PARCEL ONE PHASE ONE ASSOCIATES, LLP v. MUSEUM SQUARE TENANTS ASSOCIATION, INC.

District of Columbia
Court of Appeals
No. 15-CV-609
SEP 22 2016
PARCEL ONE PHASE ONE ASSOCIATES, LLP,
Appellant,
v. CAR-6869-14
MUSEUM SQUARE TENANTS ASSOCIATION, INC.,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Civil Division
BEFORE: WASHINGTON, Chief Judge; BLACKBURNE-RIGSBY, Associate Judge;
and BELSON, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby
ORDERED and ADJUDGED that the trial court‘s grant of summary
judgment is affirmed.
For the Court:
Dated: September 22, 2016.
Opinion by Senior Judge James A. Belson.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS 9/22/16
No. 15-CV-609
PARCEL ONE PHASE ONE ASSOCIATES L.L.P., APPELLANT,
V.
MUSEUM SQUARE TENANTS ASSOCIATION, INC., APPELLEE.
Appeal from the Superior
Court of the District of Columbia
(CAR-6869-14)
(Hon. Stuart G. Nash, Trial Judge)
(Argued February 18, 2016 Decided September 22, 2016)
Richard W. Luchs, with whom William C. Casano was on the brief, for
appellant.
Matthew A. Eisenstein, with whom Blake A. Biles and Paige Sharpe, Arnold
& Porter LLP; Julie H. Becker, Legal Aid Society of the District of Columbia; and
Grishma Pradhan and Zenobia Lai, Asian Pacific American Legal Resource
Center, were on the brief, for appellee.
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Richard S.
Love, Senior Assistant Attorney General, were on the brief for the District of
Columbia as amicus curiae in support of appellee.
Before WASHINGTON, Chief Judge, and BLACKBURNE-RIGSBY, Associate
Judge, and BELSON, Senior Judge.
2
BELSON, Senior Judge: Parcel One Phase One Associates, L.L.P. (―Parcel
One‖) appeals the trial court‘s grant of summary judgment in favor of the plaintiff/
appellee Museum Square Tenants Association, Inc. (―the Association‖). Parcel
One argues the trial court erred in its determination that (1) the Association had
standing under the Tenant Opportunity to Purchase Act (―TOPA‖) to bring suit
challenging Parcel One‘s offer of sale, see D.C. Code §§ 42-3404.01, -3404.11 (1)
(2012 Repl.), and (2) its offer of sale to the Association was not bona fide under
TOPA, see D.C. Code § 42-3404.02 (2012 Repl.). We affirm the trial court‘s grant
of summary judgment as we conclude that the Association had standing to sue
under TOPA and that Parcel One‘s offer of sale to the Association was not ―bona
fide‖ as required under TOPA.
I.
Museum Square is an apartment building located at 401 K Street, N.W., in
Washington, D.C. (the ―401 K Street Property‖). It contains over 300 residential
rental units.1 The owner of the building, Parcel One, seeks to demolish the
building and build a mix of apartments, condominiums, and commercial space.
1
The Association‘s brief asserts that all of the tenants qualify for housing
subsidies such as Section 8 housing vouchers, most of the tenants are elderly, and
―more than seventy percent are Chinese immigrants.‖
3
Parcel One offered to sell the complex to the tenants for $250 million, ―as is,‖ cash
payment, with a five percent down payment, and balance due at closing. Parcel
One arrived at that offer price after an in-house development team analyzed its
construction plans and determined that it would yield 450 apartments and 350
condominiums with a net future value of $250 million after subtracting
construction and development costs. After the offer was made, an independent
appraisal company, CBRE, commissioned by Parcel One, appraised the plan and
placed the future value of the property at $3 million higher than the offer; this was
the only appraisal commissioned by either party.
After receiving Parcel One‘s offer, the tenants formed Museum Square
Tenants Association, Inc., under D.C. Code § 42-3404.11, to deal with the offer.
The Association brought an action in Superior Court asserting that the offer
extended by Parcel One was not a bona fide offer as it did not ―reflect a rational,
fair, and objective value of the [p]roperty.‖ The Association sought a declaratory
judgment that the offer was not bona fide and an injunction to prevent Parcel One
from requiring residents to vacate involuntarily. In its answer, Parcel One
countered that the Association did not adhere to the formation requirements of
D.C. Code § 42-3404.11, and consequently lacked standing to bring a suit, and that
4
the $250 million offer of sale was a bona fide offer which met the requirements of
TOPA.
