Is it too early to raise the specter of condemnation, otherwise known as a taking or the exercise of eminent domain, in the cases facing the City of Falls Church in its efforts to maintain and expand its stock of affordable housing?

Last week, the City government moved very decisively to rank respondents to its RFP to redevelop the so-called Virginia Village site on S. Maple in the City for upgraded affordable housing uses. It went with a plan offered by Urban Atlantic to place 200 or more new units on that property.

Now, here comes another challenge for affordability in the Little City represented by the near-term expiration of federal tax credits that have maintained as affordable 96 units at The Fields, the apartment complex on Ellison Street. As the owners recognize the enormous financial potential in the sale of that land for redevelopment at market rates, it has been put up for sale and the response has been brisk. Someone stands to make a killing if they can build 100 or so fancy units on that site that would go at market rates.

Despite what anyone may say, this outcome could be far more profitable than keeping the project affordable, even with a new round of federal tax credits. Someone using those credits could trade them in for funding to build, but if they are limited to affordable units, then their potential returns will be limited and nothing like what market-rate products could yield, as we see it.

So the pressure will be to let the credits expire and go with a sale at market rates. We have not seen any of the proposals for acquisition of the total project yet, but the financial incentive for a buyer to pursue the full market-rate potential of the property is obvious.

One option available to the City in such a case could ultimately be a taking, also known as an exercise of eminent domain through condemnation of the land. Such a step would not be simple. Virginia law places significant restrictions on eminent domain, requiring a legitimate public use and just compensation to the property owner, among other requirements. State law also recognizes the promotion of affordable housing for low- and moderate-income residents as a public purpose.

So, yes, the possibility of condemnation looms over this case, and it should be recognized as a potential factor right away. Developers are very aware of the powers available to local governments, and their potential use can affect what is considered for a valued piece of land.

So let’s cut to the chase and recognize that this could play a significant part in what will happen to The Fields. That is, unless someone decides to ignore its potential and go with something more lucrative, at the expense of the general public interest, of course.