George Washington University v. District of Columbia

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2002 Decided February 4, 2003
No. 02–7055
& No. 02–7060
GEORGE WASHINGTON UNIVERSITY,
A FEDERALLY CHARTERED UNIVERSITY,
APPELLEE/CROSS–APPELLANT
v.
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,
APPELLANTS/CROSS–APPELLEES
Appeals from the United States District Court
for the District of Columbia
(No. 01cv00895)
Lutz Alexander Prager, Assistant Deputy Corporation
Counsel, argued the cause for appellants/cross-appellees.
With him on the briefs were Charles L. Reischel, Deputy
Corporation Counsel, and Donna M. Murasky, Assistant
Corporation Counsel.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Deborah B. Baum argued the cause for appellee/cross-
appellant. With her on the briefs were David J. Cynamon
and J. Thomas Lenhart.
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
Concurring opinion filed by Circuit Judge HENDERSON.
WILLIAMS, Senior Circuit Judge: This case is the most
recent stage of a long-running land-use dispute between
George Washington University (‘‘GW’’ or ‘‘the university’’)
and the District of Columbia’s Board of Zoning Adjustment
(the ‘‘Board’’ or the ‘‘BZA’’). GW’s campus is bounded on the
west and north by the District’s Foggy Bottom and West End
neighborhoods (here referred to collectively as ‘‘Foggy Bot-
tom’’), and the BZA has been concerned about protecting
their residential character and ‘‘stability.’’ In an order ap-
proving the university’s long-term campus improvement plan
(the ‘‘BZA Order’’ or the ‘‘Order’’) the BZA imposed condi-
tions aimed at limiting, and even rolling back, encroachment
into Foggy Bottom by the university—or, more precisely, its
students. The district court upheld some of the conditions,
but also found some to be unconstitutional denials of substan-
tive due process. Both sides appealed; we find no constitu-
tional violation.
* * *
The District’s zoning scheme for universities, promulgated
by the Zoning Commission pursuant to the authority granted
by D.C. Code § 6–641 and codified at 11 District of Columbia
Municipal Regulations (‘‘DCMR’’) §§ 210, 302.2 & 507, per-
mits university use as a matter of right in areas zoned for
high-density commercial use. For land zoned residential or
‘‘special purpose,’’ it permits university use as a special
exception. GW’s land evidently includes high-density com-
mercial, special purpose, and residential portions. In the
areas where university use is by special exception, the owner
3
must secure permission for specific university projects in a
two-stage application process. In the first stage, the univer-
sity submits a ‘‘campus plan’’ that describes its general
intentions for new land use over a substantial period (GW’s
preceding plan was for 15 years). On approval by the
Board—an approval that can be subject to a set of conditions
designed to minimize the impact of the proposed develop-
ment—the campus plan ‘‘establish[es] distinct limitations
within which all future construction must occur.’’ Levy v.
D.C. Bd. of Zoning Adjustment, 570 A.2d 739, 748 (D.C.
1990). In the second stage, the BZA reviews individual
projects that the university proposes to undertake, evaluating
them both for consistency with the campus plan and the
zoning regulations. See Draude v. D.C. Bd. of Zoning Ad-
justment, 527 A.2d 1242, 1247–48 (D.C. 1987).
In both stages, the BZA has substantial, but not unbound-
ed, discretion to reject or approve the university’s application.
It is instructed to make sure that any university use is
located so that it is ‘‘not likely to become objectionable to
neighboring property because of noise, traffic, number of
students or other objectionable conditions.’’ 11 DCMR
§ 210.2. When reviewing a special exception application for a
university, the BZA is also to consider the policies of the so-
called ‘‘District Elements of the [Comprehensive] Plan,’’ id.
§ 210.7, a planning document setting out development policies
for the District, 10 DCMR § 112.6(b). If the application
meets these criteria—that is to say, the proposed use is
consistent with the Comprehensive Plan and is not likely to
become objectionable to users of neighboring property—the
Board ‘‘ordinarily must grant [the] application.’’ Stewart v.
D.C. Bd. of Zoning Adjustment, 305 A.2d 516, 518 (D.C.
1973).