The Association subsequently filed a motion for summary judgment. As to
standing, the trial judge ruled that the Association had standing and that any error
in draftsmanship or formation of the Association did not affect its standing. As to
whether Parcel One provided a bona fide offer of sale, there was considerable
discussion by the parties and the trial judge at oral argument and in the motions
regarding the proper interpretation of 1618 Twenty-First St. Tenants’ Ass’n v.
Phillips Collection, 829 A.2d 201 (D.C. 2003) [hereinafter Phillips].
Parcel One argued that Phillips held that market value or appraised value
were not dispositive as to whether an offer was bona fide, but that TOPA required
only a good faith, honest offer. In the alternative, Parcel One argued that whether
the offer was bona fide was a material issue of fact which ―defeat[]s [the
Association‘s] motion for summary judgment.‖ The Association argued that as a
matter of law Parcel One‘s offer of sale was not a bona fide offer, and that Phillips
was a case in which the property had a unique value to the owner that justified a
deviation from the market value, and consequently Phillips — as the trial judge
later put it — ―carve[d] out an exception to the general rule.‖
5
In his written order granting summary judgment, the trial judge agreed with
the Association, stating it would be ―impossible for this [c]ourt to imagine any
criteria for ascertaining whether an offer has ‗some reasonable basis,‘ other than by
comparing the offer to the market value of the property.‖ According to the trial
judge, unless the property has ―special circumstances,‖ the ―default position‖ for
determining a bona fide offer is based on current market value. Because Parcel
One‘s offer was based on the future value of the property after construction2 and
because the property did not have a unique value to the owner, the trial judge
determined that Parcel One was unable to seek refuge in the ―exception‖ in
Phillips. Moreover, the trial judge observed that ―even if all the assumptions
included in that [future] valuation are deemed accurate and reasonable, the
valuation fails to discount the resulting figure to a present market value.‖ The trial
judge found ―that no reasonable fact finder would be able to return a verdict on
behalf of [Parcel One],‖ and therefore, granted summary judgment for the
Association. This timely appeal followed.
2
The trial judge stated that an appraisal methodology based on the post-
construction value ―at a point in time several years in the future‖ was ―indisputably
not an accurate measure of the property‘s current market value.‖ In his view, this
methodology was flawed, and thus he rejected Parcel One‘s argument that market
value was not the ―sole standard‖ for evaluating a bona fide offer.
6
II.
Standard of Review
Whether summary judgment was properly granted is a question of law that
we review de novo. Allman v. Snyder, 888 A.2d 1161, 1165 (D.C. 2005). ―In
reviewing the propriety of a summary judgment, this court must determine whether
the substantive law was correctly applied.‖ Kibunja v. Alturas, L.L.C., 856 A.2d
1120, 1129 (D.C. 2004). We view the facts in the light most favorable to the non-
moving party to determine ―(1) whether any genuine issue of material fact exists,
and (2) whether appellees are entitled to judgment as a matter of law.‖ West End
Tenants Ass’n v. George Wash. Univ., 640 A.2d 718, 725 (D.C. 1994); accord
Super. Ct. Civ. R. 56 (c). ―[S]ummary judgment should be granted sparingly in
cases involving motive or intent,‖ Green v. Gibson, 613 A.2d 361, 364 (D.C.
1992), and if this court has ―[a]ny doubt as to whether . . . a genuine issue of
material fact has been raised,‖ we will hold that summary judgment was improper,
Virginia Acad. of Clinical Psychologists v. Group Hosp. & Med. Servs., Inc., 878
A.2d 1226, 1233 (D.C. 2005) (quoting Weakly v. Burnham Corp., 871 A.2d 1167,
1173 (D.C. 2005)) (brackets omitted). However, the party opposing the motion
must proffer ―enough evidence to make out a prima facie case in support of [its]
position.‖ Id. (quoting Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1281–82
7
(D.C. 2002)) (alteration in original). Thus, while the moving party has the burden
of demonstrating that there are no material facts in dispute, the non-moving party
may not defeat a motion for summary judgment by merely asserting conclusory
allegations. Joeckel, supra, 793 A.2d at 1281.
