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2910 Georgia Avenue LLC v. District of Columbia

United States District Court, District of Columbia

February 14, 2017

2910 GEORGIA AVENUE LLC, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al, Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY.UNITED STATES DISTRICT JUDGE.

         Plaintiff 2910 Georgia Avenue LLC filed suit against the District of Columbia, Mayor Muriel Bowser, and Polly Donaldson in her official capacity as Director of the Department of Housing and Community Development ("DHCD"), [1] alleging that the application of the District's Inclusionary Zoning Program ("IZ Program") to the development of a 22-unit condominium building near Howard University constituted an unconstitutional taking and violated Plaintiffs due process and equal protection rights. Presently before the Court are Defendants' [67] Renewed Motion for Summary Judgment and Plaintiffs [68] Motion for Summary Judgment.

         Upon consideration of the pleadings, [2] the relevant legal authorities, and the record for the purposes of these motions, the Court finds that Defendants are entitled to summary judgment on each of Plaintiff's claims. In so finding, the Court does not intend to minimize Plaintiff's legitimate grievances with the District's administration of the IZ Program, or to suggest that the District acted perfectly at all times. The Court merely concludes that at no point did the District's conduct rise to the level of a violation of the United States Constitution.

         First, the Court finds that the economic effect of the challenged regulations on Plaintiff's condominium building is not sufficient to establish a takings claim as a matter of law. Second, Plaintiff has not established an equal protection claim because it has not demonstrated that it was treated differently by the District than any other developer subject to the IZ Program. Third, Plaintiff has not established a substantive due process claim because the conduct of the District at issue demonstrates, at most, confusion or negligence; it does not approach the level of grave unfairness or deliberate flouting of the law that is required for such a claim. Finally, Plaintiff's procedural due process claim also fails because Plaintiff has not established that the IZ Program deprived Plaintiff of any protected property interests without sufficient process of law. Accordingly, Defendants' motion for summary judgment is GRANTED and Plaintiff's motion is DENIED.

         I. BACKGROUND

         A. The Basics of the District of Columbia IZ Program

         As relevant to the parties' dispute, the District of Columbia's IZ Program requires that 8-10 percent of the gross floor area of new residential developments (or substantial additions to existing developments) in the District be used for sale or lease to eligible low- and moderate- income households at certain maximum price levels. D.C. Mun. Regs. tit. 11, § 2603.[3] The affordable units created by the program are referred to as inclusionary units (“IZ Units”). Id. § 2601.1. The District enacted the IZ Program in order to “increas[e] the amount and expand[ ] the geographic distribution of adequate, affordable housing available to current and future residents.” Id. § 2600.1. Under the IZ Program, “no building permit shall be issued” unless the owner of the development subject to the IZ Program “records a covenant in the land records of the District of Columbia that binds all persons with a property interest in any or all of the [property] to construct and reserve the number of inclusionary units.” D.C. Code § 6-1041.05(a) (“IZ Covenant”).

         B. The History of the IZ Program Rulemaking

         The IZ Program was established by the District of Columbia Zoning Commission on August 25, 2006. Pl.'s Stmt. of Undisputed Material Facts, ECF No. 68-2 (“Pl.'s Stmt.”), ¶ 3. The Zoning Commission delegated responsibility for developing the IZ Program to the Council of the District of Columbia (“D.C. Council”) and the Mayor, who subsequently delegated that authority to the Deputy Mayor for Planning and Economic Development (“Deputy Mayor”). Id. ¶¶ 3, 5; Pl.'s Mot., Ex. 3, ECF No. 68-5 (Delegation of Authority - Inclusionary Zoning Implementation Act of 2006). The program was established pursuant to statutory authority set forth in section 107 of the Inclusionary Zoning Implementation Amendment Act of 2006. Id. ¶ 4.

