3883 Connecticut LLC v. District of Columbia

• Decision Date: 25 July 2003
• Docket Number: No. 02-7032.,02-7032.
• Citation: 336 F.3d 1068
• Parties: 3883 CONNECTICUT LLC, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

336 F.3d 1068

3883 CONNECTICUT LLC, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 02-7032.

United States Court of Appeals, District of Columbia Circuit.

Argued April 22, 2003.

Decided July 25, 2003.

Appeal from the United States District Court for the District of Columbia (No. 00cv02453).

Roger J. Marzulla argued the cause for the appellant. Nancie G. Marzulla was on the brief.

Donna M. Murasky, Senior Litigation Counsel, District of Columbia, argued the cause for the appellee. Charles L. Reischel, Deputy Corporation Counsel, District of Columbia, was on the brief.

Before: GINSBURG, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LECRAFT HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge.

3883 Connecticut LLC, a limited liability corporation wholly owned by Clark Tilden LLC and CEI, Inc. (Clark), brought suit against the District of Columbia (District) claiming that the District's issuance of a stop work order (SWO) that halted Clark's construction of a 168-unit apartment building violated its procedural due process and equal protection rights. The district court dismissed the suit, holding that Clark lacked a constitutionally protected property interest in the building permits the District had issued and that its equal protection claim was unripe. 3883 Conn. LLC v. District of Columbia, 191 F.Supp.2d 90, 95 (D.D.C.2002) (mem.). We affirm the district court but on different grounds, concluding that, although Clark had a property interest in the permits, the process afforded Clark was adequate; on Clark's equal protection claim, we affirm the grant of summary judgment to the District because the claim fails as a matter of law on two of its elements.

I.

A.

The District of Columbia Construction Codes, D.C. MUN. REGS. tit. 12A, §§ 101.0 et seq. (Construction Codes), authorize the issuance of preliminary permits to a builder to begin limited activities on a building site while approval of construction plans for the complete project pends before the District Building and Land Regulation Administration (BLRA). Id. § 108.1-.2. Pursuant to these provisions, Clark sought and obtained five separate permits to begin the sheeting, shoring, excavation, foundation construction and underpinning of existing structures in preparation for its construction of the nine story apartment building at 3883 Connecticut Avenue, Northwest. In order to obtain the five preliminary permits, Clark submitted inter alia an Environmental Impact Screening Form (EISF), describing the nature of the site and the proposed project, to District authorities—in particular, to the District Department of Health, Environmental Administration (DOH)—which determines whether a comprehensive, detailed Environmental Impact Statement (EIS) is required by the Environmental Protection Act (DCEPA), D.C. CODE §§ 8-109.01 et seq., before a building project can proceed. D.C. MUN. REGS. tit. 20, § 7204.1-.4. Based on Clark's EISF, DOH determined that an EIS was not required.¹ With its five preliminary permits in hand (although full project approval was still pending), on July 31, 2000,² Clark began work at the 3883 Connecticut Avenue site. The next day, opponents of the project calling themselves Friends of Tilden Park filed suit in Superior Court seeking to enjoin construction. They alleged that the EISF Clark had submitted contained material errors and omissions. The court found that there were discrepancies in Clark's initial EISF and issued a temporary restraining order (TRO). The TRO lasted only two days and immediately upon its dissolution on August 3, BLRA issued a SWO halting work on the project "until compliance with all applicable District of Columbia law and regulations ... can be confirmed." Notice of Stop Work Order, Aug. 3, 2000, JA 44-46.

