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.