Kalorama Citizens Ass'n v. SunTrust Bank, Co.

• Court: District of Columbia Court of Appeals
• Decided: December 22, 2022
• Docket: 21-CV-84 & 21-CV-183
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 21-CV-84 and 21-CV-183

KALORAMA CITIZENS ASSOCIATION, et al., APPELLANTS,

V.

SUNTRUST BANK COMPANY, et al., APPELLEES.

Appeals from the Superior Court of the District of Columbia (2017-CA-004182-B)

(Hon. Hiram E. Puig-Lugo, Trial Judge)

(Argued March 17, 2022 Decided December 22, 2022)

Paul H. Zukerberg for appellants.

Mary C. Zinsner, with whom Elizabeth M. Briones was on brief, for appellees.

Before EASTERLY and MCLEESE Associate Judges, and CROWELL, Associate Judge, Superior Court of the District of Columbia. *

CROWELL, Associate Judge: Appellants Kalorama Citizens Association

(“KCA”) and Adams Morgan for Reasonable Development (“AMRD”) appeal from

the Superior Court’s grant of summary judgment to appellee SunTrust Bank (“the

∗ Sitting by designation pursuant to D.C. Code § 11-707(a). 2

Bank”). 1 The appellants had sought to enforce an alleged common law easement by

public dedication that gave the public the right to use a plaza (“the Plaza”) on land

owned by the Bank, which sold the Plaza and its adjacent bank building to

developers, who intend to tear both structures down in order to build a mixed-use

development.

In this case we are asked to determine whether two community organizations

have standing to enforce an alleged common law easement by public dedication. We

conclude that they have both constitutional and prudential standing. Because we

remand for consideration of whether the alleged easement exists, we reiterate the

requirements for what must be proven to establish a common law easement by public

dedication in the District of Columbia. Further, we hold that such an easement may

be express or implied and that it may be accepted either by the government or by the

public through general use.

Accordingly, for the reasons stated herein, we hereby reverse the order of

summary judgment and remand for further proceedings consistent with this opinion.

1 Since 1976, Perpetual Savings & Loan Association, Crestar Bank, and now SunTrust Bank successively acquired the property at issue in this case and are collectively referred to as the Bank. 3

I. Factual and Procedural Background

The following provides a summary of the evidence proffered by the parties

for the purposes of the summary judgment ruling. The record below contains

numerous unresolved factual disputes regarding the parties’ relative understanding

of the agreement or lack thereof that paved the way for the Plaza’s construction. As

a starting point, in 1976, the Bank sought to build a bank branch in Adams Morgan.

At some point that year, community organizations filed objections with the Federal

Home Loan Bank Board (“FHLBB”) regarding the Bank’s application. The planned

and now present location at 1800 Columbia Road NW included an undeveloped area

that was routinely used as a neighborhood farmers’ market and community space.

Throughout 1976 and 1977, the Bank, mainly through its president, Thomas Owen,

engaged in a series of meetings that the appellants allege were negotiations with the

Adams Morgan Organization (“AMO”), the Adams Morgan Advisory

Neighborhood Commission (“Adams Morgan ANC”), and other community groups

prior to the construction of the bank building. During these negotiations, the Bank

sought to obtain the Adams Morgan community’s support for the construction of the

building, while the community groups sought to maintain the open space for the

broader community’s use and ensure that the Bank operated according to certain

non-discriminatory mortgage lending practices. 4

On November 2, 1976, Owen, in his capacity as the Bank’s president, wrote

an open letter to residents of Adams Morgan (“the Owen Letter”), in which he stated

that “[the Bank] agreed to develop the property in such a way as to preserve its open

quality, attractiveness and accessibility to the vendors that presently use it.” Then,

on December 6, 1976, Frank Smith, who served as Chairman of the Adams Morgan

ANC and AMO at the time that the Bank acquired the property, sent a letter to Owen

stating that the community organizations were willing to withdraw their opposition

to the bank building’s construction. The parties, however, dispute the import,

meaning, and binding nature of Owen’s and Smith’s understandings of the alleged

agreement, if any, to construct the Plaza in return for the community organizations’

support of the bank building’s construction.

