234 F. Supp. 3d 281
D.D.C.2017Background
- 2910 Georgia Avenue LLC bought a vacant lot in November 2009 and planned a single 22‑unit condominium project; the District’s Inclusionary Zoning (IZ) rules were effective August 14, 2009.
- IZ required 8–10% of gross floor area in qualifying new developments be reserved as affordable units by covenant recorded before permit issuance.
- Plaintiff applied for a building permit in December 2009; initial zoning approval (without IZ) was mistakenly communicated then corrected in April 2010 to require IZ compliance.
- Plaintiff executed an IZ Covenant reserving 2 of 22 units, built the project, sold the 20 unrestricted units for substantial profit (~20% return), and later sold the two IZ units at below‑market prices after delays.
- Plaintiff sued claiming (1) Fifth Amendment takings (including private‑purpose taking), (2) equal protection (class‑of‑one), (3) substantive due process, and (4) procedural due process arising from alleged implementation errors and a possibly ineligible buyer for one IZ unit.
- The district court granted defendants’ summary judgment on all claims, finding no constitutional violation despite implementation mistakes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IZ application and covenant constituted a Fifth Amendment regulatory taking | IZ burdened the units (and/or bonus density) so severely that it destroyed economic use or amounted to a taking as‑applied; alternatively, private purpose because an ineligible buyer received an IZ unit | IZ applied to the entire 22‑unit project; only 2 units (8–10%) were restricted, project remained profitable, and the program served a public purpose; no evidence the government acted for a private purpose | No taking. Relevant parcel = whole 22‑unit development; economic impact, expectations, and character (Penn Central factors) weigh against a taking; private‑purpose claim unsupported. |
| Whether plaintiff states an equal protection (class‑of‑one) claim | Plaintiff was singled out (e.g., first project subject to IZ, unable to use bonus density, carried IZ units longer, sale to allegedly ineligible buyer) | IZ was applied uniformly; plaintiff points to no similarly situated developer treated differently | Dismissed. No disparate treatment shown; complaints about outcomes or implementation do not demonstrate class‑of‑one. |
| Whether defendants’ IZ admin violated substantive due process (as‑applied) | Implementation errors, misapplication, and alleged intentional or gross misconduct shocked the conscience | Errors were at most negligence, confusion, or mistakes; no evidence of animus or deliberate flouting of law | Dismissed. Conduct falls short of the "shocks the conscience" standard; rational basis review for the generally applicable IZ program is satisfied. |
| Whether plaintiff was deprived of property without adequate process (procedural due process) | Plaintiff lost property interests (profit, zoning expectations, bonus density) without adequate process due to abrupt or faulty implementation | IZ was enacted by notice‑and‑comment rulemaking; remedies and appeal procedures existed; no cognizable property interest was taken without process | Dismissed. Legislative‑type rulemaking satisfied process; no protected property interest was stripped without adequate procedure. |
Key Cases Cited
- Dist. Intown Props. Ltd. P’ship v. D.C., 198 F.3d 874 (D.C. Cir. 1999) (factors for defining the relevant parcel in takings analysis)
- Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104 (1978) (ad hoc takings test: economic impact, investment‑backed expectations, character of government action)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (categorical taking where all economically beneficial use is eliminated)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupation is a categorical taking)
- Tahoe‑Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002) (rejects circular parcel‑definition; temporary regulatory takings analyzed under Penn Central framework)
- Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015) (government appropriation of personal property can be a per se taking)
- Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987) (exactions must have nexus to permit condition)
- Dolan v. City of Tigard, 512 U.S. 374 (1994) (exactions require rough proportionality)
- Kelo v. City of New London, 545 U.S. 469 (2005) (public‑use/public‑purpose inquiry; courts defer to legislature’s public purpose determination)
- First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987) (temporary takings should be analyzed under same framework as permanent takings)