Appeal from the Superior Court of the District of Columbia (CAB6286-05) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
Appellants Michael and Amy Tucci sued the District of Columbia for "Maintenance of a Public Nuisance" and "Refusal to Enforce Municipal Regulations and Other Laws." They now appeal an order of the Superior Court which granted summary judgment in favor of the District of Columbia. We affirm.
I. The Factual Background
Michael and Amy Tucci have lived at 3060 Grant Road, N.W., in the District of Columbia since August 2002. Their home faces Grant Road, but all of the neighboring houses abutting Grant Road face adjacent streets. Thus, they own the only house with an address on the 3000 to 3200 blocks of Grant Road.
The Tuccis complain that the neighbors "take their refuse and open the gate to the backs of their property, walk on to the public space [on Grant Road] and dump their refuse." Even though trash is regularly collected, their neighbors leave trash cans in the public space all week long instead of only during times designated for trash collection. They allege that "structures" and compost bins have been erected on the public right-of-way.Rats and other vermin have been seen along Grant Road, and the Tuccis have "rat tunnels" in their yard. The Tuccis do not allege that any trash or other items have encroached upon their private property, and they do not contend that the District has left its own trash or other items in the public space.
They do claim that Grant Road is "overgrown with vegetation to such an extent that it is impossible to travel the road without damage to vehicles from the overgrowth." The overgrown vegetation has scratched the Tuccis' vehicles on either side. Moreover, the roadbed is in disrepair due mainly to erosion caused by the lack of gutters. "As a result, debris, silt and vegetation are deposited along the street and large gulleys have formed on either side of the pavement due to lack of adequate drainage." They have had "at least ten flat tires," resulting in "hundreds . . . if not thousands of dollars" in replacement tires.In sum, the Tuccis assert that Grant Road looks more like an alley than a street.
Appellants have made numerous complaints to the Department of Public Works ("DPW") about the conditions on Grant Road. DPW has responded by issuing citations and fining neighbors for placing trash containers out on the wrong day or at the wrong time and for allowing vegetation to intrude on public space. DPW has assured the Tuccis that its enforcement efforts will continue.In the Tuccis' view, however, "the District's decisions regarding enforcement [have been] clouded by a misunderstanding of the facts."They assert that the District has not enforced the regulations "to the extent required by law."
At least part of the Tuccis' dissatisfaction with the District's enforcement efforts derives from a fundamental disagreement about where their neighbors' private property ends and the public space begins. The Tuccis assert "that Grant Road is a bona fide district street and that the right-of-way is thirty-three feet wide." Utility poles are located within that space, however, and the paved roadbed is approximately sixteen feet wide. In memoranda to Mr. Tucci, DPW has referred to the "telephone and light posts [as] designat[ing] where the public space begin[s] in the alley[;] the area between the posts should show the correct width of the alley (public space)."*fn1
The Tuccis assert that they have suffered substantial and unreasonable interference with the use and enjoyment of their private property. They can no longer entertain guests as they please, and the value of their property is diminished, although they concede it is worth more than the price they paid.
II. The Procedural Background
The Tuccis filed a two-count complaint accusing the District of Columbia of "Maintenance of a Public Nuisance" and "Refusal to Enforce Municipal Regulations and Other Laws."They prayed "for all damages incurred as a result of the [District's] maintenance of a public nuisance on the Grant Road right-of-way in an amount to be proven at trial, but in no event less than the difference in the market value of [the Tuccis'] property situated adjacent to a public nuisance as opposed to a properly maintained city street . . . ." They also sought an injunction requiring the District to "enforce the municipal regulations and other laws with respect to the Grant Road right-of-way . . . ."
Both parties moved for summary judgment.With respect to the nuisance claim, the trial court distinguished District of Columbia v. Fowler, 497 A.2d 456 (D.C. 1985), the case on which the Tuccis principally rely, noting that the District did not create the nuisance in this case but allegedly allowed it to be maintained. Under those circumstances, the court reasoned, the Tuccis were required, but had failed, to "show some type of common ...