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Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 1
National Issues –Concentration of Povertyfor the CHFA 2015 Housing Credit Summit
June 16, 2015 www.novoco.com
1
Mark ShelburneNovogradac & Company [email protected](919) 889-2596
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 2
Agenda
IntroductionFair Housing LawDisparate Impact
Affirmatively FurtheringUpcoming HUD Rule
Policy
June 16, 2015 www.novoco.com
2
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 3
Disclaimer
• Only a summary• National focus, specifics vary by state• Another side to most of presentation• Not providing legal advice
June 16, 2015 www.novoco.com
3
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 4
Agenda
IntroductionFair Housing LawDisparate Impact
Affirmatively FurtheringUpcoming HUD Rule
Policy
June 16, 2015 www.novoco.com
4
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 5
Introduction
June 16, 2015 www.novoco.com
5
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 6
Two Areas...
June 16, 2015 www.novoco.com
6
A great deal of overlap, but not the same
Important to be aware when dealing with each
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 7
Agenda
IntroductionFair Housing LawDisparate Impact
Affirmatively FurtheringUpcoming HUD Rule
Policy
June 16, 2015 www.novoco.com
7
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 8
Fair Housing Law
June 16, 2015 www.novoco.com
8
Seven Protected Classes
Poverty?
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 9
Fair Housing Law
• Legal/Policy Distinction• Two main areas of the law:
– General Fair Housing– Affirmatively Furthering
• Both have been around for >40 years
June 16, 2015 www.novoco.com
9
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 10
June 16, 2015 www.novoco.com
10
Fair Housing Overall
Affirmatively Furthering
Applicable...regardless of any subsidy when using certain federal
resources
Meaning at the project
level
do not intentionally discriminate and provide reasonable accommodations
determining those least likely to apply and following a plan for marketing to them
Meaning for programs
do not intentionally discriminate; Supreme Court to rule on disparate impact
allocate resources so as to desegregate; upcoming rule replaces AI process
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 11
Agenda
IntroductionFair Housing LawDisparate Impact
Affirmatively FurtheringUpcoming HUD Rule
Policy
June 16, 2015 www.novoco.com
11
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 12
Disparate Impact
Only one issue in the Texas
case
Is disparate impact a basis to establish a fair housing
claim?
Is disparate impact a basis to establish a fair housing
claim?
Not second guessing facts
or ruling on QAP priorities
Not second guessing facts
or ruling on QAP priorities
There are several possible
outcomes...
There are several possible
outcomes...
June 16, 2015 www.novoco.com
12
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 13
June 16, 2015 www.novoco.com
13
Sides with State, Reverses the Lower
Court
Sides with Plaintiff, Upholds the Lower
CourtSomething Else
Quick Summary
fair housing enforcement requires proof of intent; claims based on disparate impact not possible
legal status quo, fair housing actions can be based on evidence of disparate impact
e.g., no clear majority or changing the legal standard
Overall, General
Consequence
different law for home mortgages, NIMBY challenges, and more
sigh of relief from advocates and others
experts scramble to figure out the meaning
Meaning for LIHTC
program
not that anything goes
more pressure for QAPs to prioritize opportunity areas
see above
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 14
Agenda
IntroductionFair Housing LawDisparate Impact
Affirmatively FurtheringUpcoming HUD Rule
Policy
June 16, 2015 www.novoco.com
14
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 15
Affirmatively Furthering
• AFFH is more than not discriminating• Undertaking actions as a condition of accepting
federal resources• Goal is to eliminate barriers to fair housing• Connections to LIHTC?
– not necessarily clear– subject of a different lawsuit
June 16, 2015 www.novoco.com
15
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 16
Agenda
IntroductionFair Housing LawDisparate Impact
Affirmatively FurtheringUpcoming HUD Rule
Policy
June 16, 2015 www.novoco.com
16
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 17
Affirmatively Furthering
• AFFH process will be part of ConPlan• HUD provides data• Several goals, including:
– improving choice– end Racially and Ethnically Concentrated Areas of
Poverty (R/ECAPs)
• Proposed rule considers proximity to amenities– arguably policy being brought into the legal side– won’t matter if part of the Rule
June 16, 2015 www.novoco.com
17
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 18
Agenda
IntroductionFair Housing LawDisparate Impact
Affirmatively FurtheringUpcoming HUD Rule
Policy
June 16, 2015 www.novoco.com
18
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 19
June 16, 2015 www.novoco.com
19
“Explanations exist; they have existed for all time; there is always a well-known solution to every human problem ---
neat, plausible, and wrong.”
- H.L. Mencken, Prejudices: Second Series, 1920
Policy
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 20
Policy
• No end of complication• One misinterpretation of a recent Harvard study:
every poor family in Denver just move to Jefferson Co.
• HUD study on QAPs:– they matter for the location of projects– effect measurable both with positive incentives and
avoiding disincentives
June 16, 2015 www.novoco.com
20
Novogradac Concentration on Poverty Presentation2015 CHFA Housing Credit SummitDenver, Colo.
June 16, 2015
www.novoco.com 21
National Issues –Concentration of Povertyfor the CHFA 2015 Housing Credit Summit
June 16, 2015 www.novoco.com
21
Mark ShelburneNovogradac & Company [email protected](919) 889-2596