DC Pres. League v. Mayor's Agent for Historic Pres., 20-AA-614

Case DateSeptember 15, 2022
CourtCourt of Appeals of Columbia District

DC Preservation League, Petitioner,

Mayor's Agent for Historic Preservation, Respondent,

and Washington Metropolitan Area Transit Authority, Intervenor.

No. 20-AA-614

Court of Appeals of The District of Columbia

September 15, 2022

Argued March 17, 2022

Petition for Review of a Decision and Order of the Mayor's Agent for Historic Preservation (HPA-297-18)

Nicholas H. Jackson for petitioner.

Matthew E. Morris for respondent. Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy Solicitor General, Ashwin P. Phatak, Deputy Solicitor General, and Samson J. Schatz, Assistant Attorney General, were on the briefs for respondent.

Katrina M. Krebs, with whom James Auslander and Gus Bauman were on the brief, for intervenor.

Before Easterly and McLeese, Associate Judges, and Crowell, Superior Court Judge. [*]


McLeese, Associate Judge:

Intervenor Washington Metropolitan Area Transit Authority (WMATA) owns the Foundry Branch Trestle, which is a trolley bridge that is no longer in use, as well as two associated parcels of land. WMATA would like to demolish the Trestle, but it needs a permit to do so because the Trestle is protected under District of Columbia historic-preservation law. The Mayor's Agent for Historic Preservation granted a demolition permit over the opposition of petitioner DC Preservation League (DCPL). We vacate and remand.

I. Legal Background

WMATA's request for a demolition permit rests on a claim "that failure to issue a permit [would] result in unreasonable economic hardship to the owner." D.C. Code § 6-1104(e). To show unreasonable economic hardship, WMATA must show that denying the permit request "would amount to a taking of the owner's property without just compensation" under the Takings Clause of the Fifth Amendment. D.C. Code § 6-1102(14); Embassy Real Est. Holdings, LLC v. D.C. Mayor's Agent for Hist. Pres., 944 A.2d 1036, 1052 (D.C. 2008) (Section 6-1102(14) "incorporates the Fifth Amendment's protection against the taking of property without fair compensation."); U.S. Const. amend. V, cl. 5 ("[N]or shall private property be taken for public use, without just compensation.").


The Takings Clause applies not only to physical takings of property but also, in certain circumstances, to government regulations that unduly restrict a property owner's use of property. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014-16 (1992). Regulatory takings can occur in two ways. Id. First, a per se regulatory taking can occur if a land-use regulation "denies all economically beneficial or productive use of land." Id. at 1015. Second, if "a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking still may be found based on a complex of factors." Murr v. Wisconsin, 137 S.Ct. 1933, 1943 (2017) (internal quotation marks omitted) (factors include "(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action").

The "test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property." Murr, 137 S.Ct. at 1943 (internal quotation marks omitted). It therefore can be critical to determine "how to define the unit of property whose value is to furnish the denominator of the fraction." Id. at 1944 (internal quotation marks omitted). The Supreme Court recently clarified that there is no "exclusive test for determining the denominator." Id. at 1945. Rather, the analysis depends on a set of factors that


"include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land." Id.

WMATA "is a government agency created . . . by the District of Columbia, the State of Maryland, and the Commonwealth of Virginia with the consent of the United States Congress." Washington Metro. Area Transit Auth. v. Johnson, 467 U.S. 925, 927 (1984). It is undisputed that the property at issue in this case can properly be viewed as "private property" for purposes of the Takings Clause and that the Takings Clause applies to the refusal of the Mayor's Agent to grant a demolition permit. Cf. United States v. 50 Acres of Land, 469 U.S. 24, 31 (1984) (Takings Clause applies to property of state and local governments allegedly taken by federal government).

II. Factual and Procedural Background

The Mayor's Agent held an evidentiary hearing on WMATA's permit request. Except as indicated, the following facts appear to be undisputed. The Trestle was built in 1896 to provide trolley service from the Georgetown neighborhood in the District of Columbia to Cabin John, Maryland. The Trestle spans two lots. About sixty years after the Trestle was built, trolley service over the Trestle ended, and the


Trestle and lots became the property of a local bus operator, D.C. Transit. D.C. Transit apparently did not use the Trestle, which fell into disrepair.

After extensive litigation, assets of D.C. Transit, including the Trestle and the lots, were conveyed by court order to WMATA. Democratic Cent. Comm. v. Washington Metro. Area Transit Comm'n, 84 F.3d 451, 453-59 (D.C. Cir. 1996) (per curiam). The Trestle continued to go unused and deteriorated further, becoming a hazard to hikers passing through the area.

WMATA presented evidence that it would cost from $2 to $4 million to restore the Trestle and from $100,000 to $200,000 annually to maintain the Trestle. According to WMATA, demolition of the Trestle would cost approximately $800,000.

WMATA has unsuccessfully attempted to sell or donate the Trestle and lots to various third parties, including the National Park Service, Georgetown University, D.C. Water and Sewer Authority, D.C. Department of Parks and Recreation, and D.C. Department of Transportation (DDOT). One WMATA employee testified that, although discussions had not "gotten that far," she believed that the National Park


Service would accept the lots if the Trestle could be removed. Another WMATA employee testified that demolition of the Trestle would "allow" such a transfer.

The 2019 assessed value for the two lots at issue added to more than $500,000. Appraisals of one of the lots, performed in...

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