Hornstein v. Barry

FERREN, Associate Judge,

with whom TERRY, Associate Judge, joins, concurring and dissenting:

I concur in Part III C (“Uncompensated Taking”) of the opinion for the court, but I respectfully dissent from Part III B (“Delegation, Standardlessness, and Due Process”) for the reasons set forth in Part II of the vacated opinion of the division, Hornstein v. Barry, 530 A.2d 1177, 1181-85 (D.C.1987). I add only a few comments.

I.

The majority opinion states that the Council of the District of Columbia “could have made the ban on conversion [to condominiums] absolute,” ante at 534 n. 8, without violating due process. The court implies that this constitutional power to prohibit all conversion necessarily includes the power to impose a less absolute ban. 1 The court then holds that the Council may do so by delegating to private tenant groups— the “primary beneficiaries” of the legislation, ante at 535 — the government’s power to make exceptions to the ban, and that the tenants of a particular complex may elect conversion by reference not to legislative guidelines but to their own arbitrary, “parochial” interests. Ante at 534. There are two problems here: (1) the “greater-includes-the-lesser” argument and (2) the delegation issue.

A.

In City of Lakewood v. Plain Dealer Publishing Co., — U.S. - 108 S.Ct. 2138 , 100 L.Ed.2d 771 (1988), the Supreme Court sustained a facial challenge to the validity of a local ordinance authorizing the mayor to grant or deny publishers’ applications for annual permits to place newsracks on public property. Among its rulings, the Court held that, even if the municipality could ban newsracks entirely from the public sidewalks under the “well-settled time, place, and manner test,” it could not, consistent with the first amendment, use the licensing scheme at issue to permit some but not others on the sidewalks. Id. 108 S.Ct. at 2147 . The Court reasoned that a licensing official’s “boundless discretion,” necessarily “raises the specter of content and viewpoint censorship,” an altogether different concern from the one “animating our test to determine whether an expressive activity may be banned entirely.” Id. Concededly, first amendment jurisprudence is unique; but, the Court’s reasoned refusal to use the power to ban entirely as the basis for implying a power to ban less restrictively is informative nonetheless. The Court makes clear that the constitutional concerns underlying a complete prohibition may differ from those underlying a particular, conditional prohibition — and thus may lead to different results when the respective prohibitions are challenged.

In contrast, in Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328 , 106 S.Ct. 2968 , 92 L.Ed.2d 266 (1986), the Supreme Court rejected a first amendment challenge to a ban on advertising casino gambling, even though gambling itself was lawful. The Court reasoned that, because gambling is not a constitutionally protected activity, “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling_” Id. at 345-46 , 106 S.Ct. at 2979 . Inherent in the Court’s reasoning was a premise that distinguishes Posadas from City of Lakewood : “[T]he less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising,” does not suggest constitutional concerns any different from those that would be used to test a “wholesale prohibition” of gambling. Id. at 346, 106 S.Ct. at 2979 .

The present case is like Posadas in that the policy and constitutional concerns underlying absolute and conditional bans, as *540 such, on condominium conversions are the same: preservation of an appropriate supply of rental housing consistent with each landlord’s right to a fair rate of return on the property. But this case is like City of Lakewood in that the means chosen to implement the particular conditional ban here injects a constitutional issue not present in an absolute ban: delegation of governmental power to private groups. It follows, therefore, that the Council’s power to ban condominium conversions entirely, while generally implying the power to impose a lesser, conditional ban, does not necessarily imply, in addition, a power to achieve that more limited approach by handing over governmental power to private groups to make the sundry exceptions to the ban. The suggestion that the greater power includes the lesser, therefore, does not contribute very much to the discussion in the context with which we deal here.

B.

