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Elkins v. District of Columbia

December 12, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Laura Elkins and John Robbins, wife and husband ("Plaintiffs"), obtained building permits from the District of Columbia for the purpose of renovating a row house. After all approvals were obtained, including approvals from the D.C. Historic Preservation Office ("HPO"), the District issued the permits. Neighbors objected to the building plans and pressured D.C., most particularly HPO, to retract them. This had the result of causing the District (1) to issue stop work orders; (2) to search the house pursuant to an administrative warrant and to seize various documents; and (3) to propose revoking the permits. Plaintiffs appealed the proposed revocation, and the matter was litigated before the D.C. Office of Administrative Hearings ("OAH").*fn1 Plaintiffs also brought this suit alleging that the District of Columbia, together with its officials, deprived them of their right to due process and their right to be free from unreasonable search and seizure. Pending before the Court is Plaintiffs' motion for partial summary judgment; they seek a ruling that the building permits were valid and that the search and seizure were improper. In opposition, Defendants have filed a motion for summary judgment that seeks dismissal of Plaintiffs' complaint. As explained below, the cross motions will be granted in part and denied in part.


Plaintiffs own a single family home at 20 Ninth Street, N.E., Washington, D.C. (the "Property"). Beginning in 2001, Plaintiffs applied for six building permits for various renovations to their home. The Property is in the Capitol Hill Historic District, a designated historic district under the D.C. Historic Landmark and Historic District Protection Act, D.C. Law 2-144. Therefore, Plaintiffs' permit applications were subject to review by the HPO, the Historic Preservation Review Board, and the D.C. Department of Consumer and Regulatory Affairs ("DCRA"). HPO and DCRA officials approved the building permit applications.

Notably, Plaintiffs planned to build a sloped roof over the middle and rear portions of the house. The historic preservation requirements governing the Property apparently prohibited a second story in the middle and rear of the house, as Plaintiffs had originally contemplated. Neighbors complained about the construction. After all permits had been fully approved, Acting Administrator of the DCRA Building and Land Regulation Administration ("BLRA") Denzil Noble, BLRA Administrator J. Gregory Love (Mr. Noble's predecessor), and Historic Preservation Officer David Maloney second-guessed the original approvals and sought to stop the project, asserting that Plaintiffs' construction was inconsistent with the historic character of the neighborhood. See Pls.' Reply at 2-3.

The Plaintiffs first faced litigation in D.C. Superior Court instituted by a neighbor, Robert Kim Stevens.*fn2 District officials appeared and testified that Plaintiffs' permits were all legitimate and valid. This did not satisfy Mr. Maloney, who seems to have organized a campaign against the construction on the Property. Through his efforts, DCRA issued various stop work orders in 2002. Then, on March 10, 2003, Mr. Noble sent Plaintiffs a letter requesting government inspection of the Property. The letter indicated that the District had received complaints of ongoing construction in violation of a stop work order. Plaintiffs refused to consent, and DCRA filed an application for an administrative search warrant. Mr. Noble signed an affidavit in support of the warrant request, indicating "on April 27, 2001, a building permit, No. B436647, was issued to [Plaintiffs] for the replacement of the roof; installation of garage doors; and the replacement of a fence for the [Property]. " Pls.' Ex. 21, OAH Order on Mot. to Suppress at 5. The Affidavit went on to explain:

(1) On April 24, 2002, a stop work order was issued, pursuant to 12 D.C.M.R. § 117.1, because Plaintiffs were performing structural work without an appropriate permit in violation of the Construction Codes;

(2) On May 17, 2002, the District issued a Notice of Violation for failure to comply with the April 24 stop work order;

(3) On November 13, 2002, a stop work order was issued because Plaintiffs failed to comply with the May 17 notice.

Id. The Affidavit indicated that on March 4, 7, and 10, 2003, DCRA inspectors visited the premises and were either denied entry or were told that no work was being performed, despite the presence of workmen, work vehicles, and construction supplies. The Affidavit concluded, "[T]he Director has reason to believe that [Plaintiffs] are violating the Construction Codes, and such violations pose an imminent threat to the health, safety and welfare of the public." Id.

