2910 Georgia Avenue LLC v. District of Columbia (234 F. Supp. 3d 281, 2017)

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

Plaintiff 2910 Georgia Avenue LLC filed suit against the District of Columbia, May- or Muriel Bowser, and Polly Donaldson in her official capacity as Director of the Department of Housing and Community Development (“DHCD”), alleging that the application of the District’s Inclusionary Zoning Program (“IZ Program”) to the development of a 22-unit condominium building near Howard University constituted an unconstitutional taking and violated Plaintiffs due process and equal protection rights. Presently before the Court are Defendants’ [67] Renewed Motion for Summary Judgment and Plaintiffs [68] Motion for Summary Judgment.

Upon consideration of the pleadings, the relevant legal authorities, and the record for the purposes of these motions, the Court finds that Defendants are entitled to summary judgment on each of Plaintiffs claims. In so finding, the Court does not intend to minimize Plaintiffs legitimate grievances with the District’s administration of the IZ Program, or to suggest that the District acted perfectly at all times. The Court merely concludes that at no point did the District’s conduct rise to the level of a violation of the United States Constitution.

First, the Court finds that the economic effect of the challenged regulations on Plaintiffs condominium building is not sufficient to establish a takings claim as a matter of law. Second, Plaintiff has not established an equal protection claim because it has not demonstrated that it was treated differently by the District than any other developer subject to the IZ Program. Third, Plaintiff has not established a substantive due process claim because the conduct of the District at issue demonstrates, at most, confusion or negligence; it does not approach the level of grave unfairness or deliberate flouting of the law that is required for such a claim. Finally, Plaintiffs procedural due process claim also fails because Plaintiff has not established that the IZ Program deprived Plaintiff of any protected property interests without sufficient process of law. Accordingly, Defendants’ motion for summary judgment is GRANTED and Plaintiffs motion is DENIED.

I. BACKGROUND

A. The Basics of the District of Columbia IZ Program

As relevant to the parties’ dispute, the District of Columbia’s IZ Program requires that 8-10 percent of the gross floor area of new residential developments (or substantial additions to existing developments) in the District be used for sale or lease to eligible low- and moderate-income households at certain maximum price levels. D.C. Mun. Regs. tit. 11, § 2603. The affordable units created by the program are referred to as inclusionary units (“IZ Units”). Id. § 2601.1. The District enacted the IZ Program in order to “increas[e] the amount and expand[ ] the geographic distribution of adequate, affordable housing available to current and future residents.” Id. § 2600.1. Under the IZ Program, “no building permit shall be issued” unless the owner of the development subject to the IZ Program “records a covenant in the land records of the District of Columbia that binds all persons with a property interest in any or all of the [property] to construct and reserve the number of inclu-sionary units.” D.C. Code § 6-1041.05(a) (“IZ Covenant”).

B. The History of the IZ Program Rulemaking

The IZ Program was established by the District of Columbia Zoning Commission on August 25, 2006. PL’s Stmt, of Undisputed Material Facts, ECF No. 68-2 (“PL’s Stmt.”), ¶3. The Zoning Commission delegated responsibility for developing the IZ Program to the Council of the District of Columbia (“D.C. Council”) and the Mayor, who subsequently delegated that authority to the Deputy Mayor for Planning and Economic Development (“Deputy Mayor”). Id. ¶¶ 3, 5; PL’s Mot., Ex. 3, ECF No. 68-5 (Delegation of Authority—Inclusionary Zoning Implementation Act of 2006). The program was established pursuant to statutory authority set forth in section 107 of the Inclusionary Zoning Implementation Amendment Act of 2006. Id. ¶ 4.

Although on the books as of 2006, the IZ Program was not implemented until certain rules and regulations were passed regarding its implementation. On April 11, 2008, the District, through the Deputy Mayor, issued a Notice of Proposed Rule-making for regulations that would implement and establish the procedures for the IZ Program. Id. ¶ 8; PL’s Mot., Ex. 6, ECF No. 68-8 (Notice of Proposed Rule-making for Chapter 22 of Title 14 of the District of Columbia Municipal Regulations, entitled “Inclusionary Zoning Implementation”). Among other things, these regulations established the process and the requirements for obtaining building permits for properties subject to the IZ Program. PL’s Stmt. ¶¶ 8, 26; PL’s Mot., Ex. 6. The Notice of Proposed Rulemaking stated that “[f]inal rulemaking action shall be taken in not less than sixty (60) days from the date of publication of this notice in the D.C. Register.” PL’s Mot., Ex. 6 at 1. It also stated that the “[t]he Deputy May- or [ ] intends that the final rules shall not become effective until ninety (90) days after publication of the Notice of Final Rule-making in the D.C. Register in order to allow a transition period between publication and implementation.” Id.

In the months after the Notice of Proposed Rulemaking was published, the District began to express its concern, in a series of published resolutions, that the IZ Program was not being implemented quickly enough. On October 21, 2008, the D.C. Council passed Resolution 17-848, which referenced the April 11, 2008 Notice of Proposed Rulemaking and noted that “final rulemaking, including the maximum rent and purchase price schedule [for the IZ Program] has not been published. Because final regulations have not been promulgated ... and the maximum rent and purchase price schedule has not been published ... the Inclusionary Zoning Program has not been implemented.” Pl.’s Mot., Ex. 11, ECF No. 68-13 (D.C. Council Resolution 17-848). This resolution also stated that “Continuing delays [in implementing the IZ Program] have resulted in the loss of affordable mixed-income units being included in many residential developments” and that “[e]mergency legislation is need[ed] to provide that the final rulemaking and publication requirements for- the Inclusionary Zoning Program be met expeditiously.” Id.

On November 18, 2008, the D.C. Council passed Resolution 17-871, again stating that final rulemaking had not been published and again declaring an emergency as to the need to publish final rulemaking expeditiously so as to not lose further affordable housing in new developments. Pl.’s Mot., Ex. 12, ECF No. 68-14 (D.C. Council Resolution 17-871). This resolution also stated that “[t]he Administration has stated that because of significant changes that will be made to the proposed rulemak-ing based on comments received since the initial notice of proposed rulemaking, a revised notice of proposed rulemaking will be published for public comment.” Id.- It also stated that “[t]he Administration has further stated that 90 days are needed for District agencies to finalize plans for the implementation of the rules after the notice of final rulemaking is published.” Id.

