                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

      Argued September 14, 1999   Decided December 17, 1999 

                           No. 98-7209

     District Intown Properties Limited Partnership, et al., 
                            Appellants

                                v.

                  District of Columbia, et al., 
                            Appellees

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 96cv00569)

     Wallace A. Christensen argued the cause for appellants.  
With him on the briefs was Stacey L. McGraw.

     Lutz Alexander Prager, Assistant Deputy Corporation 
Counsel, argued the cause for appellees.  With him on the 
brief were Jo Anne Robinson, Interim Corporation Counsel, 
Charles L. Reischel, Deputy Corporation Counsel, and Melvin 
W. Bolden, Jr., Counsel.

     John D. Echeverria, Paul W. Edmondson, Elizabeth S. 
Merritt, and Laura S. Nelson were on the brief for amicus 
curiae The National Trust for Historic Preservation and D.C. 
Preservation League.

     Before:  Edwards, Chief Judge, Williams and Rogers, 
Circuit Judges.

       Opinion for the Court filed by Chief Judge Edwards.

     Separate opinion filed by Circuit Judge Williams concur-
ring in the judgment.

     Edwards, Chief Judge:  In 1961, District Intown Limited 
Properties Partnership ("District Intown") purchased Cathe-
dral Mansions South, an apartment building and landscaped 
lawn on Connecticut Avenue across from the National Zoo.  
District Intown subdivided this property into nine contiguous 
lots in 1988.  In March 1989, all nine lots were declared 
historic landmarks.  In July 1992, the Mayor of the District 
of Columbia denied District Intown's request for construction 
permits to build eight townhouses on eight of the nine lots, 
finding that the construction was incompatible with the prop-
erty's landmark status.  Alleging that the District of Colum-
bia's denial constituted a taking, District Intown and its 
general partners sued under 42 U.S.C. s 1983 (1994) for just 
compensation under the Takings Clause of the Fifth Amend-
ment.

     Upon cross motions for summary judgment, the District 
Court granted summary judgment for the District of Colum-
bia.  See District Intown Properties Ltd. Partnership v. 
District of Columbia, 23 F. Supp. 2d 30 (D.D.C. 1998).  The 
District Court held that the relevant parcel for the purposes 
of determining whether a taking had occurred consisted of 
the entire property, including the apartment building, not the 
eight individual lots that District Intown sought to develop.  
See id. at 35-36.  The court then analyzed the alleged taking 
under the Supreme Court's holdings in Lucas v. South Car-
olina Coastal Council, 505 U.S. 1003 (1992), and Penn Cen-
tral Transportation Co. v. City of New York, 438 U.S. 104 
(1978).  The District Court found that there was no categori-

cal taking under Lucas, because District Intown had not been 
deprived of all economic value in the relevant parcel.  The 
trial court further held that District Intown could not make 
out a claim under Penn Central, because its reasonable 
investment-backed expectations had not been disappointed 
and it continued to receive economic benefits from the prop-
erty.

     We hold that the District Court correctly found that the 
relevant parcel for the takings analysis consisted of the entire 
property held by District Intown, i.e., the property as it was 
originally purchased in 1961 and as it was held for 27 years 
prior to the 1988 subdivision.  All relevant objective and 
subjective factors support this conclusion.  When the proper-
ty is viewed as a single parcel, there is no doubt that it has 
not been rendered valueless.  Indeed, even if each subdivided 
parcel is considered separately, District Intown has not 
shown a "total taking" under Lucas.  In addition, the record 
here does not show that District Intown's investment-backed 
expectations were disappointed.  This is not surprising, be-
cause District Intown could not have had any reasonable 
investment-backed expectations of development given the 
background regulatory structure at the time of subdivision.  
Accordingly, we hold that District Intown did not present any 
genuine issue of material fact in support of a takings claim 
under Penn Central or Lucas.  We therefore affirm the 
District Court's judgment.

                          I. Background 

     In 1961, District Intown purchased in fee simple Lot 1 of 
Subdivision Square 2106 on Connecticut Avenue, across from 
the National Zoo.  The property was known as Cathedral 
Mansions South and consisted of an apartment building and 
adjacent landscaped lawns.  District Intown made no signifi-
cant changes to the property until 1988, when it subdivided 
Cathedral Mansions South into nine lots, designated as Lots 
106 through 114.  The subdivisions were recorded on June 30, 
1988.  Lot 106 contains the apartment building, and Lots 107 
through 114 are each portions of the landscaped lawn.  The 

record indicates that District Intown spent $2,819 to survey 
the parcel and to record the subdivision.  The record does not 
reflect any other expenses.

     On December 30, 1988, District Intown applied for permits 
to build one townhouse on each of the eight landscaped lots.  
The zoning and structural engineering divisions of the De-
partment of Consumer and Regulatory Affairs approved the 
permits on March 7, 1989.  However, because the property is 
located across from the National Zoo, the permits were 
referred to the Commission on Fine Arts.  See D.C. Code 
Ann. s 5-410 (1994) ("Shipstead-Luce Act").  The Shipstead-
Luce Act, in effect since the 1930s, empowers the Commission 
on Fine Arts to communicate to the Mayor "recommenda-
tions, including such changes, if any, as in its judgment are 
necessary to prevent reasonably avoidable impairment of the 
public values belonging" to various buildings and parks.  Id.  
On March 31, 1989, the Commission on Fine Arts recom-
mended against construction.

     Beginning in 1987, before the property was subdivided, a 
movement developed in the Woodley Park community in 
support of designating the property a historic landmark.  
This culminated on March 2, 1989, when the group filed a 
landmark designation petition.  This was five days before 
District Intown received zoning approval for the construction.  
The Historic Preservation Review Board ("Review Board") 
approved the landmark designation on May 17, 1989.  Be-
cause the landmark designation petition was pending when 
District Intown's permits were approved for zoning, the per-
mits were referred to the Review Board pursuant to the 
District of Columbia's landmark laws, see D.C. Code Ann. 
s 5-1001 et seq. (1994 & Supp. 1999), effective since 1979.  On 
July 19, 1989, the Review Board recommended that the 
construction permits be denied.  The permit applications 
were dismissed without prejudice on December 20, 1991.

