Mayor Bowser: Use Your Existing Powers To Convert Vacant Property Into Affordable Housing
January 30, 2023 by Theodoros Papazekos
It is not news that we are in the midst of a housing crisis. According to the National Low Income Housing Coalition, the District of Columbia has an estimated shortage of about 27,000 affordable housing units. About 50,000 families are on the District’s public housing waiting list. Meanwhile, the District has about 3,500 housing properties classified as vacant or blighted by the Department of Buildings, up from “about 3,000” reported by DCRA eighteen months ago. Another 12,500 apartments are vacant, accounting for 7.3% of the total number of apartments in the District. These staggering figures more than double the number of people experiencing homelessness, estimated to be about 6,000.
For years, advocates have connected these figures as a single astonishing failure — the market has proven its inability to adequately allocate housing. The government reaction to this failure has been characterized by an unwillingness to take the necessary steps to solve the problem: While the District has made an effort to build more affordable housing, it has constructed only a little over 3,000 units targeting very low-income people; only a quarter of the Mayor’s 2019 pledge. Mayor Bowser could more than double the district’s recent output by using a tool already available to her: converting existing vacant, abandoned, or deteriorated property into usable affordable housing.
The District has largely refrained from using its power to acquire vacant, abandoned, and tax-delinquent properties and has failed to convert these properties into affordable housing when it does. The legal mechanisms for acquiring these properties arise under multiple statutes, including the District Opportunity to Purchase Act (DOPA), tax foreclosure procedures, eminent domain, and abandoned property seizures. Under most of these, the district is required by law to “dispose” of these properties via public auction or sale, but the District does have the discretionary power to turn abandoned or vacant property into affordable housing in some circumstances.
The District’s vacant and tax-delinquent property acquisition and disposal system is governed by D.C. Code § 47-1300 et. sec. By statute, the District may foreclose upon vacant and tax-delinquent property, which it must then sell by auction. If the property is not purchased at auction, or is purchased for a price lower than the property’s value, the Mayor, using her discretion, is permitted to purchase these properties on behalf of the District. The District typically will then re-run the auction, but the Mayor has narrow statutory authority to instead transfer the property to a non-profit “in the best interests of the District.” While there is no statutory requirement that the property be used for affordable housing, the Mayor’s office can require affordability within the terms of a disposal contract as part of the “best interest of the District.”
Under DOPA, the District has a right of first refusal to purchase buildings with more than five units of housing; the Mayor can then designate that the building becomes permanently affordable. While DOPA does not specifically target abandoned or tax-delinquent properties, it provides a relatively simpler route for the Mayor to create affordable housing from unwanted property. However, due to cost and management concerns, DOPA has not provided a consistent route to the creation of affordable housing – since its passage in 2008, it has yet to be used once.
Eminent domain is another route by which the District might acquire property but can be more expensive and time-consuming than other routes due to court battles over constitutional taking issues. Relatedly, the District’s eminent domain statute requires a court proceeding to oversee the transaction.
Finally, under the District’s blight reduction powers, the Mayor may acquire “abandoned or deteriorated” property, redevelop it, and ultimately dispose of it. The district can acquire property fitting into these categories by purchase, gift, eminent domain, or assignment. Again, the statute does not require that the District use the property for affordable housing once purchased, but this could be incorporated into the terms of its acquisition or dispersal.
The District manages these various programs through PADD, DHCD’s Property Acquisition and Disposition Division. The vast majority of the transactions conducted by PADD are tax-foreclosure auctions, but it also houses the Mayor’s Vacant to Vibrant program, which created “Workforce Housing” targeting middle class first-time homebuyers earning 60-120% of the Area Median Income. Unfortunately, the program did not create affordable housing targeted to low-income residents, and operated at an extremely small scale — just ten properties were sold in 2019, and the program has been dead for years.
It is entirely within the Mayor’s powers to revive the Vacant to Vibrant program as a mechanism to create affordable housing in the District. A Mayoral administration committed to using all available tools to fight the housing crisis would aggressively convert unwanted, vacant, and abandoned property to usable affordable housing.
 Ally Schweitzer, There’s Already A Housing Crisis In The D.C. Area. Will Amazon Make It Worse?, WAMU 88.5, (Nov. 14, 2018), https://wamu.org/story/18/11/14/theres-already-a-housing-crisis-in-the-d-c-area-will-amazon-make-it-worse/.
 District of Columbia, National low income housing coalition, https://nlihc.org/housing-needs-by-state/district-columbia (last visited Dec. 16, 2022).
 Crawford & Das, supra note 4.
 Vacant Building Map, Dept. of Buildings, https://dataviz1.dc.gov/t/OCTO/views/AgencyDashboard_16642878202360/VacantBuildingsMap? (last visited Dec. 16, 2022).
 Stephanie Lai, D.C.’s problems with vacant, blighted properties haven’t gone away, residents and officials say, Washington Post (July 28, 2021), https://www.washingtonpost.com/dc-md-va/2021/07/28/dc-vacant-blighted-properties/.
 District of Columbia Economic and Revenue Trends: September 2022, Off. of Revenue Analysis, 6, (Sept. 2022), https://cfo.dc.gov/sites/default/files/dc/sites/ora-cfo/publication/attachments/Trend%20Report%20September%202022.pdf.
 Doni Crawford & Kamolika Das, DC’s Affordable Housing Toolbox, DC Fiscal Policy Inst., (Apr. 11, 2019), https://www.dcfpi.org/all/dcs-affordable-housing-toolbox/.
 See, e.g., The Proposal, Vacant to Virus-Reduction, https://v2vr.info/proposal/ (last visited Dec. 16, 2022).
 DMPED 36,000 by 2025 Dashboard, Deputy Mayor for Planning & Econ. Dev., https://open.dc.gov/36000by2025// (last visited Dec. 16, 2022).
 D.C. Code § 47-1303(b).
 Id. at §§ 1332(d), 1352.
 Id. at § 1353(a)(3).
 Id. at § 42-3404.31.
 Will Schick, DC Council acts to fix DOPA, an affordable housing program that hasn’t worked since its inception in 2008, DC Line (Jun. 30, 2021), https://thedcline.org/2021/06/15/dc-council-acts-to-fix-dopa-an-affordable-housing-program-that-hasnt-worked-since-its-inception-in-2008/.
 D.C. Code § 16-1311 et. sec.
 Id. at § 42-3171.01 et. sec.
 Id. at § 3171.02
 Transforming Vacant and Blighted Properties, DHCD, https://dhcd.dc.gov/PADD (last visited Dec. 16, 2022).
 Transforming Vacant And Blighted Properties, DHCD, https://dhcd.dc.gov/sites/default/files/dc/sites/dhcd/service_content/attachments/Transforming%20Vacant%20Property%20fact%20sheet.pdf (last visited Dec. 16, 2022).