By January 17, 1977, the FHLBB had in its possession investigatory materials

that included the Bank’s architectural plans for the Plaza. In July 1977, the Bank

finalized an agreement on mortgage lending practices with the community, which

was entitled the Loan Policy Agreement (“LPA”). The LPA detailed the terms for

how the Bank would extend mortgages in the community to ensure “the lower and

moderate income and minority residents” in the neighborhood would have access to

home financing opportunities. The LPA was then submitted to the FHLBB as an

amendment to the Bank’s licensing application. Notably, the LPA did not mention 5

the future construction of the Plaza. Smith in his deposition, however, stated that he

believed the LPA formally memorialized the parties’ agreed-upon terms and that he

understood that this agreement included the Plaza’s construction and the

community’s continued use of the space once the Plaza was completed. Essentially,

the appellants contend that the community groups withdrew their opposition before

the FHLBB at least in part in exchange for the Bank constructing the Plaza.

Regardless of the parties’ disputed understanding of the Bank’s agreement with the

community groups, by August of 1977, the community groups withdrew their

objections filed with the FHLBB, which cleared the path for approval of the Bank’s

application to open the new bank building. The Bank subsequently constructed the

building and the Plaza, which, in 1979, was opened to the public.

The Plaza exists today, largely as it did in 1979, but ownership of the bank

building and the Plaza has changed several times since its opening. At a preliminary

injunction hearing, a Bank employee testified that throughout these changes of

ownership, the Bank entered into licensing agreements with farmers’ market vendors

and community groups to use the Plaza. Other uses by the general public have

commonly occurred on the Plaza without licenses, such as break dancing, jump rope,

and social meetups. The Bank paid for insurance that covered the entire Plaza and

contracted for the Plaza’s maintenance, including repairs and waste removal. The 6

Bank paid taxes on the Plaza, physically maintained the Plaza, and settled a slip and

fall case from an incident on the Plaza.

In 2015, the Bank contracted to sell the building and the Plaza to 1800

Columbia Road, LLC, a real estate development group (“the Developers”). The

Developers intend to raze the bank building and the Plaza in order to construct retail

space and condominiums with a substantially reduced public area (from 4,000 square

feet down to 380 square feet).

As a result of the Developers’ plans to demolish the Plaza, the appellants

sought to communicate with the Developers, signed petitions, and drafted various

resolutions opposing the Plaza’s destruction. The appellants presented their

objections to the proposed site changes to the District of Columbia Historic

Preservation Review Board, which, on January 26, 2017, deemed the proposed

changes, including the removal of the Plaza, compatible with the Washington

Heights Historic District. On May 3, 2017, the Developers proceeded with their

construction plans and applied for a raze permit to demolish both the bank building

and the Plaza. 7

On June 15, 2017, KCA and AMRD filed suit against the Bank and the

Developers in the Superior Court of the District of Columbia. The complaint set

forth a claim for declaratory and injunctive relief for the appellants in order to

enforce “an easement by dedication in favor of the public for the Plaza.” On June

16, 2017, the appellants sought a preliminary injunction to prevent demolition of the

bank building and the Plaza during the ongoing litigation. On August 4, 2017, the

Superior Court (Edelman, J.) granted the motion for preliminary injunction. A jury

trial was then set to commence on April 17, 2018.

In the intervening months, the case was reassigned. The Superior Court (Puig-

Lugo, J.) then granted summary judgment in favor of all of the defendants except

the Bank. Consequently, on March 7, 2018, the Bank removed the case to federal

court due to the parties’ diversity of citizenship satisfying subject matter

jurisdiction. (In the meantime, the appellants appealed the Superior Court’s grant of

summary judgement to this court, but we dismissed the appeal as taken from a

nonfinal order.) The U.S. District Court for the District of Columbia then remanded

the case back to the Superior Court, finding that KCA and AMRD lacked prudential

standing to access federal courts under Article III of the U.S. Constitution. The

Superior Court then directed the parties to appear and show cause why the

preliminary injunction should not be vacated. 8

At the show cause hearing on January 12, 2021, the Superior Court (Puig-

Lugo, J.) vacated the preliminary injunction and then turned to the issues of

jurisdiction and summary judgment. The Superior Court assumed constitutional

standing and declined to address prudential standing. In granting summary judgment

in favor of the Bank, the Superior Court concluded that an essential element of the

alleged easement was government acceptance and that the community organizations

had failed to demonstrate that there was a triable issue of fact as to that question.

