Eminent Domain

Guidance

Eminent domain is an exercise of the power of government or quasi-government agencies (such as airport authorities, highway commissions, community development agencies, and utility companies) to take private property for public use. Sometimes these entities may propose to use their eminent domain authority to take public housing property.

Eminent domain takings are exempt from the requirements of Section 18 of the U.S. Housing Act of 1937 and 24 CFR 970. However, because of the federal government interest in public housing property, HUD’s consent to the taking of public housing property is necessary.

HUD does not impose requirements on government or quasi-government agencies that propose to take public housing property, since these entities are free at any time to proceed in the courts. However, in those cases where the PHA and taking entity agree to the taking (a “friendly taking”), HUD’s consent to that agreement is required. An agreement between the parties (e.g., PHA and Taking Body) on the terms of a taking does not negate the requirement to obtain HUD’s consent. If HUD does not agree to a taking, it may choose to enforce its interest in the public housing property by requesting that the Department of Justice intervene in the eminent domain proceeding or petition the court to dismiss the proceeding on jurisdictional grounds.

On January 4, 2008, HUD published a new Notice on Eminent Domain (Notice PIH 2008-02) which provides guidance on some of the factors that HUD may choose to consider in deciding, on a case-by-case basis, whether to consent to a taking of public housing property.

Factors HUD may Consider to Consent to a Taking

HUD may consider the following factors in determining if it will consent to a taking:

• Agreement Between the PHA and the Taking Body. HUD will consider if the PHA has agreed to the taking and/or has entered into an agreement with the Taking Body for the taking
• PHA Board Support. HUD will consider evidence (e.g., Board Resolution) showing the PHA Board supports the taking
• Authority of the Taking Body. HUD will consider the legal sufficiency of the evidence of the Taking Body’s authority under applicable State laws to acquire the public housing property
• Compensation for the Dwelling Units Taken
• Compensation for Vacant Land, Non-Dwelling Structures, and Facilities Taken
• Compensation for Severance Damages
• Appraisal of the FMV of the Public Housing Property. The FMV of the public housing property being taken should be determined by an independent state-licensed or state-certified appraiser;
• Resident Consultation. HUD will not consent to a taking of public housing property unless the residents of the affected Development have been notified of the taking (by either the Taking Body or the PHA), as required by any applicable Federal, State and local law
• Evidence that the Taking Body Will Pay for the Costs of Relocating the Residents to Comparable Housing for any Displacement that Occurs as a Result of the Taking
• Satisfaction of all Applicable Environmental and Historic Preservation Requirements for the Public Housing Property and any Replacement Unit
• HUD Site and Neighborhood Standards Shall Apply to All Replacement Properties Irrespective of the Manner of Development (e.g., Acquisition or Construction). The local HUD Office of Public Housing shall conduct a site and neighborhood standards review of all proposed replacement properties in accordance with 24 CFR 941 and/or other HUD regulation(s), as applicable.

Submission Requirements

All requests for HUD’s consent for an eminent domain proceeding must be made electronically through PIC. The PHA must complete the applicable sections of the HUD-52860 (see Detail Matrix on page 9 of HUD-52860). The PHA must also complete the HUD-52860-F addendum and submit it (along with all supporting documentation) as a scanned attachment with its electronic submission.