A. The Association Has Standing
―Standing is a question of law that is reviewed de novo; the underlying
factual determinations are reviewed for clear error.‖ Daley v. Alpha Kappa Alpha
Sorority, Inc., 26 A.3d 723, 729 (D.C. 2011). ―When a lawsuit reaches the
summary judgment stage, the mere allegations of the pleadings become
insufficient. . . . [S]tanding must be shown through ‗specific facts‘ set forth by
‗affidavit or other evidence to survive.‘‖ Grayson v. AT&T Corp., 15 A.3d 219,
246 (D.C. 2011) (en banc) (internal quotation marks and citation omitted). A
tenant organization has the ―burden to show that it has standing to bring its suit.‖
Richman Towers Tenants’ Ass’n v. Richman Towers LLC, 17 A.3d 590, 597 (D.C.
2011) [hereinafter Richman Towers]. For the reasons explained below, we
conclude that appellee has standing.
1. Legal Principles
8
For purposes of TOPA, a ―tenant organization‖ is defined as ―an
organization that represents at least a majority of the heads of household in the
housing accommodation excluding those households in which no member has
resided in the housing accommodation for at least 90 days and those households in
which any member has been an employee of the owner during the preceding 120
days.‖ D.C. Code § 42-3401.03 (18). For a tenant association to show it has
standing to bring suit under TOPA, it must show that it ―qualifies [as a tenant
organization] under th[is] . . . definition.‖ Richman Towers, supra, 17 A.3d at
597.3
In Richman Towers, we concluded that two tenant associations qualified as
―tenant organizations‖ and therefore had standing to sue under D.C. Code §§ 42-
3404.02 (a) & -3405.03 because they adduced sufficient evidence to prove that
they ―represented at least half of the qualifying heads of household at the alleged
time of sale.‖ Id. at 598-99. We concluded, in contrast, that the remaining tenant
associations did not qualify as ―tenant organizations‖ with standing to sue because
they failed to ―provide[] evidence that [they] represented at least half of the
3
Once a tenant association is formed, individual tenants will then lack
standing to sue. Id. at 600 (citing West End Tenants Ass’n, supra, 640 A.2d at 721,
n.1).
9
qualifying heads of household.‖ Id. at 599. It appears, then, that under Richman
Towers, all the Association had to do to demonstrate it had standing to sue was
provide evidence that it represented at least half of the qualifying heads of
household living at the 401 K Street Property.
Parcel One contends, however, that the Association was required to do more.
In Parcel One‘s view, to obtain standing to sue, the Association had to (1) ―bargain
in good faith‖ with Parcel One under D.C. Code § 42-3404.05 (a) and (2) satisfy
the requirements found in D.C. Code § 42-3404.11 (1). One of those requirements,
according to Parcel One, is that the Association must have adopted bylaws prior to
filing an application for registration of the tenant association with the Mayor. See
D.C. Code § 42-3404.11 (1); see also D.C. Code § 29-402.06 (a). Yet, so Parcel
One claims, it is undisputed that the Association never even attempted to bargain
with Parcel One and there is at least a material dispute of fact as to whether the
Association properly adopted bylaws pursuant to the alleged statutory requirement.
Consequently, Parcel One contends that the trial court should not have granted
summary judgment to the Association because the Association‘s standing to sue is
in serious doubt.
10
As for Parcel One‘s argument concerning bargaining in good faith, we are
sympathetic to the idea that the parties should negotiate before bringing suit. We
have said that ―TOPA envisions that an offer of sale will be followed, when there
is tenant interest, by ‗bargain[ing] in good faith‘ and a ‗reasonable period to
negotiate a contract of sale.‘‖ 1836 S St. Tenants Ass’n v. Estate of B. Battle, 965
A.2d 832, 840 (D.C. 2009) [hereinafter S St. Tenants]. However, tenants are
granted by TOPA the unconditional right to bring ―a civil action in law or equity‖
in order to ―seek enforcement of any right or provision‖ under TOPA, D.C. Code
§ 42-3405.03, and under TOPA, tenants have ―the right to receive a bona fide offer
affording [the tenant(s)] a genuine ‗opportunity to purchase‘ . . . whenever the
owner proposes to sell the property, demolish the premises, or convert the property
to non-rental use — irrespective of the existence of a third-party contract,‖ S St.