As promised, a Revised Notice of Proposed Rulemaking was then published on December 26, 2008, incorporating certain changes to the proposed rules. Pl.’s Mot., Ex. 13, ECF No. 68-16 (Revised Notice of Proposed Rulemaking), Of some note, the Revised Notice stated that “[t]he Deputy Mayor ... intends that the final rules shall not become effective until sixty (60) days after the publication of the Notice of Final Rulemaking in the D.C. Register,” which was thirty days less than the 90-day phase-in period envisioned in the initial proposed rulemaking. Id. at 1. The Revised Notice also stated that it replaced the initial notice, and that “[f]inal rulemak-ing action shall be taken in not less than thirty (30) days from the date of publication of this notice.” Id.

By February 3, 2009, final rulemaking still had not been published, and the D.C. Council adopted another emergency resolution regarding the need for final rule-making. Pl.’s Mot., Ex. 14, ECF No. 68-16 (D.C. Council Resolution 18-22). This resolution referenced the same emergency need for affordable housing as the emergency resolutions that predated it, and again noted that “[t]he Administration ... stated that 90 days were needed for District Agencies to finalize plans for the implementation of the rules after the notice of final rulemaking is published.” Id. at 1.

The Notice of Final Rulemaking for these IZ Program regulations was then published on May 15, 2009. PL’s Stmt. ¶ 20; PL’s Mot., Ex. 18, ECF No. 68-20 (Notice of. Final Rulemaking). Plaintiff contends that when this Notice was published, it was “not known, clear, or stated” when the rules were to become effective and applicable. Pl.’s Stmt. ¶ 20. As discussed in more detail later in this Memorandum Opinion, a number of Plaintiffs legal arguments are premised on this claim. This claim is not, however, supported by the record, and the Court rejects it at the outset. The Notice stated that “[tjhese final rules shall become effective on the date of publication of this notice in the D.C. Register, but ,.. shall not become applicable until ninety (90) days after such publication or the date on which the final Maximum Rent and Price Schedule is published in the D.C. Register, whichever is later.” Pl.’s Mot., Ex. 18 at 1. It is undisputed that the maximum rent and price schedule was published in the D.C. Register on August 14, 2009. Pl.’s Stmt. ¶ 20; Pl.’s Mot., Ex. 19, ECF No. 68-21 (Inclusionary Zoning Affordable Housing Program Maximum Rent and Purchase Price Schedule). Accordingly, the final rules became effective on August 14, 2009, after the lengthy notice and comment process described above and a significant “phase-in” period after publication of the Notice of Final Rule-making.

Amendments to the IZ Program regulations were later made, but Plaintiff has provided absolutely no reason why the Court should excuse Plaintiff from having been on notice that the IZ Program was generally applicable, in all ways relevant to this case, as of August 14, 2009. On August 28, 2009, the Deputy Mayor published a Notice of Emergency and Proposed Rule-making, which gave notice of proposed amendments to the IZ Program rules. Pl.’s Stmt. ¶¶ 24-25; PL’s Mot., Ex. 21, ECF No. 68-23 (Notice of Emergency and Proposed Rulemaking). Plaintiff does not contend that these amendments are relevant to the applicability of the program to Plaintiff or to the claims in this case. The emergency rulemaking notice stated that the changes were needed to “fully implement” the IZ Program, but expressly acknowledged that the IZ rules had otherwise already been “previously adopted” and had an “August 14, 2009 effective date.” Pl.’s Mot., Ex. 21 at 1. Accordingly, although the Notice of Final Rulemaking for these amendments - was not published until December 11, 2009, and became effective immediately on that date, PL’s Mot., Ex. 22, ECF No. 68-24 (Notice of Final Rulemaking), the IZ Program had otherwise, in all ways relevant to this case, already been in effect since August 14, 2009.

C. Plaintiffs Experience with the IZ Program

Plaintiff is a real estate company that invests in new housing in the District of Columbia. On November 24, 2009, over three months after the IZ Program rules became effective and applicable in the District, Plaintiff purchased the property at 2910 Georgia Avenue, N.W. from Howard University. PL’s Stmt. ¶ 19; PL’s Mot., Ex. 16, ECF No. 68-18 (Special Warranty Deed for 2910 Georgia Avenue property). Plaintiff purchased the property, then a vacant lot, for $560,000.00. Defs.’ Stmt, of Material Facts for Which There is'Not Genuine Dispute, ECF Nó. 67-30 (“Defs.’ Stmt.”), ¶ 25. Plaintiff purchased this property with the intention of constructing a 22-unit condominium building. PL’s Stmt. ¶ 19. It is undisputed that this entire development project—the condominium building consisting of all 22 units—was a single investment for financing and planning purposes. Defs.’ Stmt. ¶ 27.

Plaintiff subsequently, on December 23, 2009, filed a building, permit application to construct this condominium building. PL’s Stmt. ¶ 28. Even though the IZ Program was in effect as of this date, on March 30, 2010 the D.C. Zoning Office initially indicated to Plaintiff that the project’s zoning had been approved without requiring compliance with the IZ Program. Id. ¶ 31. However, the office did not grant Plaintiff a building permit at this time. The parties apparently do not dispute that communicating preliminary zoning approval without IZ compliance was an oversight on the part of the Zoning Office, apparently due to the fact that this was the first IZ Program building permit the office had handled. Id. ¶ 30; Pl.’s Mot., Ex. 17, EOF No. 68-19 (January 23, 2015 Deposition of Mathew LeGrant), at 39:19-40:14. Subsequently, however, an employee at the District’s Office of Planning discovered the mistake and, in April, 2010, the District informed Plaintiff that its zoning approval, and accordingly its ability to acquire a building permit, would be contingent on compliance with the IZ Program. Pl.’s Stmt. ¶¶ 32-35. Plaintiffs condominium building was the first development in the District subject to the IZ Program. Id. ¶ 35.

