George Washington Univ. V. District of Columbia

• Decision Date: 04 February 2003
• Docket Number: No. 02-7055.,No. 02-7060.,02-7055.,02-7060.
• Citation: 318 F.3d 203
• Parties: GEORGE WASHINGTON UNIVERSITY, a Federally Chartered University, Appellee/Cross-Appellant, v. DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

318 F.3d 203

GEORGE WASHINGTON UNIVERSITY, a Federally Chartered University, Appellee/Cross-Appellant, v. DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellants/Cross-Appellees.

No. 02-7055.

No. 02-7060.

United States Court of Appeals, District of Columbia Circuit.

Argued October 24, 2002.

Decided February 4, 2003.

As Amended February 11, 2003.

Rehearing En Banc Denied March 18, 2003.

COPYRIGHT MATERIAL OMITTED

Appeals from the United States District Court for the District of Columbia (No. 01cv00895).

Lutz Alexander Prager, argued the cause for appellants/cross-appellees. With him on the briefs were Charles L. Reischel, Deputy Corporation Counsel, and Donna M. Murasky, Assistant Corporation Counsel.

Deborah B. Baum argued the cause for appellee/cross-appellant. With her on the briefs were David J. Cynamon and J. Thomas Lenhart.

Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.

STEPHEN F. WILLIAMS, Senior Circuit Judge:

This case is the most recent stage of a long-running land-use dispute between George Washington University ("GW" or "the university") and the District of Columbia's Board of Zoning Adjustment (the "Board" or the "BZA"). GW's campus is bounded on the west and north by the District's Foggy Bottom and West End neighborhoods (here referred to collectively as "Foggy Bottom"), and the BZA has been concerned about protecting their residential character and "stability." In an order approving the university's long-term campus improvement plan (the "BZA Order" or the "Order") the BZA imposed conditions aimed at limiting, and even rolling back, encroachment into Foggy Bottom by the university—or, more precisely, its students. The district court upheld some of the conditions, but also found some to be unconstitutional denials of substantive due process. Both sides appealed; we find no constitutional violation.

* * *

The District's zoning scheme for universities, promulgated by the Zoning Commission pursuant to the authority granted by D.C.Code § 6-641 and codified at 11 District of Columbia Municipal Regulations ("DCMR") §§ 210, 302.2 & 507, permits university use as a matter of right in areas zoned for high-density commercial use. For land zoned residential or "special purpose," it permits university use as a special exception. GW's land evidently includes high-density commercial, special purpose, and residential portions. In the areas where university use is by special exception, the owner must secure permission for specific university projects in a two-stage application process. In the first stage, the university submits a "campus plan" that describes its general intentions for new land use over a substantial period (GW's preceding plan was for 15 years). On approval by the Board—an approval that can be subject to a set of conditions designed to minimize the impact of the proposed development—the campus plan "establish[es] distinct limitations within which all future construction must occur." Levy v. D.C. Bd. of Zoning Adjustment, 570 A.2d 739, 748 (D.C.1990). In the second stage, the BZA reviews individual projects that the university proposes to undertake, evaluating them both for consistency with the campus plan and the zoning regulations. See Draude v. D.C. Bd. of Zoning Adjustment, 527 A.2d 1242, 1247-48 (D.C. 1987).

In both stages, the BZA has substantial, but not unbounded, discretion to reject or approve the university's application. It is instructed to make sure that any university use is located so that it is "not likely to become objectionable to neighboring property because of noise, traffic, number of students or other objectionable conditions." 11 DCMR § 210.2. When reviewing a special exception application for a university, the BZA is also to consider the policies of the so-called "District Elements of the [Comprehensive] Plan," id. § 210.7, a planning document setting out development policies for the District, 10 DCMR § 112.6(b). If the application meets these criteria — that is to say, the proposed use is consistent with the Comprehensive Plan and is not likely to become objectionable to users of neighboring property — the Board "ordinarily must grant [the] application." Stewart v. D.C. Bd. of Zoning Adjustment, 305 A.2d 516, 518 (D.C.1973).