     On January 31, 1992, District Intown filed new permit 
applications identical in all respects to those previously dis-
missed.  The permits were again referred to the Review 
Board, which recommended denial because construction on 
the lawn would be incompatible with its historic landmark 

status.  Pursuant to D.C. Code Ann. s 5-1007(e), District 
Intown requested a hearing before an agent designated by 
the Mayor.  The hearing was held on July 22 and 24, 1992.  
The Mayor's agent agreed with the Review Board, stating 
that "any construction destroying the lawn" would be incom-
patible with its landmark status.  Decision and Order of 
Mayor's Agent p 61 n.1, reprinted in Joint Appendix ("J.A.") 
368.  In addition, the agent purported to hold that the denial 
of the construction permits did not work an economic hard-
ship or constitute a taking, but the District of Columbia Court 
of Appeals has since declared that the agent's holding was 
outside his jurisdiction.  See District Intown Properties, Ltd. 
v. Department of Consumer and Regulatory Affairs, 680 A.2d 
1373, 1379 (D.C. 1996) (decision of the Mayor's agent regard-
ing alleged economic hardship would have no preclusive effect 
in any future proceeding in which District Intown might claim 
an uncompensated taking).

     Thereafter, on March 22, 1996, District Intown filed this 
s 1983 action.  On cross motions for summary judgment, the 
District Court entered summary judgment for the District of 
Columbia on September 25, 1998.  See District Intown Prop-
erties Ltd. Partnership, 23 F. Supp. 2d at 39.  The court 
found that the property (i.e., the "relevant parcel") for the 
purposes of assessing whether a taking had occurred consist-
ed of the original Lot 1 prior to its subdivision into nine lots.  
See id. at 35-36.  Because District Intown continued to 
receive significant economic benefits from use of the relevant 
parcel, the court found that appellants failed to demonstrate 
that their property had been rendered "valueless," and their 
claim to a taking under Lucas failed.  See id. at 36-37.  The 
court then turned to the ad hoc analysis elucidated by Penn 
Central and found that none of the ad hoc factors support 
District Intown's takings claim.  See id. at 37-39.  This 
appeal followed.

                          II.  Analysis

A.   Standard of Review

     This court reviews a grant of summary judgment de novo.  
See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. 

Cir. 1998) (en banc).  A party is entitled to summary judg-
ment if the record reveals 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.  See Fed R. Civ. P. 56(c).  In 
deciding whether there is a genuine issue of material fact, the 
court must assume the truth of all statements proffered by 
the non-movant except for conclusory allegations lacking any 
factual basis in the record.  See Greene v. Dalton, 164 F.3d 
671, 675 (D.C. Cir. 1999).  Summary judgment may be grant-
ed even if the movant has proffered no evidence, so long as 
the non-movant "fails to make a showing sufficient to estab-
lish the existence of an element essential to that party's case, 
and on which that party will bear the burden of proof at 
trial."  Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).  As 
the "party challenging governmental action as an unconstitu-
tional taking," District Intown bears a "substantial burden."  
Eastern Enterprises v. Apfel, 524 U.S. 498, 523 (1998).

B.   The Takings Analysis

     The Takings Clause of the Fifth Amendment prohibits the 
government from taking "private property ... for public use, 
without just compensation."  U.S. Const. amend. V.  In a 
regulatory takings case, the principal focus of inquiry is 
whether a regulation "reaches a certain magnitude" in depriv-
ing an owner of the use of property.  Pennsylvania Coal Co. 
v. Mahon, 260 U.S. 393, 413 (1922);  see also id. at 415 (asking 
whether the regulation "goes too far").  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.  See Penn Central Transp. Co., 438 
U.S. at 124.

     The meaning of the three factors identified in Penn Central 
has been amplified by the Court, both in Penn Central and in 
later cases.  The regulation's economic effect upon the claim-
ant may be measured in several different ways.  See Hodel v. 
Irving, 481 U.S. 704, 714 (1987) (looking to the market value 

of a property);  Keystone Bituminous Coal Ass'n v. DeBened-
ictis, 480 U.S. 470, 495-96 (1987) (looking to whether the 
regulation makes property owner's coal operation "commer-
cially impracticable");  Andrus v. Allard, 444 U.S. 51, 66 
(1979) (looking to the possibility of other economic use be-
sides sale, which was prohibited by the challenged regula-
tion);  Penn Central Transp. Co., 438 U.S. at 136 (focusing on 
the ability to earn a reasonable rate of return).  A reasonable 
investment-backed expectation "must be more than a 'unilat-
eral expectation or an abstract need.' "  Ruckelshaus v. Mon-
santo Co., 467 U.S. 986, 1005-06 (1984) (quoting Webb's 
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 
(1980)).  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 avail-
able for development."  Penn Central Transp. Co., 438 U.S. 
at 130.  And the character of the governmental action de-
pends both on whether the government has legitimized a 
physical occupation of the property, see Loretto v. Tele-
prompter Manhattan CATV Corp., 458 U.S. 419, 434-35 
(1982), and whether the regulation has a legitimate public 
purpose, see Keystone Bituminous Coal Ass'n, 480 U.S. at 
485.  Finally, under all three of these factors, the effect of the 
regulation must be measured on the "parcel as a whole."  See 
Penn Central Transp. Co., 438 U.S. at 130-31.

     The Supreme Court has indicated that it will find a "cate-
gorical" or per se taking in two circumstances.  The first 
circumstance includes regulations that result in "permanent 
physical occupation of property."  Loretto, 458 U.S. at 434-35.  
This circumstance is not at issue in this case.  The second 
circumstance includes regulations pursuant to which the gov-
ernment denies all economically beneficial or productive use 
of property.  See Lucas, 505 U.S. at 1015.  This so-called 
"total taking" claim is at the heart of District Intown's 
complaint here.  Unfortunately, the facial simplicity of the 
"total taking" standard belies the difficulty in its application.  
As the Court acknowledged in Lucas, its "rhetorical force ... 
is greater than its precision, since the rule does not make 

clear the 'property interest' against which the loss of value is 
to be measured."  505 U.S. at 1016 n.7.