Developments that are subject to the IZ Program are allowed to take advantage of “bonus density,” which gives developers the option to “construct up to twenty percent (20%) more gross floor area than permitted as a matter of right.” D.C. Mun. Regs. tit. 11, § 2604.1; see also PL’s Mot., Ex. 4, EOF No. 68-6 (DHCD webpage entitled “Inclusionary Zoning Affordable Housing Program”). Although the parties dispute Plaintiffs reasons for not doing so, it is undisputed that, after being told by the District in April, 2010 that its development was subject to IZ regulations, Plaintiff did not redesign its building plans to incorporate the “bonus density’ made available under the IZ Program, opting instead to proceed forward with the building as planned. PL’s Stmt. ¶ 36. Plaintiff claims that it had “no choice” in the matter because to incorporate bonus density at this stage, “Plaintiff would have had to spend months and tens of thousands of dollars,” and add more parking. PL’s Mot., Ex. 7, EOF No. 68-9 (June 28, 2015 Declaration of Arthur S. Linde), at ¶¶ 8-10.

On May 14, 2010, Plaintiff subdivided the separate lots that made up the property at 2910 Georgia Avenue into a single record lot. Defs.’ Stmt. ¶ 28. On May 20, 2010, to satisfy the IZ Program’s requirements that 8-10% of the development be used for affordable housing, Plaintiff signed an IZ Covenant binding two of the envisioned 22 condominium units within the planned building: Unit C-02 and Unit 2-02. PL’s Stmt. ¶¶ 38, 42; PL’s Mot., Ex. 28, ECF No. 68-30 (Plaintiffs IZ Covenant). The building was then constructed. On September 11, 2011, after completing construction, Plaintiff subdivided the building into 22 residential units and 11 parking units. Defs.’ Stmt. ¶ 29.

Efforts then began to locate eligible low- and moderate-income purchasers for Plaintiffs IZ Units. Plaintiff submitted a “Notice of Availability” to Defendants on May 12, 2011, indicating that the two IZ Units would be available for occupancy starting on August 1, 2011. See Defs.’ Mot., Ex. 9, ECF No. 67-9 (May 12, 2011 Notice of Availability). DHCD created a list of eligible households or persons interested in purchasing or renting the IZ Units who self-certified them eligibility to participate in the IZ Program. PL’s Stmt. ¶¶ 44-45. Using these lists, the District subsequently went through a process of running “lotteries” and other alternative selection procedures to identify possible buyers for the units. Id. ¶¶ 47-56.

However, for reasons the parties dispute, the effort to locate a buyer for the units was unsuccessful for an extended period of time. Plaintiff contends that this failure was the fault of Defendants. Predominantly, Plaintiff claims that a requirement in the IZ Covenant that the affordability restrictions on the IZ Units were to survive any foreclosure on the property prevented would-be purchasers from using HUD-insured mortgages. Id. ¶¶ 67-72. The record shows that the District, as well as Plaintiff, was aware that there was a possibility that this aspect of the IZ Covenant could make it difficult for participants in the IZ Program to acquire their preferred form of financing to purchase IZ Units, but chose to make the affordability restrictions survive foreclosure regardless. PL’s Mot., Ex. 15, ECF No. 68-17 (March 2011 e-mail indicating that in 2008 or 2009 DHCD had been sent a letter explaining HUD’s policy on deed restrictions); PL’s Mot., Ex. 29, ECF No. 68-31 (May 10, 2010 e-mail from Plaintiffs manager Art Linde to DHCD employee Anna Shapiro stating that “the covenant may be a barrier to purchaser mortgage financing ... we will have to wait and see how the mortgage markets react”). After gaining experience implementing the IZ Program, the District revised the IZ Covenant in 2012 to change this feature. PL’s Stmt. ¶¶ 71, 75. Plaintiff also implicates in the delay selling the IZ Units Defendants’ failure to timely create lists of eligible buyers, understaff-ing, and various other alleged “blunders” in the implementation of the IZ Program. At multiple times throughout this period, Plaintiff requested that DHCD release it from having to comply with the IZ Program, but DHCD declined to do so. PL’s Stmt. ¶¶ 60, 63, 76; see also, e.g., Defs.’ Mot., Ex. 10, ECF No. 67-10.

For their part, Defendants contend that Plaintiffs lack of cooperation with efforts to market and sell the property is to blame. Defendants argue that Plaintiff was more interested in using the failure of these units to sell as evidence in its battle to dismantle the IZ Program than in actually selling the units. As evidence, Defendants cite that Plaintiff refused to advertise the units at all, turned down at least one potential buyer, and at one point la-belled the IZ Units as “sold” on its website. Defs.’ Mot., Ex. 19, ECF No. 67-19 (2910 Georgia Ave. webpage listing units as sold in April 2013).

Having carefully reviewed the evidence in the record, the Court concludes that both parties share some part of the blame for the time it took to sell Plaintiffs units. But who is more or less at fault for the delay is not dispositive of Plaintiffs constitutional claims at this stage. Far more important is the fact that during this period Plaintiff was able to, and did, make unrestricted and quite profitable use of the vast majority of Plaintiffs development. The twenty units not affected by the IZ regulations in Plaintiffs building were sold at market rates between $225,000 and $404,000, for a total of over $6 million. PL’s Stmt. ¶ 57; Defs.’ Stmt. ¶ 61. This earned the investors in Plaintiffs condominium building a 20% return on their investments. Defs.’ Stmt. ¶¶ 62, 63; Defs.’ Mot., Ex. 25, ECF No. 67-25 (December 23, 2011 Letter from Art Linde to the investors in 2910 Georgia Ave).

Plaintiff has now also sold its IZ Units. IZ Unit C-02 was sold on April 8, 2015 for $145,200, although Plaintiff strenuously disputes whether the buyer, Ms. Ragini Patel, was in fact eligible to participate in the IZ Program. PL’s Stmt. ¶ 105; Defs.’ Mot., Ex. 27, ECF No. 67-27 (Deed for Unit C-02). IZ Unit 2-02 was recently sold for $271,200. PL’s Stmt. ¶ 130; Defs.’ Stmt. ¶ 16; Defs.’ Reply, Ex. 1, ECF No. 72-1 (Deed for Unit 2-02).

