For nearly 40 years, Marlene Frost has been a tenant at what was then known as Portner Place, a 48-unit, garden-style affordable housing community located near the bustling U Street corridor in Northwest.
More than a decade ago, as gentrification swallowed portions of the U Street-Shaw community, Frost and her fellow Section 8 tenants were able to stop the sale of their apartment with the rights they secured through D.C.’s Tenant Opportunity to Purchase Act, also known as TOPA.
As she lives comfortably in her humble abode, Frost continues to reflect on the meaning that Portner Place holds for her and at least three generations of her family.
“I was just getting out of high school, getting ready to go to college,” Frost said as she recounted moving in with her mother during the 1980s. “My family is very close. Siblings loved to come over with lunch and we got together for birthdays. My mother set a strong foundation for how a single parent raised six children.”
Through TOPA, Frost and others assigned their right of first refusal to Somerset Development, a self-described socially responsible developer. Somerset, in partnership with Jonathan Rose Company, demolished and reconstructed Portner Place in a manner that allowed all of the original tenants to return to and live comfortably in newly developed units.
In 2018, D.C. Mayor Muriel Bowser (D), residents and developers celebrated the opening of what’s now known as Portner Flats. Somerset and Jonathan Rose doubled the number of affordable apartments, from 48 to 96 units, priced at 60% of the average median income. They did so through a Planned Unit Development that leveraged the market value of the land to increase the zoning density via the construction of 288 market-rate units on the U Street side of the apartment complex.
Somerset and Jonathan Rose also facilitated the extension of tenants’ Section 8 for another 20 years through an arrangement with the U.S. Department of Housing and Urban Development. The “pass through” helped them maintain the affordability of the units during and after the 18-month demolition and construction process.
These days, Frost and other Portner Flats residents enjoy a community garden, outdoor landscaped spaces, and a bevy of community programming. “I couldn’t afford it otherwise,” she said. “I had a great experience with the transition. You could come straight off the street. We have the office right on the premises and the elevator helps people with disabilities. Some of the children can come down to the computer room and the gym.”
Further Examining TOPA’s Impact and Hurdles
Since TOPA’s enactment in 1980, tenants throughout the District have used it as a means of purchasing rental properties during sales, preserving affordable housing and preventing displacement. In the process of exercising their “first right of refusal,” tenants have organized tenant associations, made purchase offers and, in several cases, assigned their rights to a community-based organization charged with redeveloping the property in a manner that ensures tenants can stay.
Despite what advocates describe as its benefits, TOPA has sparked criticism in recent years, particularly among owners of single-family homes who complained about tenant abuse of the law that led to the delay of property sales.
Such complaints led to 2018 legislation that no longer allowed tenants of single-family homes to exercise their first right of refusal under TOPA.
A report conducted by the Coalition for Nonprofit Housing and Economic Development (CNHED) last November found that TOPA led to the development or preservation of 16,224 affordable units between 2006 and 2020. That figure represented half of the units that underwent negotiation following a TOPA notice.
The largest concentration of TOPA deals, according to the report, took place in Wards 1, 4, and 8, all in correlation with the decrease in D.C.’s affordable housing stock. Community-based organizations supported 421 tenant groups, which the report designated as 45% of all buildings that received notices of sale or more than half of the 20,534 units in the study group.
More than 70 developers and purchasers also started or completed TOPA projects during the time period outlined in the report.
In recent years, as property values increased in the District, tenants who exercise their TOPA rights found difficulty navigating the process. Success in this realm depends heavily on one’s knowledge of TOPA rights and processes, along with their ability to access community-based organizations and attorneys with expertise in negotiating agreements.
Other factors outside of tenants’ control, according to the CNHED report, include funding levels for the Housing Production Trust Fund (HPTF) and increasingly high interest rates that affect the housing market. The report also highlighted situations in which bad actors pressure tenants into prematurely signing away their rights.
Another hurdle concerns the lack of affordable housing financing and predictable financing options.
In its report, CHNED recommended the launch of a TOPA task force, the reinstatement of First Right Purchase Program (FRPP) loans that could be acquired through D.C. Department of Housing and Community Development (DHCD), collaboration with community-based organizations to strengthen tenant association education on TOPA, the enforcement of housing code enforcement to prevent subpar living conditions that compel tenant buyouts, the expansion of access to legal and technical assistance, and an increase of outreach and awareness about TOPA.
