The opinion of the court was delivered by: Kessler, District Judge.
Plaintiffs, owners and operators of neighborhood businesses in
the Petworth area of the District of Columbia, are asserting a
claim of inverse condemnation against Defendant Washington
Metropolitan Area Transit Authority ("WMATA"). They claim that
Defendant, in the course of constructing the Georgia
Avenue/Petworth Metrorail Station, has taken their property
without just compensation in violation of the Fifth and
Fourteenth Amendments to the United States Constitution. This
matter now comes before the Court for final decision after a five
day bench trial. Having considered the testimony of all
witnesses, the numerous exhibits submitted by both parties, the
closing briefs, and the applicable case law, the Court issues the
following Findings of Fact and Conclusions of Law.
1. The Plaintiffs, Bisrat Mekuria, Francis Fabrizio, Jr.,
Carlton Hugh Henry, George Beckford, America's Cash Express Inc.
("ACE"), Tewidros Estafanos, and Ghirmai Ghebremichel, are the
owners or lessees of property located along New Hampshire and
Georgia Avenues in the Petworth area of the District of Columbia.
All Plaintiffs, other than Francis Fabrizio (who owns and rents
out his properties), formerly operated or currently operate small
neighborhood businesses on their properties.
2. Defendant WMATA is an agency and instrumentality of the
District of Columbia, Maryland, and Virginia, authorized by a
Congressionally approved compact amongst these three entities to
plan, develop, finance, and operate a regional transportation
B. The Metrorail Station and Construction Site
3. On or about June 20, 1994, WMATA began construction of a new
Green Line Metrorail station located in the vicinity of Georgia
Avenue, N.W. and New Hampshire Avenue, N.W. between Park Road,
N.W. and Randolph Road, N.W. in the District of Columbia.*fn1
Both Georgia Avenue and New Hampshire Avenue are major
thoroughfares running through the Petworth section of Washington.
The construction site for the new station ("Construction Site")
occupies the entire width of the 3700 block of New Hampshire
Avenue, from south of Rock Creek Church Road to Randolph Street,
and the 3600 and 3700 blocks of Georgia Avenue. When Georgia
Avenue was closed in March 1995, WMATA constructed a
semi-circular detour around the Construction Site (the Georgia
Avenue Detour). This Detour was the closest open street to the
west of the 3700 block of New Hampshire Avenue. The length of the
Site was approximately 1120 feet or the equivalent of at least
three city blocks.
Plaintiffs' Exhibit 1, reproduced as an Appendix hereto, shows
the area under construction as well as the Georgia Avenue Detour.
4. During the week of October 1, 1994, New Hampshire Avenue,
Avenue and Randolph Street, and specifically the 3700 block of
New Hampshire Avenue, was closed to all vehicles because of
construction. New Hampshire Avenue was not reopened for more than
three years until December 21, 1997. Thus, once construction
commenced, there was no direct vehicular access to those of
Plaintiffs' properties which fronted on New Hampshire Avenue.
During that same three year time frame, vehicle access to Rock
Creek Church Road from New Hampshire Avenue was also closed.
Prior to commencement of the construction, Rock Creek Church Road
headed one way northeast across Georgia and New Hampshire
Avenues, and provided reasonable access to those of Plaintiffs'
properties which fronted on it. Once the construction began, Rock
Creek Church Road came to a dead end about sixty feet east of the
intersection of Georgia and New Hampshire Avenues.
5. In March 1995, Georgia Avenue, from Quebec Place on the
south to Quincy Street on the north, and specifically the 3600
block of Georgia, was closed to all vehicles because of
construction. The Georgia Avenue Detour was constructed around
the Construction Site, and WMATA placed barriers in front of
Plaintiffs' properties which fronted on the 3600 block of Georgia
Avenue. As a result of the closure of Georgia Avenue, there was
no direct street access to Plaintiffs' properties fronting on the
3600 block of Georgia Avenue. Georgia Avenue was not reopened
until August 21, 1997, when three lanes were made accessible to
traffic. The fourth lane is still being worked on, and Georgia
Avenue has not yet been restored to full accessibility. Thus,
because of the presence of the Detour and barriers on Georgia
Avenue, there was no direct vehicular access to Plaintiffs'
properties in the 3600 block of Georgia Avenue.
6. The Metrorail Construction Site — a huge excavation — on New
Hampshire was the width of the street, approximately 920 feet. A
nine-to eleven foot chain link fence, topped with barbed wire,
surrounded the entire Construction Site, including both the area
of excavation itself and other additional areas used for
construction equipment and related facilities. The fence ran
within one foot of the sidewalk in front of Plaintiffs'
7. Prior to construction, there were extensive discussions
between WMATA personnel and District of Columbia government
personnel about numerous matters relating to construction of the
Petworth station. There was substantial community opposition to
WMATA's original plans which would have cut a wide swath through
homes and businesses. Ultimately, WMATA agreed to use a
particular method of construction which would save the
taking/condemnation of 97 homes.
