Will Local Governments Still Be Allowed To Make Zoning Decisions Without Federal Coercion?

by Robert Romano: The American people are still awaiting the Trump administration rewrite of the Obama-era Affirmatively Furthering Fair Housing rule from the Department of Housing and Urban Development. The original rule, finalized in 2015, conditioned more than $3 billion of annual community development block grants to more than 1,200 cities and counties on making changes to local zoning based on income and racial guidelines.

It would have put the federal government in charge of zoning for every major population center in the country that depends on federal funding, an effective end of local government in the name of social justice. In addition, critics blasted the danger of this power being used for political gerrymandering.

The regulation turned out to be fairly unpopular, and Congress responded by defunding any action that might be taken to force cities and counties to make changes to zoning under Division F, Title II of the Consolidated Appropriations Act of 2019, Section 232: “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’…”

An identical provision sponsored by Sen. Susan Collins (R-Maine) passed the Senate easily 87 to 9 in 2016. At the time it was a rare bipartisan expression against overreach by the Obama administration and in favor of federalism, whereby decisions affecting local communities are best left to states and local entities.

Congress acted specifically to make implementation of the Affirmatively Furthering Fair Housing rule as currently written to make changes to zoning illegal. It needs to be rewritten. In that spirit, Americans for Limited Government embraced the opportunity the Trump administration presented to revisit the regulation when the revisions were announced in Aug. 2018.

Last week, Americans for Limited Government President Rick Manning urged that the Congressional prohibition be left in place as Congress considers funding bills for fiscal year 2020: “The temptation is always strong at the federal government level to exert power over local governments, and one such area is zoning. This is why Americans for Limited Government and members of Congress most notably Senator Susan Collins of Maine and U.S. Rep. Paul Gosar of Arizona who fought the Obama administration on the Affirmatively Furthering Fair Housing regulation when HUD attempted to condition federal funds on changes to local zoning by enacting a Congressional prohibition against the regulation. Because this prohibition is based on the principle of federalism and not any animus toward one administration over another, it is important that it be retained in the appropriations process this month and that it be respected by the Trump administration HUD leadership.”

However, HUD Secretary Ben Carson appears committed to continuing to use block grants to make changes to zoning, not to address racial or income inequality, but to help making housing more affordable. In an Aug. 13, 2018 interview with the Wall Street Journal he said, “I would incentivize people who really would like to get a nice juicy government grant [to look at their zoning codes].”

In light of Congress’ action, from HUD’s perspective, rescinding the rule would be the easiest fix, since HUD could argue that Congress had foreclosed the possibility of implementing the regulation, which depended on changes to zoning being made. Or it could just excise out any mention of zoning in the regulation and just leave the rest of the rule in place.

While addressing zoning and removing regulations to help make housing affordable is a laudable goal, municipalities should be the ones to address it, not bureaucrats in Washington, D.C. We’ve seen this movie before. Once it is no longer up to cities and counties to make these zoning decisions for themselves, the federal government will never give it back.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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