D. Procedural History

The parties’ relationship predictably grew sour amid these extended efforts to sell Plaintiffs IZ Units, leading Plaintiff to file its first complaint in this case on De-ceraber 13, 2012. Compl. for Monetary and Declaratory Relief, ECF No. 1. On February 11, 2013, Defendant District of Columbia moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Mot. to Dismiss Compl:, ECF No. 12. The Court granted-in-part and denied-in-part Defendant’s motion. See 2910 Georgia Ave. LLC v. D.C., 983 F.Supp.2d 127 (D.D.C. 2013). With respect to the Court’s subject matter jurisdiction, the Court concluded that “Plaintiffs takings claim with respect to the set-aside requirement itself is not ripe,” because Plaintiff had not sought relief from that requirement from the D.C. Board of Zoning Adjustments, and that it accordingly “lack[ed]' subject matter jurisdiction over the Plaintiffs challenge to the IZ Program writ large.” Id. at 136. However, the Court concluded that it could still “consider the Plaintiffs challenge to the inclusionary zoning covenant restricting the sale of the units in question.” Id. The Court also concluded that it had subject matter jurisdiction over Plaintiffs due process and equal protection claims. Id. at 134. Finally, the Court found that “Plaintiff has sufficiently alleged a total taking of its property.” Id.

Discovery closed in this matter on May 7, 2015. However, on December 29, 2015, the Court granted Plaintiffs motions to reopen discovery and for leave to file an amended complaint. Mem. Op. & Order (Dec. 29, 2015), ECF No. 57. Plaintiff sought permission to engage in limited additional discovery regarding the sale of Unit C-02 to Ms. Patel, which had only recently occurred at that point, and sought to amend its complaint to add a procedural due process claim. Id. at 7. The Court granted the motion to amend, noting, among other things, that the new procedural due process claim was not futile for the reasons argued by Defendants. Id. at 17. The Court also granted the motion to reopen discovery because it found that “the facts newly discovered by Plaintiff shortly before the filing of Plaintiffs motion to reopen discovery raise questions regarding Ms. Patel’s eligibility to purchase Unit C-02 and regarding the process by which the District approved Ms. Patel’s application.” Id. at 12.

Plaintiffs Amended Complaint was deemed filed as of December 29, 2015. Count I of the Amended Complaint alleges a claim under the Takings Clause of the Fifth Amendment pursuant to 42 U.S.C. § 1983. Amend. Compl. for Monetary and Declaratory Relief, ECF No. 58, ¶¶ 80-95. Count II alleges that the way in which the District implemented and administered the IZ Program violated Plaintiffs substantive due process and equal protection rights in violation of the Fifth Amendment. Id. ¶¶ 96-100. Count III alleges that the way in which the District implemented and administered the IZ Program violated Plaintiffs procedural due process rights in violation of the Fifth Amendment. Id. ¶¶ 101-07. Finally, Count TV seeks a declaratory judgment that the IZ Program is unconstitutional, that the Defendants, acting under color of state law, deprived the Plaintiff of rights guaranteed by the United States Constitution, and that the Plaintiff is entitled to compensation. Id. ¶¶ 108-11.

After the filing of Plaintiffs Amended Complaint, the parties filed and briefed cross-motions for summary judgment. These motions are now ripe for resolution.

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record—including deposition testimony,.documentary evidence, affidavits or declarations, or other competent evidence—in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact,” the district court may “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

III. DISCUSSION

At its core, this case is about Plaintiffs complaint that it “bore the brunt of the District’s ‘growing pains’ as it fumbled and bungled every aspect of the IZ Program’s implementation.” PL’s Mot. at 4. This may be so, but the facts in the record are simply insufficient to establish the constitutional violations alleged. For the reasons discussed below, Plaintiff has not established (A) an unconstitutional taking, (B) a violation of the Equal Protection Clause, (C) a violation of Plaintiffs substantive due process rights, or (D) a violation of its procedural due process rights. Accordingly, Defendants are entitled to summary judgment on each of Plaintiffs claims,

A. Plaintiffs Takings Claim

“The Takings Clause of the Fifth Amendment prohibits the government from taking ‘private property ... for public use, without just compensation.” Dist. Intown Properties Ltd. P’ship v. D.C., 198 F.3d 874, 878 (D.C. Cir. 1999) (quoting U.S. Const. Amend. V). Two types of takings are prohibited by this clause: “takings without just compensation and takings for a private purpose.” Rumber v. D.C., 487 F.3d 941, 943 (D.C. Cir. 2007). Plaintiff alleges that both prohibited types of takings have occurred here.

For the reasons set forth below, Defendants are entitled to summary judgment on Plaintiffs takings claim. The Court begins its analysis of this claim, as it must, by (1) determining the relevant parcel of property at issue. The Court concludes that the relevant parcel is the 22-unit condominium building for which Plaintiff sought a building permit from the District. The Court then (2) explains why the regulations at issue, which affected the use of only 8-10% of that building, did not constitute either a permanent or temporary regulatory taking. Next, the Court (3) explains why the various alternate takings frameworks that Plaintiff has suggested could apply to this case are inapposite. Finally, the Court (4) concludes that Plaintiff has not presented evidence necessary to establish an unconstitutional private taking.

1. The Relevant Parcel of Property

Before the Court can consider whether the regulations at issue constituted a taking of Plaintiffs property, the Court “must first define what constitutes the relevant parcel.” Dist. Intown, 198 F.3d at 879. Defendants contend that the relevant parcel in this case is “the 22-unit development as a whole” for which Plaintiff sought a building permit. Defs.’ Mot. at 7. Plaintiff, on the other hand, contends that “the relevant parcels are the individual condominium units subject to the IZ Program and the IZ Covenant.” Pl.’s Opp’n at 10.

The Court previously addressed this issue in its 2013 Memorandum Opinion on the District’s Motion to Dismiss, wherein the Court noted that this constituted the “fundamental dispute between the parties.” 2910 Georgia Ave., 983 F.Supp.2d at 137. It remains a fundamental dispute between the parties now, and its resolution has profound implications for the legal sufficiency of Plaintiffs takings claim. See Dist. Intown, 198 F.3d at 879 (“[t]he definition of the relevant parcel profoundly influences the outcome of [the] takings analysis.”). As the Court stated in its earlier Opinion, “[ultimately the relevant ‘property’ for purposes of this case is a fact-intensive inquiry.” 2910 Georgia Ave., 983 F.Supp.2d at 137. This fact-intensive inquiry includes consideration of at least the following factors: “the degree of contiguity, the dates of acquisition, the extent to which the parcel has been treated as a single unit, and the extent to which the restricted lots benefit the unregulated lot,” Dist. Intown, 198 F.3d at 880. “[A] court must [] consider how both the property-owner and the government treat (and have treated) the property.” Id. “Above all, the parcel should be functionally coherent.” Id.