On March 1, 2021, the Superior Court also ordered that KCA’s $5,000 bond

be released to the Bank and further required that both KCA and AMRD pay

$7,167.03 to the Bank for costs. KCA and AMRD are now before this court on a

consolidated appeal of the final orders issued by the Superior Court that granted

summary judgment in favor of the Bank, released KCA’s $5,000 bond, and required

KCA and AMRD to reimburse the bank for $7,167.03 in costs.

II. Standard of Review

The Superior Court’s grant of summary judgment is reviewed de novo. Zere

v. District of Columbia, 209 A.3d 94, 98 (D.C. 2019). Summary judgment is proper

“if the pleadings, depositions, answers to interrogatories, and admissions on file, 9

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

Kibunja v. Alturas, L.L.C., 856 A.2d 1120, 1127 (D.C. 2004) (quoting Super. Ct.

Civ. R. 56(c)). “In determining whether summary judgment was appropriate, we

view the evidence in the light most favorable to the non-prevailing party and we

draw all reasonable inferences in that party’s favor.” Liu v. U.S. Bank Nat’l Ass’n,

179 A.3d 871, 876 (D.C. 2018).

“If a moving defendant has made an initial showing that the record presents

no genuine issue of material fact, then the burden shifts to the plaintiff to show such

an issue exists.” Smith v. Swick & Shapiro, P.C., 75 A.3d 898, 901 (D.C. 2013)

(quoting Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C. 2012)). “A

genuine issue of material fact exists if the record contains ‘some significant

probative evidence . . . so that a reasonable fact-finder could return a verdict for the

non-moving party.’” 1836 S St. Tenants Ass’n, Inc. v. Est. of Battle, 965 A.2d 832,

836 (D.C. 2009) (quoting Warren v. Medlantic Health Grp., Inc., 936 A.2d 733, 737

(D.C. 2007)). 10

III. Standing

As a preliminary matter, we must resolve the question of the appellants’

standing. Moeller v. District of Columbia, 253 A.3d 165, 170 (D.C. 2021). As noted

above, the Superior Court assumed constitutional standing and declined to address

prudential standing, but standing is a “threshold jurisdictional question” which every

court must address “prior to and independent of the merits of a party’s claims.”

Grayson v. AT & T Corp., 15 A.3d 219, 229 (D.C. 2011) (internal quotation marks

omitted). “[As] an elementary matter of jurisprudence . . . an individual must have

standing in order to maintain an action.” Burleson v. United Title & Escrow Co.,

484 A.2d 535, 537 (D.C. 1983) (per curiam). Indeed, “[w]hen the plaintiff lacks

standing, the court lacks jurisdiction.” Animal Legal Def. Fund v. Hormel Foods

Corp., 258 A.3d 174, 191 (D.C. 2021) (citing UMC Dev., LLC v. District of

Columbia, 120 A.3d 37, 43 (D.C. 2015), for the proposition that a lack of standing

is a “defect in subject matter jurisdiction”). Accordingly, we address the

jurisdictional and standing issues raised below before reaching the merits of the

issues on appeal. 11

A. Constitutional Standing

Congress created the District of Columbia court system under Article I of the

Constitution, rather than Article III. Grayson, 15 A.3d at 224, 233. Article I courts,

such as the courts of the District of Columbia, are not bound by Article III standing

requirements, but we have consistently followed the constitutional standing

requirements embraced by Article III. Id. (discussing Palmore v. United States, 411

U.S. 389, 397 (1973)).

