Real Estate & Property Law

D.C. Circuit To Consider Challenge To Use Of Eminent Domain To Replace "Lowbrow" Shopping Center With "Gentrified Shopping Experience"

By Robert Thomas (inversecondemnation.com)

On October 16, 2009, the U.S. Court of Appeals for the D.C. Circuit will hear arguments in Rumber v. District of Columbia, No. 09-7035, an appeal challenging an attempt to take property by the District of Columbia and the National Capital Revitalization Corporation. Note: in 2007, the District abolished the NRDC, and the District substituted as the plaintiff in the eminent domain cases in the D.C. Superior Court.

The case arose from the attempt to condemn the Skyland Shopping Center, which is alleged to be a "blighting factor" to the surrounding area, and redevelop the property. The Washington Post reported on the situation here:

A powerful group of affluent Hillcrest residents has succeeded in getting the city to declare eminent domain at Skyland -- a controversial move seen in no other commercial land deal in the District except the new baseball stadium. Skyland will be demolished, under the plan, and a higher-quality shopping center built in its place. Target may be its anchor. There could even be a white-tablecloth restaurant.

The Hillcrest activists say they are sick and tired of Skyland's downtrodden look, its lack of what they call quality products, its old discount stores and liquor stores and sidewalk vendors and assorted illegal or undesirable activity. The folks of Hillcrest say both they and the broader community, prosperous and poor alike, deserve far better.

The case has already resulted in one reported decision in which the court of appeal reversed the district court's holding that the plaintiffs' public use challenge was subject to Williamson County's ripeness requirements. See Rumber v. District of Columbia, 487 F.2d 941 (D.C. Cir. 2007), a case we discussed here.The facts also gave rise to Franco v. Nat'l Capital Revitalization Corp., 930 A.2d 160 (D.C. 2007), a decision which established standards for how to plead and prove a claim for pretext. We detailed Franco here.

On remand, the district court dismissed the complaint and granted the defendants' motions for summary judgment because the taking was for a valid public purpose. The district court based its conclusion on several factors. First, the city council issued "specific conclusions" about the shopping center and the surrounding area, noting the area has lagged behind other areas in economic development, and the shopping center is "poorly maintained." Second, the public testimony before the council was in support of the taking. See Rumber v. District of Columbia, 598 F. Supp. 2d 97 (D.D.C. 2009). The district court's opinion is available here.

On appeal, the property owners assert, among other points, that the district court failed to consider their claims that the asserted public purpose for the taking was pretextual. The district court converted the District's motion to dismiss as one for summary judgment, but did not provide the plaintiffs an opportunity to submit evidence of pretext. The property owners assert that when there are substantial allegations that a taking is pretextual, a trial court has an obligation to review the evidence on a case-by-case basis and cannot simply take the government's word. Opening Brief at 33-36 (citing Kelo v. City of New London, 545 U.S. 469 (2005), and County of Hawaii v. C&J Coupe Family Ltd. P'ship, 198 P.3d 616 (Haw. 2008)). The brief argues that the Skyland redevelopment was not part of a comprehensive plan, and given the present economy, will not likely succeed in its revitalization goals.

The District's Answering Brief first reiterates the Berman-Midkiff deference standards (pp. 29-33), then repeats the District's proffered public purposes for the Skyland taking, reduction of blight and crime and economic redevelopment (pp. 33-38). The brief asserts these public purposes are "substantial," and that alone defeats any claim of pretext. Brief at 38. Next, the brief argues the circumstances of the District's decision to take show its "declared public purposes were its actual public purposes." Id. at 38-43.

Here are the briefs of the parties:

• Property owners' Opening Brief

• District of Columbia's Answering Brief

• Property owners' Reply Brief

We'll have more after the Court of Appeals issues its decision.

Full post as published by inversecondemnation on September 26, 2009 (boomark / email).