Tenants, 965 A.2d at 840; see also D.C. Code § 42-3404.02 (a). We thus reject
Parcel One‘s argument that the Association was required to negotiate with Parcel
One in order to obtain standing to sue to enforce the tenants‘ right to receive a
bona fide offer of sale under D.C. Code § 42-3405.03.
In so concluding, we do not mean to discourage parties from negotiating or
the trial court from strongly encouraging negotiation between the parties. We have
a ―longstanding policy of encouraging settlements.‖ Convit v. Wilson, 980 A.2d
11
1104, 1122 (D.C. 2009) (internal quotation marks omitted) (quoting Paul v. Bier,
758 A.2d 40, 48 (D.C. 2000)). Indeed, in TOPA cases as well as other appropriate
cases, the trial court may assign the case to non-binding arbitration to help
motivate the parties to bridge their differences. See Super. Ct. Civ. Arbitration
Rule I. When the trial court deems it advisable, it can defer action on motions for
summary judgment for a reasonable time until the parties have attempted to
negotiate a settlement.
As for Parcel One‘s argument that the Association was required by D.C.
Code § 42-3404.11 (1) to adopt bylaws, we reject it for the simple reason that D.C.
Code § 42-3404.11 (1) by its terms applies only when tenants seek ―to make a
contract of sale with an owner.‖ Ability to contract is not the same as standing to
sue; under TOPA, the former is governed by D.C. Code § 42-3404.11 (1), while
the latter is governed by D.C. Code § 42-3401.03 (18), see Richman Towers,
supra, 17 A.3d at 597-99.4 Here, the tenants (and the Association) did not seek to
4
This distinction is reinforced by the fact that D.C. Code § 42-3404.11 (1)
provides that, ―[i]n order to make a contract of sale with an owner, the tenants
shall,‖ inter alia, ―deliver an application for registration to the Mayor and the
owner by hand or by certified mail within 45 days of receipt of a valid offer or the
Mayor‘s receipt of a copy of a valid offer, whichever is later‖ (emphasis added).
Whether the tenants received a valid offer of sale — one that could trigger the 45-
day countdown in D.C. Code § 42-3404.11 (1) — is precisely the question the
Association has asked the courts to decide in this suit.
12
make a contract with Parcel One; they sought only to enforce their right to receive
a bona fide offer of sale under TOPA. We, therefore, conclude, per Richman
Towers, that the Association was required only to ―provide[] evidence that it
represented at least half of the qualifying heads of household [of the 401 K Street
Property],‖ 17 A.3d at 599, to show that it had standing to sue.
2. Analysis
A review of the record reveals the following relevant facts. In its motion for
summary judgment, the Association stated that, ―[i]n order to exercise their
statutory rights, and in compliance with TOPA, the [401 K Street Property] tenants
formed Museum Square Tenants Association, Inc.,‖ citing its attached ―Statement
of Material Facts Not in Dispute.‖5 The Association also attached to its motion
several exhibits, one of which included a series of documents labeled
―Membership List‖ containing hundreds of signatures from individuals who
―attest[ed] and affirm[ed]‖ that they were 401 K Street Property tenants who were
―eligible to be . . . member[s] of Museum Square Tenants Association, Inc.‖ The
5
In the attached Statement, the Association stated that, following Parcel
One‘s delivery of the offer of sale to the tenants, ―[t]he tenants formed Museum
Square Tenants Association, Inc.‖
13
page immediately following the Membership List states that the Association
―represents 209 out of 291 eligible occupied units.‖ Parcel One did not dispute the
Association‘s statement, nor did it dispute or introduce evidence contradicting the
validity of the Membership List or the statement following the list.
We are satisfied that the Association established its standing to sue. The
Association‘s Membership List contains signatures from over 200 units of the 401
K Street Property, far more than the simple majority of units required under
Richman Towers. This evidence, even viewed in the light most favorable to Parcel
One, is sufficient to confirm the Association‘s statement that, ―in compliance with
TOPA, the [401 K Street Property] tenants formed Museum Square Tenants
Association, Inc.‖ and the statement following the list that the Association
―represents 209 out of 291 eligible occupied units.‖ Consequently, we hold that
the Association had standing to sue under D.C. Code § 42-3405.03. See Richman
Towers, supra, 17 A.3d at 597; see also Grayson, supra, 15 A.3d at 246.
