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In February 2008, Marion Barry, then the chairman of the D.C. Council Committee on Housing and Urban Affairs, introduced a bill to help preserve affordable housing in the District. If a property owner was going to sell an apartment building that was home to low-income residents and put affordable housing at risk, the legislation stipulated, the District would have the chance to step in and buy it in order to keep those apartments affordable.
“If we are serious about preserving our affordable housing stock we must take an active and aggressive role in doing so,” Barry said in introducing the measure. The bill, known as the District Opportunity to Purchase Act, or DOPA, passed the Council unanimously six months later and became law that Christmas Eve.
DOPA was intended as a companion to the 1980 Tenant Opportunity to Purchase Act, or TOPA, which gives tenants the first right to buy their building before it can be sold or demolished. Since the end of the recession, with housing costs shooting up across the city, TOPA has been used time and again to allow low- and middle-income tenants to remain in place.
According to a September 2013 report from the D.C. Fiscal Policy Institute, a city loan program to help low- and middle-income tenants buy their buildings under TOPA helped preserve nearly 1,400 affordable housing units in the past decade—a figure that represents just a fraction of overall TOPA transactions.
But more than six years after it became law, DOPA has never been used. In fact, even as D.C.’s stock of affordable housing continues to disappear, the city has never even issued the regulations that would govern its usage.
Barry, who died in November, had taken over the housing committee in 2007 with an eye toward preserving the city’s vanishing supply of affordable housing. “As we got our feet wet, a lot of the comments from the advocacy community had been that we’d focused a lot on production of housing, but what about preservation?” recalls a former housing committee staffer who worked on DOPA but asked to remain anonymous due to ongoing work with the city government. “We were in that mode: How can we look at new tools for the preservation of housing?”
The law didn’t come with a dedicated funding source, but in the boom times that still lingered as Barry started drafting the legislation in 2007, that wasn’t much of a concern. “The idea was to get it passed, and then try to look at the budget from there and try to move some funding,” says the staffer.
Then the housing market crashed, and with it the economy. The Housing Production Trust Fund, which uses fees from property transactions to finance affordable housing production and preservation, dried up, as did the budget surplus. “We had to deal with the reality,” says the staffer. “So we didn’t really push it much to try to find new money.”
Since then, however, the picture has changed. With real estate changing hands for record prices, the Council approved a $79.3 million commitment to the Trust Fund for the current fiscal year. The city ran a $204 million budget surplus last year. And as housing options for low-income residents continue to shrink, the need for more affordable-housing preservation is acute.
Yet the Department of Housing and Community Development still hasn’t issued the regulations governing DOPA—not a legal prerequisite for DOPA to apply, but a necessary first step before DHCD can begin invoking it. Nor has the city identified a funding source for the program.
According to DHCD spokesman Marcus Williams, the agency is “actively working on DOPA regulations” that will allow the city to begin preserving affordable housing under the law.
During the recession and the immediate aftermath, DOPA was largely forgotten because the city simply lacked the funds to use it, says Steve Glaude, executive director of the Coalition for Nonprofit Housing and Economic Development and previously director of Community Affairs under former Mayor Vince Gray. “I can honestly say, in my previous position, a lot of community interest group stuff came my way,” he recalls. “The DOPA regulations never did.”
Now, housing advocates are beginning to recognize the opportunities they’ve missed. Last week, a working group of the DC Preservation Network, consisting of leaders on housing policy across the nonprofit, legal, and government sectors, released a comprehensive strategy for preserving affordable rental housing. Among its core recommendations was to set aside funding for DOPA, and to “issue regulations for DOPA without further delay.”
The report highlights the case of Elsinore Courtyards, a 13-building apartment complex in Marshall Heights whose residents couldn’t make more than half the area median income under a federal tax-credit deal. The project fell into default in 2010, and was sold at auction in 2012 without any affordability requirements.
Properties like these—large complexes east of the Anacostia River—are precisely the ones DOPA was meant to protect. “I don’t think we ever thought this would be a solution for every building,” the former committee staffer says. “But let’s say we had one of the few real real large buildings that still exist in [wards] 7 and 8 that the city had an interest in preserving. Instead of going through court battles, why not use a tool that’s available to preserve affordable housing?”
As an example, the staffer cites Marbury Plaza, a 672-apartment complex on Good Hope Road SE where tenants went on strike against poor housing conditions. At a complex that big, not only does the loss of low-income housing put a substantial dent in the overall affordable housing stock, but it can also be harder for tenants to muster the organization and resources to purchase the property under TOPA.
Under DOPA, tenants would still retain the right of first refusal on a property. But the law would be a valuable tool “where there is a compelling public interest to preserve the affordability but the tenants for one reason or another don’t do it,” says Joel Cohn, legislative director at the Office of the Tenant Advocate.
Tenants invoking their right to buy their buildings don’t generally buy the property themselves. Instead, they can assign the purchase rights to a developer of their choosing, in exchange for guarantees of preserved affordability and renovations. DOPA would work the same way, with the District more likely to hand properties off to developers who will keep the units affordable than to hold onto them itself. (Properties are eligible for DOPA only if at least one-fourth of the units are affordable to households earning under half of area median income, and the District is obligated to maintain that affordability.)
But in other ways, DOPA falls short. TOPA is triggered if a property is being sold or demolished, or if the rental housing there is discontinued. The DOPA law, however, covers only the sale of a building. That appears to run counter to the Council’s intent; the housing committee report before its passage stated that “the Mayor’s opportunity to purchase the housing accommodation shall be in the same manner and with the same definitions, rights, and timeframes as the opportunity of tenants and tenant organizations.” The committee staffer says the omission was “probably just an oversight.”
It’s an oversight that could have consequences, if the city ever funds and issues the regulations for DOPA. A building like the Museum Square Apartments in Mount Vernon Triangle, where the owner told tenants last year they’d have to pay $250 million under TOPA to prevent the building from being demolished, would appear to be a prime candidate for DOPA if the city’s challenge to that exorbitant price tag is successful. After all, its 302 households all qualify for subsidy vouchers under the federal Section 8 program. But the language of DOPA, unless amended, wouldn’t cover the building because it’s being demolished, not sold.
Anita Bonds, who chairs the Council’s housing committee now, was not available for an interview but says in a statement, “DOPA was raised at our committee’s performance oversight hearing on Feb. 26, and we are waiting for the Department of Housing and Community Development to get back to us on how the law has been implemented, if ever.”
If and when it’s finally implemented, advocates say DOPA could have a major impact on the city’s supply of affordable housing, particularly with the District’s coffers much fuller than when it became law. “Given the crunch on affordable housing and the likelihood that we’re going to have a healthy stream of funding, having that additional tool will be nice,” says Glaude. “I see a time down the road when DOPA is going to save a lot of affordable units.”
Photo by Darrow Montgomery