Localities look to eminent domain as a way to preserve affordability.
Have you seen “eminent domain” pop up in your suggested searches lately? If so, it’s likely due to recent headlines in a case that explores Los Angeles’ ability to use the power to force a sale of a privately-owned apartment complex in Chinatown.
The background story is familiar: as a housing complex’s affordability covenants expire, long-term tenants face likely rent increases and potential displacement. We’ll continue to see this trend in coming years as the first wave of LIHTC properties approaches the end of their required affordability periods. Nationwide, roughly half a million affordable dwelling units will see these requirements expire before 2029.
Eminent domain has a long reputation associated with urban renewal, displacement, and government infringement on private ownership, yet Hillside Villa is part of a growing inventory of cases in which a locality has used eminent domain to acquire homes and maintain affordability.
But we can’t forget our friend the Fifth Amendment, which says that eminent domain can only be used for “public use” and benefits. This leads some to wonder if affordable housing is a fair interpretation of a term usually reserved for roads, utilities, and other wholly public services.
(Here in Virginia, such an interpretation became even harder to defend following an amendment to the state constitution voters approved in 2012 that significantly limits localities’ powers of eminent domain.)
As the gap between income and cost of living continues to widen, localities throughout the nation need creative and flexible solutions for preserving affordable housing. Given that fact, should we eye eminent domain with skepticism, or join the camp that lauds it as the newest tool in the affordable housing toolbox?
For a full list of housing tools in localities’ toolboxes, be sure to browse Housing Virginia’s Playbook.
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