The leading case applying these factors in the D.C. Circuit is District Intown Properties Ltd. Partnership v. District of Columbia. In that case, plaintiff District Intown had purchased an apartment building and landscaped lawn across from the National Zoo in 1961. Id. at 876. In 1988, District Intown subdivided that property into nine lots. Id. at 877. In 1992, the Mayor of the District of Columbia denied District Intown’s request for construction permits to build townhouses on eight of those nine lots, based on the lots’ status as historic landmarks. Id. at 877-78. Plaintiff sued, alleging that this constituted a violation of the Takings Clause. Id. The District Court granted summary judgment for Defendant District of Columbia and the Court of Appeals affirmed. Id. at 876-77.

As relevant here, the question the Court of Appeals considered was: “Does the relevant parcel consist of the property as a whole or do the eight lots for which construction permits were denied constitute the relevant parcels?” Id. at 879. The Court of Appeals held that the relevant parcel was the property as a whole. The court reasoned that “[t]he lots are spatially and functionally contiguous,” “District In-town purchased the property as a whole” and treated it as a single property before subdivision, and that there was no evidence that District Intown treated the lots separately for the purposes of accounting or management. Id. at 880. Although there are certain factual distinctions between this case and District Intovm, the Court finds that application of the District In-town court’s reasoning to the undisputed facts in this case demands the conclusion that the relevant parcel is the entire 22-unit condominium building which Plaintiff sought a permit to build.

As an initial matter, the Court notes that when addressing this issue in its earlier Opinion, in the context of the District of Columbia’s motion to dismiss the complaint, the Court stated that the fact that “District of Columbia law provides that ‘[e]ach condominium unit shall constitute for all purposes a separate parcel of real estate, distinct from all other condominium units’ ” supported Plaintiffs argument that the relevant parcel could be the individual condominium units. 2910 Georgia Ave., 983 F.Supp.2d at 137 (quoting D.C. Code § 42-1901.03). The Court reaffirms here that D.C. law is a relevant factor in determining what constitutes the relevant pareel, and that in this case this factor tends to support Plaintiffs position. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 n.7, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (“The answer to this difficult question may lie in how the owner’s reasonable expectations have been shaped by the State’s law of property”). However, the Court of Appeals in District Intown expressly instructed that local law “is not always determinative” of the relevant parcel question, 198 F.3d at 879, and the Court rejects Plaintiffs suggestion that the Court’s earlier statement should be conclusive of the Court’s decision regarding the relevant parcel at this stage in the litigation. The Court did not make any final determination in its preliminary Opinion as to what the relevant parcel would be. Instead, the Court’s statement regarding D.C. law was made in the context of its holding that, having reviewed the complaint “for purposes of a motion to dismiss, the Plaintiff has sufficiently alleged that the IZ program constitutes a total taking.” 2910 Georgia Ave., 983 F.Supp.2d at 137 (emphasis added). Now, for purposes of the parties’ cross-motions for summary judgment, the Court has conducted a fact-intensive analysis of all the relevant factors and has considered not just the allegations in Plaintiffs complaint, but the factual record as a whole. Having conducted such an analysis, the Court concludes that despite the referenced D.C. law, the District Intown factors demand the conclusion that the relevant parcel is the entire 22-unit condominium building, not only the individual units within that building that were affected by the challenged regulations.

First, all of the condominium units within the building are contiguous. They are all units within a single building on a single parcel of land. See Defs.’ Mot., Ex. 8, ECF No. 67-8 (Plat and Plans of Condominium Subdivision for 2910 Georgia Avenue); see also Contiguous, Black’s Law Dictionary (9th ed. 2009) (“[tjouching at a point or along a boundary”). The Court does not find persuasive Plaintiffs contention that the individual condominium units in this case are not contiguous because they are “on different floors” or otherwise “physically separated from” each other. Pl.’s Opp’n at 11-12. Despite the fact that the units are separated from each other to the same extent units within a condominium building are generally separated (ie., walls and doors), the Court concludes that the contiguity factor certainly weighs in favor of considering the condominium building as a whole to be the relevant parcel of property.

Second, the date of acquisition also favors this conclusion. Plaintiff did not acquire the IZ Units at different times than all of the other units within the condominium building. Plaintiff purchased six lots of land in 2009, combined them into a single parcel, and then built the entire condominium building at one time. Defs.’ Stmt. ¶¶ 23-29. The building was only subdivided into 22 units at a later date, after acquisition. Id. ¶29; Dist. Intown, 198 F.3d at 880 (considering entire parcel as a whole because “District Intown purchased the property as a whole in 1961” before later subdividing it).

The third factor, “the extent to which the parcel has been treated as a single unit,” also favors concluding that the relevant parcel is the condominium building as a whole. Plaintiff argues that this factor weighs in favor of considering the two IZ Units separately because Plaintiff subdivided the building and sold the units within it, including the IZ Units, individually to separate buyers and at different times. PL’s Opp’n at 10-12. Plaintiff elaborates that the units receive separate utilities, are separately recorded, and are separately taxed and assessed fees. Id.