         Although on the books as of 2006, the IZ Program was not implemented until certain rules and regulations were passed regarding its implementation. On April 11, 2008, the District, through the Deputy Mayor, issued a Notice of Proposed Rulemaking for regulations that would implement and establish the procedures for the IZ Program. Id. ¶ 8; Pl.'s Mot., Ex. 6, ECF No. 68-8 (Notice of Proposed Rulemaking for Chapter 22 of Title 14 of the District of Columbia Municipal Regulations, entitled “Inclusionary Zoning Implementation”). Among other things, these regulations established the process and the requirements for obtaining building permits for properties subject to the IZ Program. Pl.'s Stmt. ¶¶ 8, 26; Pl.'s Mot., Ex. 6. The Notice of Proposed Rulemaking stated that “[f]inal rulemaking action shall be taken in not less than sixty (60) days from the date of publication of this notice in the D.C. Register.” Pl.'s Mot., Ex. 6 at 1. It also stated that the “[t]he Deputy Mayor [ ] intends that the final rules shall not become effective until ninety (90) days after publication of the Notice of Final Rulemaking in the D.C. Register in order to allow a transition period between publication and implementation.” Id.

         In the months after the Notice of Proposed Rulemaking was published, the District began to express its concern, in a series of published resolutions, that the IZ Program was not being implemented quickly enough. On October 21, 2008, the D.C. Council passed Resolution 17-848, which referenced the April 11, 2008 Notice of Proposed Rulemaking and noted that “final rulemaking, including the maximum rent and purchase price schedule [for the IZ Program] has not been published. Because final regulations have not been promulgated . . . and the maximum rent and purchase price schedule has not been published . . . the Inclusionary Zoning Program has not been implemented.” Pl.'s Mot., Ex. 11, ECF No. 68-13 (D.C. Council Resolution 17-848). This resolution also stated that “[c]ontinuing delays [in implementing the IZ Program] have resulted in the loss of affordable mixed-income units being included in many residential developments” and that “[e]mergency legislation is need[ed] to provide that the final rulemaking and publication requirements for the Inclusionary Zoning Program be met expeditiously.Id.

         On November 18, 2008, the D.C. Council passed Resolution 17-871, again stating that final rulemaking had not been published and again declaring an emergency as to the need to publish final rulemaking expeditiously so as to not lose further affordable housing in new developments. Pl.'s Mot., Ex. 12, ECF No. 68-14 (D.C. Council Resolution 17-871). This resolution also stated that “[t]he Administration has stated that because of significant changes that will be made to the proposed rulemaking based on comments received since the initial notice of proposed rulemaking, a revised notice of proposed rulemaking will be published for public comment.” Id. It also stated that “[t]he Administration has further stated that 90 days are needed for District agencies to finalize plans for the implementation of the rules after the notice of final rulemaking is published.” Id.

         As promised, a Revised Notice of Proposed Rulemaking was then published on December 26, 2008, incorporating certain changes to the proposed rules. Pl.'s Mot., Ex. 13, ECF No. 68-15 (Revised Notice of Proposed Rulemaking). Of some note, the Revised Notice stated that “[t]he Deputy Mayor . . . intends that the final rules shall not become effective until sixty (60) days after the publication of the Notice of Final Rulemaking in the D.C. Register, ” which was thirty days less than the 90-day phase-in period envisioned in the initial proposed rulemaking. Id. at 1. The Revised Notice also stated that it replaced the initial notice, and that “[f]inal rulemaking action shall be taken in not less than thirty (30) days from the date of publication of this notice.” Id.

         By February 3, 2009, final rulemaking still had not been published, and the D.C. Council adopted another emergency resolution regarding the need for final rulemaking. Pl.'s Mot., Ex. 14, ECF No. 68-16 (D.C. Council Resolution 18-22). This resolution referenced the same emergency need for affordable housing as the emergency resolutions that predated it, and again noted that “[t]he Administration . . . stated that 90 days were needed for District Agencies to finalize plans for the implementation of the rules after the notice of final rulemaking is published.” Id. at 1.

         The Notice of Final Rulemaking for these IZ Program regulations was then published on May 15, 2009. Pl.'s Stmt. ¶ 20; Pl.'s Mot., Ex. 18, ECF No. 68-20 (Notice of Final Rulemaking). Plaintiff contends that when this Notice was published, it was “not known, clear, or stated” when the rules were to become effective and applicable. Pl.'s Stmt. ¶ 20. As discussed in more detail later in this Memorandum Opinion, a number of Plaintiff's legal arguments are premised on this claim. This claim is not, however, supported by the record, and the Court rejects it at the outset. The Notice stated that “[t]hese final rules shall become effective on the date of publication of this notice in the D.C. Register, but . . . shall not become applicable until ninety (90) days after such publication or the date on which the final Maximum Rent and Price Schedule is published in the D.C. Register, whichever is later.” Pl.'s Mot., Ex. 18 at 1. It is undisputed that the maximum rent and price schedule was published in the D.C. Register on August 14, 2009. Pl.'s Stmt. ¶ 20; Pl.'s Mot., Ex. 19, ECF No. 68-21 (Inclusionary Zoning Affordable Housing Program Maximum Rent and Purchase Price Schedule). Accordingly, the final rules became effective on August 14, 2009, after the lengthy notice and comment process described above and a significant “phase-in” period after publication of the Notice of Final Rulemaking.