In late 1999 the university submitted a campus plan for the
years 2000–10, reflecting its intentions to expand. Although
BZA’s concern over the university’s effects on Foggy Bottom
had been expressed in review of its 1985 plan, the sharp
expansion of its enrollment in the 1990s made the issue more
acute. Relying in part on submissions of the District’s Office
of Planning, the BZA found that the university’s past acquisi-
tion of buildings in Foggy Bottom (and their subsequent
4
conversion into dormitories or student apartments), as well as
undergraduates’ informal off-campus housing, threatened the
‘‘livability and residential character’’ of the Foggy Bottom
neighborhood. As a result, it conditioned its approval of the
2000 Campus Plan on a series of measures designed to limit
the presence of undergraduates; these measures included
provisions requiring the university to house its freshmen and
sophomores on campus and to provide on-campus housing for
at least 70% of its students, and imposing an enrollment cap
tied to the university’s supply of on-campus housing.
The university challenged the BZA action in federal district
court in 2001, and won a preliminary injunction against
enforcement of parts of the BZA order. George Washington
University v. District of Columbia, 148 F. Supp. 2d 15(D.D.C. 2001). But the court conditioned enforcement of the
injunction on GW’s pursuit of the same relief before the
District of Columbia Court of Appeals, id. at 19, which in turn
remanded the order to the BZA for revision. The BZA then
eliminated the enrollment cap but required the university to
provide housing on campus or outside of Foggy Bottom for
70% of its approximately 8000 undergraduates, plus one non-
Foggy Bottom bed for every fulltime undergraduate student
over 8000. The new Order issued on January 23, 2002, and
GW promptly renewed its court challenge. The district court
found that several conditions of the BZA Order, including the
new housing requirements, violated the university’s right to
substantive due process, but rejected its claims that the
zoning regulations were facially unconstitutional and that the
District’s actions infringed on its First Amendment rights.
George Washington University v. District of Columbia, Civil
Action No. 01–0895 (D.D.C. Apr. 12, 2002). Both sides ap-
pealed. We reverse in part, finding no constitutional infirmi-
ties.
* * *
The university’s primary challenges sound in substantive
due process. Although that doctrine normally imposes only
very slight burdens on the government to justify its actions, it
5
imposes none at all in the absence of a liberty or property
interest. See, e.g., Bd. of Regents v. Roth, 408 U.S. 564, 569–
70 (1972).
In the land-use context courts have taken (at least) two
different approaches for determining the existence of a prop-
erty interest for substantive due process purposes. In De-
Blasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 601 (3d. Cir.
1995), the Third Circuit held that an ownership interest in the
land qualifies. Other circuits, including the Second, Fourth,
Eighth, Tenth and Eleventh Circuits, have focused on the
structure of the land-use regulatory process, pursuing a ‘‘new
property’’ inquiry, cf. Charles Reich, ‘‘The New Property,’’ 73
YALE L. J. 733 (1964), and looking to the degree of discretion
to be exercised by state officials in granting or withholding
the relevant permission. See RRI Realty Corp. v. Village of
Southampton, 870 F.2d 911, 917 (2d Cir. 1989); Gardner v.
Baltimore, 969 F.2d 63, 68 (4th Cir. 1992); Bituminous
Materials v. Rice County, 126 F.3d 1068, 1070 (8th Cir. 1997);
Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d
1111 (10th Cir. 1991); Spence v. Zimmerman, 873 F.2d 256,
258 (11th Cir. 1989). GW urges us to adopt the Third
Circuit’s approach but also contends that it has a ‘‘new
property.’’ Because we agree on the latter point, we need not
decide whether the Third Circuit’s approach is sound or
exactly how it would apply.
The majority approach may seem at odds with ordinary
language, in which we would say, for example, that a particu-
lar piece of land in Washington is ‘‘the property’’ of GW. But
an all-encompassing land use regulatory system may have
either replaced that ‘‘property’’ with a ‘‘new property’’ (or
with several, one for each authorized class of use), or conceiv-
ably have replaced it with less than a new property (thereby,
one would suppose, effecting a taking).
Within the majority there is considerable variety in the
courts’ formulae for how severely official discretion must be
constrained to establish a new property. The Second Circuit
apparently will not find one if the authority has any discretion
to deny approval of the proposed land use. See Natale v.