As an initial matter, most, if not all, of the distinct treatment Plaintiff can point to with respect to the individual condominium units is merely a result of the fact that Plaintiff subdivided the condominium building after it was constructed. The Court of Appeals has held that “[t]he intentional act of subdivision” alone is not sufficient to show that the subdivided units should be the relevant parcels for takings analysis. Dist. Intown, 198 F.3d at 880. When the record in this case is viewed as whole it becomes clear that these aspects of distinct treatment do not tell the full story, and that in reality the 22-unit condominium building as a whole has consistently been treated as a single, coherent piece of property. The building was treated as a single unit for permitting purposes—this lawsuit arose from Plaintiffs filing of a building permit application to the District to construct the entire condominium building, not any individual units. See Norman v. United States, 429 F.3d 1081, 1091 n.4 (Fed. Cir. 2005) (noting that the fact that “appellants’ own permit application related to the entire 2280-acre parcel, and not to any subdivision thereof’ indicated that the entire parcel should be considered the relevant parcel for the purposes of appellants’ taking claim). All of the units were also part of a single, common development plan or project. See Forest Properties, Inc. v. United States, 177 F.3d 1360, 1365 (Fed. Cir. 1999) (a combination of legally distinct parcels was properly treated as the relevant parcel where “the development was treated as a single integrated project” and it was understood that the individual “portions would be developed as a single project”). It is undisputed that the entire building, all 22 units included, was presented as a single investment for financing, planning and building purposes. See Defs.’ Stmt. ¶¶ 23-27; Defs.’ Mot., Ex. 6, ECF No. 67-6 (2910 Georgia Avenue Investment Prospectus describing entire building as a single project for investment); Defs.’ Mot., Ex. 25 (letter to investors describing the return they received on their investment in the building as whole). Only after the IZ Covenant was signed, the permit for the entire building was granted, and the building was completed, did Plaintiff then subdivide the building into separate units.

Despite this history, Plaintiff asks the Court to analyze Plaintiffs takings claim as though the relevant parcel only includes the units that were affected by the challenged regulations. But to do so would allow Plaintiff .to unfairly paint a regulation which only regulates the use of a small portion (8-10%) of Plaintiffs development. as a restriction on the development in its entirety, and therefore potentially a “total” taking. This is precisely the type of circular logic that the Supreme Court has rejected because it would lead to every regulation, no matter how reasonable in scope, constituting “total” and therefore categorical taking. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 331, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (“Of course, defining the property interest taken in terms of the very regulation being challenged is circular” because “[w]ith property so divided,” every potential taking-“would constitute [a] categorical taking[].”); Concrete Pipe & Prod. of California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602, 644, 113 S.Ct 2264, 124 L.Ed.2d 539 (1993) (“a claimant’s parcel of property could not-first be divided into what was taken and what was left for the purpose of demonstrating the taking of the former to be complete and hence compensable. To the extent that'any portion of property is taken, that portion is always taken in its entirety”); Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 130, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (“‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated:”). Accordingly, the Court concludes that the manner in which the property has been treated also weighs in favor of considering the entire condominium building at 2910 Georgia Avenue the “relévant parcel”'for the purposes of Plaintiffs takings claim,

Finally, the Court finds that that there is not significant evidence regarding the “extent to which .the restricted, lots benefit the unregulated lot” that favors either parties’ position in this case. However, the District Intown court found that summary judgment on the relevant parcel issue was proper even when a -dispute existed as to this final factor where, as here, “the other three factors strongly suggests that [the subdivided lots] are functionally part of the same property.” Dist. Intown, 198 F.3d at 880.

The Court 'concludes by noting -that, although Plaintiff is certainly correct that certain “other takings decisions have held that it is appropriate to analyze a regulation’s effect on specific parcels or portions of a property that are subject to government imposition,” Pl.’s Opp’n at 14, none of those decisions demand the outcome sought by Plaintiff here. In particular, Plaintiff relies heavily on Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994), but the reasoning of that case does not support Plaintiffs position. In that case, the Federal Circuit concluded that the relevant parcel for its takings analysis was 12.5 acres out of an original 250-acre parcel. Id. at 1181. That conclusion, however, was based on the fact that most of the remaining acres had already been developed and sold before the state attempted to impose the regulatory restrictions at issue. Id. Here, by contrast, Plaintiff was required to agree to abide by the IZ regulations in order to obtain a building permit for the entire 22-unit condominium building at the same time, before any of the units were developed. Other acres were not included in the “relevant parcel” in Loveladies Harbor because those parcels had already been dedicated to the state. Plaintiff has not dedicated the 20 units it seeks to exclude from the relevant parcel here to the state—it has been left to use them unregulated and has received significant economic benefit from selling them to private parties in the course of its business. Unlike the dedicated acres in Loveladies Harbor, the 20 unrestricted' units in Plaintiff’s building brought Plaintiff economic benefit and it accordingly makes perfect sense to consider them when determining the challenged regulations’ overall economic effect on Plaintiff.

In sum, in analyzing whether the regulations at issue constituted a “taking” of Plaintiff’s property, the Court views the relevant parcel of property as the condominium building at 2910 Georgia Avenue for which Plaintiff sought a building permit from the District. As will be seen below, this conclusion is largely determinative of Plaintiffs takings claim.

2. Plaintiffs Regulatory Takings Claim

“In a regulatory takings case,” such as this one, “the principal focus of inquiry is whether a regulation ‘reaches a certain magnitude’ in depriving an owner of the use of property.” Dist. Intown, 198 F.3d at 878 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). “The Supreme Court has indicated that most regulatory takings cases should be considered on an ad hoc basis, with three primary factors weighing in the balance: the regulation’s economic impact on the claimant, the regulation’s interference with the claimant’s reasonable investment-backed expectations, and the character of the government action.” Id. at 878-79 (citing Penn Central, 438 U.S. at 124, 98 S.Ct. 2646). “As the ‘party challenging governmental action as an unconstitutional taking,’ [Plaintiff] bears a ‘substantial burden.’” Id. at 878 (quoting Eastern Enterprises v. Apfel, 624 U.S. 498, 523, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998)).

Plaintiff has not satisfied its burden in this case. First, and most importantly in this particular case, the economic impact of the regulation at issue on Plaintiff weighs strongly against finding a taking in this case. Under this factor, Plaintiff must demonstrate that the relevant parcel of property “no longer provide[s] a reasonable rate of return” in light of the challenged regulation. Id. at 884. “[A] claimant must put forth striking evidence of economic effects to prevail even under the ad hoc inquiry.” Id. at 883 (emphasis added). Indeed, in Penn Central, the Supreme Court found that no taking had occurred despite the fact that the regulation at issue caused a diminution in value of 75%. Penn Central, 438 U.S. at 131, 98 S.Ct. 2646.