     Under both Lucas and Penn Central, then, we must first 
define what constitutes the relevant parcel before we can 
evaluate the regulation's effect on that parcel.  In the instant 
case the question is:  Does the relevant parcel consist of the 
property as a whole or do the eight lots for which construc-
tion permits were denied constitute the relevant parcels?  
This has been referred to as the "denominator problem."  
E.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 
1179 (Fed. Cir. 1994).  State law may offer some guidance on 
how to define the relevant parcel, but, as the Court has noted, 
state law is not always determinative.  Compare Lucas, 505 
U.S. at 1017 n.7 (suggesting that one may look to the influ-
ence of the State's property law--whether and to what extent 
the State has recognized and extended legal recognition to 
the particular interest alleged to have been deprived of all 
economic value--on the claimant's reasonable expectations), 
with Keystone Bituminous Coal Ass'n, 480 U.S. at 500 (refus-
ing to treat the support estate as a separate parcel of 
property simply because Pennsylvania law recognizes it as 
such and noting that "our takings jurisprudence forecloses 
reliance on such legalistic distinctions within a bundle of 
property rights").

C.   The Relevant Parcel

     The definition of the relevant parcel profoundly influences 
the outcome of a takings analysis.  Above all, the parcel 
should be functionally coherent.  In other words, more should 
unite the property than common ownership by the claimant.  
Thus, a court must also consider how both the property-
owner and the government treat (and have treated) the 
property.

     The District Court used several factors to determine the 
relevant parcel:  the degree of contiguity, the dates of acquisi-
tion, 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.  See District Intown, 23 F. Supp. 2d at 
35 (citing Ciampitti v. United States, 22 Cl. Ct. 310, 318 

(1991)).  An analysis focused on these factors is eminently 
sound and it mirrors the approach taken by other courts in 
regulatory takings cases.  See Forest Properties, Inc. v. 
United States, 177 F.3d 1360, 1365 (Fed. Cir.) (stressing the 
owner's treatment of property as a unit from the time of 
purchase), cert. denied sub nom. RCK Properties v. United 
States, 120 S. Ct. 373 (1999);  K & K Constr. Co. v. Depart-
ment of Natural Resources, 575 N.W.2d 531, 537 (Mich.) 
(stressing contiguity, unity of ownership, and a common 
development plan), cert. denied, 119 S. Ct. 60 (1998).

     Applying these factors, the District Court correctly deter-
mined that all nine lots should be treated as one parcel for 
the purpose of the court's takings analysis.  The lots are 
spatially and functionally contiguous.  District Intown pur-
chased the property as a whole in 1961 and treated it as a 
single indivisible property for more than 25 years.  District 
Intown presented no evidence that, even after subdivision, it 
treated the lawn lots separately from Lot 106, the lot that 
contains the apartment building, for the purposes of account-
ing or management.  The intentional act of subdivision is the 
only evidence produced by District Intown that it has treated 
the lots as distinct units.  In fact, before the Mayor's agent, 
District Intown did not come forward with evidence showing 
that it had, for accounting purposes, treated the lawn mainte-
nance fees separately from expenses associated with main-
taining the apartment building.  See Decision & Order of 
Mayor's Agent p 40, reprinted in J.A. 364. While there is a 
dispute as to whether the adjacent landscaped lawn increases 
the apartment building's value, this is immaterial.  Even if 
Lot 106 were deemed to have the same value with or without 
Lots 107 through 114, the application of the other three 
factors strongly suggests that Lots 106 through 114 are 
functionally part of the same property.

     Appellants argue that the District Court was wrong to 
treat all the lots as a single parcel because it contradicts 
Lucas and two Federal Circuit cases.  This argument falls 
flat.  District Intown first argues that the Lucas Court 
termed "extreme" and "unsupportable" a similar decision by 
the state court in Penn Central to treat multiple holdings as a 

single parcel for takings analysis.  See Brief for Appellants at 
15-16.  This dictum, see Lucas, 505 U.S. at 1017 n.7, referred, 
however, only to the state court's decision to treat all of Penn 
Central's holdings in the vicinity of Grand Central Station as 
part of the denominator for the purposes of deciding whether 
plaintiffs could receive a reasonable return on their invest-
ment in Grand Central.  See Penn Central Transp. Co. v. 
New York, 366 N.E.2d 1271, 1278 (N.Y. 1977).  The Penn 
Central Court had no need to address this holding.  The 
Lucas dictum casts aspersions on the state court's elevation 
of one factor, unity of ownership, over other factors in 
determining the relevant parcel.  The District Court engaged 
in no such "extreme" conduct here;  it did not look to all of 
District Intown's holdings in the vicinity of Cathedral Man-
sions South to evaluate the economic effect of the regulation 
at issue here;  it looked to contiguous property that was 
purchased and treated as a single unit by appellants.

     Similarly, the two Federal Circuit cases cited by District 
Intown do not undermine the District Court's definition of the 
relevant parcel.  See Brief for Appellants at 16 (citing Lovela-
dies Harbor, 28 F.3d at 1171 and Florida Rock Indus., Inc. v. 
United States, 791 F.2d 893 (Fed. Cir. 1986)).  Neither of 
these cases support appellants' position and, in fact, Lovela-
dies Harbor supports the District Court's decision.  In Flori-
da Rock Industries, the court reviewed the Army Corps of 
Engineers' uncompensated rejection of the plaintiff's applica-
tion to mine limestone on 98 acres of the plaintiff's wetland 
property.  See Florida Rock Indus., 791 F.2d at 896.  The 
Federal Circuit affirmed the trial court's decision to consider 
the 98 acres as the relevant parcel separate from the adjacent 
1,462 acres of wetland.  See id. at 904.  The Federal Circuit's 
justification for this decision, however, was that all the evi-
dence and the findings indicated that the Army Corps of 
Engineers would have rejected mining on all of the property, 
so there was no point to including all 1,560 acres in the 
relevant parcel.  See id. at 904-05.  Thus, Florida Rock 
Industries is not analogous to the instant case;  there is no 
indication that the District of Columbia will prevent District 

Intown from continuing to use its property to obtain income 
from its apartment building.