6
Town of Ridgefield, 170 F.3d 258, 263 (2nd Cir. 1999). The
Eighth Circuit, in contrast, inquires whether the ‘‘statute or
regulation places substantial limits on the government’s exer-
cise of its licensing discretion,’’ Bituminous Materials v. Rice
County, 126 F.3d 1068, 1070 (8th Cir. 1997); see also Little-
field v. Afton, 785 F.2d 596, 602 (8th Cir. 1986) (asking
whether ‘‘the City’s decision making power is significantly
and substantially restricted’’), finding a property interest if
the agency is so constrained. In our view, the Eighth
Circuit’s analysis is more in line with analogous Supreme
Court precedent and the precedent of this circuit. See, e.g.,
Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454,
463 (finding discretion to be constrained by ‘‘substantive
predicates’’, such as an instruction that prison visitation may
be denied when ‘‘the visitor’s presence TTT would constitute a
clear and probable danger’’); Olim v. Wakinekona, 461 U.S.
238, 249 (inquiring as to whether there exist ‘‘substantive
limitations on official discretion’’); Washington Legal Clinic
v. Barry, 107 F.3d 32, 36 (D.C. Cir. 1997) (applying Olim).
In practice, the fact patterns of new property cases in the
land use arena seem to divide into two sets, one set involving
virtually unlimited discretion, the other rather absolute enti-
tlement. In Bituminous Materials, for instance, the regula-
tion in question specified that the agency ‘‘may’’ grant the
permit, without setting out any substantive standards to
follow. 126 F.3d at 1070. Similar substance-less directives
form the basis for the regulations at issue in Gardner v.
Baltimore, 969 F.2d at 70 (noting that the regulations were
‘‘silent as to the substantive criteria used by the Commission
to evaluate the sufficiency of those plans’’); Jacobs, 927 F.2d
at 1111 (noting that the board’s discretion was limited only by
a general ‘‘reasonableness’’ requirement, not a substantive
standard); and Spence v. Zimmerman, 873 F.2d at 258(finding no property interest in a certificate that ‘‘may be
issued for a portion of or portions of a building which may be
safely occupied’’ but with no mandate for issuance even then).
On the other side, for example, Walz v. Town of Smithtown,
46 F.3d 162, 168 (2d Cir. 1995), handily found a property
interest when the highway superintendent was to issue a
7
permit for street excavation to a public utility so long as its
application stated ‘‘the nature, location, extent and purpose’’
of the excavation, and gave adequate undertakings that it
would restore the street to its original condition. See also
Scott v. Greenville County, 716 F.2d 1409, 1418 (4th Cir. 1983)
(finding a property interest when permit must issue upon
‘‘presentation of an application and plans showing a use
expressly permitted under the then-current zoning ordi-
nance’’).
The university’s expectations for a ‘‘special exception’’ fall
between these poles, but we think closer to establishing, as
Bituminous Materials said, ‘‘substantial limits on the govern-
ment’s exercise of its licensing discretion.’’ Here, for a
residential or special purpose parcel, university use ‘‘shall be
permitted as a special exception’’ if the criteria for the
exception are met. 11 DCMR § 210.1. Moreover, the Dis-
trict of Columbia courts have interpreted this provision to
mean what it says—namely, that special exceptions must be
issued as a matter of right if the qualifying criteria are met.
‘‘The Board’s discretion TTT is limited to a determination
whether the exception sought meets the requirements of the
regulationTTTT [If so,] the Board ordinarily must grant [the]
application.’’ Stewart v. D.C. Bd. of Zoning Adjustment, 305
A.2d 516, 518 (D.C. 1973); see also Gladden v. D.C. Bd. of
Zoning Adjustment, 659 A.2d 249, 255 (D.C. 1995).
Of course, some of these qualifying criteria are by no
means self-defining. In particular, 11 DCMR § 210.2 says
that university use shall be located so that it is ‘‘not likely to
become objectionable to neighboring property.’’ But combin-
ing this provision with 11 DCMR § 210.1 (see above), it
seems inescapable that the BZA can deny the university a
special exception only by an explicit finding that the proposed
use is likely to become ‘‘objectionable’’—a term that we think
clearly places ‘‘substantive limitations on official discretion.’’
Although 11 DCMR § 210.2 speaks of uses ‘‘objectionable to
neighboring property because of noise, traffic, number of
students or other objectionable conditions,’’ plainly the final
wrap-up clause does not invite the BZA members to apply
their own personal tastes; they must rest the ‘‘objection[s]’’
8
either on the criteria specified in § 210.2 or otherwise made
relevant by the Code, regulations, the Comprehensive Plan or
other pertinent legal provisions.
