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BURKA v. AETNA LIFE INS. CO.

November 14, 1996

PAUL S. BURKA, et al., Plaintiffs,
v.
AETNA LIFE INSURANCE CO., et al., Defendants.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT COURT JUDGE

 INTRODUCTION

 This case involves a dispute over property rights pertaining to a parcel of land in the District of Columbia. The land, comprising two contiguous lots, was an asset of a family trust, of which the plaintiffs Paul and Robert Burka (the Burkas) currently are trustees. The defendant Aetna Life Insurance Company (Aetna) acquired one lot, which was later acquired by the defendant American University (AU) for use as the site of AU's Washington College of Law. The Burkas, who still own the other lot, attack on several grounds a Declaration of Easement and Agreement ("Declaration") that, among other things, grants AU certain parking rights on the Burkas' lot and allocates the gross floor area of a building on the two lots.

 Before the Court are the defendants' Motions for Summary Judgment and the plaintiffs' Opposition thereto. Also before the Court is the plaintiffs' Motion for Leave to File a Supplemental Complaint and the defendants' Opposition thereto. Based on the pleadings, the entire record herein, and the law applicable thereto, and for the reasons expressed below, the Court shall deny the plaintiffs' Motion for Leave to File a Supplemental Complaint and shall grant the defendants' Motions for Summary Judgment.

 BACKGROUND

 I

 The parcel of land at issue in this case is known as Lot 9, Square 1499, in the District of Columbia. Joint Statement of Material Facts Not in Dispute (JS) P 1. Lot 9 contains a land area of 121,272 square feet, is zoned C-2-A, and is divided for assessment and taxation purposes, but not for zoning or land use purposes, into two contiguous lots known as Lot 806 and Lot 807. Id. P 1-3. At all material times prior to 1993, Lots 806 and 807 were both owned by the Burka Trust or the beneficiaries thereof. Id. P 11.

 Lot 806 is improved by a six-story commercial building at 4801 Massachusetts Avenue, N.W. (the Building), which contains an underground parking garage. See id. P 4. The Building was constructed in 1979-81, while the land was owned by the Burka Trust. Id. P 14. The Building was constructed by Spring Valley Center, a District of Columbia limited partnership consisting of various Burka family members and others, which had groundleased Lot 806 from the Burka Trust. See id. At that time, District of Columbia zoning regulations permitted a maximum gross floor area ("GFA") for all structures on Lot 9 of 242,544 square feet, determined by multiplying the then-applicable 2.0 F.A.R. (floor area ratio) by the 121,272 square feet of Lot 9. Id. P 6. The applicable F.A.R. is now only 1.5, yielding a maximum GFA of 181,908 square feet. Id. P 7.

 In order to facilitate construction of the Building, the Burka Trust in May 1979 recorded a Declaration of Easement and Agreement (Declaration) allocating the maximum permissible GFA for Lot 9 between Lot 806 (179,302 square feet) and Lot 807 (63,242 square feet). The Declaration separately grants and conveys to

 
the owners from time to time of [Lot 806 and their] tenants, occupants, guests and business invites, a non-exclusive easement for vehicular parking of not less than 236 automobiles on the parking areas located from time to time upon [Lot 807].

 The Declaration further provides that:

 
The owners from time to time of [Lot 807] shall, at its expense, maintain the driveways and parking areas located on [Lot 807] at its sole expense. . . . The owners of [Lot 807] shall have the right to establish uniform and reasonable rules, regulations and conditions governing the use of the driveways and parking areas as may be appropriate for the convenience and safety of the persons making use thereof.

 JS Exh. B.

 In order to finance the building, the Spring Valley Center borrowed $ 14 million from defendant Aetna. JS P 17. The loan was secured by a Deed of Trust dated May 29, 1979, and recorded among the District of Columbia land records on May 30, 1979, as Instrument No. 17150. Id. P 18. The Deed of Trust was executed by Spring Valley Center and by Seldon P. Shuman, who was then the sole trustee of the Burka Trust, in his capacity as the trustee. Id. P 19. The security as described in the Deed of Trust expressly included "a non-exclusive easement for vehicular parking of not less than 236 automobiles [on Lot 807] as more particularly set forth in [the Declaration]." JS Exh. F.

 The Deed of Trust went into default in 1991. JS P 22. Aetna foreclosed in January 1993 and was the successful bidder at the foreclosure sale. Id. P 23. Aetna acquired fee simple title to Lot 806, together with rights and obligations of the owner from time to time of Lot 806 created by the Declaration. Id. P 24.