     Loveladies Harbor lends support to the District Court's 
decision to treat Lots 106-114 as one parcel.  The plaintiff in 
Loveladies Harbor sought to develop a total of 12.5 acres of 
land, consisting of 11.5 acres of wetlands and one acre of filled 
upland.  See Loveladies Harbor, 28 F.3d at 1180.  The Army 
Corps of Engineers refused to grant the permit required to 
fill the wetlands acreage.  See id. at 1174.  In reviewing 
whether this denial constituted a taking the Federal Circuit 
found that the trial court correctly concluded that the rele-
vant parcel was the entire 12.5 acres, not just the 11.5 acres 
to which the permit denial applied.  See id. at 1181.  Thus, 
Loveladies Harbor argues against treating the property bur-
dened by the regulation separately from contiguous property.

     Moreover, the Loveladies Harbor Court emphasized that a 
"flexible approach, designed to account for factual nuances," 
guides its analysis of the denominator problem.  Id.  These 
factual nuances include "whether there remained substantial 
economically viable uses for plaintiff's property after the 
regulatory imposition," id. (citing Deltona Corp. v. United 
States, 657 F.2d 1184 (Ct. Cl. 1981)), and "the timing of 
transfers in light of the developing regulatory environment."  
Id.  Both of these factors support our conclusion in the 
instant case that Cathedral Mansions South as a whole consti-
tutes the relevant parcel.

     Finally, Penn Central is instructive where, as here, appel-
lants own a single piece of property that is divisible into 
several legally recognized entities.  Indeed, the Court was 
rather blunt in saying that

     "[t]aking" jurisprudence does not divide a single parcel 
     into discrete segments and attempt to determine whether 
     rights in a particular segment have been entirely abro-
     gated.
     
Penn Central Transp. Co., 438 U.S. at 130.  The Court also 
made it clear that a party may not "establish a 'taking' simply 
by showing that they have been denied the ability to exploit a 

property interest they heretofore had believed was available 
for development."  Id.  The Court found this suggestion to be 
"simply untenable."  Id.

     On the basis of the foregoing authority, it seems clear here 
that we must analyze District Intown's property not as sepa-
rate, potentially divisible and transferable parcels, but as one 
contiguous parcel.  Appellants note that the District of Co-
lumbia has taxed Lots 107 through 114 at a higher rate since 
subdivision, reflecting the District of Columbia's assessment 
that these lots are vacant developable land.  They contend 
that it is inconsistent for the District of Columbia to speak 
from both sides of its mouth in this regard, claiming for tax 
purposes that the lots are developable, but refusing to permit 
development on the lots.  We simply note that appellants 
retain the right to recombine the parcels and treat them as 
one property for the purposes of taxation, so no further 
disadvantage will befall them on this score.

     We are perplexed by our concurring colleague's criticism of 
our approach to evaluating a takings claim.  As the concur-
ring opinion correctly notes, at bottom, the approach that we 
follow and the result that we reach are in accord with 
Supreme Court case law.  Unless and until the Court in-
structs otherwise, we are obliged to judge within the bounds 
of established precedent.

D.   Analysis Under Lucas

     Given that Lots 106 through 114 should be treated as a 
single parcel, the District Court's denial of summary judg-
ment on District Intown's Lucas claim is unremarkable.  To 
come within Lucas, a claimant must show that its property is 
rendered "valueless" by a regulation.  Lucas, 505 U.S. at 
1009.  District Intown presented no evidence to show that the 
regulation deprived the property as a whole of all economical-
ly beneficial use.

     Even were we to view Lot 106 as distinct from Lots 107 
through 114, it seems plain that the District Court should 
have granted appellees' motion for summary judgment.  
Drawing all inferences in favor of District Intown, the record 

does not support the conclusion that Lots 107 through 114 are 
rendered "valueless" by the regulation at issue.  The record 
contains a finding by the Mayor's agent that any construction 
that destroyed the lawn would be incompatible with the 
lawn's status as a historic landmark.  See Decision & Order 
of Mayor's Agent p 61 n.1, reprinted in J.A. 368.  District 
Intown argues from this that its case fell on all fours within 
Lucas.  District Intown seeks to extend Lucas beyond its 
reach.  The Lucas Court consciously recognized that it was 
drawing an arbitrary line between total destruction of eco-
nomic value and something marginally less than total destruc-
tion.  See 505 U.S. at 1019 n.8 (pointing out that while the 
line establishing a categorical deprivation as requiring a 
complete diminution in value is arbitrary as it relates to 
someone who only suffers a 95% deprivation in value, the 
person whose deprivation is "one step short of complete" may 
still seek compensation under the Penn Central balancing 
test).  District Intown propounded no evidence that the 
lawns' economic value was totally destroyed as is required by 
Lucas, nor did District Intown offer evidence of the plots' fair 
market value after its construction permits were denied.  Cf. 
Florida Rock Indus., 791 F.2d at 905 (reversing the trial 
court's finding that denial of permit constituted an uncompen-
sated taking because the court failed to consider the proper-
ty's fair market value after regulation).

     The concurring opinion misconstrues the opinion for the 
court when it suggests that, pursuant to our analysis, no 
compensable taking could ever be found.  As noted in the 
foregoing discussion, we simply intend to highlight the limited 
nature of the Lucas inquiry, and note that there would be no 
"categorical" taking even were we to view the parcels as 
separate under Lucas.  We do not pass on how the parcels 
would fare separately under Penn Central's ad hoc analysis.

E.   Analysis under Penn Central

     There are three main factors to be considered in Penn 
Central's ad hoc inquiry:  the character of the government 
action, the regulation's economic effect on the claimant, and 
the effect on investment-backed expectations.  District In-

town does not appear to argue that the character of the 
governmental action counsels finding a taking;  this is not a 
permanent invasion, but rather a general regulation with a 
legitimate public purpose.  As to the economic effects, Dis-
trict Intown offered no evidence that this regulation rendered 
Lots 106-114 unprofitable to maintain;  there is nothing in the 
record to suggest that the apartment building does not bring 
in a sufficient return for District Intown, and a claimant must 
put forth striking evidence of economic effects to prevail even 
under the ad hoc inquiry.  See Penn Central Transp. Co., 438 
U.S. at 131 (reviewing the Court's decisions upholding regula-
tions despite diminution in a property's value of more than 
75%).