         Amendments to the IZ Program regulations were later made, but Plaintiff has provided absolutely no reason why the Court should excuse Plaintiff from having been on notice that the IZ Program was generally applicable, in all ways relevant to this case, as of August 14, 2009. On August 28, 2009, the Deputy Mayor published a Notice of Emergency and Proposed Rulemaking, which gave notice of proposed amendments to the IZ Program rules. Pl.'s Stmt. ¶¶ 24-25; Pl.'s Mot., Ex. 21, ECF No. 68-23 (Notice of Emergency and Proposed Rulemaking). Plaintiff does not contend that these amendments are relevant to the applicability of the program to Plaintiff or to the claims in this case. The emergency rulemaking notice stated that the changes were needed to “fully implement” the IZ Program, but expressly acknowledged that the IZ rules had otherwise already been “previously adopted” and had an “August 14, 2009 effective date.” Pl.'s Mot., Ex. 21 at 1. Accordingly, although the Notice of Final Rulemaking for these amendments was not published until December 11, 2009, and became effective immediately on that date, Pl.'s Mot., Ex. 22, ECF No. 68-24 (Notice of Final Rulemaking), the IZ Program had otherwise, in all ways relevant to this case, already been in effect since August 14, 2009.

         C. Plaintiff's Experience with the IZ Program

         Plaintiff is a real estate company that invests in new housing in the District of Columbia. On November 24, 2009, over three months after the IZ Program rules became effective and applicable in the District, Plaintiff purchased the property at 2910 Georgia Avenue, N.W. from Howard University. Pl.'s Stmt. ¶ 19; Pl.'s Mot., Ex. 16, ECF No. 68-18 (Special Warranty Deed for 2910 Georgia Avenue property). Plaintiff purchased the property, then a vacant lot, for $560, 000.00. Defs.' Stmt. of Material Facts for Which There is Not Genuine Dispute, ECF No. 67-30 (“Defs.' Stmt.”), ¶ 25. Plaintiff purchased this property with the intention of constructing a 22-unit condominium building. Pl.'s Stmt. ¶ 19. It is undisputed that this entire development project-the condominium building consisting of all 22 units-was a single investment for financing and planning purposes. Defs.' Stmt. ¶ 27.

         Plaintiff subsequently, on December 23, 2009, filed a building permit application to construct this condominium building. Pl.'s Stmt. ¶ 28. Even though the IZ Program was in effect as of this date, on March 30, 2010 the D.C. Zoning Office initially indicated to Plaintiff that the project's zoning had been approved without requiring compliance with the IZ Program. Id. ¶ 31. However, the office did not grant Plaintiff a building permit at this time. The parties apparently do not dispute that communicating preliminary zoning approval without IZ compliance was an oversight on the part of the Zoning Office, apparently due to the fact that this was the first IZ Program building permit the office had handled. Id. ¶ 30; Pl.'s Mot., Ex. 17, ECF No. 68-19 (January 23, 2015 Deposition of Mathew LeGrant), at 39:19-40:14. Subsequently, however, an employee at the District's Office of Planning discovered the mistake and, in April, 2010, the District informed Plaintiff that its zoning approval, and accordingly its ability to acquire a building permit, would be contingent on compliance with the IZ Program. Pl.'s Stmt. ¶¶ 32-35. Plaintiff's condominium building was the first development in the District subject to the IZ Program. Id. ¶ 35.