On March 26, 2003, the District presented a warrant application and supporting affidavit to a Superior Court judge, who signed it. The warrant authorized a search of the Property, but did not describe any items to be seized. The next day, D.C. police and representatives of DCRA and HPO executed the search warrant. The officials went throughout the home (including the bedrooms of sick children home from school), opening drawers, observing, and taking photos. Inspector Toni Cherry, an employee of HPO and contract worker for DCRA, was one of several officials who seized documents, including a notebook belonging to Ms. Elkins. The notebook contained permit and construction records, checking statements, financial records, and construction loan documents. Pls.' Ex. 2, Elkins Decl. ¶ 25. A return of search warrant filed in Superior Court in April 2003 listed an inventory of seized items including electrical approvals; plumbing approvals/permits; construction approval permits; assorted documents including receipts and contract documents; assorted invoices; the notebook; and estimates.

The District issued a notice of proposed revocation of the six building permits issued to Plaintiffs on December 17, 2003.*fn3 Pls.' Ex. 11. Plaintiffs challenged the proposed revocation, and that matter came before OAH.

In the OAH proceedings, Plaintiffs moved to suppress evidence resulting from the administrative search of the Property. Plaintiffs claimed that the Affidavit's statement that the alleged violations posed an imminent threat to health, safety, and welfare was not factually supported and that the seizure of documents exceeded the scope of the authorized search.

The Hearing Officer granted in part and denied in part Plaintiffs' motion to suppress. He found that the search warrant was valid and supported by probable cause.

The Government ha[d] sufficient cause to believe that construction work was occurring . . . The danger to public health, welfare and safety was based upon a reasonable suspicion that [Plaintiffs] were presently altering a protected property without Government approval, and in violation of a stop[ ]work order. The Government had a legitimate interest in preserving the integrity of the protected structure as a[n] historically preserved building, and in enforcing its Construction Codes for health, safety and welfare of [Plaintiffs], their neighbors, and the public.

Pls.' Ex. 21, OAH Order on Mot. to Suppress filed Nov. 22, 2005 at 14. However, he also found that the warrant did not authorize the seizure of any documents. Id. at 15-16; see also id. at 20 (citing Groh v. Ramirez, 540 U.S. 551, 559 (2004) (where a warrant fails to state with particularity the items to be seized, the items seized must be suppressed)). The Hearing Officer found that the consent and plain view exceptions to the warrant requirement did not apply: the documents were not in plain view because the officers went through drawers to find them, id. at 21, and Plaintiffs did not consent. Id. at 15 & 21. He concluded:

Therefore, I must suppress the admission of all items seized by the Government during its inspection. . . . Because the warrant validly authorized the search of the premises, I am not suppressing the following evidence: testimony of officials as to their observations of the interior areas of the property; reports regarding such observations; and photographs taken by officials of the interior areas of the Property. To the extent that such evidence also refers to the items illegally seized from the Property, the evidence shall be redacted before it can be admitted.

Id. at 21.

OAH held evidentiary hearings on the District's notice of proposed revocation on May 23-24 and November 29-30, 2006. On March 20, 2007, OAH issued a final order denying and dismissing the proposed revocation. See Pls.' Ex. 20, OAH Final Order filed Mar. 20, 2007 ("OAH Final Order").*fn4 The OAH Final Order explained:

As I have reviewed the large body of evidence and testimony in this case, the most salient feature for me has been that there are equities on both sides of the case. On one hand, I agree with [Historic Preservation Officer] Maloney's point that the construction of a sloped roof of the dimension proposed by [Plaintiffs] had a potential impact on the historical neighborhood. The neighbors' concerns about the impact of the construction on the neighborhood and on their access to sunlight and similar factors, were legitimate concerns. If the [District] had ...

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