United States District Court, D. Columbia
September 16, 2005.
THE GEORGE WASHINGTON UNIVERSITY, Plaintiff,
THE DISTRICT OF COLUMBIA, et al., Defendants.
The opinion of the court was delivered by: LOUIS OBERDORFER, Senior District Judge
This case involves constitutional challenges to various
conditions imposed by the District of Columbia's Board of Zoning
Adjustment ("the Board") on the development of George Washington
University's campus in the District's Foggy Bottom and West End
neighborhoods ("Foggy Bottom"). Currently pending is
defendants'*fn1 motion for summary judgment on four of the
University' claims: unconstitutional taking/unconstitutional
conditions (Claims I and II); denial of equal protection (Claim
VI); and violation of the University students' right to equal
protection and due process (Claim VIII). As explained below, the
D.C. Circuit's opinion requires that defendants' motion should be
granted on all four counts.
I. Procedural History
Pursuant to D.C. zoning laws, in 1999 the University submitted
to the Board for its review and approval a "campus plan" for the
years 2000-2010. The Board approved the plan, but issued an Order ("Initial Order") imposing several conditions, including
particularly Condition 9. This condition imposed a cap on student
enrollment to the number admitted as of February 13, 2001, and it
imposed this cap after the University had already admitted a
substantial number of its students for the immediately
forthcoming semester. See George Washington Univ. v. District
of Columbia, et al., 148 F. Supp. 2d 15, 16 (D.D.C. 2001). The
Initial Order also imposed a sanction on the University if it
failed to meet its requirement to house 70% of its students
on-campus, by barring the University from building any
non-residential buildings on campus while out of compliance.
Id. at 18. The University filed suit, seeking to enjoin
enforcement of the Initial Order.
On June 15, 2001, I granted the University's motion for a
preliminary injunction, finding that the University was
substantially likely to succeed in demonstrating that Condition 9
of the Initial Order was so arbitrary and capricious as to
violate the University's right to substantive due process. Id.
On January 23, 2002, the Board issued its corrected Final
Order, which differed in some respects from the Initial Order.
Whereas the Initial Order required the University to house 70% of
its undergraduates and capped student enrollment to the number
enrolled as of February 13, 2001, the Final Order imposed a "soft
cap" of housing 5,600 (or 70%) of its 8,000 undergraduates, and
additionally required the University to house every undergraduate
above the 8,000 threshold either on campus or outside Foggy Bottom.*fn3 The Final Order also
provided a six-month grace period for the University to comply.
In addition, it allowed the University to house the students
either on-campus or outside of Foggy Bottom until August 2006.
Thereafter, it was required to use only on-campus housing.
After the Board issued its Final Order, the University amended
and supplemented its complaint. The parties then cross-moved for
summary judgment on all claims, including particularly Claims III
(substantive due process) and XII (substantive due process and
separation of powers). An April 12, 2002 Order granted summary
judgment in favor of the University on Claims III and XII
concluding that the Board Order violated the University's due
process rights on the theory that, while the government's purpose
was legitimate, the government's regulations were not rationally
related to its legitimate purpose. George Washington Univ. v.
District of Columbia, 2002 U.S. Dist. LEXIS 26729, at *17-18,
26-27 (D.D.C. 2002);*fn4 see id. at *24 ("`the
touchstone of due process is protection of the individual against
arbitrary action of government, whether the fault lies in a
denial of fundamental procedural fairness, or in the exercise of
power without any reasonable justification in the service of a
legitimate governmental objective.'") (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)) (emphasis
added) (internal quotations omitted); id. ("legislative acts violate
the guarantee of substantive due process if they are `arbitrary
and irrational,' without more.") (quoting, inter alia, Eastern
Enters. v. Apfel, 524 U.S. 498, 537 (1998)). Both parties
II. The D.C. Circuit's Opinion
The court of appeals affirmed in part and reversed in part, and
held that the Final Order was not unconstitutional in all
respects. George Washington Univ. v. District of Columbia,
318 F.3d 203 (D.C. Cir. 2003). Although the court's decision did not
directly address the remaining claims specified above (Claims I,
II, VI, and VIII) (see supra slip op. at 1), the clear
implication of the court's ruling is that the University's
remaining claims cannot succeed.
In its ruling, the court noted that the Final Order found that
the property purchased by the University in the Foggy Bottom
neighborhood for undergraduate housing, and undergraduates'
"informal" off-campus housing, "threatened the `livability and
residential character' of the Foggy Bottom neighborhood." Id.
at 206. The court concluded that "on average [students] pose a
risk of behavior different from that generally preferred by
non-student residents and legally relevant." Id. at 209.