     Finally, District Intown did not present sufficient evidence 
that it had a reasonable investment-backed expectation to 
develop the lawns into apartment buildings.  Here, as in 
Penn Central, the regulation does not interfere with District 
Intown's "primary expectation" concerning the use of the 
parcel, because it "not only permits but contemplates that 
appellants may continue to use the property precisely as it 
has been used" for the past 28 years.  Penn Central Transp. 
Co., 438 U.S. at 136.

     District Intown suggested at oral argument that it has 
satisfied the requirement of demonstrating reasonable invest-
ment-backed expectations because it purchased property that, 
at the time of purchase, was subdividable.  This is not 
sufficient to establish the existence of reasonable investment-
backed expectations.  In this case, where the development 
District Intown proposes departs from the property's tradi-
tional use, and the moment of purchase is so attenuated from 
the moment of subdivision, the claimant surely must point to 
some action beyond mere purchase to establish the reason-
ableness of its expectations.

     Appellants also argue that their expectations of the proper-
ty's use between the moment of purchase and the moment of 
subdivision could have reasonably changed.  This may be, but 
when appellants subdivided they surely knew that the legal 
regime had changed since they first bought their property.  

Moreover, they knew that any subdivided parcel would be 
subject to that regime.  Lucas teaches that a buyer's reason-
able expectations must be put in the context of the underlying 
regulatory regime.  See 505 U.S. at 1030 (stating that the 
Takings Clause does not require compensation when the 
restriction is proscribed by background state law rules or 
understandings).  District Intown purchased and subdivided 
its property subject to an existing regulatory regime that 
establishes that District Intown could have had no reasonable 
expectations of development at the time it made its invest-
ments.

     At the time of purchase, District Intown could have reason-
ably expected the Shipstead-Luce Act to affect its rights of 
development.  For approximately 60 years, the Shipstead-
Luce Act has restricted development on properties that, like 
Cathedral Mansions South, abut or border upon the National 
Zoo.  See D.C. Code Ann. s 5-410.  Were that not sufficient, 
after 1979, D.C.'s historic landmark laws additionally limited 
expectations of development.  See id. s 5-1001 et seq.  Thus, 
at the time District Intown subdivided the property, it knew, 
or should have known, that the property was potentially 
subject to regulation under the landmark laws.  Cf. Amicus 
Curiae Brief at 15 (pointing out that almost the entire length 
of Connecticut Avenue from M Street to almost a mile north 
of District Intown's property is either landmarked or within a 
historic district).  Businesses that operate in an industry with 
a history of regulation have no reasonable expectation that 
regulation will not be strengthened to achieve established 
legislative ends.  See Concrete Pipe & Prods. v. Construction 
Laborers Pension Trust, 508 U.S. 602, 645 (1993).  In this 
case, District Intown was in the real estate business, with a 
history of restriction of development for the purpose of 
preserving historic sites.  Similarly, the Supreme Court re-
jected a company's claim of reasonable expectations that the 
Environmental Protection Agency would maintain trade se-
cret confidentiality where the industry had long "been the 
focus of great public concern and significant government 
regulation" and the "possibility was substantial that the Fed-
eral Government ... would find disclosure [of trade secrets] 

to be in the public interest."  Monsanto Co., 467 U.S. at 
1008-09.  Prior to and after subdivision, this particular prop-
erty was the subject of increasing public activity devoted to 
restricting development through landmark designation.  See 
Good v. United States, 189 F.3d 1355, 1361-63 (Fed. Cir. 
1999) (finding the claimant had no reasonable expectations 
where he purchased the land subject to environmental regula-
tion and watched as public concern for the environment 
increased and the applicable regulations became more strin-
gent before seeking approval for development).

     District Intown also argues that the District Court's finding 
that the regulation did not have a significant economic impact 
was erroneous.  District Intown bases this argument on the 
assertion that they presented undisputed evidence that the 
lawns, absent development, add nothing to the value of the 
apartment building.  See Brief for Appellants at 24-25.  This 
argument misunderstands the substantial burden District In-
town faced in District Court.  District Intown had to produce 
evidence showing that its entire property, including Lot 106, 
no longer provided a reasonable rate of return given the D.C. 
regulation.  Whether the lawns add value to the apartment 
building is irrelevant to whether the property as a whole can 
be operated at a sufficient profit even with the regulation.  In 
short, none of the Penn Central factors support District 
Intown's claim of a compensable deprivation of property.

                         III. Conclusion

     For the reasons stated above, we affirm the District 
Court's grant of summary judgment in favor of the District of 
Columbia.

                                                      So ordered.

     Williams, Circuit Judge, concurring in the judgment:  The 
District of Columbia's Historic Preservation Board imposed 
historic landmark status not only on an apartment building 
named Cathedral Mansions South but also on a substantial 
stretch of adjacent lawn bordering the sidewalks of Connecti-
cut Avenue.  District Intown, the owner of both, claims that 
as applied to the lawn the landmarking effects a taking of its 
property in violation of the Takings Clause of the Fifth 
Amendment.  The majority's disposition is--with one impor-
tant exception--in general accord with the current opinions of 
the Supreme Court.  Those decisions are of course binding.  
At the same time, however, it is not inappropriate to identify 
ways in which the prevailing analysis elevates formal concepts 
over economic reality and tends to strip the Clause of its 
potential for fulfilling the framers' likely purposes.

     The economist's justification for the Takings Clause is that 
it provides a check on government's likely tendency to waste 
resources by treating private property as a free good.  See 
Richard A. Posner, Economic Analysis of Law 58 (4th ed. 
1992) ("The simplest economic explanation for the require-
ment of just compensation is that it prevents the government 
from overusing the taking power.").  This is just an applica-
tion of the general principle that if a firm can externalize 
costs (e.g., the health costs of polluting the air), it will use 
more of the unpriced resource (in this example, air as a waste 
sink) than it would if required to pay.  And it will tend to 
overproduce the goods or services whose production uses the 
superficially "free" good--i.e., it will produce them at a level 
where the true value of the extra inputs exceeds the true 
value of the extra output.  See generally Robert Cooter & 
Thomas Ulen, Law and Economics 45-46 (1988).  As applied 
to government regulation, similar oversupply can be expect-
ed--here, production of regulations that impose more costs 
than they afford benefits, that do more harm than good.

