Affirmatively Furthering Neighborhood Choice: Vacant Property Strategies and Fair Housing

University of Memphis Law Review, Vol. 46, 2016

Notre Dame Law School Legal Studies Research Paper No. 1616

31 Pages Posted: 27 Apr 2016 Last revised: 13 Jun 2016

Date Written: April 25, 2016


With the Supreme Court’s Inclusive Cmtys. Project decision in June 2015 and the Obama Administration’s adoption, the following month, of the Final Rule for Affirmatively Furthering Fair Housing (AFFH), local government accountability for ending segregation and resolving the spatial mismatch between affordable housing and economic opportunity has been placed on a more solid footing. Instead of being responsible only for overt, conscious attempts to harm protected groups, jurisdictions that receive money from HUD will now need to take a hard look at their policies that perpetuate the barriers to housing opportunity for economically marginalized protected groups. The duty to Affirmatively Further Fair Housing, although somewhat aspirational in its formulation, requires HUD grant recipients to engage with fair housing issues in a way that the threat of litigation, even disparate impact litigation, never has.

In this paper, I examine how the new AFFH rule impacts local government efforts to confront the epidemic of vacant houses in America’s older cities. Market-sensitive responses to vacant properties drive many of the best practices in code enforcement and land banking. Reconnecting marginalized areas to functioning real estate markets promotes neighborhood choice not only because remaining in the communities they have called home should be a viable option for residents of color but also because the ability of local government to provide essential services requires the elimination of vacant property nuisances. Yet, the short-term effects of these strategies and their similarities to previous publicly sanctioned instances of government redlining raise profound questions of racial and social equity. The first Part of this article examines both the unique role of AFFH within the Fair Housing Act and its articulation in the recently released Final Rule. The next Part will articulate how local governments required by the Final Rule to submit Assessments of Fair Housing (“AFHs”) to HUD should structure and discuss innovative, market-based approaches to their vacant property challenges.

Keywords: Fair Housing, Affirmatively Furthering Fair Housing, vacant properties, disparate impact, code enforcement, land banking

JEL Classification: J71, K11

Suggested Citation

Kelly, James J., Affirmatively Furthering Neighborhood Choice: Vacant Property Strategies and Fair Housing (April 25, 2016). University of Memphis Law Review, Vol. 46, 2016, Notre Dame Law School Legal Studies Research Paper No. 1616, Available at SSRN:

James J. Kelly (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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