In order to satisfy the requirements for constitutional standing, a plaintiff must

allege facts demonstrating: (1) an injury in fact, meaning an invasion of a legally

protected interest that is (a) concrete and particularized and (b) actual or imminent;

(2) a causal connection between the injury and the conduct complained of; and (3) a

likelihood that the injury will be redressed by a favorable decision. Id. at 234 n.36

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-561 (1992)). An association

may demonstrate constitutional standing if: “(a) its members would otherwise have

standing to sue in their own right; (b) the interests it seeks to protect are germane to

the organization’s purpose, and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” D.C. Library

Renaissance Project/W. End Library Advisory Grp. v. D.C. Zoning Comm’n, 73 12

A.3d 107, 113 (D.C. 2013) (quoting Friends of Tilden Park, Inc. v. District of

Columbia, 806 A.2d 1201, 1207 (D.C. 2002)). “Constitutional standing must be

shown through ‘specific facts’ set forth ‘by affidavit or other evidence’ to survive a

motion for summary judgment.” Grayson, 15 A.3d at 246 (quoting Lujan, 504 U.S.

at 561). Applying this associational standard to the instant record, we conclude KCA

and AMRD have constitutional standing.

First, KCA and AMRD members would have standing to sue in their own

right. In their affidavits submitted to the Superior Court, KCA and AMRD members

affirmed that they regularly attend the farmers’ market and other neighborhood

events held on the Plaza, and they use the space as a “public square” and community

center. See generally J.A. 2087 (Belcher, KCA Member Aff.); J.A. 2089 (Hargrove,

KCA Member Aff.); J.A. 2091 (Morgan, KCA Member Aff.); J.A. 2093

(Tyborowski, AMRD Member Aff.); J.A. 2095 (Rigby, KCA Member Aff.).

Addressing the specific injury that would emanate from the loss of the Plaza by KCA

community members, Denis James, President of KCA, wrote:

[t]he loss of the Plaza would have negative impacts on KCA members’ health and adversely affect the livability and vibrancy of the neighborhood KCA strives to preserve and protect. Members of vulnerable groups residing within KCA’s jurisdiction, such as senior citizens, persons with low income, and neighborhood children[] would lose access to programs now operated on the Plaza as part of 13

the farmers’ market that provide them with fresh farm products at low or no cost.

J.A. 2081-82 (James, KCA Member Aff.).

The submitted affidavits and statements from individual KCA and AMRD

members sufficiently articulate an injury in fact. Plainly, these statements allege a

concrete and particularized injury, as the Plaza’s demolition would significantly

interfere with these individuals’ use of the Plaza and lessen the alleged aesthetic and

recreational values of the surrounding area. Further, KCA and AMRD members’

injuries would be indisputably actual and imminent, because the demolition was only

stopped by the initial Superior Court’s preliminary injunction. The injury is

remediable by an injunction that would prevent the development—and inevitable

destruction—of the Plaza, preserving the space for the use and enjoyment by KCA

and AMRD members. Given this record, an individual member of KCA or AMRD

would be able to seek redress for this concrete injury through a permanent injunction

to prevent the development of the Plaza. Accordingly, KCA and AMRD satisfy the

first prong of constitutional standing.

Second, the interests that both KCA and AMRD seek to protect are germane

to their purposes. KCA’s mission “includes promoting the interests of residents who

live in the geographic area . . . which consists primarily of the historic Adams 14

Morgan neighborhood.” J.A. 2080. According to James, “KCA members include

members of these vulnerable groups who would be negatively affected by not having

a farmers’ market and public square in their neighborhood. . . . KCA works on all

the matters detailed above to prevent negative impacts on the community, including

our members and their families.” J.A. 2081-82 (James Aff.). AMRD’s mission is

“to protect and preserve the personal and property interests of DC residents, families,

and those living, working, and playing in the historic and unique Adams Morgan

neighborhood.” J.A. 2084. Its purpose is “to preserve and protect the personal and

property interests of participating members and to mitigate against displacement

pressures, negative environmental impacts, and adverse [e]ffects on public services,

public land and assets.” Id. The record below demonstrates that preserving the Plaza

directly relates to both KCA and AMRD’s organizational purposes of promoting the

interests of Adams Morgan residents, particularly preserving their property interests,

thus satisfying the second requirement of constitutional standing.

