April 9th, 2023
Regulations Division
Office of General Counsel
Department of Housing and Urban Development 
451 7th Street, SW, Room 10276
Washington, D.C. 20410-0500 

Re: Docket No. FR-6250-P-01, Affirmatively Furthering Fair Housing 

These comments are submitted on behalf of the Niskanen Center, a nonpartisan 501(c)(3) think tank working to promote an open society.

The Niskanen Center commends HUD for expressing intent to pursue more meaningful fair housing monitoring and enforcement while reducing some of the daunting administrative burdens imposed by the 2015 version of the proposed rule. 

We further urge HUD to strengthen and simplify the Fair Housing Assessment Tool with substantive but simple fair housing assessment questions inspired by Senator Todd Young’s (R-IN) YIMBY Act. Referring to the growing “Yes In My Back Yard” movement for abundant and fair housing supply, the YIMBY Act is a bipartisan proposal to require recipients of HUD funds to report on their land use regulatory barriers to the supply of fair and affordable housing of all kinds.

HUD’s proposed rule relies on a process-driven approach to identify and elevate local definitions of fair housing and establish local goals and solutions for furthering fair housing within a large and diverse country. While this neutral approach insulates HUD from concerns about imposing “one-size-fits-all” or “top-down” solutions, it shortchanges the scholarly consensus: Exclusionary zoning and targeted growth controls on housing supply have long been the central policy tools furthering income and racial segregation.

Relying exclusively on neutral community outreach leaves universally-recognized fair housing supply barriers unexamined in communities without large, active advocacy groups. HUD should require communities to use a simple checklist to report on their current status concerning known supply barriers to fair housing. A helpful list of essential local government activities to mitigate supply barriers to fair housing, inspired by the YIMBY Act, is as follows:

(A) Enacting high-density single-family and multifamily zoning.

(B) Expanding by-right multifamily zoned areas.

(C) Allowing duplexes, triplexes, or fourplexes in areas zoned primarily for single-family residential homes.

(D) Allowing manufactured homes in areas zoned primarily for single-family residential homes.

(E) Allowing multifamily development in retail, office, and light manufacturing zones.

(F) Allowing single-room occupancy development wherever multifamily housing is allowed.

(G) Reducing minimum lot size.

(H) Ensuring historic preservation requirements and other land use policies or requirements are coordinated to encourage housing creation in historic buildings and districts.

(I) Increasing the allowable floor area ratio in multifamily housing areas.

(J) Creating transit-oriented development zones.

(K) Streamlining or shortening permitting processes and timelines, including through one-stop and parallel-process permitting.

(L) Eliminating or reducing off-street parking requirements.

(M) Ensuring impact and utility investment fees accurately reflect required infrastructure needs and related impacts on housing affordability are otherwise mitigated.

(N) Allowing prefabricated construction.

(O) Reducing or eliminating minimum unit square footage requirements.

(P) Allowing the conversion of office units to apartments.

(Q) Allowing the subdivision of single-family homes into duplexes.

(R) Allowing accessory dwelling units, including detached ones, on all lots with single-family homes.

(S) Establishing density bonuses.

(T) Eliminating or relaxing residential property height limitations.

(U) Using property tax abatements to enable higher density and mixed-income communities.

(V) Donating vacant land for affordable housing development.

A community can only plausibly further fair housing if it grapples with these discriminatory housing supply barriers. Recent scholarship, famously summarized in Richard Rothstein’s The Color of Law, has demonstrated that facially race-neutral growth controls are the primary tool of discrimination. Restrictive land use regulations are the final bastion of discrimination following the legal defeat of explicit racial zoning in 1908, racial deed restrictions in 1948, and Jim Crow in 1964 and 1968.

The scholarly consensus on the discriminatory intent and effects of housing supply barriers now spans history, sociology, and urban economics. The popular explosion of the YIMBY movement in American cities, and the recent evolution of the written discourse in national publications of record, reflect a growing popular understanding of the scholarly consensus. Using the YIMBY Act as inspiration, HUD’s premiere fair housing regulatory tool should explicitly name and shame the worst practices in land use regulation and list the activities to mitigate them.

HUD’s professional staff is undoubtedly already aware of much of recent housing scholarship and state and local policymaking concerning the national housing shortage that exacerbates legacy fair housing disparities. We also understand HUD’s staff are aware of the history of George Romney, the first HUD secretary to implement the Affirmatively Furthering Fair Housing (AFFH) rule in the Nixon Administration, who fought aggressively on a campaign for “open communities” before a backlash cut the effort short. HUD’s AFFH rule has been, as the late Senator Ted Kennedy put it, a “toothless tiger” ever since.

We are not asking HUD to overreach beyond sustainable land use reforms with AFFH. We are asking HUD to at least list well-known regulatory actions that further fair housing supply. HUD and policymakers know the difference between good and bad land use regulations regarding their disparate fair housing impacts, as HUD already lists “land use and zoning” as a single bullet point in the 2015 rule’s assessment tool. Centering a more comprehensive list of land use and zoning activities that furthers fair housing–inspired by the YIMBY Act–would elevate in simple and explicit terms what it means for a local government to advance fair housing in local land use and zoning.

Respectfully Submitted,

Alex Armlovich, Senior Housing Policy Analyst
Andrew Justus, Housing Policy Analyst
Social Policy Team
Niskanen Center
Washington, D.C.