Here’s the latest chapter in the Skyland Shopping Center saga that has given us Franco v. National Capital Revitalization Comm’n, 930 A.2d 160 (D.C. 2007) and several other reported opinions (DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011); Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. District of Columbia, 3 A.3d 300 (D.C. 2010); Rumber v. District of Columbia, No. 09-7035 (D.C. Cir. Feb. 26, 2010) (per curiam); and Oh v. National Capital Revitalization Corp., 7 A.3d 997 (D.C. 2010)).
The latest opinion from the D.C. Court of Appeals, Franco v. District of Columbia, No. 11-CV-734 (Mar. 15, 2012), is the appeal after remand of the 2007 Franco decision, which recognized that property owners may object to a taking on the grounds that the proffered public use is really a pretext hiding private benefit.
We reversed and remanded because the trial judge had not considered appellant’s specific factual allegations, which were misleadingly contained in the section entitled “counterclaims.” We instructed that the inquiry into whether or not a project was approved for pretextual reasons should focus on whether or not the project was designed to meet the purported public purpose, not on the subjective motivations of the legislature or officials involved in the project. Franco I, 930 A.2d at 173-74. Finally, we emphasized “that further proceedings, including discovery, should honor the ‘longstanding policy of deference to legislative judgments’ concerning the public purpose of a taking.”
Slip op. at 3. On remand, the trial court struck all of the property owner’s defenses, granted the District partial summary judgment, gave the District possession, and ordered the property owner to vacate.
The Court of Appeals first rejected the owner’s claim that the D.C. Council exceeded its authority in adopting the Skyland Act, the ordinance that allowed the taking, because the taking was not for a public purpose. The claim was couched as one of subject matter jurisdiction, but the court rejected the argument, holding that “[a]ppellants confuse subject-matter jurisdiction with the merits of the action.” Slip op. at 5. The court held that the Act did not exceed the Council’s authority.
The court also affirmed the trial court’s grant of summary judgment to the District:
First, we note that the District need only show that the D.C. Council approved the Skyland legislation for the purpose of economic development in order to defeat the allegation of pretext. Kelo, 545 U.S. at 483-84. Second, we reiterate the standard of deference to the legislative decision to which we are bound. Berman v. Parker, 348 U.S. 26, 33 (1954). In Franco I, we left open the possibility of a trial on the issue of pretext, but following the prolonged discovery period, appellants have not shown that there remains a triable case regarding the issue of pretext.
Slip op. at 8. The court noted the references in the record that the Council “could rationally have approved the legislation on the basis of economic development.” Id. “So, in this case, we defer to the D.C. Council’s determination, fully supported by the record, that the Skyland Shopping Center was sufficiently distressed to justify a program of economic development.” Id.
Citing Kelo, the court rejected the argument that the Council could not have believed that the redevelopment would be successful, because there is no requirement that the expected public benefits would actually come to pass. It is enough that the Council believed — or, more accurately, professed to believe — that the plan will work. The court also held that the taking was executed pursuant to a carefully considered development plan, and that some private benefit is not enough to invalidate the taking. This opinion elevates form over substance, and essentially makes the first Franco opinion a hollow promise: if a condemnor merely states that it is taking property for redevelopment, no amount of private benefit will overcome it. The court also conflates the public use inquiry with the question of pretext, which is predicated on the stated public use or purpose not being the actual reason for the taking.
Is this the last chapter in the case? We will keep watch in the event a cert petition is filed. Our thanks to colleague Elaine Mittleman for sending this opinion our way.
Franco v. D.C., No. 11-CV-734 (D.C. App. Mar. 15, 2012)