The opinion of the court was delivered by: KESSLER
This matter comes before the Court on Defendant's Amended Motion to Dismiss [ # 16].
Having considered Defendant's Motion, Plaintiff's Opposition, Defendant's Reply, Plaintiff's Surreply, the contentions of counsel at oral argument,
and the entire record herein, the Court denies Defendant's Motion for the reasons set forth below.
Plaintiffs Bisrat Mekuria, Tewidros Estafanos, Ace Cash Express, Inc., Ghirmai Ghebremichel, George Beckford, Carlton Henry and Francis Fabrizio, Jr., who own and operate small neighborhood businesses in the Petworth area,
claim that Defendant Washington Metropolitan Area Transit Authority ("WMATA") has taken their property without just compensation, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs assert a claim of inverse condemnation against WMATA arising out of WMATA's construction of the "Georgia Avenue/Petworth" Metro-rail station near New Hampshire Avenue between Park Road and Randolph Street, N.E. Plaintiffs seek compensation for property allegedly taken by Defendant in connection with this construction, as well as attorneys' fees and costs.
In August of 1993, WMATA, with a private construction company acting as its agent, began construction of a new Metro-rail station ("Metro Station") to be located in the vicinity of Georgia Avenue and New Hampshire Avenue between Park Road and Randolph Street. This construction has involved closing and excavating portions of both Georgia Avenue and New Hampshire Avenue. Am. Compl. P 13. Plaintiffs all own or lease commercial property adjoining or abutting the portions of New Hampshire Avenue under construction. Am. Compl. P 4-11.
Prior to beginning construction, WMATA acquired through formal condemnation proceedings several properties adjacent to the construction site, on the Western side of New Hampshire Avenue. Defendant did not, however, formally condemn any of Plaintiffs' properties. Am. Compl. P 16.
The construction site occupies the entire width of New Hampshire Avenue and runs for approximately 920 feet, or the equivalent of approximately three city blocks. Am. Compl. P 14. A nine foot high chain link fence topped with barbed wire surrounds the entire construction site, including both the excavation area itself and other additional areas used for construction equipment and associated facilities. Am. Compl. § 21. This fence runs within one foot of the edge of the pedestrian sidewalks in front of Plaintiffs' properties. Am. Compl. P 14. Plaintiffs believe that the portion of New Hampshire Avenue currently under construction is expected to remain closed until 1998.
Am. Compl. P 15.
New Hampshire Avenue is a major thoroughfare running through the Petworth section of Washington. Before the beginning of this construction, Plaintiffs relied upon use of New Hampshire Avenue for access to their businesses. Pedestrian and vehicular traffic along New Hampshire Avenue provide a significant portion of Plaintiffs' customers and clients. In addition, prior to commencement of construction, large shipments of goods and supplies were typically delivered by trucks and other vehicles that parked along New Hampshire Avenue next to Plaintiffs' stores. Am. Compl. P 17.
Because of the obstruction caused by the construction site, there is currently no direct vehicular access whatsoever to Plaintiffs' properties from New Hampshire Avenue. In addition, pedestrian access to the properties from New Hampshire Avenue is restricted to a "circuitous, uneven pedestrian sidewalk". Am. Compl. P 21. The sidewalk is "fifteen feet at its widest to about four feet at its narrowest, with an average width of between six and nine feet." Am. Compl. P 21.
Since construction of the Metro Station began, the United States Postal Service has refused to provide mail service and local suppliers of The Washington Post have refused to deliver newspapers to Plaintiffs' properties, citing the lack of street access as their reasons. Am. Compl. PP 59-60. Both Plaintiff Mekuria's convenience store and the check cashing business operated by Plaintiff Ace Cash Express, Inc., have closed and the properties where the businesses were located have been vacated. Am. Compl. P 66. In addition, Plaintiffs' other businesses have suffered decreases in business revenues ranging from 70% to 90%. Am. Compl. P 67.
The construction by WMATA has caused physical damage to several of Plaintiffs' properties including cracked walls, ceilings, and floors, and flooding with dirty sewer water flowing from the construction site. Am. Compl. P 69. Plaintiffs also allege that the construction site has prevented police from adequately patrolling the area and resulted in an increase in incidents of robbery and vandalism, which have in turn led to increases in and cancellations of Plaintiffs' insurance policies. Am. Compl. PP 70-72.
Plaintiffs allege that Defendant's actions at the construction site have deprived them of their right to reasonable access to their properties and thus eliminated all viable economically beneficial or productive uses of their properties. They claim they cannot put their properties to beneficial commercial use because the construction site prevents potential customers from seeing and entering the properties and prevents suppliers from delivering necessary supplies. The same obstacles, Plaintiffs argue, prevent these properties from being put to reasonable residential use. In addition, Plaintiffs claim, the construction has virtually destroyed the fair market value and rental value of the properties. Plaintiffs claim that they have been singled out by Defendant for "particular, individualized adverse treatment" in that owners of other properties in the vicinity of the construction site have either received compensation through formal condemnation proceedings or have maintained reasonable access to their properties throughout the construction. Am. Compl. P 78.
Plaintiffs argue that Defendant's actions have: (1) taken from Plaintiffs the valuable property right of reasonable access to their properties, without providing just compensation for such property; (2) have denied Plaintiffs all viable economically beneficial or productive use of their properties; and (3) interfered with Plaintiffs' distinct, investment-backed expectations in their properties, including ...