Hornstein v. Barry

REILLY, Senior Judge,

dissenting m part:

Despite the scholarly tone of the majority opinion which overrules the conclusion we reached when our division first considered the issue, see Hornstein v. Barry, 530 A.2d 1177 (D.C.1987), the reasons it advances for upholding the constitutionality of the challenged provision of the Act are at odds with the controlling holdings of the Supreme Court. With all deference to my colleagues, I discern nothing in its text which persuades me that we were wrong in concluding that the Supreme Court has drawn the line against any land-use restriction conditioned upon the votes of a narrow segment of the community affected.

Stripped of its nonessentials like the lengthy discourse on the duty of judges to refrain from invalidating federal and local statutes, irrespective of reservations concerning the wisdom of the particular enactment unless it is clearly unconstitutional 1 — a principle of judicial restraint of which we are thoroughly aware — the thrust of the. majority opinion is that because the District Council had authority to pass an act completely prohibiting the conversion of rental units into condominia, it was also within the authority to exempt from the general prohibition any apartment complex where a majority of the tenants vote to accept the proposed conversion. In arriving at this conclusion, the majority opinion leans heavily upon a recent decision of a panel of the United States Court of Appeals for the District of Columbia, Silverman v. Barry, 269 U.S.App.D.C. 327, 341 , 845 F.2d 1072, 1086 , cert. denied, - U.S. -, 109 S.Ct. 394 , 102 L.Ed.2d 383 (1988), asserting that a' legislative delegation to a group of private citizens is not offensive to the due process clause if (1) such regulation is within the power of the government to adopt, (2) is- expressed in the form of a general prohibition, and (3) the *542 delegation is “in the form of permitting private citizens to waive the protection of that prohibition.” 2

In my view, the basic premise that an absolute prohibition of condominium conversion is within the power of our* local government to enact rests upon shaky grounds. Only one judicial authority is cited by the majority for that proposition: a decision of the California Supreme Court, 3 a somewhat dubious source for guidance on questions of constitutional law. Such legislation as Judge Silberman noted in his Silverman concurrence might be questionable as tending over time to reduce the supply of rental units, because anti-condominium legislation, like rent control laws, creates a powerful disincentive to the construction of new rental apartment buildings. 4 In any event, as such a statute is not before us, it is scarcely within our province to pass upon its constitutionality.

The real fallacy of this rationale, however, is that even though a general prohibition of conversions to condominia might survive a due process challenge, the tenant election provision would be enough to render such a statute unconstitutional.

In my view, the basic reliance of the circuit court and the majority opinion upon Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 , 37 S.Ct. 190 , 61 L.Ed. 472 (1917), is badly misplaced. It was not Cusack, but Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 , 49 S.Ct. 50 , 73 L.Ed. 210 (1928) whose controlling precedential weight was reaffirmed by the recent Eastlake opinion, and it is to the latter case that this court should look in deciding the delegation issue. 5

In Roberge , as we pointed out in the panel opinion, 530 A.2d at 1183 , the Supreme Court struck down an amendment to a general zoning ordinance, which revision allowed the operation of a philanthropic home for children and the elderly, provided the owners of two-thirds of the property in an adjacent area gave their written consent, on the ground that such an “arbitrary” (i.e., standardless) delegation of power was repugnant to the due process clause. Opponents of the philanthropic home also made the same argument the majority accepts as valid, viz., that as the original zoning plan had not permitted such semi-public institutions charitable homes for the elderly in this particular residential district, the ordinance without the offending amendment should be allowed to stand. The Court responded, 278 U.S. at 123 , 49 S.Ct. at 52 :

We need not decide whether, consistently with the Fourteenth Amendment, it is within the power of the state or municipality by a general zoning law to exclude the proposed new home from a district, defined as is the first district in the ordinance under consideration.

In short, what the Roberge Court held was that even though a municipality might have authority to pass a law restricting a particular district to purely private residential use, a waiver provision which could *543 be invoked only by a small segment of voters made the presumed validity of a general prohibition irrelevant. See Eastlake, supra (establishing the doctrine that if a land use restriction dependent on some sort of referendum is valid, it must be a referendum in which all qualified registered voters in the city may participate).