Third, neither the claim asserted nor the relief requested requires that an

individual member of the association participate in the lawsuit. Accordingly, we

find that KCA and AMRD satisfy the requirements for constitutional standing. 15

B. Prudential Standing

As a prudential matter, a plaintiff generally may not litigate another person’s

legal right. Super. Ct. Civ. R. 17(a); Solid Rock Church, Disciples of Christ v.

Friendship Pub. Charter Sch., Inc., 925 A.2d 554, 559 (D.C. 2007); District of

Columbia v. ExxonMobil Oil Corp., 172 A.3d 412, 419 (D.C. 2017) (quoting

Grayson, 15 A.3d at 235) (stating that prudential standing rules include “‘the general

prohibition on a litigant’s raising another person’s legal rights’”). Plaintiffs must

show they are within the “zone of interest,” which delineates a “prudential” but not

a “constitutionally compelled” interest. See Solid Rock Church, 925 A.2d at 559

(citing Brentwood Liquors, Inc. v. D.C. Alcoholic Beverage Control Bd., 661 A.2d

652, 654-55 (D.C. 1995)).

An association “can establish [prudential] standing without asserting injury to

itself, if it meets the requirements of associational standing.” D.C. Library

Renaissance Project, 73 A.3d at 115 (citing Warth v. Seldin, 422 U.S. 490, 511

(1975), and Speyer v. Barry, 588 A.2d 1147, 1160 & n.25 (D.C. 1991), for the

proposition that an organization may satisfy prudential standing requirements when

at least one member satisfies the standing requirements). As organizations with

associational standing, asserting a legal right allegedly held by the public and thus 16

by the members of KCA and AMRD, the appellants possess prudential standing to

litigate their purported claims to the Plaza on behalf of the public provided the public

itself has the right to enforce the easement at all. Accordingly, in order to resolve

whether the appellants have prudential standing, this case requires us to resolve

whether in the District of Columbia individual members of the public may seek to

enforce easements by public dedication.

Numerous courts have found that members of the public can have standing to

enforce other forms of public easements. See, e.g., Gould v. Greylock Rsrv.

Comm’n., 215 N.E.2d 114, 116-26 (Mass. 1966) (permitting five citizens to bring a

suit to limit leasing a mountain summit and surrounding forest); Paepcke v. Pub.

Bldg. Comm’n, 263 N.E.2d 11, 18-19 (Ill. 1970) (citing Robbins v. Dep’t of Pub.

Works, 244 N.E.2d 577 (Mass. 1969)) (holding the public has standing to enforce

the public trust doctrine); Matthews v. Bay Head Improvement Ass’n., 471 A.2d 355,

358 (N.J. 1984) (permitting a public association to bring a right of access suit).

This view is supported by the case law and statutes in this jurisdiction. For

example, the then-Court of Appeals of the District of Columbia weighed in on the

topic of federal lands held in public trust, explaining “[w]hen land is dedicated for a

public park by the municipality, it inures to the benefit of all its citizens. It is held 17

in trust for the benefit of all its citizens.” Quinn v. Dougherty, 30 F.2d 749, 751

(D.C. Cir. 1929) (citation omitted); see also M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.

1971) (holding that the District of Columbia Circuit decisions issued prior to

February 1, 1971, and the establishment of the District of Columbia Court of

Appeals, are binding precedent). The court later explained that it was a fundamental

rule “that one who can look from the front of his house with an unobstructed view

upon a park” may bring suit, even if he is not the “abutting owner.” Id. (discussing

Douglass v. City Council, 24 So. 745 (Ala. 1898)). The court further suggested that

for federal park lands held in the public trust, a member of the public—to whom the

dedication benefits—may enforce the dedication. Id.