         Developments that are subject to the IZ Program are allowed to take advantage of “bonus density, ” which gives developers the option to “construct up to twenty percent (20%) more gross floor area than permitted as a matter of right.” D.C. Mun. Regs. tit. 11, § 2604.1; see also Pl.'s Mot., Ex. 4, ECF No. 68-6 (DHCD webpage entitled “Inclusionary Zoning Affordable Housing Program”). Although the parties dispute Plaintiff's reasons for not doing so, it is undisputed that, after being told by the District in April, 2010 that its development was subject to IZ regulations, Plaintiff did not redesign its building plans to incorporate the “bonus density” made available under the IZ Program, opting instead to proceed forward with the building as planned. Pl.'s Stmt. ¶ 36. Plaintiff claims that it had “no choice” in the matter because to incorporate bonus density at this stage, “Plaintiff would have had to spend months and tens of thousands of dollars, ” and add more parking. Pl.'s Mot., Ex. 7, ECF No. 68-9 (June 28, 2015 Declaration of Arthur S. Linde), at ¶¶ 8-10.

         On May 14, 2010, Plaintiff subdivided the separate lots that made up the property at 2910 Georgia Avenue into a single record lot. Defs.' Stmt. ¶ 28. On May 20, 2010, to satisfy the IZ Program's requirements that 8-10% of the development be used for affordable housing, Plaintiff signed an IZ Covenant binding two of the envisioned 22 condominium units within the planned building: Unit C-02 and Unit 2-02. Pl.'s Stmt. ¶¶ 38, 42; Pl.'s Mot., Ex. 28, ECF No. 68-30 (Plaintiff's IZ Covenant). The building was then constructed. On September 11, 2011, after completing construction, Plaintiff subdivided the building into 22 residential units and 11 parking units. Defs.' Stmt. ¶ 29.

         Efforts then began to locate eligible low- and moderate-income purchasers for Plaintiff's IZ Units. Plaintiff submitted a “Notice of Availability” to Defendants on May 12, 2011, indicating that the two IZ Units would be available for occupancy starting on August 1, 2011. See Defs.' Mot., Ex. 9, ECF No. 67-9 (May 12, 2011 Notice of Availability). DHCD created a list of eligible households or persons interested in purchasing or renting the IZ Units who self-certified their eligibility to participate in the IZ Program. Pl.'s Stmt. ¶¶ 44-45. Using these lists, the District subsequently went through a process of running “lotteries” and other alternative selection procedures to identify possible buyers for the units. Id. ¶¶ 47-56.

         However, for reasons the parties dispute, the effort to locate a buyer for the units was unsuccessful for an extended period of time. Plaintiff contends that this failure was the fault of Defendants. Predominantly, Plaintiff claims that a requirement in the IZ Covenant that the affordability restrictions on the IZ Units were to survive any foreclosure on the property prevented would-be purchasers from using HUD-insured mortgages. Id. ¶¶ 67-72. The record shows that the District, as well as Plaintiff, was aware that there was a possibility that this aspect of the IZ Covenant could make it difficult for participants in the IZ Program to acquire their preferred form of financing to purchase IZ Units, but chose to make the affordability restrictions survive foreclosure regardless. Pl.'s Mot., Ex. 15, ECF No. 68-17 (March 2011 e-mail indicating that in 2008 or 2009 DHCD had been sent a letter explaining HUD's policy on deed restrictions); Pl.'s Mot., Ex. 29, ECF No. 68-31 (May 10, 2010 e-mail from Plaintiff's manager Art Linde to DHCD employee Anna Shapiro stating that “the covenant may be a barrier to purchaser mortgage financing . . . we will have to wait and see how the mortgage markets react”). After gaining experience implementing the IZ Program, the District revised the IZ Covenant in 2012 to change this feature. Pl.'s Stmt. ¶¶ 71, 75. Plaintiff also implicates in the delay selling the IZ Units Defendants' failure to timely create lists of eligible buyers, understaffing, and various other alleged “blunders” in the implementation of the IZ Program. At multiple times throughout this period, Plaintiff requested that DHCD release it from having to comply with the IZ Program, but DHCD declined to do so. Pl.'s Stmt. ¶¶ 60, 63, 76; see also, e.g., Defs.' Mot., Ex. 10, ECF No. 67-10.