 Lot 807, still owned by the Burka Trust, is improved by commercial structures containing 42,621 square feet of GFA used for retail purposes, which will increase to 44,680 square feet upon completion of improvements in accordance with permits already issued by the District of Columbia Government. Id. P 8. Lot 807 contains approximately 226 parking spaces (exclusive of possible parking spaces in an alley on Lot 807) as follows: 110 spaces on the upper deck of a two-level parking facility; and 116 spaces on the lower deck of the two-level facility. Id. P 9. The Burkas lease commercial space on Lot 807 to the Great Atlantic & Pacific Tea Company, Inc.; Spring Valley Enterprises, Inc., t/a DeCarlo's Ristorante; Salon Jean-Paul, Ltd.; and Apex Cinema, Inc. See Def. AU's Mot. at 2.

 II

 On April 22, 1994, the Burkas filed this suit challenging the foreclosure and the validity of the underlying Declaration and Deed of Trust. The Burkas sought declaratory relief that the Building on Lot 806 exceeded the 179,302 square foot GFA allocated by the Declaration. In a Memorandum Opinion dated June 23, 1994, this Court granted summary judgment in favor of the defendant, and held that Aetna had obtained valid title to Lot 806. The Court also held that the Burkas were not entitled to ground rents for the period between the default on the loan and the foreclosure sale. See Burka v. Aetna Life Ins., 1994 U.S. Dist. LEXIS 20844, No. 94cv0975, Mem. Op. at 18 (D.D.C. Jun. 23, 1994). The Court of Appeals affirmed the Court's grant of summary judgment on these claims, but remanded for a determination of the Burka's claim for declaratory relief as to the GFA claim. Burka v. Aetna Life Ins., 312 U.S. App. D.C. 439, 56 F.3d 1509, 1510 (D.C. Cir. 1995). With respect to the GFA claim, the Court of Appeals stated

 
While we agree with the district court that [the Burkas'] gross floor area claim had no bearing on the validity of the foreclosure sale or the validity of the contested documents, it nonetheless presents a claim against Aetna that the court must resolve.

 56 F.3d at 1513-14.

 Immediately after this Court granted summary judgment for Aetna on June 23, 1994, Aetna conveyed fee simple title to Lot 806, together with its interest in the Declaration, to AU. JS P 25. After acquiring Lot 806, AU undertook renovations of the building for the purpose of using it to house the University's Washington College of Law. Id. P 26. The defendant Aetna moved to substitute AU as defendant in this suit while the Burkas moved to join AU as an indispensable party defendant. The latter course, the Burkas argued, would destroy diversity jurisdiction and necessitate a remand to Superior Court. This Court held that the appropriate course was to substitute AU as a defendant and to retain jurisdiction over the suit. Burka v. Aetna Life Ins., 894 F. Supp. 28 (D.D.C. 1995). The plaintiffs took an interlocutory appeal of this Court's decision on the joinder issue, and the Court of Appeals affirmed this Court's decision. Burka v. Aetna Life Ins., 318 U.S. App. D.C. 244, 87 F.3d 478 (D.C. Cir. 1996).

 On February 12, 1996, this Court denied the motions by A&P and Jean-Paul to intervene on the ground that their interests were adequately represented by the Burkas. The Court granted the University's Motion for a Preliminary Injunction. Burka v. Aetna Life Ins., 917 F. Supp. 8 (D.D.C. 1996). The Court subsequently denied a Motion by the Burkas to alter or amend its ruling. See Burka v. Aetna Life Ins., No. 94cv0975 (D.D.C. Mar. 8, 1996) (Order). Again, the Burkas took an appeal. *fn1" The Court of Appeals affirmed the Court's grant of a preliminary injunction and its decision not to alter or amend that injunction. Burka v. Aetna Life Ins., 1996 U.S. App. LEXIS 30544, No. 96-7052 (D.C. Cir. Oct. 22, 1996) (Judgment).

 The Court turns now to the remaining claims in this suit. In its Amended Complaint, the Burkas assert that an alleged excessive GFA of the building on Lot 806 and the change of use in the property from an office building to a law school terminates or abates the parking easement. In addition to monetary damages, the Burkas request that any parking easement be terminated and that AU be enjoined from maintaining a building in excess of the GFA specified in the declaration. AU has counterclaimed for declaratory and injunctive relief respecting their parking rights.

 In the instant motions, the defendants seek summary judgment. The Burkas seek leave to file a supplemental complaint, which adds claims for trespass (Count I), misuse of the parking easement (Count II), enforcement of an alleged promise relating to ...


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