While analytically distinct from the common law analysis above, the

legislature has recognized as a matter of public policy the value of the public holding

enforcement rights. For example, the District of Columbia’s Uniform Conservation

Easement Act (“UCEA”) permits third parties to enforce conservation easements. 2

2 D.C. Code § 42-201 provides that:

“Conservation easement” means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, ensuring its availability for agricultural, forestal, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property. 18

D.C. Code §§ 42-202.01, 42-203. The third-party right of enforcement is defined as

“a right provided in a conservation easement to enforce any of its terms granted to a

governmental body, charitable corporation, charitable association, or charitable

trust, which, although eligible to be a holder, is not a holder.” D.C. Code § 42-

201(3).

Accordingly, consistent with other jurisdictions and our case law and statutes,

we hold that in the District of Columbia members of the public who enjoy the benefit

of an easement, including local neighborhood associations, may enforce an

easement. Here, the neighborhood associations are comprised of District of

Columbia residents who directly benefit from the alleged easement and would be

harmed if their ability to use and enjoy the Plaza were curtailed by its demolition

and the subsequent construction of the condominium building. Thus, the community

organizations in this case may seek to enforce the alleged easement and have

prudential standing to do so.

IV. Easements by Public Dedication

Having determined that the appellants have standing, we now turn to what the

appellants must prove to establish an easement by public dedication. At bottom, an 19

easement is “an interest in land owned by another person, consisting in the right to

use or control the land for a specific limited purpose.” Bd. of Trs., Grand Lodge of

Indep. Ord. of Odd Fellows of D.C. v. Carmine’s DC, LLC, 225 A.3d 737, 743 (D.C.

2020); Martin v. Bicknell, 99 A.3d 705, 708 (D.C. 2014) (citing Easement, Black’s

Law Dictionary 622 (10th ed. 2014)). An easement by public dedication is “an

easement [], by the owner [of the property], for the use of the public, and accepted

for such use by or on behalf of the public.” Brown v. Consol. Rail Corp., 717 A.2d

309, 315 n.7 (D.C. 1998) (quoting Black’s Law Dictionary 412 (6th ed. 1990)). The

owner only retains rights that “are compatible with . . . public use[].” Id.

To prove an easement by public dedication, a claimant must demonstrate two

elements: that the owner offered the dedication, and that the dedication was

accepted. District of Columbia v. Robinson, 14 App. D.C. 512, 546 (D.C. Cir. 1899)

(“The owner must unequivocally dedicate his land to the use of the public and the

public must accept.”). To determine that there has been an offer, the owner must

have “intended to give or dedicate the land,” not merely that the owner “assented to

its use by the public.” Id. at 544. Similarly, for acceptance to be valid, the finder of

fact must determine “that the public actually enjoyed its use for that purpose.” Id.

In effect, acceptance requires performance to be effective. See id. 20

To our analysis of the existence of an alleged easement by dedication, we

apply our recognition in other contexts that, “[t]here are no particular words of art

necessary to create an easement by express grant.” Bd. of Trs., 225 A.3d at 743

(quoting Katkish v. Pearce, 490 A.2d 626, 628 (D.C. 1985)). As with any dispute

regarding a written contract, traditional rules of contractual interpretation apply, and

the court will look first to the plain language of the purportedly interest-creating

document; if it is clear, that ends the inquiry. Id. at 743 (citing Katkish, 490 A.2d at

628); see also Found. for Pres. of Hist. Georgetown v. Arnold, 651 A.2d 794, 796

(D.C. 1994). If the text is unclear, then the court must examine the “surrounding

circumstances” of the document’s execution. Id.; see also Arnold, 651 A.2d at 796

(“[T]he parties’ intention is to be ascertained by examining the document in light of

the circumstances surrounding its execution and, as a final resort, by applying rules

of construction”); see also Restatement (Third) of Property: Servitudes § 2.2 cmt. a

(Am. Law. Inst. 2000) (“To avoid unfairness . . . courts generally seek to ascertain

and give effect to the intentions of the parties, even though imperfectly expressed”).