In addition, the BZA’s conduct and procedures indicate that
it interprets the regulations as imposing substantive limits on
its discretion. For instance, its Order of March 29, 2001
started with a series of detailed ‘‘findings of fact’’ establishing
for the record the objective conditions created by the univer-
sity’s property use. See Joint Appendix (‘‘J.A.’’)1 191–99. It
states that it is ‘‘authorized to grant a special exception
where, in the judgment of the Board based on a showing of
substantial evidence, the special exception TTT will not tend
to affect adversely the use of neighboring property.’’ Id. at
199 (emphasis added). Although of course a local law man-
date of minimum procedures cannot generate an entitlement,
Hewitt v. Helms, 459 U.S. 460, 471–72 (1983); Cleveland Bd.
of Education v. Loudermill, 470 U.S. 532, 541 (1985), the
District’s provision of fairly formal procedures supports our
reading of the regulations as imposing ‘‘substantial limits on
the [Board’s] exercise of its licensing discretion.’’ Bitumi-
nous Materials, 126 F.3d at 1070.
Once a property interest is found, however, the doctrine of
substantive due process constrains only egregious govern-
ment misconduct. We have described the doctrine as pre-
venting only ‘‘grave unfairness,’’ Silverman v. Barry, 845
F.2d 1072, 1080 (D.C. Cir. 1988), and identified two ways in
which such unfairness might be shown: ‘‘Only [1] a substan-
tial infringement of state law prompted by personal or group
animus, or [2] a deliberate flouting of the law that trammels
significant personal or property rights, qualifies for relief
under § 1983.’’ Id. See also Tri County Industries v.
District of Columbia, 104 F.3d 455, 459–60 (D.C. Cir 1997);
Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461,
465–67 (7th Cir. 1988) (noting the ‘‘uncanalized discretion’’
inherent in substantive due process review and thus, given
1 We note with dismay that the Joint Appendix, though only
400 pages long, is broken into five separate volumes, evidently to
attain maximum achievable inconvenience.
9
the otherwise resulting federal judicial intrusions on state and
legislative authority, the need to limit its role to extreme
cases).
In attacking the conditions, the university makes a stab at
the ‘‘group animus’’ angle suggested in Silverman, saying
that the BZA Order reflects the hostility of the Foggy
Bottom residents to students. As Foggy Bottom is a residen-
tial area, and apartments occupied by students are indisput-
ably a residential use, it seems inescapable that the District is
drawing a distinction based on student status. But just what
sort of ‘‘group animus’’ the Silverman court had in mind is
unclear. An equal protection violation would of course be
independently unlawful, and the university does not make a
serious analytical case for the proposition that students
should be viewed as a ‘‘suspect class’’ for equal protection
purposes. On the other hand, creation of a sort of shadow
equal protection doctrine in the name of ‘‘substantive due
process’’ seems just the sort of error against which we and
others have cautioned. See Tri County Industries, 104 F.3d
at 459 (cautioning against the use of substantive due process
to address constitutional challenges directly governed by an
explicit constitutional provision).
In any event, even assuming the legitimacy of any such
shadow doctrine, the university offers us neither a ‘‘Brandeis
brief’’ nor any other basis for even doubting the implicit basis
for the Board’s distinction of students from others—namely,
that on average they pose a risk of behavior different from
that generally preferred by non-student residents and legally
relevant. Instead GW invokes District law to show the
impropriety of such a distinction, pointing to provisions such
as D.C. Code § 2–1402.21, which bars discrimination ‘‘based
on TTT matriculation’’ for certain types of real estate transac-
tions, and id. § 2–1401.01, saying that it ‘‘is the intent of the
Council of the District of Columbia TTT to secure an end in
the District of Columbia to discrimination TTT by reason of
TTT matriculation.’’ It also notes the District of Columbia
Court of Appeals’ observation that ‘‘a university—even a law
school—is not to be presumed, for the purposes of the Zoning
Regulations, to be the land use equivalent of the bubonic
10
plague.’’ Glenbrook Rd. Ass’n v. D.C. Bd. of Zoning Adjust-
ment, 605 A.2d 22, 32 (D.C. 1992). But even if GW reads
District law correctly, a breach of local law does not of itself
violate substantive due process. Tri County Industries, 104
F.3d at 459. Accordingly, we think the university falls short
in its effort to show a deprivation of substantive due process
by reference to ‘‘group animus.’’