8. Under the Fifth Interim Capital Contributions Agreement,
entered into by the various jurisdictions which fund WMATA, the
parties, including the District of Columbia, agreed that "the
District will close New Hampshire Avenue entirely between Georgia
Avenue and Quincy Street, N.W. to provide construction work site
area. Utilizing the public space will allow homes in the 3700
block of New Hampshire to be spared from takings. Access to the
properties in the 3700 block of New Hampshire must be
maintained." (emphasis added).
9. WMATA did formally condemn seven businesses, six on the west
side of Georgia Avenue and one on the east side. The owners of
these properties received compensation for their fair market
value as well as relocation costs. None of Plaintiffs' properties
were condemned. At no time were Plaintiffs given the option of
having their properties acquired by WMATA. WMATA represented to
the public, including Plaintiffs, that there would be reasonable
vehicular, pedestrian, and vendor access for deliveries to
Plaintiffs' properties, and that such access would include
10. Prior to commencing construction, WMATA prepared a
Composite Traffic Control Plan for areas adjacent to the
Construction Site. Under WMATA's Plan, Plaintiffs' properties
could only be accessed by car from the rear, using a route
consisting of streets to the east of New Hampshire Avenue. The
planned rear access route ended in what WMATA described as a
"turn-around" on Rock Creek Church Road, approximately 60 feet
from the intersection of New Hampshire Avenue and Rock Creek
Church Road. Because Rock Creek Church Road is a very narrow
street, the Plan recognized that closing the intersection of
Georgia Avenue and Rock Creek Church Road was essential.
11. Despite WMATA's Plan to use Rock Creek Church Road as a
"turn-around" for delivery trucks, during the entire period of
construction it was illegal to park or stop on the so-called
"turn-around" on Rock Creek Church Road.
12. WMATA also represented to the public, including Plaintiffs,
prior to construction, that the "turn-around" would be 50 feet
wide, allowing use by a standardsized delivery truck. As
constructed, according to WMATA's own measurements, the
"turn-around" on Rock Creek Church Road was only 42 feet wide, at
13. During the period of construction, WMATA made no effort to
determine whether the "turn-around" on Rock Creek Church Road
provided adequate access for making deliveries to Plaintiffs'
properties. In fact, it did not provide adequate access, and
Plaintiffs were unable to receive deliveries which were essential
to the maintenance of their businesses.
14. WMATA's Traffic Plan envisioned that a driver utilizing the
alleged rear access route to Plaintiffs' properties to Rock Creek
Church Road would (1) start on 7th Street and turn left onto
Quincy Street (where a sign read "Street Closed to Through
Traffic"); (2) proceed west for a full block on Quincy Street to
the dead end at New Hampshire Avenue; (3) turn south on 8th
Street and proceed for a full block to the intersection of 8th
Street and Rock Creek Church Road (where there was a "Detour"
sign pointing east, back to 7th Street); and then (4) go in the
opposite direction from the Detour sign, proceed west on Rock
Creek Church Road to the "turn around" where a "No Stopping" sign
was posted and it was illegal to stop or park. Even though WMATA
had placed a sign on Seventh Street saying businesses were open,
there was no listing of which businesses in the area were still
15. Despite the difficulties of negotiating this rear access
route, there were no signs posted during the period of
construction that explained the directional pattern or even the
existence of this route, nor were there any signs posted
indicating the presence of the "turn-around" on Rock Creek Church
Road or how to negotiate the turns and twists to get to it. As a
WMATA witness phrased it, "you had to know about it [the access
route to Plaintiffs' stores] or stumble on it".
16. Plaintiffs complained to WMATA about the lack of pedestrian
and vehicular access to their properties, but WMATA took no
actions to rectify or ameliorate the situation. Mr. Mekuria, in
particular, filed 20-30 complaints with WMATA about the problems
he was having with lack of access to his properties.
17. During the period of construction, pedestrian access to
Plaintiffs' properties, while not totally foreclosed, was limited
to a circuitous, uneven pedestrian sidewalk with holes,
depressions, and chunks of broken concrete. The sidewalk was
fifteen feet at its widest but only about three feet at its
narrowest, with an average width of between six and nine feet.
C. Plaintiffs' properties and businesses
19. Mr. Mekuria operated his convenience grocery store at 3713
New Hampshire Avenue until he was forced by the impairment of
access caused by the Construction Site to close it in October
1995. There are no doors or passageways between the two
properties at 3713 New Hampshire Avenue and the property at 807
Rock Creek Church Road. The only way to enter or leave the Family
Foods Market is by the door which opens onto New Hampshire
20. The only way to enter or leave the upstairs apartment at
3713 New Hampshire Avenue is by the first-floor entry which opens
onto New Hampshire Avenue. During the construction, the upstairs
apartment was either vacant or rented at a rate far below market
21. The property at 807 Rock Creek Church Road was rented
throughout the construction by a pre-existing tenant, which used
it for additional space for its day care center, Tiny Tots,
located right next door. The monthly lease ...