     The framers, though not articulating the purpose of the 
Clause in economic terms, evidently did view it as aimed at 
correcting the incentives of the political branches.  There is 
evidence, for example, that James Madison saw electoral 
power slipping into the hands of a non-landholding majority, 
which in a "leveling" mode could be expected to invade 

landowners' rights.  See William Michael Treanor, The Origi-
nal Understanding of the Takings Clause and the Political 
Process, 95 Colum. L. Rev. 782, 849 (1995).  Late twentieth 
century America, of course, displays a far greater range of 
purposes than "leveling" for reallocation of rights.  While the 
resulting proposals are naturally advanced in the name of the 
public good, many are surely driven by interest-group pur-
poses, commonly known as "rent-seeking."  Among these 
proposals, at least some inflict aggregate costs considerably 
outweighing their aggregate benefits, paralleling the wasteful 
production associated with private firms' externalization of 
costs.  The Takings Clause serves to curb such inefficiencies.  
See, e.g., Richard A. Epstein, Takings:  Private Property and 
the Power of Eminent Domain 281 (1985) ("[T]he Takings 
Clause is designed to control rent seeking and political fac-
tion.  It is those practices, and only those practices, that it 
reaches.").

     A Takings Clause construction that was dedicated without 
qualification to preventing such government externalization 
would require compensation whenever regulation reduced the 
value of anyone's property, however slightly.  Balanced 
against that goal is an array of considerations.  Most obvious 
is the cost of calculating and administering compensation, 
which would tend to sink many a beneficent statute.  "Gov-
ernment hardly could go on if to some extent values incident 
to property could not be diminished without paying for every 
such change in the general law."  Lucas v. South Carolina 
Coastal Council, 505 U.S. 1003, 1018 (1992) (quoting Pennsyl-
vania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)).  (The 
compensation cost itself would be only a weak countervailing 
factor, for most beneficent regulation would presumably gen-
erate gains large enough to pay the losers if identification and 
calculation were costless.)  My goal here is not to pinpoint 
the appropriate balance between these competing consider-
ations, much less to suggest that the correct reading is one 
under which all regulation materially adversely affecting a 
property's value would be compensable.  Rather, it is simply 
to note the ways in which modern interpretation of the 

Takings Clause, as exemplified in today's decision, impairs its 
role as a disincentive to wasteful government activities.

                              * * *

     The majority applies an apparent presumption that contig-
uous parcels under common ownership should be treated as 
one parcel for purposes of the takings analysis.  This pre-
sumption tends to reduce the likelihood that courts will order 
compensation.  The larger the parcel, the greater the chance 
that the regulated land will retain an economically viable use.  
Where no such use remains, there is a "total taking" and the 
government can "resist compensation only if the logically 
antecedent inquiry into the nature of the owner's estate 
shows that the proscribed use interests were not part of his 
title to begin with," Lucas, 505 U.S. at 1027;  where an 
economically viable use survives regulation, the best the 
owner can hope for is "partial" takings analysis.  Under the 
latter courts will determine whether to award compensation 
by looking to "the economic impact of the regulation, its 
interference with reasonable investment backed expectations, 
and the character of the governmental action," Kaiser Aetna 
v. United States, 444 U.S. 164, 175 (1979);  see also Eastern 
Enters. v. Apfel, 118 S. Ct. 2131, 2146 (1998);  Lucas, 505 U.S. 
at 1019 n.8, and will generally deny compensation so long as 
the restriction "substantially advance[s] legitimate state inter-
ests," Agins v. City of Tiburon, 447 U.S. 255, 260 (1980);  see 
also Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).  Few 
regulations will flunk this nearly vacuous test.  In fact, the 
Supreme Court has only once found a partial taking to be 
compensable, and even then only a plurality applied the 
partial takings analysis.  See Eastern Enters., 118 S. Ct. at 
2149;  see also id. at 2154-60 (Kennedy, J.) (rejecting the 
plurality's takings analysis and finding invalidity on other 
grounds).

     The Supreme Court has offered several justifications for 
this distinction between partial and total takings.  See, e.g., 
Lucas, 505 U.S. at 1017-18 (suggesting that "from the landowner's 
perspective," a total taking is tantamount to a physical taking, 

and that from the government's perspective the concern that 
an obligation to compensate for any incidental value diminu-
tion would impede effective functioning cannot apply in the 
"relatively rare situations" of total takings).  From the per-
spective of ensuring that the government not engage in 
wasteful behavior, however, the focus on the uses of the land 
that remain is misplaced:  "[W]hat is decisive is that which is 
taken, not that which is retained."  Epstein, Takings, supra, 
at 58.  Whether the landowner is left with a limited use of the 
land or none at all is hardly relevant to that issue.  And as 
the regulating government delineates the scope of regulation, 
the opportunity for strategic behavior is obvious.

     The majority's cursory application of the Penn Central 
factors further broadens the gap between the two modes of 
analysis, reinforcing the seemingly predetermined conclusion:  
in partial takings cases, the government wins.  The majority 
states that District Intown has not shown the land "unprofit-
able to maintain," Maj. Op. at 14;  it is unimaginable, howev-
er, absent an extraordinary tax liability, that a parcel could 
retain an economically viable use yet have a net negative 
value.  The majority goes on to say that District Intown has 
failed to show that the land does not "bring in a sufficient 
return," id., but does not answer the all-important question:  
a return on what?  on out-of-pocket costs?  on initial pur-
chase price?  on fair market value?  Moreover, the majority 
provides no guidance as to how "sufficient" the return must 
be, except to cite Penn Central, in which the Court found that 
a 75% diminution in value did not constitute a compensable 
taking.  See id.

