Tucci v. District of Columbia

• Decision Date: 18 September 2008
• Docket Number: No. 06-CV-1344.,06-CV-1344.
• Parties: Michael E. TUCCI and Amy C. Tucci, Appellants, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

956 A.2d 684

Michael E. TUCCI and Amy C. Tucci, Appellants, v. DISTRICT OF COLUMBIA, Appellee.

No. 06-CV-1344.

District of Columbia Court of Appeals.

Argued February 22, 2008.

Decided September 18, 2008.

Michael E. Tucci, Washington, for appellants.

Catherine Ferrando, Assistant Attorney General, with whom Linda Singer, Attorney General for the District of Columbia at the time, Todd S. Kim, Solicitor General, Edward E. Schwab, Deputy Solicitor General at the time, and Karen A. Weiss, Assistant Attorney General at the time, were on the brief, for appellee.

Before FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.

FISHER, Associate Judge:

Appellants Michael and Amy Tucci sued the District of Columbia for "Maintenance of a Public Nuisance" and "Refusal to Enforce Municipal Regulations and Other Laws." They now appeal an order of the Superior Court which granted summary judgment in favor of the District of Columbia. We affirm.

I. The Factual Background

Michael and Amy Tucci have lived at 3060 Grant Road, N.W., in the District of Columbia since August 2002. Their home faces Grant Road, but all of the neighboring houses abutting Grant Road face adjacent streets. Thus, they own the only house with an address on the 3000 to 3200 blocks of Grant Road.

The Tuccis complain that the neighbors "take their refuse and open the gate to the backs of their property, walk on to the public space [on Grant Road] and dump their refuse." Even though trash is regularly collected, their neighbors leave trash cans in the public space all week long instead of only during times designated for trash collection. They allege that "structures" and compost bins have been erected on the public right-of-way. Rats and other vermin have been seen along Grant Road, and the Tuccis have "rat tunnels" in their yard. The Tuccis do not allege that any trash or other items have encroached upon their private property, and they do not contend that the District has left its own trash or other items in the public space.

They do claim that Grant Road is "overgrown with vegetation to such an extent that it is impossible to travel the road without damage to vehicles from the overgrowth." The overgrown vegetation has scratched the Tuccis' vehicles on either side. Moreover, the roadbed is in disrepair due mainly to erosion caused by the lack of gutters. "As a result, debris, silt and vegetation are deposited along the street and large gulleys have formed on either side of the pavement due to lack of adequate drainage." They have had "at least ten flat tires," resulting in "hundreds ... if not thousands of dollars" in replacement tires. In sum, the Tuccis assert that Grant Road looks more like an alley than a street.

Appellants have made numerous complaints to the Department of Public Works ("DPW") about the conditions on Grant Road. DPW has responded by issuing citations and fining neighbors for placing trash containers out on the wrong day or at the wrong time and for allowing vegetation to intrude on public space. DPW has assured the Tuccis that its enforcement efforts will continue. In the Tuccis' view, however, "the District's decisions regarding enforcement [have been] clouded by a misunderstanding of the facts." They assert that the District has not enforced the regulations "to the extent required by law."

At least part of the Tuccis' dissatisfaction with the District's enforcement efforts derives from a fundamental disagreement about where their neighbors' private property ends and the public space begins. The Tuccis assert "that Grant Road is a bona fide district street and that the right-of-way is thirty-three feet wide." Utility poles are located within that space, however, and the paved roadbed is approximately sixteen feet wide. In memoranda to Mr. Tucci, DPW has referred to the "telephone and light posts [as] designat[ing] where the public space begin[s] in the alley[;] the area between the posts should show the correct width of the alley (public space)."¹

The Tuccis assert that they have suffered substantial and unreasonable interference with the use and enjoyment of their private property. They can no longer entertain guests as they please, and the value of their property is diminished, although they concede it is worth more than the price they paid.

II. The Procedural Background

The Tuccis filed a two-count complaint accusing the District of Columbia of "Maintenance of a Public Nuisance" and "Refusal to Enforce Municipal Regulations and Other Laws." They prayed "for all damages incurred as a result of the [District's] maintenance of a public nuisance on the Grant Road right-of-way in an amount to be proven at trial, but in no event less than the difference in the market value of [the Tuccis'] property situated adjacent to a public nuisance as opposed to a properly maintained city street...." They also sought an injunction requiring the District to "enforce the municipal regulations and other laws with respect to the Grant Road right-of-way...."