The University argued that the on-campus or outside Foggy
Bottom housing requirements rendered the University's off-campus
student housing in Foggy Bottom "duplicative," which was
plainly irrational. The court disagreed, concluding that "nothing
in the transitional housing plan forces the University to give up
its off-campus Foggy Bottom dorms or prevents it from continuing
to house students there. If it chooses, it can continue supplying
that housing in addition to the 5600 beds required by
Conditions 9(a)-(c)." Id. at 210 (emphasis in original).
The court then turned to Condition 9(e) of the Final Order,
which prohibited "the issuance of any new `permit to construct or occupy buildings for
nonresidential use on campus' whenever `a semiannual report
reveals that [the University] is not in compliance' with the
conditions of [the Final] Order." Id. at 211. The court held
without extensive discussion that this condition "clearly
serves two important functions that advance the District's
goals." Id. This condition "strengthens the University's
incentive to comply with the housing provisions" and it generally
"keeps housing and non-housing growth proceeding in parallel."
The court also held that Condition 10 which required freshmen
and sophomores to live on campus "to the extent such housing is
available" was not problematic, in part because the University
proposed it as part of its own plan (although it was tied to
another proposal that the Board rejected). Id. Morever, "the
condition seems readily to meet the latitudinarian standards of
substantive due process. A city might reasonably consider the
youngest college students to be the ones most likely to disturb
residents in the surrounding communities, as well as most likely
to need whatever shreds of parietal rules may subsist on campus."
Finally, the court affirmed that the District's zoning
regulations were not unconstitutional as violative of the equal
protection element of Fifth Amendment due process rights. Because
universities are not a protected class, the legislation need only
"classify the persons it affects in a manner rationally related
to legitimate governmental objectives." Id. at 212 (citation
and internal quotations omitted). The court found that the
regulations meet this standard: "As universities are larger, make
more intensive use of their land, and have greater spillover
effects on neighboring communities than most other landowners
. . ., the District's legislative classifications meet this
criterion." Id. III. The University's Takings Claims (Claims I and II)
In its amended complaint, the University alleged that the
Board's Final Order effects an unconstitutional taking of (1) its
properties that cannot be used for non-residential purposes
(assuming the University is not in compliance with the Final
Order); (2) its off-campus housing, which cannot be counted in
determining whether the University is complying with the Final
Order; 3) its financial resources, which will be expended to
build on-campus housing; and 4) tuition revenue, which will be
limited by the de facto cap on undergraduate enrollment. The
University's takings claims were not reached in this court or on
appeal, because the case was disposed of on due process grounds.
None of these claims has merit, however; in fact, they appear to
be largely a restatement of the University's due process and
equal protection claims.
Takings claims in the D.C. Circuit are governed by District
Intown Prop. Ltd. P'ship, et al. v. District of Columbia,
198 F.3d 874 (D.C. Cir. 1999), affirming 23 F. Supp 2d 30 (D.D.C.
1998). There are two types of takings claims a per se taking,
and a taking based on a three-part balancing test. Under either
test, the relevant inquiry is an economic assessment of the
entire property, and not just the parcels of land that a party
claims have lost value. See id. at 880 ("the District Court
correctly determined that all nine lots should be treated as one
parcel for the purpose of the court's taking analysis.").
A. Per SeTaking
A per se taking occurs either if governmental regulations
result in "`permanent physical occupation of property,'" or
alternatively leads to a loss of "all economically beneficial
or productive use of property." Id. at 879 (quoting Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35 (1982)
and Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
1015 (1992) (emphasis in original)). The Board's Final Order does not
result in a physical occupation of property, nor does it lead to
a loss of "all economically beneficial or productive use of
property." Id. At worst, the Final Order requires the
University to use its property for a certain purpose, but these
requirements do not deprive the University of all economic
benefit of the property.
B. Penn Central Taking
In determining if there is a taking under the balancing test,
there are "three primary factors weighing in the balance: the
regulation's economic impact on the claimant, the regulation's
interference with the claimant's reasonable investment-backed
expectations, and the character of the government action." Id.
at 879 (citing Penn Central Transp. Co. v. City of New York,
438 U.S. 104, 124 (1978)). The parties disagree about whether a
claimant must meet all three Penn Central elements, or if these
are simply three factors to balance. Under either approach,
however, the claims of the University fail.
1. Economic Impact
Claimants "`must put forth striking evidence of economic
effects to prevail even under the [balancing] inquiry.' See
Penn Central Transp. Co., 438 U.S. at 131 (reviewing the
Court's decisions upholding regulations despite diminution in a
property's value of more than 75%)." Id. at 883. The
University, however, makes no showing that the Final Order
diminishes the property's value. Instead, the University alleges
that the District has restricted the use of the University's
property without tying these restrictions to an actual economic
loss of property value. See Plaintiff's Amended and
Supplemental Complaint ("Compl.") ¶¶ 48-59.