On August 9, Clark appealed the SWO to the BLRA Administrator, arguing, among other things, that it was invalid under District law and should be rescinded because the errors on the EISF were immaterial. Two days later, the Administrator responded, denying Clark's appeal and upholding the SWO because he questioned whether the preliminary permits were based on inaccurate site information contained in Clark's EISF. Clark submitted a revised EISF on August 16, disclosing for the first time that mature trees were located on the property, a stream ran near the property and an adjacent building was listed on the National Register of Historic Places. Clark then appealed the BLRA Administrator's decision to the Director of the Department of Consumer and Regulatory Affairs (DCRA), BLRA's supervising agency. Although the Director did not act on Clark's appeal, on September 7, DCRA did order Clark to submit more detailed environmental information regarding several potential impacts of its proposed project —including on traffic, vegetation and trees, storm water, soil erosion and groundwater control so that it could reconsider whether an EIS was required Clark submitted the requested information and, on October 3, renewed its request that the Director review the SWO. Again the Director failed to respond. On October 13, Clark filed the instant suit, initially seeking injunctive relief only. Meanwhile DCRA requested DOH and other District agencies to review Clark's revised EISF. DOH officials reviewed Clark's revised EISF and the supplemental materials Clark had submitted and visited the 3883 Connecticut Avenue site. DOH was concerned with surface water problems and recommended to DCRA that it require Clark to prepare a mitigation plan. Clark met with DOH and developed a plan that resolved the issue; on November 22, BLRA rescinded the SWO and, four days later, issued a building permit for Clark's entire project. Clark then amended its complaint to seek compensatory and punitive damages for the four-month interruption of its project.

B.

The District moved for summary judgment and the district court dismissed both of Clark's claims. It dismissed Clark's due process claim because, it concluded, Clark lacked a property interest in the five preliminary permits suspended by the District's SWO. 3883 Conn., 191 F.Supp.2d at 93-95. The court read our statement in Tri County Industries, Inc. v. District of Columbia, 104 F.3d 455, 458 (D.C.Cir. 1997), rejecting the notion "`that an agency deprives an applicant of property whenever it backtracks on a prior favorable finding on one of [the approvals preliminary to issuance of a building permit] independently of withdrawal of the permit itself,'" to mean that the District's approval of the five preliminary permits issued to Clark did not confer any property rights on Clark. 3883 Conn., 191 F.Supp.2d at 93 (quoting Tri County, 104 F.3d at 458) (internal quotations omitted). According to the district court, Clark's only property interest lay in "the real building permit," i.e., the one ultimately granted on November 27. 3883 Conn., 191 F.Supp.2d at 93. Permits for preliminary work, the court said, were merely "`steps toward the issuance of a building permit'" and therefore, under Tri County, not property. Id. at 93.

As other courts have done, the district court applied the property interest test set forth in Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), to land-use regulation, concluding that Clark lacked "`a legitimate claim of entitlement,'" 3883 Conn., 191 F.Supp.2d at 93-94 (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701), and therefore had no property interest in the preliminary permits because "`significant discretion [is] conferred upon the local agency'" under District law. 3883 Conn., 191 F.Supp.2d at 94 (quoting Gardner v. City of Baltimore, 969 F.2d 63, 68 (4th Cir.1992)). The court characterized the permits at issue as "partial permits" under the Construction Codes, in particular, D.C. MUN. REGS. tit. 12A, § 108.2, which provides:

the code official is authorized to issue a partial permit for the construction of foundations or any other part of a building or structure before the entire plans and specifications for the whole building or structure have been submitted, provided adequate information and detailed statements have been filed complying with all pertinent requirements of the Construction Codes.

3883 Conn., 191 F.Supp.2d at 94 (quoting D.C. MUN. REGS. tit. 12A, § 108.2) (emphasis added). Because "[t]he language of this section is discretionary," the court said, it created no property interest in the permits. 3883 Conn., 191 F.Supp.2d at 94.

The district court also dismissed Clark's equal protection claim, explaining that Clark's assertion that its rights were violated because "the District applied the requirements of the DCEPA to this project alone" boiled down to a complaint that the District had required Clark to prepare an EIS. 3883 Conn., F.Supp.2d at 95. But because the District had not in fact required Clark to submit an EIS, it concluded, Clark's claim was premature. Id. Clark then filed this appeal.

II.

We review the district court's grant of summary judgment de novo. Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 35 (D.C.Cir.1997). Summary judgment is appropriate if "`there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.'" Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 650 (D.C.Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Morgan, 328 F.3d at 650 (internal quotations omitted), and a moving party is "`entitled to a judgment as a matter of law'" if the nonmoving party "`fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Id. (quoting Celotex Corp. v....