Perhaps implicitly pointing to a ‘‘deliberate flouting of the
law that trammels significant TTT property rights,’’ GW also
complains of what the District now calls the ‘‘transitional
housing plan,’’ Conditions 9(a)-(c) of the Order, which the
district court found unconstitutional. These require the uni-
versity to provide its undergraduates, no later than August
31, 2002, with a total of approximately 5600 beds (correspond-
ing to 70% of the approximately 8000 undergraduates) located
either on campus or off campus but outside the Foggy
Bottom area. After August 31, 2006, the 5600 beds must be
located entirely on campus. The parties agree that this
requirement will force the university to acquire temporary
accommodations for about 1400 students in off-campus, non-
Foggy Bottom locations—accommodations that might be not
only expensive (though the university has offered no data on
just how large an expense) but less desirable for students
than the university housing already available to students in
Foggy Bottom.
GW spins these conditions as generating a completely
irrational expense. It says that they in effect render ‘‘dupli-
cative’’ the university’s current student housing in Foggy
Bottom, which is (concededly) in full conformity to the resi-
dential zoning there. But in reality nothing in the transition-
al housing plan forces the university to give up its Foggy
Bottom dorms or prevents it from continuing to house stu-
dents there. If it chooses, it can continue supplying that
housing in addition to the 5600 beds required by Conditions
9(a)-(c). If it chose that option, it would be providing housing
to approximately 85% of its undergraduate students, a per-
centage that is hardly extraordinary for modern urban Amer-
ican universities; Harvard University, for instance, houses
98% of its undergraduates on campus, and Columbia Univer-
11
sity about 90%.2 Of course, the university might choose
instead to sell its Foggy Bottom properties or convert them
to another use. But the fact that it might do so doesn’t
render the District’s regulation an improper encroachment on
its by-right use of its Foggy Bottom properties.
Nor is there any irrationality in the District’s policy. Given
the District’s concern that an excess of students in the Foggy
Bottom area is negatively affecting the character of the
neighborhood, it cannot be irrational for the District to adopt
rules likely to limit or reduce the number of students in the
area. That seems to be the effect of the BZA Order: it
guarantees that, of the approximately 8000 undergraduates,
at least 5600 (70%) of them will be provided housing outside
of Foggy Bottom; and since about 1250 students are commut-
ers, married, disabled or for some other reason are not
considered by GW to be ‘‘well suited for dormitory life’’, this
leaves only about 1150 traditional undergraduates living in
Foggy Bottom, whether their residence was in the university
dorms or in private apartments. Obviously the university’s
alternative proposal—to count the Foggy Bottom properties
towards the 70% requirement—would not as effectively limit
the student presence in Foggy Bottom.
The district court also found a violation in certain provi-
sions that the District characterizes as enforcement and
severability mechanisms. Condition 9(e) prohibits the issu-
ance of any new ‘‘permit to construct or occupy buildings for
nonresidential use on campus’’ whenever ‘‘a semiannual re-
port reveals that [GW] is not in compliance’’ with the condi-
tions of the Order. The university claims that this condition
is purely punitive, as it lacks any relationship to the District’s
goal of protecting the neighborhood. After all, it says, pro-
2 See, e.g.,
http://www.college.harvard.edu/student/residential life (noting that
all but 200 of the approximately 17,000 Harvard undergraduates
live in university-provided housing);
http://www.studentaffairs.columbia.edu/admissions/aboutcolumbia/ca
mpus/ (noting that 90% of Columbia undergraduates live in univer-
sity residence halls).
12
hibiting the construction of non-residential buildings will not
cause the new dormitories currently under construction to be
completed more rapidly. But Condition 9(e) clearly serves
two functions that advance the District’s goals. First, it
strengthens the university’s incentive to comply with the
housing provisions. Second, even though the new non-
housing construction that Condition 9(e) holds hostage may
not relate directly to new housing demands (e.g., new labs
replacing old ones do not necessarily meet needs generated
by increased students), the condition as a general matter
keeps housing and non-housing growth proceeding in parallel.