Here, only two of the 22 units in Plaintiffs development were subject to an IZ Covenant restricting their use at all. Although Plaintiff complains that the IZ Program delayed the sale of these units and affected the profit Plaintiff sought to receive from them, the regulations certainly did not leave Plaintiff without a reasonable rate of return from its development as a whole. Quite the opposite: Plaintiff sold the unrestricted units in its development for over $6 million, earning the investors in Plaintiffs building a 20% return on their investments. Defs.’ Stmt. ¶¶ 62, 63; Defs.’ Mot., Ex. 25 (letter to investors in 2910 Georgia Ave. stating that they had received a 20% return on their investment in the development even before the two IZ Units were sold). Far from the “striking evidence” of economic impact required, Dist. Intown, 198 F.3d at 883, the evidence shows that the regulations at issue—albeit perhaps a source of justifiable frustration for Plaintiff—did not prevent Plaintiff from earning a considerable profit from its property.

The other Penn Central factors do not salvage Plaintiffs claim. First, Plaintiffs investment backed expectations do not support finding a taking. “A reasonable investment-backed expectation ‘must be more than a unilateral expectation or an abstract need.’ ” Id. at 879 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005-06, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (internal quotations omitted)). “Claimants cannot establish a takings claim ‘simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development.’ ” Id. (quoting Penn Central, 438 U.S. at 130, 98 S.Ct. 2646). Instead, “a buyer’s reasonable expectations must be put in the context of the underlying regulatory regime.” Id. at 883.

Here, Plaintiff did not have a “reasonable” investment-backed expectation of selling its condominium units free from IZ Covenants. Plaintiffs argument that it did have such a reasonable expectation is apparently based on its claim that the IZ Program was sprung on Plaintiff unfairly, becoming effective immediately on December 11, 2009 without a promised phase-in period.. However, the .Court has already determined that the IZ Program—at least as= relevant to Plaintiffs project and claims—took effect on August 14, 2009, three,months prior to Plaintiffs purchase of the property at. 2910 Georgia Avenue and after a phase-in period. See Full Value Advisors, LLC v. S.E.C., 633 F.3d 1101, 1110 (D.C. Cir. 2011) (holding that plaintiff did not have a reasonable investment-backed expectation where challenged-requirements were in effect before acquisition). Plaintiff may genuinely not have been- aware that these new regulations had taken effect, but the fact that Plaintiff did not keep abreast of building regulations, and accordingly subjectively believed that it could build its development without being subject to the IZ Program, does not make its investment-backed expectation reasonable. Plaintiff was apparently relying on its architect to keep updated on those laws, Defs/ Stmt. ¶42, which he apparently- did not do, despite declaring that he was aware that the IZ Program “had been under discussion within the District government at that point for four or five years.” Defs/ Mot., Ex. 11, ECF No. 67-11 (June 26, 2015 Declaration of Eric Colbert) at If 11. Finally, the fact.that the D.C. Zoning Office employee in charge of Plaintiffs application initially mistakenly failed to require IZ Program compliance does not make Plaintiffs own belief reasonable that it could develop its project without complying with a law that was undisputedly in effect -at the time and applicable to'Plaintiffs development.

Finally, the character of the government action in this case does not support a finding that a “taking” has occurred. “To assess the character of the government’s actión, the central question is whether the regulation advances a ‘common good’ or ‘public purpose.’” George Washington Univ. v. D.C., 391 F.Supp.2d 109, 113-14 (D.D.C. 2005) (citing Dist. Intown Properties Ltd. P’ship v. D.C., 23 F.Supp.2d 30, 37 (D.D.C. 1998)). Here, the Court has already answered this question in the affirmative in its 2013 Memorandum Opinion: the IZ Program serves a public purpose. 2910 Georgia Ave., 983 F.Supp.2d at 135. The Court reaffirms that conclusion now.

Plaintiffs arguments regarding this factor are not persuasive. First, Plaintiff argues that the character of the government action in this case favors finding that a taking has occurred because the IZ Program has been a “failure.” Pl.s Opp’n át 16. In support of this claim, Plaintiff argues that other programs have produced more affordable housing than the IZ Program. Id. at 16-17. This line of attack misinterprets the Court’s role in analyzing the character of the government action. The character of the government action weighs against finding a taking if the action is “a general regulation with a legitimate public purpose.” Dist. Intown, 198 F.3d at 883. The Court takes a “deferential stance regarding what constitutes a legitimate public purpose.” Perry Capital LLC v. Lew, 70 F.Supp.3d 208, 245 (D.D.C.2014). Given that the program at issue here serves a public purpose, it is not the role of the Court, other than perhaps in extreme circumstances not present here, to sit in judgment of the efficacy of this program as compared to others.

Second, Plaintiff argues that the character of the government action is “very much call[ed] into question” by the eventual sale of one of Plaintiffs IZ Units to an individual, Ms. Ragini Patel, who Plaintiff now claims is not eligible to participate in the IZ Program. PL’s Reply at 13. The Court addresses this issue further below in section III.A.4 of this Memorandum Opinion, but for now it is sufficient to say that Plaintiffs evidence in this regard does not show that Defendants acted with any nonpublic purpose when administering the IZ Program with respect to Plaintiff and this purchaser. At most, Plaintiff raises questions about whether District employees made mistakes while administering the program and whether Ms. Patel may have falsely represented her wealth, income or intentions in her application to participate in the program. These question do not change the fact that the character of the government action challenged here is a generally applicable regulation intended to serve a public purpose. At the very least, they certainly do not constitute a powerful enough showing as to the character of the government action factor to overcome the Court’s conclusion that the other two Penn Central factors weigh strongly in favor of finding that no taking has occurred. See Perry Capital, 70 F.Supp.3d at 244 (“A [party] is not required to demonstrate favorable results under all three Penn Central factors ... it is a balancing test.”).

In sum, the challenged regulation, which affected how Plaintiff could use 8-10% of its development, is a generally applicable regulation with a legitimate purpose. It did not interfere with any reasonable investment-backed expectations of Plaintiffs, nor create a sufficiently severe economic effect on Plaintiff, to rise to the level of an unconstitutional regulatory taking.