Apparently refusing to concede our point that a referendum limited only to a small segment of the community can be upheld only when the legislation is directed at some kind of nuisance, e.g., unsightly billboards, the majority contends that because the tenant election process here was expressly intended to confer greater bargaining power on the occupants of the rental units and to encourage the formation of tenant organizations for negotiating purposes, such Council findings justify a delegation of legislative power to a narrow group for whose protection the statute was enacted. 6 The challenged provision, however, goes far beyond conferring reasonable bargaining power on the favored few in electorates thus limited. It grants them an absolute power of veto, and thus cannot be equated with statutes like the National Labor Relations Act which confer collective bargaining powers on workers. That statute, in order to insure that the delegation of such power could pass constitutional muster, provides that “the obligation [to bargain] does not compel either party to agree to a proposal or require the making of a concession.” 29 U.S.C. § 158 (d) (1982).

The majority candidly notes that, under the challenged statutory scheme, a majority of tenants in a particular complex may bar conversion for purely arbitrary or capricious reasons, or may agree to it, only because the financial offer of the landlords to buy them out appeals to selfish reasons. It then concedes that such parochial reasons for responding to their landlord’s largesse “may collide with the needs of tenants city wide and with the prime goal of legislation, which is to avoid the erosion of affordable rental housing.”

I submit that this aspect of the legislation conclusively demonstrates that the challenged provision flies in the face of the Eastlake test. What it reveals is not a mere imperfection, but rather a fatal defect in the challenged legislative scheme.

So far as the separate issue of an unconstitutional taking without compensation is concerned, I also believe that in this posture of the case a remand for the purpose of an evidentiary proceeding is required. Although the petitioners for rehearing dispute this part of the order entered by the panel, it is plain that this argument is premature under the holding of the Supreme Court in Pennell v. City of San Jose, 485 U.S. 1 , 108 S.Ct. 849 , 99 L.Ed.2d 1 (1988). I see no reason for the extended comments of the majority on this issue, which are almost tantamount to an advisory opinion against plaintiff. Surely cases like Nollan v. California Coastal Commission, 483 U.S. 825 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987), which vindicated the rights of thala-tarian landholders to exclusive access to their shore property in the absence of compensation for a public easement, show that the issue is anything but frivolous.

. The opinion fails to point out that where the Supreme Court has pronounced as repugnant to the due process clause similar and indistinguishable provisions in statutes passed in other states, courts in this jurisdiction are under an obligation to defer to such pronouncements when the validity of a local statute is drawn into issue, irrespective of its public popularity.

. We note in passing that this is the first time since Swain v. Pressley, 430 U.S. 372 , 97 S.Ct. 1224 , 51 L.Ed.2d 411 (1977), that the circuit court has refused to defer to our court on the construction of local statutes or the application of common law principles. See Kropinski v. World Plan Executive Council-U.S., 272 U.S.App.D.C. 17, 22 , 853 F.2d 948, 953 (1988); Keener v. WMATA, 255 U.S.App.D.C. 148, 153 , 800 F.2d 1173 , 1178 (1986) (and cases cited therein); Hall v. C & P Telephone Co., 253 U.S.App.D.C. 368 , 793 F.2d 1354 (1986). That the litigation raises federal constitutional issues is immaterial. See Swain, supra, 430 U.S. at 383 n. 10, 97 S.Ct. at 1228 n. 10.

. Griffith Development Co v. City of Oxnard, 39 Cal.3d 256 , 217 Cal.Rptr. 1 , 703 P.2d 339 (1985).

. The Council, apparently recognizing that its laws intended to prevent erosion of the supply of rental units was having the opposite effect and would deprive the District of federal housing subsidies, has recently enacted legislation exempting new construction from its current rent control laws, which include the restrictions on condominium conversion. See Seman v. D.C. Rental Housing Comm'n., 552 A.2d 863 (D.C.1989).

. City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 , 96 S.Ct. 2358 , 49 L.Ed.2d 132 (1976). The majority also relies upon a dictum in New Motor Vehicle Board of California v. Fox, 439 U.S. 96 , 99 S.Ct. 403 , 58 L.Ed.2d 361 (1978), without coming to grips with the reasons we regarded that case as irrelevant to the issue before us.

. The opinion also notes that the Council was properly concerned with protecting the rights of tenants, "particularly poor and elderly tenants, who ... merit and need such protection.” It should be observed, however, that the challenged legislative scheme is not limited to poor or elderly tenants, but also applies to high rent apartments inhabited by well-to-do persons whose tenure in the particular building may be for reasons of only temporary convenience.