         For their part, Defendants contend that Plaintiff's lack of cooperation with efforts to market and sell the property is to blame. Defendants argue that Plaintiff was more interested in using the failure of these units to sell as evidence in its battle to dismantle the IZ Program than in actually selling the units. As evidence, Defendants cite that Plaintiff refused to advertise the units at all, turned down at least one potential buyer, and at one point labelled the IZ Units as “sold” on its website. Defs.' Mot., Ex. 19, ECF No. 67-19 (2910 Georgia Ave. webpage listing units as sold in April 2013).

         Having carefully reviewed the evidence in the record, the Court concludes that both parties share some part of the blame for the time it took to sell Plaintiff's units. But who is more or less at fault for the delay is not dispositive of Plaintiff's constitutional claims at this stage. Far more important is the fact that during this period Plaintiff was able to, and did, make unrestricted and quite profitable use of the vast majority of Plaintiff's development. The twenty units not affected by the IZ regulations in Plaintiff's building were sold at market rates between $225, 000 and $404, 000, for a total of over $6 million. Pl.'s Stmt. ¶ 57; Defs.' Stmt. ¶ 61. This earned the investors in Plaintiff's condominium building a 20% return on their investments. Defs.' Stmt. ¶¶ 62, 63; Defs.' Mot., Ex. 25, ECF No. 67-25 (December 23, 2011 Letter from Art Linde to the investors in 2910 Georgia Ave).

         Plaintiff has now also sold its IZ Units. IZ Unit C-02 was sold on April 8, 2015 for $145, 200, although Plaintiff strenuously disputes whether the buyer, Ms. Ragini Patel, was in fact eligible to participate in the IZ Program. Pl.'s Stmt. ¶ 105; Defs.' Mot., Ex. 27, ECF No. 67-27 (Deed for Unit C-02). IZ Unit 2-02 was recently sold for $271, 200. Pl.'s Stmt. ¶ 130; Defs.' Stmt. ¶ 16; Defs.' Reply, Ex. 1, ECF No. 72-1 (Deed for Unit 2-02).

         D. Procedural History

         The parties' relationship predictably grew sour amid these extended efforts to sell Plaintiff's IZ Units, leading Plaintiff to file its first complaint in this case on December 13, 2012. Compl. for Monetary and Declaratory Relief, ECF No. 1. On February 11, 2013, Defendant District of Columbia moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Mot. to Dismiss Compl., ECF No. 12. The Court granted-in-part and denied-in-part Defendant's motion. See 2910 Georgia Ave. LLC v. D.C., 983 F.Supp.2d 127 (D.D.C. 2013). With respect to the Court's subject matter jurisdiction, the Court concluded that “Plaintiff's takings claim with respect to the set-aside requirement itself is not ripe, ” because Plaintiff had not sought relief from that requirement from the D.C. Board of Zoning Adjustments, and that it accordingly “lack[ed] subject matter jurisdiction over the Plaintiff's challenge to the IZ Program writ large.” Id. at 136. However, the Court concluded that it could still “consider the Plaintiff's challenge to the inclusionary zoning covenant restricting the sale of the units in question.”[4] Id. The Court also concluded that it had subject matter jurisdiction over Plaintiff's due process and equal protection claims. Id. at 134. Finally, the Court found that “Plaintiff has sufficiently alleged a total taking of its property.” Id.

         Discovery closed in this matter on May 7, 2015. However, on December 29, 2015, the Court granted Plaintiff's motions to reopen discovery and for leave to file an amended complaint. Mem. Op. & Order (Dec. 29, 2015), ECF No. 57. Plaintiff sought permission to engage in limited additional discovery regarding the sale of Unit C-02 to Ms. Patel, which had only recently occurred at that point, and sought to amend its complaint to add a procedural due process claim. Id. at 7. The Court granted the motion to amend, noting, among other things, that the new procedural due process claim was not futile for the reasons argued by Defendants. Id. at 17. The Court also granted the motion to reopen discovery because it found that “the facts newly discovered by Plaintiff shortly before the filing of Plaintiff's motion to reopen discovery raise questions regarding Ms. Patel's eligibility to purchase Unit C-02 and regarding the process by which the District approved Ms. Patel's application.” Id. at 12.