B. Summary Judgment Was Appropriate
Under TOPA tenants have ―the right to receive a bona fide offer affording
[the tenant(s)] a genuine ‗opportunity to purchase‘ . . . whenever the owner
14
proposes to sell the property, demolish the premises, or convert the property to
non-rental use,‖ S St. Tenants, 965 A.2d at 840; see also D.C. Code § 42-3404.02
(a). Most often, a third-party contract provides the benchmark for determining
whether an offer is bona fide — that is to say, if the terms offered to the tenant are
―roughly equal‖ to the terms of the third-party contract, there is a bona fide offer.
See Phillips, supra, 829 A.2d at 204. Phillips was the first case in which we faced
the challenge of determining whether an offer of sale made to tenants under TOPA
was ―bona fide‖ in the absence of a benchmark third-party contract. Id. at 205. As
we observed in Part I, supra, our decision in Phillips lies at the heart of the trial
court‘s grant of summary judgment here, and it thus warrants a close look before
we move on to our analysis of the propriety of summary judgment in this case.
1. Phillips
(a)
The facts in Phillips were straightforward. Phillips was a non-profit
corporation that functioned as a museum. Id. at 202. It purchased an adjacent
apartment building for $1,400,000, and the tenants declined to exercise their TOPA
rights at the time of that transaction. Id. Approximately three years later, Phillips
15
obtained the necessary zoning permits to demolish the apartment building and
build an art center in its place. Id. The tenants, however, refused to vacate
voluntarily. Id. Phillips then offered to sell the building to the tenants for
$7,800,000 based on what it thought, after careful consideration, it would have to
pay for a suitable piece of nearby real estate. Id. at 203, 207-08. The tenants
rejected the offer on the basis that they did not think the offer was bona fide. Id. at
203. Phillips then sought — and received — a declaratory judgment that the offer
was, in fact, bona fide. Id. The tenants appealed, claiming that the trial court erred
in concluding that Phillips‘s offer was bona fide. Id.
In reviewing the trial court‘s judgment in Phillips, this court set forth a
comprehensive review of TOPA, recognizing that its ―overarching purpose is to
protect tenant rights,‖ and then turned to the interpretation of ―bona fide.‖ See
generally id. at 203-04. In looking at the requirements for a bona fide offer when
there is a third-party contract, we observed that market value, appraisal value, or
the ―value of the building as rental housing‖ are not requisite benchmarks for a
bona fide offer. Id. at 206. We said that the only requirement for a valid, bona fide
offer when there is a third-party contract is that ―the offer [to the tenants] be based
on what a third party is willing to pay.‖ Id.; see also D.C. Code § 42-3401.03
(2)(A) (―For a price and other materials terms that are at least as favorable . . . .‖).
16
Because there is no requirement when there is a third-party contract that the offer
be based upon current market value, this court determined that TOPA called for the
same outcome when there is no third-party contract. See Phillips, supra, 829 A.2d
at 206. We held that instead a ―‗bona fide offer of sale‘ simply requires an
objectively good faith, honest offer of sale,‖ noting that the Council could have
defined ―bona fide,‖ but did not, and that ―nothing in the legislative history . . .
supports the contention that ‗bona fide offer of sale‘ requires anything more than
objective good faith.‖6 Id.
Relying on this definition of ―bona fide offer of sale,‖ we concluded that
Phillips‘s offer of sale was bona fide because it was ―based upon an objectively
6
During the pendency of this trial litigation and appeal, the D.C. Council
formally defined bona fide offer in the absence of a third-party contract in the
TOPA Bona Fide Offer of Sale Clarification Amendment Act of 2015, 53 D.C.
Reg. 16251 (2015). The Act provides that a ―[b]ona fide offer of sale‖ in the
absence of a third-party contract is one that has ―a price and other material terms
comparable to that at which a willing seller and a willing buyer would sell and
purchase the housing accommodation, or the appraised value.‖ Id. § 2 (a)(2), 53
D.C. Reg. at 16251. The Act defines ―[a]ppraised value‖ as ―the value of a
housing accommodation as of the date of the appraisal, based on an objective,
independent property valuation, performed according to professional appraisal
industry standards,‖ id., and the appraised value must be ―based on rights an owner
has as a matter-of-right as of the date of the offer, including any existing right . . .
to convert the property,‖ id. § 2 (b)(2), 53 D.C. Reg. at 16252. Subject to these
restrictions, the appraised value may take into account the ―highest and best use of
the property.‖ Id. The Act became effective on February 26, 2016. See 63 D.C.
