United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY.UNITED STATES DISTRICT JUDGE.
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"),  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'  Renewed Motion for Summary Judgment and
Plaintiffs  Motion for Summary Judgment.
consideration of the pleadings,  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
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.
The Basics of the District of Columbia IZ Program
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. 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”).
The History of the IZ Program Rulemaking
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.
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.”
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.
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
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.
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.
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.
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
Plaintiff's Experience with the IZ Program
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.
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.
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.
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.
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.
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.
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).
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).
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).
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.” 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.”
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.
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.
the filing of Plaintiff's Amended Complaint, the parties
filed and briefed cross-motions for summary judgment. These
motions are now ripe for resolution.
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.
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).
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).
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 Takings Claim
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.
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.
The Relevant Parcel of Property
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.
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 ...