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Promise Unfulfilled? Zoning. Disparate Impact, and Affirmatively Furthering Fair Housing

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ON JUNE 28, 2016 the Board of County Commissioners of Douglas County, Colorado, a wealthy suburban county of approximately 325,000 residents near Denver, held a public meeting to determine whether the county should submit its annual action plan as required to receive more than $700,000 in U.S. Department of Housing and Urban Development (HUD) funds for the Community Development Block Grant (CDBG) program.1 During the hour-long meeting, county staff informed the board of the benefits of HUD programs, and the initiatives that the county accomplished as a result of the program.2 Despite these benefits, at the end of the meeting, the board voted to decline CDBG funding for the 2016 fiscal year.3

Viewed in a vacuum, the Board of County Commissioners' decision to reject such a substantial amount of money for community development projects, including rental assistance, capital improvements for community crisis centers, and even infrastructure projects, is striking.4 Similarly striking is the fact that several members of the community attended the board meeting to oppose the county's receipt of federal funds.5 Yet the board's decision, and the community opposition that precipitated that decision, did not occur in such a vacuum.

Almost a year prior to the Douglas County board's decision on July 8, 2015, HUD Secretary Julian Castro promulgated what is now known as the final Affirmatively Furthering Fair Housing rule.6 The Fair Housing Act of 1968 (FHA) requires the Secretary of HUD to affirmatively further fair housing, yet the FHA does not define this concept.7 The AFFH Rule, which attempts just such a definition,8 places new requirements on thousands of state and local governments that receive HUD dollars. Central to the AFFH Rule's goals, recipients are required to study barriers to fair housing and analyze segregation patterns within their particular communities and regions, which includes inquiries into whether...