     Similarly, in its consideration of District Intown's "reason-
able investment-backed expectations," the majority's analysis 
begs the question whether any landowner, in a world where 
zoning regulations are prevalent, could ever argue that a 
particular regulation was "unexpected."  The presumption is 
insurmountable:  "Businesses that operate in an industry with 
a history of regulation have no reasonable expectation that 
regulation will not be strengthened to achieve established 
legislative needs."  Maj. Op. at 15.  Although the 1931 
Shipstead-Luce Act might have put District Intown on notice 

that some regulation of architectural design might be expect-
ed, it is farfetched to conclude that District Intown, merely 
because of its proximity to the zoo, should reasonably have 
anticipated an absolute ban on construction;  the city's coun-
sel, under questioning at oral argument, failed to identify any 
uses, or even attempted uses, of the Shipstead-Luce Act to 
support a complete construction veto.  Although the Takings 
Clause is meant to curb inefficient takings, such a notion of 
"reasonable investment-backed expectations" strips it of any 
constraining sense:  except for a regulation of almost unimag-
inable abruptness, all regulation will build on prior regulation 
and hence be said to defeat any expectations.  Thus regula-
tion begets regulation.

     Although the presumption in favor of looking at the parcel 
as a whole, and in turn the increased reliance on the partial 
takings mode of analysis, is at odds with the underlying 
principle of the Takings Clause, it is perhaps the best con-
struction of the Supreme Court's limited guidance.  The 
Court has never squarely addressed the question of how 
courts should define the relevant geographic parcel of land, 
also known as "horizontal severance."  Marc R. Lisker, Regu-
latory Takings and the Denominator Problem, 27 Rutgers 
L.J. 663, 705 (1996).  In Nectow v. City of Cambridge, 277 
U.S. 183 (1928), the Court considered whether the city council 
had effectuated a taking of plaintiff's land by zoning as 
"residential" a 100-foot strip on plaintiff's 140,000 square foot 
parcel.  Although the Court appeared to treat the relevant 
parcel as encompassing only the fractional strip, this was in 
no respect relevant to the Court's decision.  In Penn Central 
Transportation Co. v. New York City, 438 U.S. 104 (1978), the 
Court applied a very weak form of horizontal severance, 
focusing exclusively on the landmarked building itself without 
treating the owner's neighboring--but not adjacent--proper-
ty as part of the greater parcel, as had the New York Court 
of Appeals.  See Penn Central Transportation Co. v. New 
York City, 366 N.E.2d 1271, 1276-77 (N.Y. 1977).  But Penn 
Central tells little, as the properties were not all contiguous, 
had been put to different uses, and had never been treated as 
a unified whole by the owners or the City.

     Penn Central's handling of "vertical severance," however, is 
informative, if only by analogy.  Using language seemingly 
broad enough to encompass horizontal severance, the Court 
made clear that it would not consider the air rights above 
Grand Central separately from the land rights:  " '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."  Penn 
Central, 438 U.S. at 130;  see also Keystone Bituminous Coal 
Ass'n v. DeBenedictis, 480 U.S. 470, 496-502 (1987) (refusing 
to regard either coal that statute required miners to leave in 
place (about 2% of total coal), or the "support estate," as 
distinct property for ascertaining whether statute denied 
owners all economically viable uses).

     The Court has expressed similar reluctance to engage in 
"conceptual severance" more generally (i.e., the treatment of 
any specific property right as a single unit).  In Andrus v. 
Allard, 444 U.S. 51 (1979), the Court refused to treat extinc-
tion of the right to sell any part of a lawfully killed bald eagle 
as a total taking.  See id. at 65-66 ("At least where an owner 
possesses a full 'bundle' of property rights, the destruction of 
one 'strand' of the bundle is not a taking, because the 
aggregate must be viewed in its entirety.").  The Court 
arguably evidenced a retreat from this strong position in 
Hodel v. Irving, 481 U.S. 704, 717-18 (1987), in which it found 
a taking in legislation that "completely abolished" certain 
landowners' rights to dispose of their property by descent or 
devise, even though they retained complete rights to possess 
and to make inter vivos transfers.  The Court has not, 
however, reached agreement on the scope of this retreat.  
Compare id. at 719 (Scalia, J., concurring) (saying the deci-
sion "effectively limits Allard to its facts"), with id. at 718 
(Brennan, J., concurring) (saying that the case was "unusual" 
and thus had no impact on Allard).  Overall, I think the 
majority is correct in its implicit understanding that the 
Supreme Court is reluctant to carve a landowner's parcel into 
smaller units for which compensation might be more likely.

     But the factors that the majority applies in making the 
decision, drawn from decisions of the Federal Circuit and 

Claims Court and characterized by the majority as "eminent-
ly sound," Maj. Op. at 9, strike me as uninformative and 
largely irrelevant.  The factors considered are:  (1) whether 
the neighboring parcels are contiguous, (2) whether they were 
acquired simultaneously, (3) whether they have been treated 
as a single unit, and (4) the extent to which the restricted lot 
benefits the neighboring lot.  Maj. Op. at 8-9.

     The first factor, contiguity, is clearly necessary but in no 
way sufficient.  The next two factors--simultaneity of acquisi-
tion and unity of use--are more troublesome.  Both elevate 
history--either the historical purchase or the historical use--
over the real-world present relationship between the tracts.  
Compare Laura M. Schleich, Takings:  The Fifth Amend-
ment, Government Regulation, and the Problem of the Rele-
vant Parcel, 8 J. Land Use & Envtl. L. 381 (1993) (proposing 
that courts look to the "moment of regulation" when defining 
the relevant parcel).  The majority's focus on the property's 
use prior to regulation tells us nothing about the value-
producing opportunities foreclosed at the time of regulation.  
"It is, of course, irrelevant that [the government] interfered 
with or destroyed property rights that [plaintiff] had not yet 
physically used.  The Fifth Amendment must be applied with 
'reference to the uses for which the property is suitable, 
having regard to the existing business or wants of the com-
munity, or such as may be reasonably expected in the imme-
diate future.' "  Penn Central, 438 U.S. at 143 n.6 (Rehn-
quist, J., dissenting, quoting Boom v. Patterson, 98 U.S. 403, 
408 (1879)).

