noting that a limited record may make it “problematical” to resolve through summary judgment a de facto taking case in which “an ad, hoc case by case inquiry is called for”
How later courts described this case
- noting that a limited record may make it “problematical” to resolve through summary judgment a de facto taking case in which “an ad, hoc case by case inquiry is called for”
- following a decision by our federal colleagues across the street “both on the basis of its reasoning and in the interest of harmony between court systems and uniformity of result in the same geographical area”
- although the Just Compensation Clause does not “require that a landowner be permitted to make the most profitable use of his property,” it is significant whether “the property is capable of earning a reasonable return within the governmental restrictions”
- applying federal rule serves "the interest of harmony between court systems and uniformity of result in the same geographical area"
Written by the judges who cited it.
The opinion
NEWMAN, Associate Judge,
concurring in part and dissenting in part:
I join in so much of the judgment of the court as holds constitutionally valid the tenant consent part of the statute. I dissent from the remand on the “taking” issue. Given the fact that Hornstein’s complaint did not allege an unconstitutional uncompensated taking (as distinguished from the tenant consent issue) it is not surprising to me that the District did not move for summary judgment on that question. In his opposition to summary judgment, Horn-stein never raised this as an issue. Thus, it *539 is not surprising to me, in this context, that the trial court did not consider as an issue something that no party raised by pleading or otherwise. I am unable to join my colleagues in ruling that this was error by the trial court.