of that permitted by the Declaration, the Burka Trust suffers harm. The Burkas ask that the Court enjoin AU from maintaining the Building with a GFA in excess of that permitted by the Declaration.
In Saah v. District of Columbia Board of Zoning Adjustment, 433 A.2d 1114, 1117 (D.C. 1981), a property owner-developer built a building in excess of the District's lot occupancy limitation by 5%. The Court said that it would not compel the offending property owner to undertake substantial reconstruction and perhaps dismantle the entire building. "Equity, which will not require a wasteful act, will not permit such a result where the public's interest is only minimal." 433 A.2d at 1117. Here, any interest the Burkas possibly have in lessening the size of AU's Building is outweighed by the fact that the Burkas themselves are more responsible for the overage of the Building than is AU. AU has, instead, reduced the GFA by renovation. Equity would not permit the Court to enjoin use of the Building by AU here.
D. AU Is Entitled to Summary Judgment on Count IV of the Amended Complaint; the Alleged Excessive Building Size Does Not Injure the Burkas And the Burkas' Claim is Barred by Limitations.
1. The Burkas have not alleged injury by the Excessive Building Size.
Count IV asserts money damages as a result of the existence of the building with a GFA greater than that permitted by the Declaration. However, the Burkas have not shown how the alleged overage has damaged them. For example, under the District's zoning law, minimum parking requirements for a school are a function of the number of student seats and number of teachers. 11 D.C.M.R. § 2101.1. Additional GFA in itself does not effect minimum parking requirements for zoning purposes. As for the Burkas' development rights, even if the Building conformed with the allocations in the Declaration, the structures of Lots 806 and 807 would not conform to the District's current F.A.R. allowance. Thus, the Burkas would not be permitted to expand development in Lot 807 even if the Building contained only 179,302 square feet, as the Declaration provides.
To the extent that the Burkas argue that their redevelopment rights are limited in the event of a casualty loss, such damage is remote and speculative. Also, as pointed out by AU, the alleged GFA excess would become moot in the event of a casualty loss since, pursuant to 11 D.C.M.R. § 2001.4, an owner may rebuild a non-conforming structure after a casualty unless the casualty amounts to more than 75% of the cost of rebuilding the entire structure. Since the buildings on the two lots are considered one structure, the alleged redevelopment limitation would only arise if AU's Building were damaged as well, in which case both the Burkas and AU would be limited to rebuilding a combined, conforming structure.
2. The Burkas' claim is barred by the statute of limitations.
The Burkas assert that the twelve-year statute of limitations governing actions on sealed documents applies to their GFA claim, since the Declaration is an instrument under seal. See D.C. Code Ann. § 12-301(6). They also argue, alternatively, that the fifteen-year statute of limitations governing the recovery of lands, tenements, or hereditaments applies. See D.C. Code Ann. § 12-301(1). In any event, the Burkas assert that the breach was difficult to discover; therefore, any statute of limitations would not begin to run until it had reason to know of the breach when an architect they hired in preparation for this litigation reviewed drawings of the Building in May 1992. See Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1201-04 (D.C. 1984) (where breach difficult to discover, statutes does not run until injured party should have known of breach).
AU argues that the Burkas' GFA claim is barred by the three-year statute of limitations applicable to breach of contract actions. See D.C. Code Ann. § 12-301(7) (1995); Construction Interior Sys., Inc. v. Donohoe Cos., 813 F. Supp. 29, 33 n.4 (D.D.C. 1992) (same period applies for any equitable claims arising form the same conduct). AU argues that the building's size was discoverable upon completion in 1980, which is when the statute of limitations began to run.
The Court agrees that Building's size should have been known by the Burkas upon the building's completion in 1980; thus, the statute of limitations for any claim to remedy for excess building size began to run at that time. The Burka Trust owned the land that was groundleased for the purpose of constructing the Building. Fred and David Burka -- two of the general partners of the limited partnership that built, owned, and operated the Building -- were former trustees of the Burka Trust. As the plaintiffs have conceded, those two family members "led the family in business matters, . . . induced the other family members to rely on their good will and business judgment, and . . . the other family members accepted such leadership and relied thereon." Plaint's Opp. to Summ. Jud. at 21. Furthermore, in February 1995, the Burkas issued parking rules that recognized that until "approximately January 1993" the two lots "were under the ownership, administration and control of the same or related entities." In a Superior Court decision involving objections by neighbors to this very Building, the Court stated
The owner's significant efforts here to clear the way for development, by seeking to close the alley in order to construct an extra large building, were obvious signals to those in the area who learned about them in 1973. Potential opponents should not ordinarily be permitted to ignore such signals to wait until a developer has obtained zoning, architectural plans, financing, and/or other costly prerequisites to a building permit and then claim the right, at the last minute, to sue . . . .
American University Park Citizens Ass'n v. Burka, 400 A.2d 737, 744 (D.C. 1979) (emphasis added). It is inconceivable that the Burka Trust did not have reason to know the size of the Building under these circumstances.
Since the claim accrued in 1980, it is barred by either a three or twelve year statute of limitations. As for the Burkas assertion that a fifteen-year statute applies, the Court notes that this assertion was raised for the first time during this litigation in the Burkas' present Opposition to Summary Judgment. Regardless, it has no merit, as the Burkas' claim for money damages based on the GFA excess is not a claim "for the recovery of lands, tenements, or hereditaments"; thus, it is not entitled to a fifteen-year statute of limitations under the D.C. Code § 12-301(1).
E. AU Is Entitled to Summary Judgment on Claim V of the Amended Complaint; AU's Use of Parking Facilities on the Burka Property Is Consistent with its Rights Pursuant to the Easement.
In Count V, the Burkas claim money damages for the excessive and improper use by AU of parking facilities on the Burka Property. As detailed above, however, the Court has rejected the Burkas' contentions that AU has misused parking rights under the easement. Therefore, the Burkas cannot prevail on Count V of the Amended Complaint.
F. AU Is Entitled to Summary Judgment on its Counterclaim.
The Declaration grants the owners of Lot 806 a non-exclusive easement for a period of 99 years for vehicular parking of not less than 236 automobiles on Lot 807. AU's Counterclaim seeks to enjoin the Burkas from enforcing its announced parking rules and from otherwise interfering with AU's parking rights.
1. The Parking Rules issued by the Burkas impermissibly interfere with the easement.
The Declaration provides:
The [Burka Trust] shall, at its expense, maintain the driveways and parking areas located on [Lot 807] at its sole expense. The [Burka Trust] shall have the right to relocate the driveways and parking areas on [Lot 807] in its sole discretion, provided that such relocation shall not unreasonably interfere with the rights granted hereunder. The [Burka Trust] 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.