Tri County Industries, Inc. v. District of Columbia
| Decision Date | 14 January 1997 |
| Docket Number | No. 96-7022,96-7022 |
| Citation | 104 F.3d 455 |
| Parties | TRI COUNTY INDUSTRIES, INC., a Maryland corporation, Appellant, v. DISTRICT OF COLUMBIA, a municipal corporation, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 94cv02014).
Frank J. Emig, Greenbelt, MD, argued the cause and filed the briefs, for appellant.
Martin B. White, Assistant Corporation Counsel, argued the cause, for appellees. Charles F.C. Ruff, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Lutz Alexander Prager, Assistant Deputy Corporation Counsel, Washington, DC, were on the brief with him.
Before: EDWARDS, Chief Judge, WILLIAMS and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILLIAMS.
On September 20, 1993 the acting director of the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA"), Hampton Cross, summarily and without a hearing suspended a building permit issued to Tri County Industries, Inc. Tri County contends that the suspension deprived it of its property without due process of law, in violation of the Fifth Amendment. Although we reject its "substantive due process" claim we agree that the suspension violated Tri County's procedural rights.
* * *
Tri County is in the business of decontaminating soil tainted with oil and other hazardous materials. In July 1992 it applied to the District of Columbia government for a building permit to convert an empty warehouse in Washington, D.C. into a facility for its decontamination work. In pursuing the application, it sought and obtained both an air quality permit and a waiver of the requirement that it file an environmental impact statement. Both were prerequisites to the issuance of Tri County's building permit. See District of Columbia Municipal Regulations §§ 20-200.1, 20-7200.1.
On February 26, 1993 the DCRA issued the building permit. Its licensing in place, Tri County completed some work renovating the facility, but nearly six months later was not yet ready to begin operations, primarily because of delays in the delivery of the decontaminating equipment. On September 7 it was issued a citation for storing soil at the facility without the required certificate of occupancy.
In the meantime, public opposition to the project had grown. On September 20, 1993 D.C. officials held a public meeting, attended by residents of the nearby community, representatives of Tri County, Hampton Cross of the DCRA, and one Merrick Malone, a representative of D.C.'s Department of Housing and Community Development. The meeting was by all accounts a loud and sometimes unruly affair. In the course of it Malone stated, incorrectly as it later turned out, that a new public housing project was to be built immediately adjacent to the facility. Cross thereupon stated that he was suspending Tri County's building permit, to the applause of the crowd. According to his later testimony, he acted on the basis of Malone's statement. This suspension, Tri County contends, also suspended its air quality permit.
Two days later, on September 22, Tri County was issued a stop work order for continuing operations without a certificate of occupancy in violation of the September 7 citation. Tri County took no action to challenge either the September 20 suspension, which all parties now agree had no legal basis at all, or the stop work order, which is not challenged here and which all agree was a legally sufficient bar to Tri County's continuing work on the facility. See District of Columbia Municipal Regulations § 12-118.0.
More trouble followed. On October 15, 1993, Tri County was sent a letter by an official working for Cross requesting additional information on the environmental effects of the project. This request was also of dubious legal authority. Although it cited authorization from § 4(c)(3)(C) of the District's Environmental Policy Act (D.C.Code § 6-983(c)(3)(C)), the review process referenced in that section presumably had ended when the waiver was granted. In any case, Tri County had already answered many of the same questions as part of that original review process. Tri County did not respond. On December 6, Cross sent another letter, again without clear basis in the D.C.Code, rescinding the environmental waiver and stating that the District would soon start proceedings to revoke the building permit. In fact it appears that the District never did start the revocation proceedings. Tri County did nothing in response to this last missive except to remove the soil that had been the basis of the September 7 citation.
One year to the day after the fateful public meeting, Tri County filed suit in federal court under 42 U.S.C. § 1983, alleging deprivation of its property without procedural or substantive due process. It identifies as deprivations not only the suspension of its building permit on September 20, 1993 but also the implied simultaneous suspension of its air quality permit on the same date and the explicit rescission of its environmental waiver on December 6, 1993.
The district court granted the District's motion for summary judgment. It rejected the substantive due process claim on the ground that Cross's actions were at most negligent and the procedural due process claim on the ground that the building permit suspension was only an "interim suspension" for which Cross had "sufficient factual basis" and for which prompt review was available, citing Barry v. Barchi, 443 U.S. 55, 64, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365 (1979). See Tri-County Industries, Inc. v. District of Columbia, 932 F.Supp. 4, 6, 7 (D.D.C.1996). We review de novo. See Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995).
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We first dispose of Tri County's claim that the implied suspension of the air quality permit on September 20, and the explicit rescission the environmental waiver on December 6, were deprivations that require our review. As to the air quality permit, the only ground for regarding it as suspended at all is the idea that it was joined at the hip with the building permit, so that the suspension of the building permit equally suspended the air quality permit. That may well be true: the letter issuing the permit says that it will not become valid (as authorization for a stationary source of air pollution) until a valid building permit is received by the issuing office. See letter of December 11, 1992 to Tri County from the Environmental Regulation Administration of the DCRA. But it would seem to follow that reactivation of the building permit would reactivate the air quality permit. Accordingly, it is hard to see how the latter's suspension adds anything to that of the building permit.
Of course the air quality suspension might generate an additional issue if the District defended the suspension (if indeed there was a suspension) as an application of procedures explicitly laid out for suspension of air quality permits; in that event we would be called on to review the constitutionality of the specified procedures. But the District makes no such claim. Rather, as we discuss in detail below, since the suspension of both permits did not fit any authorized procedure, we evaluate Cross's act, for procedural due process purposes, by inferring a hypothetical procedure from his actual conduct. That conduct was, of course, identical for both permits. Accordingly, the air quality permit seems to add nothing to the case that is not encompassed in analysis of the building permit.
Tri County's attack on the rescission of the environmental waiver fails for a different reason. While the air quality permit is legally stated as a prerequisite to construction and operation of a major stationary source (apart from the need for a building permit), the waiver is merely a step towards the acquisition of the building permit. District law requires that the environmental impact of a "major action" be evaluated "before an agency shall approve any major action, or issue any lease, permit, license, certificate, or other entitlement" approving the action. See District of Columbia Municipal Regulations § 20-7200.1. The waiver was simply an administrative finding that no more was required by way of satisfying that requirement for issuance of the building permit. But the due process clauses (here, that of the 5th Amendment, see Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)) protect persons only against deprivations of life, liberty or property. While satisfaction of each of the many steps toward issuance of a building permit (conceded by the District to be a property right) is undoubtedly a useful milestone, Tri County offers no authority for the proposition that an agency "deprives" an applicant of "property" whenever it backtracks on a prior favorable finding on one of those steps, independently of withdrawal of the permit itself.
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"Substantive" due process
Tri County's substantive due process claim is not crystal clear. In part the argument appears to be that the District's conduct was a taking of its property, unconstitutional because it was without just compensation. Tri County says that the District's "illegal and improper actions" inflicted "financial losses and delays" which in turn forced Tri County to abandon its plans and rendered the project "worthless." See Amended Complaint at 22. As to this claim, the District's ripeness defense is clearly sound. Under Williamson Cty. Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), a plaintiff advancing a claim for just compensation under the Taking...
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