The above analysis also resolves Plaintiffs “temporary takings” claim. At no point, even prior to the sale of the two IZ Units, did the IZ Program regulations at issue affect Plaintiffs development in such a way as to work a taking. Plaintiff argues that, “at an irreducible minimum” Defendants’ actions constitute a “temporary taking” because of the delay in selling the IZ Units. Pl.’s Mot. at 27-28. But this argument is misguided in its assumption that temporary takings are “different in kind from permanent takings.” First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty., Cal., 482 U.S. 304, 318, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). They are not different. Id. Temporary takings “should be analyzed in the same constitutional framework applied to permanent irreversible takings.” Yuba Nat. Res., Inc. v. United States, 821 F.2d 638, 641 (Fed. Cir. 1987). With respect to Plaintiffs reasonable investment-backed expectations and the character of the government action, the Court’s analysis is the same for Plaintiffs temporary takings claim as it was for Plaintiffs permanent takings claim, which is described above.

With respect to the economic effect of the regulation, which was arguably temporarily more severe before the IZ Units eventually sold, the effect was still far from sufficient to support a regulatory takings claim. “[I]n a temporary regulatory takings analysis context the impact on the value of the property as a whole is an important consideration, just as it is in the context of a permanent regulatory taking.” Cienega Gardens v. United States, 503 F.3d 1266, 1281 (Fed. Cir. 2007). As discussed above, viewing the property as a whole, it is clear that the regulations at issue did not work a taking of Plaintiffs condominium building, despite the time it took to find buyers for two of the units therein. Even before these units were sold, the degree of economic impact the regulations had on Plaintiffs rate of return with respect to the condominium building as a whole was far from sufficient to establish a taking. Plaintiff was able to sell units making up 90% of its building for over $6 million, earning a significant profit and a healthy return for its investors. Although Plaintiff complains that it was required to pay real estate taxes and other “carrying costs” on the IZ Units before they sold, there is “no evidence that this regulation rendered [Plaintiffs condominium building] unprofitable^ to maintain.” Dist. Intown, 198 F.3d at 883.

For all of the reasons explained above, Defendants are entitled to summary judgment on Plaintiffs permanent and temporary regulatory takings claim.

3. Plaintiffs Proposed Alternative Takings Frameworks

In an attempt to escape application of the Penn Central factors, Plaintiff posits numerous alternative takings frameworks it believes this Court should apply to its takings claim. None of those frameworks apply. As an initial matter, Plaintiffs claim does not fit into any of the narrow categories of categorical or per se takings. Although the Supreme Court has held that most takings claims should be analyzed on the ad hoc basis set forth above, it has also “indicated that it will find a ‘categorical’ or per se taking in two circumstances.” Dist. Intown, 198 F.3d at 879. “The first circumstance includes regulations that result in ‘permanent physical occupation of property.’ ” Id. (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982)). “The second circumstance includes regulations pursuant to which the government denies all economically beneficial or productive use of property.” Id. (quoting Lucas, 505 U.S. at 1015, 112 S.Ct. 2886). Plaintiff argues that either or both of these circumstances are present here.

First, for the same reasons set forth above in the Court’s Penn Central analysis, Plaintiff is incorrect that the regulations at issue denied it “all economically beneficial or productive use of’ its property. Id. (emphasis added). To constitute this type of categorical taking, “a claimant must show that its property is rendered ‘valueless’ by a regulation.” Id. at 882; see also Lucas, 505 U.S. at 1019 n.8, 112 S.Ct. 2886 (noting that categorical taking would not occur where landowner’s property was diminished in value by regulation by only 95%).

Here, Plaintiff was plainly not denied all economically beneficial use of its property. Plaintiff was required to execute IZ Covenants for 8-10% of the condominium building at issue. D.C. Mun. Regs. tit. 11, § 2603. Plaintiff was free to, and did, use the remaining 90-92% of the building not subject to IZ Covenants, earning over $6 million and a significant profit. Defs.’ Stmt. ¶¶ 29, 61. Accordingly, because Plaintiff has not shown that it was denied all economically beneficial use of its property, its first categorical taking claim fails.

The Court pauses here to address the argument Plaintiff makes at various points throughout its summary judgment briefing that there has also been a categorical taking of Plaintiffs alleged “property right” to the bonus density allowed for under the IZ Program. See, e.g., PL’s Mot. at 10, 20. This argument does not have merit because Defendants did nothing to “take” this supposed right from Plaintiff. Plaintiffs argument on this point is premised on its claim that it was “realistically” unable to take advantage of the bonus density because the IZ Program regulations became effective immediately on December 11, 2009, with no phase-in period. As the Court has already discussed above, this assertion is wrong. The IZ Program became effective on August 14, 2009, after a phase-in period. Even if certain amendments were subsequently made to the program, the basic requirements of the program were effective and applicable before Plaintiff purchased the property at issue. It is also worth noting that Mr. Linde, Plaintiffs manager, was aware of bonus density in the IZ laws as early as October of 2009, a month before Plaintiff even purchased the property at issue. Pl.’s Opp’n, Ex. 88, ECF No. 70-3 (May 6, 2015 Deposition of Arthur Linde), at 40:12-20 (“Q: So you were aware October 29th, 2009, of the bonus density in the inclusionary zoning laws? A: Apparently, I was. Yes.”); Defs.’ Mot., Ex. 13, ECF No. 67-13, at 2 (October 29, 2009 e-mail from Art Linde to Paul Adresino et al.) (“Of some use may be the bonus density we are afforded via the Inclusionary Zoning laws”). Plaintiff cannot, accordingly, claim that Defendants “took” its right to bonus density.

Second, relying on the Supreme Court’s opinion in Loretto v. Teleprompter Manhattan CATV Corp., Plaintiff unsuccessfully attempts to shoehorn the facts of this case into a categorical taking by arguing that “[t]he Court could properly view the IZ Program, as applied to this Plaintiff, as an actual physical invasion or usurpation of property rights.” PL’s Mot. at 15. “[R]egu-lations that compel the property owner to suffer a physical ‘invasion’ of his property” are “compensable without case-specific inquiry into the public interest advanced in support of the restraint.” Lucas, 505 U.S. at 1015, 112 S.Ct. 2886. Compensation is required “no matter how minute the intrusion, and no matter how weighty the public purpose behind it.” Id. In Loretto the Supreme Court held that a New York law that required landlords to “permit a cable television company to install its cable facilities upon his property,” such that “the cable installation occupied portions of appellant’s roof and the side of her building,” was a taking because it constituted a “physical occupation of property.” Loretto, 458 U.S. at 421, 102 S.Ct. 3164. The Court stated that “whe