Earlier this month, Council members Robert White (D-At large) and Brianne Nadeau (D-Ward 1) joined CNHED on tours of Portner Flats, Maycroft, 11 Nicholson Street, and The Hampshire, four Northwest-based apartment buildings where tenants exercised their TOPA rights.
The tour came weeks after White participated in a Committee of the Whole hearing on the District’s inspection system, where he said he attempted to gain some clarity on the next steps in addressing subpar living conditions in privately owned buildings. By that time, he had been in constant communication with tenants, the Office of the Attorney General, Department of Buildings, and Office of the Tenant Advocate (OTA), a council staffer said.
As it relates to FRPP, White requested a status update last fall from DHCD on the funding source.
His office told The Informer that DHCD told him that while those funds weren’t in use, tenants could similarly access the HPTF and the Oramenta Newsome Predevelopment Loan Fund for preservation of affordable housing. White’s team is currently reviewing FRPP and other DHCD preservation and acquisition-related funding sources to better understand what they described as overlaps and distinctions, a spokesperson told The Informer.
During the TOPA tour, White, chair of the council’s Committee on Housing, listened as tenants credited community-based organizations with helping them successfully navigate the TOPA process. He said those organizations, along with OTA, prove essential in increasing tenant and tenant association education about TOPA.
After the tour, White told The Informer that his priorities involve taking CNHED recommendations seriously and better assessing how those recommendations, specifically tenant support and education, can help White’s office achieve its broader housing goals.
“It is clear that this tool has been successful at preserving and producing affordable housing for residents in different parts of the city,” White said. “By default, TOPA already applies to almost all multifamily buildings going through the sale process in the District. In the coming months, I plan to explore how to strengthen TOPA to both benefit residents and increase affordable housing.”
The Deal That Almost Didn’t Happen
In 2011, tenants of the Maycroft in Northwest used their TOPA rights when their landlord wanted to sell the property. These tenants, many of whom were clients of Jubilee Housing, transferred over their first right of refusal to the justice housing organization.
Jubilee Housing secured the Maycroft’s renovation into a mixed-use property with the help of the Latino Economic Development Center. Today, the building, located on Columbia Road in Northwest, has 64 affordable units, two-thirds of which are at or below 30% of the average median income and the rest between 30% and 60% of the average median income.
The project received the Enterprise Green Community rating as an indication of its climate sustainability, Interior improvements include a new sprinkler system, elevator, security systems, utilities upgrades, electricity and plumbing.
Other solar power innovations include the Community Solar credit program and the solar-powered Resiliency Center. Each apartment includes a new kitchen, baths, and electrical and HVAC system. Tenants also get to enjoy Jubilee’s Teen Center and Martha’s Table nearby.
As Maycroft tenant Samuel Buggs explained during CNHED’s TOPA tour, many of the tenants who were involved in the TOPA negotiations have since moved to other dwellings. Buggs, a Jubilee Housing board member, moved into the Maycroft in 2019.
He called it one of the most consequential decisions of his adult life.
“I definitely realize I don’t know where I would be if not for Jubilee Housing and Maycroft,” Buggs said. “If not for TOPA, I would have to move somewhere else. We were glad things worked out in our favor but there were a lot of complications. I’m fortunate to live in this building after the renovations.”
In 2015, the group of Maycroft tenants navigating TOPA encountered a challenge when another tenant group sued them for the use of falsified documents. The legal battle placed TOPA negotiations at a standstill, which, as Buggs said during the tour, nearly threatened the success of the deal.
In response, Nadeau, then in her first year as Ward 1 council member, introduced the Jubilee Maycroft TOPA Notice Exemption Act with D.C. Council Chairman Phil Mendelson (D). The emergency legislation prevented other tenant organizations from challenging the transfer of interests to Jubilee Housing.
Then-At-Large Council member Vincent Orange was the sole “no” vote. The bill would later be enacted without Bowser’s signature.
In speaking about the Maycroft deal on Feb. 5, Nadeau said that conversations about TOPA should focus on the human impact, especially as it relates to the amount of patience tenants have as they navigate an arduous process.
Introducing the bill, Nadeau said, prevented another case of displacement and bolstered Jubilee Housing’s work.
“This is not an abstract conversation,” she said. “There’s hope that with the right partner, you can have a Maycroft, but there are times in a TOPA deal when you think about if you should go. Our community is rich if people get to stay.”