In late 1999 the university submitted a campus plan for the years 2000-10, reflecting its intentions to expand. Although BZA's concern over the university's effects on Foggy Bottom had been expressed in review of its 1985 plan, the sharp expansion of its enrollment in the 1990s made the issue more acute. Relying in part on submissions of the District's Office of Planning, the BZA found that the university's past acquisition of buildings in Foggy Bottom (and their subsequent conversion into dormitories or student apartments), as well as undergraduates' informal off-campus housing, threatened the "livability and residential character" of the Foggy Bottom neighborhood. As a result, it conditioned its approval of the 2000 Campus Plan on a series of measures designed to limit the presence of undergraduates; these measures included provisions requiring the university to house its freshmen and sophomores on campus and to provide on-campus housing for at least 70% of its students, and imposing an enrollment cap tied to the university's supply of on-campus housing.

The university challenged the BZA action in federal district court in 2001, and won a preliminary injunction against enforcement of parts of the BZA order. George Washington University v. District of Columbia, 148 F.Supp.2d 15 (D.D.C. 2001). But the court conditioned enforcement of the injunction on GW's pursuit of the same relief before the District of Columbia Court of Appeals, id. at 19, which in turn remanded the order to the BZA for revision. The BZA then eliminated the enrollment cap but required the university to provide housing on campus or outside of Foggy Bottom for 70% of its approximately 8000 undergraduates, plus one on-campus or non-Foggy Bottom bed for every fulltime undergraduate student over 8000. The new Order issued on January 23, 2002, and GW promptly renewed its court challenge. The district court found that several conditions of the BZA Order, including the new housing requirements, violated the university's right to substantive due process, but rejected its claims that the zoning regulations were facially unconstitutional and that the District's actions infringed on its First Amendment rights. George Washington University v. District of Columbia, Civil Action No. 01-0895 (D.D.C. Apr. 12, 2002). Both sides appealed. We reverse in part, finding no constitutional infirmities.

* * *

The university's primary challenges sound in substantive due process. Although that doctrine normally imposes only very slight burdens on the government to justify its actions, it imposes none at all in the absence of a liberty or property interest. See, e.g., Bd. of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

In the land-use context courts have taken (at least) two different approaches for determining the existence of a property interest for substantive due process purposes. In DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 601 (3d Cir.1995), the Third Circuit held that an ownership interest in the land qualifies. Other circuits, including the Second, Fourth, Eighth, Tenth and Eleventh Circuits, have focused on the structure of the land-use regulatory process, pursuing a "new property" inquiry, cf. Charles Reich, "The New Property," 73 YALE L. J. 733 (1964), and looking to the degree of discretion to be exercised by state officials in granting or withholding the relevant permission. See RRI Realty Corp. v. Village of Southampton, 870 F.2d 911, 917 (2d Cir.1989); Gardner v. Baltimore, 969 F.2d 63, 68 (4th Cir.1992); Bituminous Materials v. Rice County, 126 F.3d 1068, 1070 (8th Cir.1997); Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111 (10th Cir.1991); Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir.1989). GW urges us to adopt the Third Circuit's approach but also contends that it has a "new property." Because we agree on the latter point, we need not decide whether the Third Circuit's approach is sound or exactly how it would apply.

The majority approach may seem at odds with ordinary language, in which we would say, for example, that a particular piece of land in Washington is "the property" of GW. But an all-encompassing land use regulatory system may have either replaced that "property" with a "new property" (or with several, one for each authorized class of use), or conceivably have replaced it with less than a new property (thereby, one would suppose, effecting a taking).

Within the majority there is considerable variety in the courts' formulae for how severely official discretion must be constrained to establish a new property. The Second Circuit apparently will not find one if the authority has any discretion to deny approval of the proposed land use. See Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2nd Cir.1999). The Eighth Circuit, in contrast, inquires whether the "statute or regulation places substantial limits on the government's exercise of its licensing discretion," Bituminous Materials v. Rice County, 126 F.3d 1068, 1070 (8th Cir.1997); see also Littlefield v. Afton, 785 F.2d 596, 602 (8th Cir.1986) (asking whether "the City's decision making power is significantly and substantially restricted"), finding a property interest if the agency is so constrained. In our view, the Eighth Circuit's analysis is more in line with analogous Supreme Court precedent and the precedent of this circuit. See, e.g., Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989) (find...