Reg. 2321 (2016). The trial court did not rely on the Act in its ruling, and so we
will not consider the Act here.
17
fair analysis of the value of the property to Phillips based on its intended use‖ and
it ―was made after Phillips carefully considered all available options and was based
on concrete facts.‖ Id. at 207-08. In so holding, we stated, ―Given the unique
circumstances that exist in this case, the trial judge did not err in finding that
Phillips‘s offer was made in good faith and was thus a ‗bona fide offer of sale‘
under the statute,‖ id. at 208, language that figures in the parties‘ dispute over the
proper application of Phillips.
(b)
In this case, the trial court was presented with a situation analogous to that in
Phillips: Parcel One made an offer of sale to the 401 K Street Property tenants in
the absence of a third-party contract. Each party, recognizing the relevance of
Phillips, argued respectively for an interpretation of Phillips that supported its
position. The trial court relied on our ―unique circumstances‖ language to
conclude that Phillips represented a narrow exception to the general rule that a
18
―bona fide offer of sale‖ must be based on market value, reasoning that ―the default
position, in the absence of proof of . . . special circumstances [like those present in
Phillips], is that market value is the essential touchstone in assessing whether an
owner has made a bona fide offer.‖ This narrow interpretation of Phillips figured
in the trial court‘s decision to grant the Association summary judgment, as it
concluded that Parcel One‘s offer of sale was not bona fide because it was based
on appraisals that undisputedly did not reflect the 401 K Street Property‘s present
value, but instead reflected a future value of a building that had not been
discounted to present value.
(c)
On appeal, the parties continue to advocate differing interpretations of
Phillips. Parcel One contends that Phillips sets forth a general rule applicable in
all TOPA cases involving an offer of sale made in the absence of a third-party
contract — namely, that a ―‗bona fide offer of sale‘ simply requires an objectively
good faith, honest offer of sale.‖ 829 A.2d at 206. Parcel One further contends
that the trial court erred in characterizing Phillips as an ―exception to the general
19
rule‖ (the general rule being based upon a comparison of the offer of sale to current
market value) that applies only when there are ―special circumstances.‖ The
Association, supported by the District of Columbia as amicus curiae, argues in
favor of the trial court‘s narrow interpretation of Phillips as a ―special
circumstances‖ exception to the general rule that for an offer to be bona fide, it
must be based on current market value.
The proper interpretation of Phillips is a question of law we review de novo.
See Technical Land, Inc. v. Firemen’s Ins. Co., 756 A.2d 439, 443 (D.C. 2000).
After reviewing our decision in Phillips, we are not persuaded by the position
taken by the Association and the amicus. In Phillips, our discussion of what
constitutes a ―bona fide offer of sale‖ was not limited to offers based on current
market value unless there are special circumstances warranting departure from
current market value. Indeed, we explicitly supported our holding that the Council
adopted the common law definition of ―bona fide‖ with the observation that ―[t]he
overall structure of the Act supports the conclusion that the offer does not have to
reflect appraised value or market value to be ‗bona fide.‘‖ Accordingly, we
reaffirm our holding in Phillips that a ―‗bona fide offer of sale‘ simply requires an
objectively good faith, honest offer of sale,‖ 829 A.2d at 206, and we further hold
for clarification that an offer of sale need not be based on current market value to
20
be bona fide. So long as the offer is ―based upon an objectively fair analysis of the
value of the property to [the owner] based on its intended use,‖ id. at 207, the offer
is bona fide even though not based on current market value.
2. Analysis
The parties agree that on June 6, 2014, Parcel One delivered to the tenants
an offer of sale for the 401 K Street Property with an asking price of $250 million.
The appropriate question under Phillips, therefore, is whether Parcel One had an
objective good faith basis to ask the tenants for $250 million in 2014 in exchange
for the property ―as is.‖ If there is at least a dispute of material fact that leaves
open the possibility that Parcel One had an objective good faith basis for its offer
of sale, summary judgment was inappropriate. In conducting our inquiry, we
recognize that this case involves Parcel One‘s good faith, ―an issue of mental state
somewhat akin to disputes in which intent is at issue,‖ and therefore that this case
is one in which ―summary judgment should be granted sparingly . . . .‖ Green,
supra, 613 A.2d at 364. Nevertheless, ―if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that [the Association] is
21
entitled to a judgment as a matter of law,‖ Super. Ct. Civ. R. 56 (c), we will affirm
the grant of summary judgment.
