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Zere v. District of Columbia

Court of Appeals of The District of Columbia

June 6, 2019

Kebreab Zere, Appellant,
District of Columbia, Appellee.

          Submitted September 21, 2018

          Appeal from the Superior Court of the District of Columbia (CAB-772-16) (Hon. Brian F. Holeman, Trial Judge)

          Kebreab Zere, appellant pro se.

          Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Stacy L. Anderson, Acting Deputy Solicitor General, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief for appellee.

          Before Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge, and Nebeker, Senior Judge.


         Pro se appellant Kebreab Zere appeals the trial court's July 7, 2017, order granting appellee District of Columbia's motion for summary judgment and entering a declaratory judgment that the public has a prescriptive easement to traverse an alley between O and N Streets, NW, for which he is the property owner.[1] Mr. Zere argues that the trial court erred in granting summary judgment in favor of the District, and that the establishment of a prescriptive easement constitutes a de facto unconstitutional taking of property without just compensation. We affirm.


         Mr. Zere purchased five of the six lots forming the alley between the row houses located in the 3200 block of O Street, N.W. and the 3200 block of N Street, N.W. from tax sales. Mr. Zere acquired title to each of the lots in separate tax-sale foreclosure actions between 2006 and 2011. Mr. Zere appears to be an experienced tax-lien purchaser.[2] Subsequently, he attempted to erect a fence to block the alley, and combine the five lots into one. However, the Historic Preservation Review Board denied Mr. Zere's proposed consolidation of the five lots.

         In response to Mr. Zere's attempt to block the alley, the District of Columbia filed a complaint for declaratory judgment and injunctive relief against Mr. Zere to prevent his interference with the public's right to traverse the alley. The District subsequently filed a motion for summary judgment alleging that the lots owned by Mr. Zere were encumbered by a public prescriptive easement, and that Mr. Zere took title to the lots subject to that easement. The District argued that members of the public had traversed the alley for many years, that this use was open, notorious, adverse, and continuous for over fifteen years, from 1980 to 1995, and, thus, a public prescriptive easement had been established by 1995. The District further asserted that, although the alley was privately owned, the District had long recognized its public use, which was evidenced, in part, by the District of Columbia Department of Transportation's ("DDOT") maintenance of the street light in the alley and pavement of the alley in 2003. The District further alleged that the easement over the alley was perfected by 1995, before Mr. Zere acquired title, and that the District's request for declaratory judgment was not a new acquisition that would constitute a taking or require compensation.

         As part of its motion for summary judgment, the District filed a statement of undisputed material facts, pursuant to Super. Ct. Civ. R. 12-I(k), which was supported by declarations from three individuals who lived in townhouses abutting the alley - John Queenan, Gerald Turner, and Mary Carter. Taken together, the three declarations asserted that, from 1980 to at least 1995, the residents used the alley daily without asking permission. The declarants also observed members of the public using the alley on a daily basis for a number of purposes without asking for permission. Moreover, the declarants assert that the public's usage of the alley is visible to anyone who lives adjacent to it, or who has passed by it in recent years.

         Mr. Zere did not file a statement of disputed material facts pursuant to Rule 12-I(k) in response to the District's motion for summary judgment. As a result, the trial court was entitled to assume that the facts set forth in the District's statement of undisputed material facts were admitted without controversy. See Jane W. v. President & Dirs. of Georgetown Coll., 863 A.2d 821, 826 (D.C. 2004). In his subsequent opposition to the summary judgment motion, Mr. Zere made the following arguments: (1) there were no records maintained by DDOT to support a public prescriptive easement, and DDOT only repaved the alley once in 2003; (2) the easement does not meet the adversity element of a prescriptive easement because the trespassing is permissive; and (3) any prescriptive easement was extinguished by the tax-sale foreclosure. Mr. Zere further argued in his opposition that, under the Takings Clause of the Fifth Amendment, he should be compensated for the value of the lots.

         The trial court granted summary judgment in favor of the District. The trial court held that there was no material disputed issue of fact that the public had traversed the alley openly, notoriously, continuously, and adversely in excess of the fifteen-year statutory period to establish a public easement by prescription. The trial court also held that pursuant to D.C. Code § 47-1382(a)(3) (2012 Repl.), the alley was conveyed to Mr. Zere subject to a public easement observable by an inspection of the property. The trial court explained that the alley was ...

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