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MEKURIA v. WASH. METROPOLITAN AREA TRANSIT AUTH.

March 16, 1999

BISRAT MEKURIA, ET AL., PLAINTIFFS,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, DEFENDANT.



The opinion of the court was delivered by: Kessler, District Judge.

  MEMORANDUM OPINION

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.

I. Findings of Fact

A. The Parties

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 system.

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.

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' properties.

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 reasonable parking.

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 most.

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 open.

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 Avenue.

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 value.

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 ...


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