The facts relevant to the question presented are as follows. In 2014, Parcel
One undertook an in-house appraisal of the 401 K Street Property based on Parcel
One‘s plan to develop the property into a mixed-use building. Thereafter, Parcel
One paid CBRE, Inc., as a third-party appraiser to do an independent appraisal of
the property, again based on its development plan. Parcel One had determined
through its in-house appraisal that the value of the 401 K Street Property, once
developed, would be $250 million; the CBRE report appraised the development
value at $253 million. Parcel One and the Association agree that both of these
numbers represent the value of the property years in the future. The CBRE report
recognizes this fact, projecting that Parcel One would realize the full $253 million
value of the proposed development in two stages, the first in February of 2019 and
the second in October of 2021. In an affidavit attached to the Association‘s motion
for summary judgment, the Association‘s expert, Mr. Harps, stated, ―A key
concept in real estate is that dollars received in the future are worth less than
dollars received today. In other words, the right to receive a dollar in the future is
not worth a dollar today‖ (emphasis added). After analyzing the CBRE report,
Mr. Harps estimated that the present value of the 401 K Street Property if it is
22
developed as described in the CBRE report was significantly less than $250
million in 2014 — more than 70% less than the CBRE estimate of the future value
of the property or, specifically, $68 million as of September 23, 2014. Parcel One
provided no evidence to counter Mr. Harps‘s sworn statements about the present
value of the property when developed, including, significantly, his statement that
the right to receive a dollar in the future is not worth a dollar today. Parcel One
even admitted in its opposition to the Association‘s motion for summary judgment
that its offer of sale was based on the in-house appraisal and CBRE report and that
―[t]he CBRE appraisal was not intended to capture, and it expressly stated that it
did not capture, ‗as is‘ valuation.‖ Thus, this case is materially different from
Phillips, in which the offer of sale reflected the owner‘s present need to use real
property near the location of its art gallery.
It is obvious that $250 million in 2014 was worth $250 million in 2014.
However, Mr. Harps‘s affidavit established that what would be by 2021 the newly-
developed 401 K Street Property was worth substantially less than $250 million in
2014. Parcel One failed to adduce any contradictory evidence to establish that the
property, as developed for Parcel One‘s intended use, was worth any figure
approaching $250 million in 2014 — thus failing to validate its offer to sell the
property to the tenants for that figure in 2014. Viewing the undisputed facts in the
23
light most favorable to Parcel One leaves us with the firm conviction that Parcel
One‘s $250 million offer of sale on June 6, 2014, was not based on an objectively
good faith assessment of the value of the property at that time, even taking into
account Parcel One‘s intended use.7 It is plain, of course, that the offer of sale was
not based on the value of the building as it stood, either. We need not accept Mr.
Harps‘s specific estimate that the present value of the property in 2014, assuming
the timely completion of the apartments and condominiums that Parcel One
planned to build, was only $68 million to be confident that its value was far less
than the $250 million offer of sale.
No reasonable third party purchaser, apprised of Parcel One‘s in-house
appraisal or the CBRE report, would have been willing in 2014 to pay the 2019-
2021 value of the property of $250 million. Therefore we hold that, as a matter of
law, Parcel One‘s offer of sale was not bona fide under TOPA and Phillips. The
trial court did not err in granting the Association summary judgment.
7
This is not to say that a projected future valuation based on a landowner‘s
intended use of property cannot play any role in formulating a bona fide offer.
Even the Association‘s expert relied on Parcel One‘s future projected valuation
(the CBRE report) to estimate the value in 2014 of the to-be-developed 401 K
Street Property. However, based on the undisputed evidence presented in this case,
Parcel One‘s reliance on nothing other than its future projected valuation in
formulating its offer of sale undermined its claim that the offer was bona fide.
24
******
For the foregoing reasons, based upon TOPA and our opinion in Phillips, we
affirm the trial court‘s grant of summary judgment.
So ordered.