I turn to the delegation issue. The en banc majority acknowledges that a tenant majority, in approving or disapproving such conversion, “may act arbitrarily, and there is no objective standard to which they must conform.” Ante at 534. The tenants, say my colleagues, may “act in their own financial interest and consent to conversion only if the owners would sweeten the pie by buying them out at an attractive price.” Ante at 534. Indeed, “their parochial interest in allowing the landlord to take the affected units off the rental market may collide with the needs of tenants city-wide and with the prime goal of the legislation, which is to avoid the erosion of affordable rental housing.” Ante at 534. In short, the en banc majority acknowledges that the statutory scheme is not calibrated in a way that assures a virtual congruence between the collective private interests of tenant majorities and the public’s interest in having the most beneficial possible mix of housing for the community, present and future. Indeed, the court sustains the statute against constitutional attack while candidly acknowledging that the required consent provision institutionalizes a shakedown scheme — pressure to “sweeten the pie,” ante at 534 — for the private financial benefit of incumbent tenants, not necessarily for the overall benefit of the community of tenants-at-large. I cannot agree.

I do not believe the government constitutionally may empower self-interested tenant majorities to make governmental decisions that “arbitrarily” determine landlords’ property rights, as well as the interests of tenant minorities. If exceptions to a governmental policy banning condominium conversion are to be made, then in my view, to comport with due process, a governmental body — not a wholly private group — must make those decisions and must do so with reference not to “parochial” interests but to adequate legislative guidelines reflecting the public interest. See Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 122 , 49 S.Ct. 50, 52 , 73 L.Ed. 210 (1928).

The Supreme Court itself has limited the opinion on which the majority primarily relies, Cusack Co. v. City of Chicago, 242 U.S. 526 , 37 S.Ct. 190 , 61 L.Ed. 472 (1917), to private waivers of bans on localized “nuisances” by the residents primarily affected. See Roberge, 278 U.S. at 122 , 49 S.Ct. at 52 . Because of the due process implications of “parochial” and “arbitrary” decision-making by purely private tenant groups ultimately affecting the nature of the housing stock available citywide, I believe Cusack is inapposite here.

If this were merely a matter, as in Cusack, of the only affected residents waiving supposedly beneficial legislation, then the en banc majority’s argument might have force. But, in this case, the Council has granted such waiver authority to private groups who collectively wield substantial governmental power having citywide impact on the housing stock available not only to incumbent tenants but also to prospective tenants. It is one thing for a group of neighbors to waive a prohibition of a billboard on a city block that presumably affects only them; it is another when a group of tenant neighbors waives a ban on conversions of rental property to condominiums that ultimately affects other people. In the latter situation we face here, *541 there is not only an impact well beyond the tenants’ own immediate situations but also a result not demonstrably synchronized with the public’s overall housing needs.

In sum, under the statute at issue here, the en banc majority upholds a “standard-less delegation of power” 2 over property rights to a “narrow segment of the community” 3 in violation of the due process rights of landlords and dissenting tenants. I cannot join in that result.

II.

The legislation here, if struck down, would not necessarily leave without a remedy those tenants who, as a community, oppose condominium conversion in individual instances or altogether. If the Council does not want to impose a complete ban, there is no reason why an existing or newly-created governmental agency could not be charged with monitoring the rental housing stock available to tenants of low, moderate, and high income, respectively, and authorized to approve or reject all proposed conversions to condominiums. The agency could be required, as part of that process, to consider local and citywide tenant views, as well as the views of the landlords and others, on all proposed conversions. The majority is concerned about the inefficiency of such an alternative, ante at 534 n. 8, but this is the administrative law approach we traditionally require— with good reason — if the government is to regulate property rights consistent with the interests of all persons affected. See, e.g., D.C.Code § 25-115(a)(6) (1981) (Alcoholic Beverage Control Board shall be satisfied that place for which license is to be issued is an appropriate one considering, among other things, “the wishes of the persons residing or owning property in the neighborhood”).

. See also Silverman v. Barry, 271 U.S.App.D.C. 179 , 851 F.2d 434 , cert. denied, - U.S. -, 109 S.Ct. 394 , 102 L.Ed.2d 383 (1988) (Silberman, J., concurring in the denial of rehearing en banc).

. City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 678 , 96 S.Ct. 2358, 2364 , 49 L.Ed. 2d 132 (1976).

. Id. at 677 , 96 S.Ct. at 2364 (emphasis omitted).