Plaintiffs Koster and Hochman received four or five tickets during the summer of 1992. They succeeded in having the tickets rescinded over the telephone. In addition, they have been disturbed at least four times in the early morning by District employees challenging their right to park in the alley. In one such incident, Hochman allegedly was verbally abused by a woman who threatened to have her car towed.
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.
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 property. Moreover, the economic injury plaintiffs claim does not interfere with any investment-backed expectation of property rights.
Nature of the Governmental Action
Agents of the District enter plaintiffs' land temporarily, for the express purpose of issuing parking tickets. Plaintiffs contend that the actual physical intrusion on property can be minimal and still constitute a taking. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982) (contesting a government regulation which required a property owner to allow a cable company to install cable equipment on her property). However, the physical intrusion in Loretto was permanent. The District's actions in this case are not a permanent physical occupation of plaintiffs' property. Therefore, the physical invasion of plaintiffs' property does not amount to a per se taking. See PruneYard Shopping Center v. Robins, 447 U.S. 74, 84, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980).
Impact on Property Owner
Temporary limitations on the owner's property rights are subject to a balancing analysis which focuses on the extent to which the property owner is deprived of the use of his land. Loretto, 458 U.S. at 435 n.12. To amount to an unconstitutional taking, the temporary invasion must deprive the landowner of the reasonable use of his property. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 318, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987). Plaintiffs have not been deprived of the reasonable use of their property. The District's ticketing has not prevented plaintiffs from residing at their home, nor has it prevented them from using the alley as a parking lot.
Plaintiffs contend that the District's actions cause them inconvenience which impedes their enjoyment of their property rights. However, "not every destruction or injury to property by governmental action has been held to be a 'taking' in the constitutional sense." Armstrong v. United States, 364 U.S. 40, 48, 4 L. Ed. 2d 1554, 80 S. Ct. 1563 (1960). Plaintiffs rely on several cases which hold that a governmental action which causes inconvenience amounts to a taking. See United States v. Causby, 328 U.S. 256, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946) (finding taking by government planes flying over plaintiff's land which prevented plaintiff from using his property as a chicken farm); Eyherabide v. United States, 170 Ct. Cl. 598, 345 F.2d 565 (Ct. Cl. 1965) (finding taking due to government operation of a gunnery range located adjacent to plaintiffs' property which caused physical damage to the property and caused the residents to move). Although there are similarities between those cases and the present one, the harm suffered by plaintiffs in the present case is markedly less severe. Crucial to the holdings in Causby and Eyherabide was that the governmental action destroyed the landowner's ability to use the land for its intended purpose. A temporary invasion is defined as a taking when it substantially deprives plaintiff of the benefit of the land. See Eyherabide, 345 F.2d at 569. The District's ticketing may cause plaintiffs substantial inconvenience, but because plaintiffs are not prevented from continuing to use their property as they always have, the District's action is not a taking.
Diminution in Value
Plaintiffs also allege that the economic impact of the District's ticketing amounts to an unconstitutional taking. Plaintiffs claim that the availability of unimpeded parking in the alley would increase the value of plaintiffs' home by approximately $ 20,000. (Affidavit of Nancy Burr, at 4.) However, it is contended, the District's practice of ticketing parked cars makes the property less attractive to prospective buyers and the expected increase in value is diminished. Id. Plaintiffs are unable to produce a quantifiable figure estimating this diminution in property value, but even a complete elimination of the anticipated $ 20,000 bonus does not substantially interfere with plaintiffs' distinct, investment-backed expectations. Plaintiffs Szymkowicz and Savit bought the property in question in 1977, at which time the alley was public property, and they were not entitled to use it for parking. Plaintiffs Koster and Hochman purchased the property with knowledge of the ticketing problem. Therefore, the diminution in property value which plaintiffs allege is not a reduction from what they expected the property would be worth when they bought it, and does not substantially interfere with their investment-backed expectations. Cf. Lucas v. South Carolina Coastal Council, 120 L. Ed. 2d 798, 112 S. Ct. 2886, 2899 (1992) (noting that "'takings' jurisprudence . . . has traditionally been guided by the understandings of our citizens regarding the content of . . . the 'bundle of rights' that they acquire when they obtain title to property"); Kaiser Aetna v. United States, 444 U.S. 164, 176, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979) (noting that plaintiffs had invested considerable expense and effort in developing marina to which they reasonably believed they could control access).
Plaintiffs Szymkowicz and Savit also contend that they accepted an offer below their expectations when they sold the property in part because they feared that no one would be interested in buying their property. (Affidavit of Marvin Szymkowicz, PP 4, 6.) Plaintiffs do not show any causal connection between the District's actions and the sale price. There is no evidence that plaintiffs otherwise would have received more favorable offers. The Court finds the estimated anticipation of gains too speculative to conclude that a taking has occurred. Cf. Andrus v. Allard, 444 U.S. 51, 66, 62 L. Ed. 2d 210, 100 S. Ct. 318 (1979) (holding plaintiff's loss of future profits too uncertain a basis on which to rest a takings claim).
42 U.S.C. § 1983 Claim
There are two essential elements to a claim under 42 U.S.C. § 1983. First, the conduct complained of must have deprived plaintiffs of rights, privileges, or immunities secured by the Constitution or laws of the United States. Second, the conduct must have been committed under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). Plaintiffs attempt to support their § 1983 claim by alleging their Fifth Amendment rights have been violated. Plaintiffs contend that they have been deprived of their property without due process. Each time plaintiffs challenged a ticket it was rescinded, and at least on one occasion, a fine they had paid and subsequently protested was eventually returned to them, albeit six months later. Plaintiffs argue that the rescission procedures are insufficient to protect their rights because the ticketing itself causes a detriment by forcing plaintiffs to prove their property rights after each ticket. Moreover, plaintiffs claim that greater vigilance on the part of the District could prevent the problem. The Court has already concluded that the District's actions did not result in a taking of plaintiffs' property.
Since the Court does not find a taking, plaintiffs' Fifth Amendment rights have not been violated and it is not necessary to determine if the procedures established by the District to contest parking tickets satisfy due process. Cf. Parratt, 451 U.S. at 537 (finding a deprivation of property, the Court continued its analysis to decide whether the deprivation occurred without due process). Therefore, the District's actions did not deprive plaintiffs of any constitutionally or federally guaranteed right and it is not necessary for the Court to decide whether the ticketing occurred under color of District law. Id. at 535.
Nuisance and Trespass Claims
Since this Court has concluded that summary judgment should be entered for defendant on the two federal question claims, the Court dismisses without prejudice plaintiffs' common law claims for lack of subject matter jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966) (stating that if the federal claims are dismissed before trial the court should dismiss the state claims as well).
Neither common law claim contains a federal question and the parties to this action are not diverse.
Therefore, this Court finds that the District did not take plaintiffs' property in violation of the Fifth Amendment and that the District is not liable for damages under 28 U.S.C. § 1983. Accordingly, the Court grants defendant's motion for summary judgment as to Count II and dismisses Count I without prejudice for lack of subject matter jurisdiction. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: February 5, 1993
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 814 F. Supp. 124.
ORDER - February 5, 1993, Filed
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that defendant's motion for summary judgment is granted as to Count II. It hereby further is
ORDERED, that Count I is dismissed without prejudice for lack of subject matter jurisdiction. It hereby further is
ORDERED, that the case is dismissed.
Stanley S. Harris
United States District Judge
Date: February 5, 1993