The district court also found a constitutional flaw in Condi-
tion 10, which requires freshmen and sophomores to live on
campus ‘‘to the extent such housing is available.’’ But as the
District notes, it was the university that originally proposed
this measure as an element of its campus plan. Normally, a
party cannot attack its own proposed agency action, see, e.g.,
St. Anthony Hosp. v. United States Dep’t of HHS, 309 F.3d
680, 696 (10th Cir. 2002), Johnson v. INS, 971 F.2d 340, 344
(9th Cir. 1992), although presumably that concept would not
apply where the proposal was closely tied to some other
proposed action that the agency rejected. Here, there is no
evidence of such close ties to any other specific condition not
granted to the university. And, even apart from the universi-
ty’s self-contradiction, the condition seems readily to meet the
latitudinarian standards of substantive due process. A city
might reasonably consider the youngest college students to be
the ones most likely to disturb residents in the surrounding
communities, as well as most likely to need whatever shreds
of parietal rules may subsist on campus.
Finally, the district court rejected Condition 9(f), which
provides that the other provisions of Condition 9 are ‘‘inte-
gral, non-severable aspect[s] of the Board’s approval of this
application. If any [provision] TTT is declared void for any
reason TTT no application for a special exception will be
processed and no permit to construct or occupy buildings TTT
may be issued.’’ The university characterizes this provision
as an unconstitutional incursion into the province of the
judiciary, because it punishes the university for exercising its
13
legal right to challenge invalid provisions. Under our conclu-
sion here that no other provisions of the Order are void,
however, we see no need to address a condition that would
take effect only on the opposite contingency.
On its cross-appeal the university claims that the BZA
Order infringed its First Amendment rights to academic
freedom. It did this, in the university’s view, by constraining
its determinations of where to build dormitories, how much
campus space to devote to dormitories and how many stu-
dents to admit. In support it points to Justice Frankfurter’s
concurrence in Sweezy v. New Hampshire, 354 U.S. 234(1957), saying that a university has the right to ‘‘determine
for itself on academic grounds who may teach, what may be
taught, how it shall be taught and who may be admitted to
study.’’ Id. at 263. But the university cites no case giving
universities any special status vis-`-vis neutral, generally
a
applicable zoning and land-use regulations of the standard
externality-constraining type. Thus our case is wholly differ-
ent from, for example, Keyishian v. Bd. of Regents, 385 U.S.
589, 603, 611 (1967), which found unconstitutional vagueness
in a statute requiring removal of state university faculty
members for ‘‘treasonous or seditious’’ utterances or acts,
noting the university’s place in the ‘‘marketplace of ideas.’’
By contrast, the BZA Order merely requires the university to
house its students in a way that is compatible with the
preservation of surrounding neighborhoods.
The university also argues that the District’s zoning regula-
tions are facially unconstitutional under the equal protection
clause of the Fourteenth Amendment because their require-
ment of two stages of approval imposes burdens on university
landowners not imposed on similarly situated non-university
actors. But GW acknowledges that universities do not consti-
tute a protected class and so the legislation need only ‘‘classi-
fy the persons it affects in a manner rationally related to
legitimate governmental objectives.’’ Schweiker v. Wilson,
450 U.S. 221, 230 (1981). As universities are larger, make
more intensive use of their land, and have greater spillover
effects on neighboring communities than most other landown-
14
ers, however, the District’s legislative classifications meet this
criterion.
Accordingly, the decision of the district court is reversed in
so far as it found constitutional violations in the BZA Order
and is otherwise affirmed.
So ordered.
1
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
Although I concur in the judgment in this case, I believe
the majority erroneously recognizes a constitutionally protect-
ed property interest where there is none. In doing so, the
majority chooses not to embrace firmly, as I would, the
substantial authority that employs the claim to entitlement
approach, see, e.g., Bituminous Materials v. Rice County, 126
F.3d 1068, 1070 (8th Cir. 1997); Gardner v. Baltimore, 969
F.2d 63, 68 (4th Cir. 1992); RRI Realty Corp. v. Village of
Southampton, 870 F.2d 911, 917 (2d Cir. 1989); Maj. Op. at 5,
as the proper analytical method to determine if a constitution-
ally protected property interest exists in the land-use context.
The majority instead simply recognizes that two (at least)
approaches exist to answer the question, concluding that
under either GW has the requisite property interest. Maj.
