Town Uses Eminent Domain To Stop Private Affordable Housing Project
Happy Tuesday, and welcome to another edition of Rent Free. This week’s stories include:
- The housing policy implications of President Donald Trump’s (possible) trade war with Canada and Mexico.
- Whether state legislatures will kill the “build-to-rent” boom
- How the Fair Housing Act came to protect your right to an emotional support parrot
But first, a story about how Rhode Island’s new law intended to increase new housing construction is running into a very old power used to stop it.
Rhode Island Town Using Eminent Domain To Stop Affordable Housing Project
The town of Johnston, Rhode Island, is going to extreme measures to prevent a privately financed affordable housing project from being built under the state’s newly revamped density bonus law.
At a special meeting last Thursday, the Town Council authorized the use of eminent domain to seize a 31-acre site currently owned by developer Waterman Chenango LLC. The eminent domain resolution calls for creating a “municipal campus” on the site to replace its aging town hall, police station, and fire station.
The seizure would have the very much intended side effect of stopping the exiting owner from going forward with its current plan of turning the land into a 252-unit housing development.
Johnston’s existing zoning code allows for medium-density residential development on the site in question. The owner had proposed to make use of recent changes to the state’s decades-old Low and Moderate Income Housing Act to build even more units.
In 2023, the Rhode Island Legislature passed amendments to that state law to allow developers to build up to 12 units per acre on water- and sewage-connected parcels if all the units are “low- and moderate-income housing”—meaning rents are capped by a formula that incorporates family-size and area median income.
Projects that meet those income limits also receive relief from local minimum parking requirements and density restrictions. Localities are limited in their ability to turn down these projects so long as less than 10 percent of their housing units don’t qualify as “low- and moderate-income housing.”
The state law’s density bonus was generous enough (and rent caps high enough) that Waterman Chenango was able to propose a 100 percent “affordable” project that required no tax subsidies.
The number of units they were proposing proved to be a major sticking point with Johnston Mayor Joseph Polisena.
Shortly after Waterman Chenango filed its development application, Polisena issued a public letter in which he promised to use “all the power of government” to stop the project.
“No one expects this land to sit idle forever. We’re more than willing to support reasonable development, and single-family homes,” said Polisena in his letter. “If you pivot in that direction, I can assure you the town will roll out the red carpet.”
But new apartments on the site would create a “trifecta of chaos” from new traffic, new students, and drainage problems, the mayor said.
In that letter, Polisena said that he would challenge the constitutionality of Rhode Island’s Low and Moderate Income Housing Act to stop the project if necessary.
A few weeks later, he was saying the town needed to take the land to replace its dilapidated public facilities.
“[The mayor’s] primary purpose is clearly to block this project,” says Kelley Morris Salvatore, an attorney representing Waterman Chenango. Plans for a municipal campus had “literally never been discussed publicly ever before” her clients proposed their project, she says.
She says that while they are still in the early stages of the eminent domain process, she presumes her clients will accept an “appropriate” amount of money to sell their land and forgo their housing project.
The U.S. Constitution says that governments can only seize private property for “public use” and they have to pay “just compensation” when they do.
A new town hall and police station would pretty clearly satisfy that “public use” requirement.
State courts have reliably struck down “pretextual” takings of property, where the government’s stated “public use” rationale for se
Article from Reason.com
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