Either element of offer or acceptance may be sufficiently demonstrated by the

conduct of the parties and the circumstances surrounding the agreement. See

Lansburgh v. District of Columbia, 8 App. D.C. 10, 19 (D.C. Cir. 1896)

(“[A]cceptance may, in all cases, be implied from conduct and be as effectual as one

expressly made.”). 21

With those requirements in mind, we turn to the critical question squarely

presented by this case, namely, whether easements by public dedication may only

be accepted by the government or whether they may also be accepted by the public

at large. We endorse the latter view.

The weight of authority supports this view. See, e.g., Mayor of Macon v.

Franklin, 12 Ga. 239, 244 (1852); Harris v. Commonwealth, 61 Va. 833, 837-40, 20

Gratt. 833 (1871); Allied Am. Inv. Co. v. Pettit, 65 Ariz. 283, 287 (1947); City of

Tyler, 246 S.W.2d 601 at 602 (Tex. 1952); Smith v. State, 282 S.E.2d 76, 82 (Ga.

1981); State ex rel. Matthews v. Nashville, 679 S.W.2d 946, 949 (Tenn. 1984); TMS

Ventures LLC v. Zachariah, 2021 Ariz. App. Unpub. LEXIS 196 at *7 (Ct. App.

Feb. 18, 2021). In establishing its interest, the public acceptance of a dedication of

land for public use must be clear and unequivocal. See, e.g., Star Island Assocs. v.

St. Petersburg Beach, 433 So. 2d 998, 1003 (Fla. Dist. Ct. App. 1983); Hancock v.

Tipton, 732 So. 2d 369, 372 (Fla. Dist. Ct. App. 1999).

This court’s predecessor, the D.C. Circuit, see M.A.P., 285 A.2d at 312,

addressed who may accept easements by public dedication and how such easements

are created in Lansburgh, 8 App. D.C. at 10-19, and Robinson, 14 App. D.C. at 512-

48. Contrary to the federal district court’s ruling effectively adopted by the Superior 22

Court, they do not stand for the proposition that only District authorities may accept

an easement by public dedication. Rather, they provide support for the conclusion

we reach.

In Lansburgh, the titular appellant sought to recover possession of a strip of

land that he had donated to the District of Columbia government for the creation of

a road. 8 App. D.C. at 16. The case confirms that the District of Columbia

government may hold an easement by public dedication, but it does not stand for the

proposition that the only entity that may hold such an easement is the government.

See id. at 18. As we explained in Lansburgh:

it may well be doubted whether, as against the right of the owner to retract a dedication once formally made to public use, it is necessary that there shall have been a formal acceptance by the public authorities, in any case. Probably the question would turn upon the peculiar circumstances of each particular case, and not be controlled by a single general rule.

Id. at 18-19. The Circuit noted that the Commissioners of the District of Columbia

never responded to a letter from the appellant indicating that he would allow a road

to be located on his property but observed that “acceptance may, in all cases be

implied from conduct and be as effectual as one expressly made.” Id. at 19. Among

the “conduct” the court then highlighted was the “actual occupation” of the road,

which presumably was not by the Commissioners personally, but by the general 23

public. Id. Furthermore, the case illustrates that a letter may be a valid method of

conveying a public easement, explaining the letter was “in itself, a sufficient

dedication to the use applied for, and when accepted and acted on by the

Commissioners, [the letter] worked a complete estoppel.” Id. at 18 (citing Morgan

v. R.R. Co., 96 U.S. 716, 723 (1877)).

In Robinson, the court reviewed jury instructions given in a trial about District

of Columbia officials’ use of a road. 14 App. D.C. at 512. The Circuit discerned

“no reversible error in the instructions as given,” explaining that “[d]edication may

be presumed from the long continued public use,” and specifically with regard to

acceptance, indicating that either acceptance “on the part of the public authorities”

or “the public” would suffice. Id. at 545-46. Consistent with those cases and several

state appellate courts, we now hold that in the District of Columbia an easement by

public dedication may be accepted through lengthy continued public use, even

without acceptance by the government.