At most, the University alleges that it will cost money to
comply. Id. ¶ 56. This is not, however, a substantial loss of property value. For example, the
University argues that the Final Order "deprives the University
of the existing use of its off-campus properties in Foggy Bottom
that were developed by right for student housing." Id. ¶ 58. As
the D.C. Circuit noted, however, the University can still use the
off-campus housing; it simply cannot count this housing towards
its 70% requirement. See George Washington, 318 F.3d at 210.
2. Investment-Backed Expectations
There is no interference with the University's
investment-backed expectations here, because it was on notice
that its property was subject to governmental regulation. See
George Washington, 318 F.3d at 205 (describing how the
University had land classified as "special purpose," which
required the Board's pre-approval of the University's "campus
plan"). Moreover, the Board expressed concern in 1985 about the
University's growth, and following its decision to undergo a
"sharp expansion" in enrollment in the late 1990s the
University should have anticipated that further regulation might
be imminent. Id. at 206; see District Intown,
198 F.3d at 883 ("Lucas teaches that a buyer's reasonable expectations must
be put in the context of the underlying regulatory regime")
(citing Lucas, 505 U.S. at 1030); id. at 884 ("Businesses
that operate in an industry with a history of regulation have no
reasonable expectation that regulation will not be strengthened
to achieve established legislative ends.") (citing Concrete Pipe
& Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 645
3. Character of the Government's Action
To assess the character of the government's action, the central
question is whether the regulation advances a "common good" or
"public purpose." See District Intown, 23 F. Supp. 2d at 37
(citing, inter alia, Penn Central, 438 U.S. at 124, and
Keystone Biuminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 485-93 (1987)). The D.C. Circuit
has already concluded here that the regulations were rationally
related to a legitimate government objective, in light of a
university's potential impact on the surrounding neighborhood.
George Washington, 318 F.3d at 212. This ruling that the
regulations and Order are rationally related to a legitimate
government objective suffices to establish that they are in
furtherance of a common good or public purpose. See, e.g.,
Kelo v. City of New London, ___ U.S. ___, 125 S. Ct. 2655, 2667
(2005) ("When the legislature's purpose is legitimate and its
means are not irrational, our cases make clear that empirical
debates over the wisdom of takings . . . are not to be carried
out in the federal courts.") (citations and internal quotations
IV. Equal Protection (Claim VI)*fn5
Claim VI alleges that the Final Order imposes greater
restrictions on the University's ability to use its property than
imposed on others similarly situated, thereby denying equal
protection as guaranteed by the Fifth Amendment. See Compl. ¶
86-87. The D.C. Circuit has already indicated, however, that the
Final Order is rationally related to a legitimate government
objective. George Washington, 318 F.3d at 210. Although this
finding was in the context of analyzing the due process claim
(and not equal protection), in practice these tests are almost
indistinguishable. See George Washington, 2002 U.S. Dist.
LEXIS 26729, at *17, *24 (applying rational basis test for equal
protection and substantive due process claims).
V. Due Process and Equal Protection Rights of the University
Students (Claim VIII)
Finally, the University claims that the Final Order violates
the University students' due process and equal protection rights by forcing them to live on
campus and not in the University's off-campus dorms in Foggy
Defendants first challenge this claim on the ground that the
University lacks standing to represent the students. See Defs'
Mot. for Summ. J., at 15-17. Resolution of the standing issue is
a close call, but, because the underlying claims fail, there is
no need to reach this issue.
B. Constitutional Claims
The University's arguments on behalf of its students are
largely duplicative of its constitutional arguments on its own
behalf. The University alleges that the Final Order discriminates
against its students by dictating where they can live. On this
theory, the University alleges both due process and equal
protection violations. See Compl. ¶ 98.
As previously discussed, for both the equal protection and
substantive due process claims, the Court of Appeals has already
held that the Final Order was rationally related to a legitimate
government objective. The court found that the University
provided no grounds "for even doubting the implicit basis for the
Board's distinction of students from others namely, that on
average they pose a risk of behavior different from that
generally preferred by non-student residents and legally
relevant." George Washington, 318 F.3d at 209. Moreover, it has
decided that the means employed by the University are rationally
related to its ends. Id. at 210-11. For the substantive due
process claim, it similarly rejected any claim that the Final
Order was motivated by group animus towards the University's
students. Id. at 209. In sum, it has already considered and
upheld the Board's Final Order in full. The University makes no
showing as to why claims on behalf of the students compel a
different conclusion. * * *
Accordingly, the Court of Appeals leaves no alternative but to
dismiss the University's complaint, and leaves it with no further
recourse beyond seeking relief by further appeal, or by
An Order granting defendants' Motion for Summary Judgment
accompanies this memorandum.
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