demographic patterns. Some advocates urge locating new RAD construction in so-called “areas of high opportunity,” which are generally places with higher incomes, better schools and lower concentrations of minorities. With limited RAD funding available, it is hard to satisfy both goals.
On these matters, the 2015 Notice does not break a lot of new ground. It reiterates existing HUD rules, much of it found in existing regulations (24 CFR §983.57) dealing with the fair housing aspects of site selection in the project based voucher program. Among other things, these rules require PHAs to consider whether a selected site will lead to deconcentrating poverty and expanding housing opportunities. Thus, HUD warns that new construction in areas of minority concentration is permitted only if certain strict conditions are met. 2016 Notice at 24.
Race is not the only issue to be considered in site selection. The 2016 Notice stresses that PHAs must also consider site selection related to accessibility for persons with disabilities. Again, since many existing units of affordable housing were developed before the accessible design standards of the Fair Housing Act or Section 504 took effect, they frequently offer only a limited number of accessible units. Absent expensive modifications, it may be difficult to significantly improve the level of accessibility at those properties. Depending on how vigorously HUD presses, these site selection rules may disqualify a large number of existing public housing units.
The 2016 Notice extends other aspects of the original 2015 RAD Notice, including the concept of “front-end civil rights reviews” of RAD proposals by HUD to assure the proposal complies with fair housing requirements. The 2016 Notice indicates these front-end reviews will require submitting a Fair Housing, Civil Rights, and Relocation Checklist, and will take place in several situations, such as where new construction in areas of minority concentrations, transfers of assistance where all or a portion of the converting project’s assistance is transferred to a new site, and conversions where there will be a change in occupancy (such as where assistance from an existing family property is transferred to an elderly property). 2016 Notice at 20-22.
The Uniform Relocation Act (URA) portion of the 2016 Notice focuses on largely familiar tasks such as spelled out in HUD Handbook CPD 1378.0 and related guidance. Here the URA is deemed to apply and the process starts even before submission of the RAD application by meeting with residents and providing a RAD Information Notice or RIN to residents. After submission of the RAD application a relocation plan must be developed (the Notice has a recommended format and content) and the PHA must prepare a Significant Amendment to the PHA Plan. Then, upon issuance of the Commitment to Enter into Housing Assistance Payments Contract (“CHAP”), the PHA must provide the General Information Notice or GIN. The relocation plan is re-examined, possibly revised to address housing options, relocation expenses, resources and related information. The RAD Conversion Commitment to Closing (“RCC”) is the effective date of Initiation of Negotiations as defined in URA, with further resident notices required. Relocation can commence on the effective date of the RCC or after. RAD requires tenants have the right to return, but it is possible tenants may elect not to return and it is possible the reformulation of units, if any, makes return infeasible. Temporary or permanent moves within the same building or complex are not considered relocation under RAD and is not displacement under URA. Relocation outside the building or complex for less than a year is treated as temporary relocation under URA. More than a year is treated like a displacement under URA and the resident may voluntarily accept what a displaced person would receive under the URA.
The Notice also provides guidance regarding coincidental or requested moves to or from the facility prior to the RAD Transaction.
Resolving these complicated fair housing, civil rights and relocation issues is probably more than we can expect one document to do. But at least the 2016 Notice lays out the issues and provides some procedural steps to address them. Undoubtedly, as they move forward with concrete proposals, HUD, PHAs and participating developers will continue to struggle with and with luck surmount these issues.