Op. at 5. But under the ‘‘majority’’ approach of the Second,
Fourth, Eighth, Tenth and Eleventh Circuits, a landowner
has a protected property interest in a favorable land-use
decision only if a ‘‘statute or regulation places substantial
limits on the government’s exercise of its [land-use] discre-
tion,’’ Bituminous Materials, 126 F.3d at 1070.1 Those
courts follow the U.S. Supreme Court’s guidance found in Bd.
of Regents v. Roth, 408 U.S. 564, 569–70, 576–77 (1972) (‘‘To
have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must
have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.’’). At the
same time, their approach uses a standard that properly
‘‘balances the need for local autonomy in a matter of para-
mount local concern with recognition of constitutional protec-
tion at the very outer margins of municipal behavior.’’ Gard-
ner, 969 F.2d at 69.
Using this approach, I would not recognize a constitutional-
ly protected property interest in GW’s expectation of a ‘‘spe-
1 As the majority points out, the circuits vary in deciding how
‘‘severely official discretion must be constrained’’ in order to estab-
lish a property interest. Maj. Op. at 5. Even using the Eighth
Circuit’s approach, the one favored by the majority, id., I would not
conclude that GW has a constitutionally protected property interest.
2
cial exception.’’ Indeed, I find it impossible to conclude the
zoning regulations under which the BZA ‘‘ordinarily must,’’
Stewart v. D.C. Bd. of Zoning Adjustment, 305 A.2d 516, 518
(D.C. 1973), approve a special exception for a campus plan
only if it determines that the proposed plan is ‘‘not likely to
become objectionable to neighboring property’’ substantially
limit the exercise of its discretion. D.C. MUN. REGS. tit. 11,
§ 210.2 (emphasis added); see D.C. MUN. REGS. tit. 11,
§ 210.1.
The majority finds sufficient constraint on the BZA’s au-
thority in the regulation’s command that university use
‘‘ ‘shall be permitted as a special exception’ if the criteria for
the exception are met.’’ Maj. Op. at 7 (quoting D.C. MUN.
REGS. tit. 11, § 210.1). But the crucial criterion upon which
the BZA’s decision depends is whether the proposed use is
‘‘objectionable,’’ Maj. Op. at 7—a criterion that requires the
BZA to use its judgment in considering numerous factors.
D.C. MUN. REGS. tit. 11, § 210.2 (‘‘Use as a college or universi-
ty shall be located so that it is not likely to become objection-
able to neighboring property because of noise, traffic, number
of students, or other objectionable conditions.’’). Heeding
advice to hesitate before intervening in local land disputes,2 I
find only a minimal limitation on the Board’s discretion that is
far from a case where ‘‘the discretion of the issuing agency is
so narrowly circumscribed that approval of a proper applica-
tion is virtually assured,’’ RRI Realty, 870 F.2d at 918;
Gardner, 969 F.2d at 68. In fact, the zoning authority has
been given ‘‘wide discretion’’ in making its decisions; hence,
no constitutionally protected property interest in the special
exception exists. Jacobs, Visconsi & Jacobs Co. v. City of
Lawrence, 927 F.2d 1111, 1116 & n.3 (10th Cir. 1991) (where
zoning authority’s decision must be ‘‘reasonable’’ and reason-
able decision under state law should consider factors such as
2 Gardner, 969 F.2d at 67–68 (‘‘[F]ederal courts should be ex-
tremely reluctant to upset the delicate political balance at play in
local land-use disputes.’’). See also Village of Belle Terre v. Boraas,
416 U.S. 1, 13 (1974) (Marshal, J., dissenting); DeBlasio v. Zoning
Bd. of Adjustment, 53 F.3d 592, 605 (3d Cir. 1995) (McKelvie, J.,
dissenting); Nestor Colon Medina & Sucesores, Inc. v. Custodio,
964 F.2d 32, 45 (1st Cir. 1992).
3
‘‘zoning and uses of properties nearby,’’ ‘‘suitability of the
subject property for the uses to which it has been restricted’’
and ‘‘extent to which removal of the restrictions will detri-
mentally affect nearby property,’’ authority had sufficient
discretion to checkmate property interest). It is because GW
does not possess a constitutionally protected property interest
that I would reverse the district court to the extent it found
otherwise.
For the foregoing reasons, I concur in the judgment re-
versing the district court and I otherwise fully concur in the
majority opinion.