         Plaintiff's Amended Complaint was deemed filed as of December 29, 2015. Count I of the Amended Complaint alleges a claim under the Takings Clause of the Fifth Amendment pursuant to 42 U.S.C. § 1983. Amend. Compl. for Monetary and Declaratory Relief, ECF No. 58, ¶¶ 80-95. Count II alleges that the way in which the District implemented and administered the IZ Program violated Plaintiff's substantive due process and equal protection rights in violation of the Fifth Amendment. Id. ¶¶ 96-100. Count III alleges that the way in which the District implemented and administered the IZ Program violated Plaintiff's procedural due process rights in violation of the Fifth Amendment. Id. ¶¶ 101-07. Finally, Count IV seeks a declaratory judgment that the IZ Program is unconstitutional, that the Defendants, acting under color of state law, deprived the Plaintiff of rights guaranteed by the United States Constitution, and that the Plaintiff is entitled to compensation. Id. ¶¶ 108-11.

         After the filing of Plaintiff's Amended Complaint, the parties filed and briefed cross-motions for summary judgment. These motions are now ripe for resolution.

         II. LEGAL STANDARD

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

         In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record-including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence-in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, ” the district court may “consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e).

         When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court's task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).

         III. DISCUSSION

         At its core, this case is about Plaintiff's complaint that it “bore the brunt of the District's ‘growing pains' as it fumbled and bungled every aspect of the IZ Program's implementation.” Pl.'s Mot. at 4. This may be so, but the facts in the record are simply insufficient to establish the constitutional violations alleged. For the reasons discussed below, Plaintiff has not established (A) an unconstitutional taking, (B) a violation of the Equal Protection Clause, (C) a violation of Plaintiff's substantive due process rights, or (D) a violation of its procedural due process rights. Accordingly, Defendants are entitled to summary judgment on each of Plaintiff's claims.

         A. Plaintiff's Takings Claim

         “The Takings Clause of the Fifth Amendment prohibits the government from taking ‘private property . . . for public use, without just compensation.” Dist. Intown Properties Ltd. P'ship v. D.C., 198 F.3d 874, 878 (D.C. Cir. 1999) (quoting U.S. Const. amend. V). Two types of takings are prohibited by this clause: “takings without just compensation and takings for a private purpose.” Rumber v. D.C., 487 F.3d 941, 943 (D.C. Cir. 2007). Plaintiff alleges that both prohibited types of takings have occurred here.

         For the reasons set forth below, Defendants are entitled to summary judgment on Plaintiff's takings claim. The Court begins its analysis of this claim, as it must, by (1) determining the relevant parcel of property at issue. The Court concludes that the relevant parcel is the 22-unit condominium building for which Plaintiff sought a building permit from the District. The Court then (2) explains why the regulations at issue, which affected the use of only 8-10% of that building, did not constitute either a permanent or temporary regulatory taking. Next, the Court (3) explains why the various alternate takings frameworks that Plaintiff has suggested could apply to this case are inapposite. Finally, the Court (4) concludes that Plaintiff has not presented evidence necessary to establish an unconstitutional private taking.

         1. The Relevant Parcel of Property

         Before the Court can consider whether the regulations at issue constituted a taking of Plaintiff's property, the Court “must first define what constitutes the relevant parcel.” Dist. Intown, 198 F.3d at 879. Defendants contend that the relevant parcel in this case is “the 22-unit development as a whole” for which Plaintiff sought a building permit. Defs.' Mot. at 7. Plaintiff, on the other hand, contends that “the relevant parcels are the individual condominium units subject to the IZ Program and the IZ Covenant.” Pl.'s Opp'n at 10.

         The Court previously addressed this issue in its 2013 Memorandum Opinion on the District's Motion to Dismiss, wherein the Court noted that this constituted the “fundamental dispute between the parties.” 2910 Georgia Ave., 983 F.Supp.2d at 137. It remains a fundamental dispute between the parties now, and its resolution has profound implications for the legal sufficiency of Plaintiff's takings claim. See Dist. Intown, 198 F.3d at 879 (“[t]he definition of the relevant parcel profoundly influences the outcome of [the] takings analysis.”). As the Court stated in its earlier Opinion, “[u]ltimately the relevant ‘property' for purposes of this case is a fact-intensive inquiry.” 2910 Georgia Ave., 983 F.Supp.2d at 137. This fact-intensive inquiry includes consideration of at least the following factors: “the degree of contiguity, the dates of acquisition, the extent to which the parcel has been treated as a single unit, and the extent to which the restricted lots ...


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