Both parties moved for summary judgment. With respect to the nuisance claim, the trial court distinguished District of Columbia v. Fowler, 497 A.2d 456 (D.C. 1985), the case on which the Tuccis principally rely, noting that the District did not create the nuisance in this case but allegedly allowed it to be maintained. Under those circumstances, the court reasoned, the Tuccis were required, but had failed, to "show some type of common law tort such as negligence...." See B & W Management, Inc. v. Tasea Investment Co., 451 A.2d 879 (D.C.1982).

Even if the Tuccis had claimed the District was negligent, the city government "is immune from suit under the doctrine of sovereign immunity.... [W]hether to prosecute or to enforce a regulation is a discretionary, as opposed to ministerial decision, involving many policy considerations for which the municipality is immune." The trial court also noted that under the public duty doctrine the District "has no duty to enforce the public space and solid waste regulations let alone a special duty to enforce them at plaintiffs' direction or for plaintiffs' benefit." Similarly, "the District's decisions as to which streets to repave or where to add curbs are clearly discretionary decisions for which the city is immune." Moreover, "there is no private right of action in the `Litter Control Administration Act[,]' which makes the issuance of tickets for violation of the act discretionary." For these reasons, the court denied the motion filed by the Tuccis and granted summary judgment in favor of the District.

III. Standard of Review

"In reviewing a trial court's grant of summary judgment, we make an independent review of the record and employ the same standards as does the trial court in initially considering the motion." EastBanc, Inc. v. Georgetown Park Associates II, L.P., 940 A.2d 996, 1001 (D.C. 2008) (quotation marks and citation omitted). "We therefore must determine whether the party awarded summary judgment demonstrated that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. We view the record in the light most favorable to the non-moving party." National Association of Postmasters of the United States v. Hyatt Regency Washington, 894 A.2d 471, 474 (D.C.2006) (quotation marks and citation omitted). "In order to avoid summary judgment, there must be some `significant probative evidence tending to support the complaint' so that a reasonable fact-finder could return a verdict for the non-moving party." Lowrey v. Glassman, 908 A.2d 30, 36 (D.C.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).²

IV. The Request for Injunctive Relief

The Tuccis ask only for injunctive relief with respect to their claim under the Litter Control Administration Act ("LCA"). In a case where the plaintiffs similarly sought only an injunction, we held that "[t]he actions of government agencies are normally presumed to be subject to judicial review...." District of Columbia v. Sierra Club, 670 A.2d 354, 358 (D.C.1996) (internal quotation marks omitted).³ Nevertheless, this presumption falls away in two circumstances: (1) where the legislature commits the challenged action entirely to agency discretion; and (2) where a statute precludes review, either explicitly or implicitly. Id. (citing Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)).

In Sierra Club, we acknowledged that "[t]he determination whether and when to institute enforcement proceedings against a specific individual is a core executive responsibility which may reasonably be viewed as having been committed to agency discretion so as to preclude substantive judicial review." 670 A.2d at 360; see also Hall v. Williams, 738 A.2d 262, 265 (D.C.1999) ("It has long been the case that prosecutorial decisions are discretionary ...."). Here, the Tuccis ask the courts to order more robust enforcement of the LCA against their neighbors, extending to all portions of the right-of-way. But such enforcement action is a core executive function committed to the discretion of the DPW, meaning that judicial review is precluded. See J.C. & Associates v. District of Columbia Board of Appeals & Review, 778 A.2d 296, 308 (D.C.2001) ("petitioner had no legal right to require the [Building and Land Regulation Administration] to take action under the Unsafe Structures Act, even if petitioner could show before the [District of Columbia Board of Appeals and Review] that such action was objectively warranted under the circumstances [because] exercise of this enforcement authority is committed to executive discretion").

The Tuccis resist this conclusion, arguing that enforcement of the LCA is not discretionary. In their view, "[t]he D.C. City Council mandated that the Mayor ... enforce the Act and used the word `shall.'" See D.C.Code § 8-802 (2008 Supp.) ("The Mayor of the District of Columbia ... shall...