Dist. In town Prop. Ltd. Partnership v. Dist. of Columbia
| Citation | 198 F.3d 874,339 U.S. App. D.C. 127 |
| Decision Date | 17 December 1999 |
| Docket Number | No. 98-7209,98-7209 |
| Parties | (D.C. Cir. 1999) District In town Properties Limited Partnership, et al.,Appellants v. District of Columbia, et al.,Appellees |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia(No. 96cv00569)
Wallace A. Christensen argued the cause for appellants. With him on the briefs was Stacey L. McGraw.
Lutz Alexander Prager, Assistant Deputy Corporation Counsel, argued the cause for appellees. With him on the brief were Jo Anne Robinson, Interim Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Melvin W. Bolden, Jr., Counsel.
John D. Echeverria, Paul W. Edmondson, Elizabeth S. Merritt, and Laura S. Nelson were on the brief for amicus curiae The National Trust for Historic Preservation and D.C. Preservation League.
Before: Edwards, Chief Judge, Williams and Rogers, Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
In 1961, District In town Limited Properties Partnership ("District Intown") purchased Cathedral Mansions South, an apartment building and landscaped lawn on Connecticut Avenue across from the National Zoo. District Intown subdivided this property into nine contiguous lots in 1988. In March 1989, all nine lots were declared historic landmarks. In July 1992, the Mayor of the District of Columbia denied District Intown's request for construction permits to build eight townhouses on eight of the nine lots, finding that the construction was incompatible with the property's landmark status. Alleging that the District of Columbia's denial constituted a taking, District Intown and its general partners sued under 42 U.S.C. 1983 (1994) for just compensation under the Takings Clause of the Fifth Amendment.
Upon cross motions for summary judgment, the District Court granted summary judgment for the District of Columbia. See District Intown Properties Ltd. Partnership v. District of Columbia, 23 F. Supp. 2d 30 (D.D.C. 1998). The District Court held that the relevant parcel for the purposes of determining whether a taking had occurred consisted of the entire property, including the apartment building, not the eight individual lots that District Intown sought to develop. See id. at 35-36. The court then analyzed the alleged taking under the Supreme Court's holdings in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). The District Court found that there was no categorical taking under Lucas, because District Intown had not been deprived of all economic value in the relevant parcel. The trial court further held that District Intown could not make out a claim under Penn Central, because its reasonable investment-backed expectations had not been disappointed and it continued to receive economic benefits from the property.
We hold that the District Court correctly found that the relevant parcel for the takings analysis consisted of the entire property held by District Intown, i.e., the property as it was originally purchased in 1961 and as it was held for 27 years prior to the 1988 subdivision. All relevant objective and subjective factors support this conclusion. When the property is viewed as a single parcel, there is no doubt that it has not been rendered valueless. Indeed, even if each subdivided parcel is considered separately, District Intown has not shown a "total taking" under Lucas. In addition, the record here does not show that District Intown's investment-backed expectations were disappointed. This is not surprising, because District Intown could not have had any reasonable investment-backed expectations of development given the background regulatory structure at the time of subdivision. Accordingly, we hold that District Intown did not present any genuine issue of material fact in support of a takings claim under Penn Central or Lucas. We therefore affirm the District Court's judgment.
In 1961, District Intown purchased in fee simple Lot 1 of Subdivision Square 2106 on Connecticut Avenue, across from the National Zoo. The property was known as Cathedral Mansions South and consisted of an apartment building and adjacent landscaped lawns. District Intown made no significant changes to the property until 1988, when it subdivided Cathedral Mansions South into nine lots, designated as Lots 106 through 114. The subdivisions were recorded on June 30, 1988. Lot 106 contains the apartment building, and Lots 107 through 114 are each portions of the landscaped lawn. The record indicates that District Intown spent $2,819 to survey the parcel and to record the subdivision. The record does not reflect any other expenses.
On December 30, 1988, District Intown applied for permits to build one townhouse on each of the eight landscaped lots. The zoning and structural engineering divisions of the Department of Consumer and Regulatory Affairs approved the permits on March 7, 1989. However, because the property is located across from the National Zoo, the permits were referred to the Commission on Fine Arts. See D.C. Code Ann. 5-410 (1994) ("Ship stead-Luce Act"). The Ship stead Luce Act, in effect since the 1930s, empowers the Commission on Fine Arts to communicate to the Mayor "recommendations, including such changes, if any, as in its judgment are necessary to prevent reasonably avoidable impairment of the public values belonging" to various buildings and parks. Id.On March 31, 1989, the Commission on Fine Arts recommended against construction.
Beginning in 1987, before the property was subdivided, a movement developed in the Woodley Park community in support of designating the property a historic landmark. This culminated on March 2, 1989, when the group filed a landmark designation petition. This was five days before District Intown received zoning approval for the construction. The Historic Preservation Review Board ("Review Board") approved the landmark designation on May 17, 1989. Because the landmark designation petition was pending when District Intown's permits were approved for zoning, the permits were referred to the Review Board pursuant to the District of Columbia's landmark laws, see D.C. Code Ann. 5-1001 et seq. (1994 & Supp. 1999), effective since 1979. On July 19, 1989, the Review Board recommended that the construction permits be denied. The permit applications were dismissed without prejudice on December 20, 1991.
On January 31, 1992, District Intown filed new permit applications identical in all respects to those previously dismissed. The permits were again referred to the Review Board, which recommended denial because construction on the lawn would be incompatible with its historic landmark status. Pursuant to D.C. Code Ann. 5-1007(e), District Intown requested a hearing before an agent designated by the Mayor. The hearing was held on July 22 and 24, 1992.The Mayor's agent agreed with the Review Board, stating that "any construction destroying the lawn" would be incompatible with its landmark status. Decision and Order of Mayor's Agent p 61 n.1, reprinted in Joint Appendix ("J.A.") 368. In addition, the agent purported to hold that the denial of the construction permits did not work an economic hardship or constitute a taking, but the District of Columbia Court of Appeals has since declared that the agent's holding was outside his jurisdiction. See District Intown Properties, Ltd. v. Department of Consumer and Regulatory Affairs, 680 A.2d 1373, 1379 (D.C. 1996) ().
Thereafter, on March 22, 1996, District Intown filed this 1983 action. On cross motions for summary judgment, the District Court entered summary judgment for the District of Columbia on September 25, 1998. See District Intown Properties Ltd. Partnership, 23 F. Supp. 2d at 39. The court found that the property (i.e., the "relevant parcel") for the purposes of assessing whether a taking had occurred consisted of the original Lot 1 prior to its subdivision into nine lots.See id. at 35-36. Because District Intown continued to receive significant economic benefits from use of the relevant parcel, the court found that appellants failed to demonstrate that their property had been rendered "valueless," and their claim to a taking under Lucas failed. See id. at 36-37. The court then turned to the ad hoc analysis elucidated by Penn Central and found that none of the ad hoc factors support District Intown's takings claim. See id. at 37-39. This appeal followed.
This court reviews a grant of summary judgment de novo. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). A party is entitled to summary judgment if the record reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed R. Civ. P. 56(c). In deciding whether there is a genuine issue of material fact, the court must assume the truth of all statements proffered by the non-movant except for conclusory allegations lacking any factual basis in the record. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Summary judgment may be granted even if the movant has proffered no evidence, so long as the non-movant "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). As the "party challenging governmental action as an unconstitutional taking,"...
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