Ballpark Figures

Despite allegations aplenty, a shortfall in proof spelled defeat for a waste firm that saw itself being jerked around by the District of Columbia government.

From 1992 until April 2006, Eastern Trans-Waste of Maryland Inc. operated a transfer station in Washington, D.C. In 2001, D.C. authorities began the process of rezoning Eastern's property from an industrial classification to a commercial and residential one. The change would have allowed Eastern to continue its solid waste operations as a non-conforming use, but would have barred any expansion of the facility.

Three years later, the city changed its mind about the area where the transfer station was located: It was now going to be the future site of a baseball stadium for the Washington Nationals. The district filed suit to condemn Eastern's property for the new ballpark.

The city took the property in April 2006, and the facility's operations ended. Eastern received a sum for the fair market value of the site. As Eastern saw the matter, however, city officials had a nefarious agenda: to put Eastern out of business and shift profits to city-owned transfer stations. Thus, the company felt it deserved a sum above and beyond the mere value of the land and buildings.

Almost a year before the city selected the stadium site, Eastern applied for a building permit to make about $400,000 worth of improvements to its facility. At first, the city seemed ready to issue the permit quickly. Then, representatives from various municipal departments began to express reservations and concerns, requesting an environmental assessment and careful review. Things ground to a halt after the building permit office eventually decided that the proposed improvements required a zoning variance.

In late 2004, Eastern challenged the permit office's determination before the city's Board of Zoning Appeals (BZA). While the BZA appeal was pending, Eastern filed suit in federal district court against the city and various officials. The complaint presented claims for constitutional violations and for lost profits from the delay in issuing the permit.

Although Eastern eventually received its permit, it claimed that the city violated its right to procedural due process by not affording the company a hearing before the permit was initially denied. Citing precedents from a federal court of appeals and the U.S. Supreme Court, the district judge rejected the claim.

“When the [permit] denial is based on a zoning regulation, it may be appealed to the BZA,” the judge said. “Persons dissatisfied with the BZA decision may appeal” directly to the highest D.C. court. Even without a pre-deprivation hearing on the denial, the city's actions were “constitutional,” the court concluded.

Eastern also alleged that the defendants engaged in “egregious governmental conduct” through a “deliberate effort to hamper Eastern from competing with the [d]istrict in the solid waste business.” Brushing aside that claim, the federal district judge found “not even a ‘scintilla of evidence’ from which a … jury could find that the [d]istrict was motivated by such a desire.”

[Eastern Trans-Waste of Maryland, Inc. v. District of Columbia, No. 05-CV-0032 (D.D.C. March 27, 2007)]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.