Having now announced the law of easements by public dedication in the

District of Columbia, we address the record below in light of this new jurisprudence. 24

V. Applying our Holding to the Facts

A. Offer

The appellants argue that Owen offered the Plaza as a public dedication in

exchange for the community’s withdrawal of their FHLBB complaint. Appellants’

Br. 35-36. In support of their claim, appellants point to a letter written by Owen,

drafted on November 2, 1976, which stated in relevant part that the Plaza would be

constructed “in such a way as to preserve its open quality, attractiveness and

accessibility to the vendors that presently use it.” J.A. 58. Further, the architect of

the Plaza, Seymour Auerbach, in a deposition, testified that he designed the building

to allow the vendors to continue their present use of the space. J.A. 1318. Marie

Nahikian, the Executive Director of the AMO, in her deposition testified that the

agreement between the community groups and the Bank stipulated that there “would

always be that kind of public access” for use of the Plaza. J.A. 1375. Reflecting

that understanding, Smith explicitly stated in a signed declaration that in exchange

for the withdrawal, the Bank agreed “to dedicate the [P]laza for public use.” J.A.

517. 25

The appellees counter that the history of licensing the use of the Plaza to

various community groups over its many years and the Bank’s continued exercise

of control over the space illustrate there never was an offer to dedicate. Appellees’

Br. 32-33. Further, the LPA negotiated between the Bank and the community groups

did not mention the Plaza. J.A. 931. Additionally, an FHLBB memorandum

prepared in response to the Bank’s FHLBB application, processed on August 1,

1977, solely identified the community opposition to the Bank’s application as

motivated by its history of discriminatory lending practices. J.A. 906. Akin to the

LPA, it made no mention of the Plaza. J.A. 905-06. As the owner’s intent in making

the offer represents the critical initial inquiry in determining the existence of the

easement, Blank v. Park Lane Ctr., 121 A.2d 846, 848 (Md. 1956), we conclude that

a genuine dispute of material fact exists as to whether the Bank intended to offer the

public an easement by public dedication to the Plaza and, if so, whether it continues.

B. Acceptance

The appellants argue that the public accepted the proposed dedication through

the work that community members of the public conducted with Owen on behalf of

the Bank to negotiate the Plaza’s creation and develop its design, and through

continued use of the Plaza for over forty years. Appellants’ Br. 31-32, 34; see also 26

J.A. 1559-60. The appellees counter that the Bank’s practice of licensing the Plaza

to vendors, and the Bank’s continued maintenance of the space is inconsistent with

acceptance. Appellees’ Br. 33-37. The evidence before the Superior Court

regarding use by the public in a manner that indicates acceptance of an easement by

public dedication is at least sufficiently in dispute to survive summary judgment.

VI. Conclusion

The record reveals a number of factual disputes between the parties that were

not specifically addressed or otherwise resolved by the Superior Court in its grant of

summary judgment or elsewhere in the record below. The parties’ factual disputes

are substantial and material to the resolution of the legal questions raised by the

appellants’ complaint. With this opinion, we announce the legal standard for

analyzing alleged easements by public dedication in the District of Columbia. Given

that new standard, and the dense and witness-specific evidence below, the record

before us necessitates remand. The court acknowledges that the appellees raised

several alternative grounds in support of summary judgment that were not addressed

by the Superior Court. J.A. 2330-31. Further, we note that we are not addressing

the appellants’ arguments regarding the bond costs imposed by the Superior Court.

The award of such costs are necessarily vacated as premature in light of our decision 27

to reverse and remand the case. J.A. 2460. Consistent with our general practice, we

do not decide those issues in the first instance, instead leaving them to be decided

on remand. See, e.g., Bartel v. Bank of Am. Corp., 128 A.3d 1043, 1048 (D.C. 2015).

Accordingly, for the foregoing reasons, the Superior Court’s January 12,

2021, order granting summary judgment and dismissing the case is reversed, and the

case is remanded for further proceedings consistent with this opinion.

So ordered.