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SZYMKOWICZ v. DISTRICT OF COLUMBIA

February 5, 1993

MARVIN L. SZYMKOWICZ, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court are defendant's motion to dismiss, or in the alternative, for summary judgment, and plaintiffs' motion for partial summary judgment. *fn1" For the reasons stated, the Court denies plaintiffs' motion for partial summary judgment and grants defendant's motion for summary judgment. *fn2"

 Facts

 The Court takes the following facts from plaintiffs' second amended complaint. *fn3" Plaintiffs Marvin L. Szymkowicz and Diana M. Savit, and Evan M. Koster and Bonnie Y. Hochman, are the former and current owners, respectively, of 4103 Military Road, N.W., Washington, D.C. ("the property"). At the time the actions which gave rise to this suit occurred, plaintiffs Szymkowicz and Savit, husband and wife, owned and resided on the property. They purchased the property in 1977. In 1983, the District of Columbia Council passed legislation which closed a portion of a public alley adjacent to the property. The legislation, D.C. Law 4-169, reverted title to the land to the owners of the abutting property. Under this law, Szymkowicz and Savit shared title to the closed portion of the alley with the Francises, the owners of 4115 Military Road, and two other owners of adjacent property.

 Szymkowicz and Savit entered an agreement with the Francises, in which both parties consented to the other using the closed portion of the alley for parking. Beginning in early 1985, plaintiffs and the Francises placed physical barriers in the closed portion of the alley in an attempt to block public access thereto. They also began parking their automobiles in the closed portion of the alley.

 Plaintiffs Szymkowicz and Savit claim to have received approximately 20 to 30 parking citations issued by officers of the Metropolitan Police Department and agents of the District of Columbia Department of Public Works. *fn4" Upon receiving a parking ticket, Szymkowicz or Savit usually would take the ticket and a copy of D.C. Law 4-169 to the Metropolitan Police Department Second District Headquarters, where an officer would void the ticket. Occasionally, it was too late for the Second District to void the ticket, and plaintiffs would have to appear before the Bureau of Traffic Adjudication or write letters to the Bureau to avoid paying the tickets. Plaintiffs state that because "it was too much trouble to attend hearings to challenge the erroneous tickets," they sometimes paid them under protest.

 Plaintiffs allege two main effects of the District's repeated ticketing. First, they contend that the effort expended to rescind the tickets causes them substantial inconvenience. Specifically, it is disruptive to their family lives and it interferes with their ability to accomplish work at home. They further allege that the District's ticketing diminishes the value of their property and makes the property less attractive to potential buyers.

 Plaintiffs' second amended complaint contains four claims against the District. First, they contend that the District's repeated ticketing of their legally parked cars constitutes an unlawful taking of their property. Second, they allege that the District's action violates 42 U.S.C. § 1983. Third, they contend the ticketing constitutes a nuisance. Fourth, plaintiffs claim the District has committed trespass by entering upon their property to issue the tickets.

 Plaintiffs seek an injunction to prevent the District from interfering with their right to park their automobiles on their own property, and from interfering with their right to use and enjoy their land in any lawful manner. Plaintiffs also seek damages in the amount of $ 10,000 and an award of fees and the costs of this lawsuit.

 Discussion

 Takings Claim

 The Fifth Amendment states in part that "no person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The law requires an ad hoc inquiry to determine if a taking has occurred. Several factors are important, including the nature of the governmental action and its impact on the property owner, particularly the extent to which the action interferes with the investment-backed expectations of the property owner. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 175, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978).

 Plaintiffs contend that the District's repeated ticketing of automobiles parked on their private property interferes with plaintiffs' right to use their property in any lawful manner, and constitutes a taking of that property. (Second Amended Complaint, at 5-6.) The Court finds that the ticketing is not an unconstitutional taking despite the District's physical invasion of plaintiffs' property because the invasion is neither permanent nor does it prevent plaintiffs from the reasonable use of their ...


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