     The majority mentions but brushes aside a fourth factor--
the extent to which the regulated parcel benefits the neigh-
boring lot.  Maj. Op. at 9.  Yet this appears the most 
relevant.  The more a burdened tract in its regulated use 
benefits contiguous property, the less likely that the regula-
tion has a net negative impact.  In the extreme case a 
property interest may be worthless except in conjunction with 
another.  Thus in Keystone Bituminous Coal Ass'n, the 
Court pointed out that the "support estate" had "value only 
insofar as it protects or enhances the value of the estate with 
which it is associated [i.e, the mineral estate]," 480 U.S. at 

501, and therefore refused to treat the "support estate" as a 
separate interest at all.  Similarly, small parcels of land, 
either in the interior or around the edges of greater parcels, 
commonly are valuable only when they combine with the 
greater parcel to create a more valuable whole;  for regulation 
of the exterior (such as setback requirements), then, it makes 
sense to measure the impact in conjunction with the "pri-
mary" parcel.  Looking to the property owner's benefit from 
these internal synergies parallels use of "average reciprocity 
of advantage," Pennsylvania Coal Co. v. Mahon, 260 U.S. 
393, 415 (1922), which considers the benefit that each bur-
dened owner--as in ordinary zoning or historic districting--
receives from the similar restriction of his neighbors.

     Of course there will be some synergy between almost any 
two neighboring parcels under common ownership, since uni-
fied ownership creates options for the sole owner that multi-
ple landowners could achieve only by contracting.  But syner-
gy is a matter of degree, and mere contiguity should not be 
enough.  One commentator proposes a rather demanding 
synergy test, arguing that the regulated tract should be 
considered as its own parcel so long as not all of its value 
derives from synergies with neighboring land;  in such cases, 
the parcel would have an independent economically viable 
use, which if destroyed by regulation would be compensable 
under Lucas.  See John E. Fee, Comment, Unearthing the 
Denominator in Regulatory Taking Claims, 61 U. Chi. L. 
Rev. 1535, 1557-58 (1994).  One need not go so far to see the 
skimpiness of the synergy here.

     To be sure, Cathedral Mansions is more than several 
contiguous parcels.  According to the decision of the Historic 
Preservation Review Board, "The buildings are sited imagina-
tively to provide the greatest possible integration of living 
space with well-landscaped open space."  Joint Appendix 
("J.A.") 320.  (Passersby who observe the rather bare lawn 
will have to reach their own judgments on the adjective "well-
landscaped.")  Integration there doubtless is--almost any 
lawn around a building will manifest a degree of integration.  
But there is no explicit showing that these synergies depend 
on the entire lawn remaining undeveloped.  The proposed 

townhouses would cover only the portion of the lawn abutting 
Connecticut Avenue, still leaving the interior portion, approxi-
mately half the lawn, undeveloped.  Common sense would 
suggest that at some distance from the building marginal 
synergies created by extra lawn space become slight, and 
thus that the part of the lawn beyond that line should be 
treated as its own parcel for takings purposes.  Further, 
although District rent-control law evidently allows the owner 
to earn a return on the tax-assessed value of land in a single 
tract with a rent-controlled building (here the owner could 
apparently recover that status by undoing the formalities of 
subdivision), that value is likely to be only a tiny fraction of 
the value absent the historic landmarking.

     In fact, it may well be completely different synergies--ones 
between the lawn and adjacent Connecticut Avenue--that 
have driven the landmarking decision.  The Board observed 
that the lawn "contributes significantly to the unique open 
space character of Connecticut Avenue."  J.A. 320.  A cynic 
might suspect that the alleged relationship between the lawn 
and the Cathedral Mansions apartments is little more than a 
cloak by which the citizens of Upper Northwest Washington 
have secured some parkland on the cheap.  Parks are good, 
but the Fifth Amendment says that taking them is not.

     Of course, there is another synergy between the two par-
cels and adjacent Connecticut Avenue, namely the historical 
value that inheres in the preservation of a building as it was 
initially constructed (i.e., with an expansive lawn beside it).  
Uncompensated landmark preservation seems to rest on this 
synergy.  The Court in Penn Central embraced the view that 
"the preservation of landmarks benefits all New York citizens 
and all structures, both economically and by improving the 
quality of life in the city as a whole."  438 U.S. at 134.  This 
broad language seems to redefine "reciprocity of advantage" 
in such a way that no government act could ever require 
compensation, as the afflicted owner would be a member of 
the taking polity and thus in receipt of offsetting advantages, 
artificially presumed to be adequate.

     Apart from obliterating takings law, such a view has pecu-
liarly perverse effects in the realm of historic preservation.  
Although such laws try to preserve for society the positive 
externalities created by buildings like Cathedral Mansions, 
inflicting the entire cost on the creator of the landmark (or 
his successor in interest) is bound to discourage investment in 
first-class design.  Moreover, while insurance markets can 
achieve the risk-spreading (or anti-"demoralization") goals 
that some attribute to the Takings Clause, compare Posner, 
Economic Analysis of Law, supra, at 58, they cannot offset 
non-compensation's disincentive to good design.  Historic 
landmark preservation, after all, is imposed selectively on 
those who went out of their way to secure architectural 
distinction.  The higher the quality, the higher the premium 
for takings insurance;  the disincentive is inescapable.

     Having found that the lawn and apartment parcels should 
be treated as a unit, the majority nevertheless considers 
whether compensation would be due even if the lawn were 
analyzed separately;  in doing so, it gratuitously takes an even 
harsher stance against compensation than does present law.  
The majority finds that District Intown has failed to offer 
evidence that the regulation denies it "economically viable use 
of [the] land," Lucas, 505 U.S. at 1016, even though the 
Mayor's own agent found that "any construction that de-
stroyed the lawn would be incompatible with the lawn's status 
as an historic landmark."  Maj. Op. at 13.  Thus, so long as 
the lawn is untouched, "economically viable" uses are permis-
sible.  It is hard to imagine what "economically viable" use 
that constraint leaves, unless the majority means that the 
very barest thread of value, yielded by some thoroughly 
bucolic use, is enough to defeat a total takings claim.  By this 
standard, no regulation can ever effect a total taking, and at 
best will be tested only under the far weaker partial takings 
rubric.

                              * * *

     The prevailing Federal Circuit-Claims Court method of 
defining the relevant parcel, followed by the panel here, 

focuses on marginal issues and largely overlooks the more 
critical concern of synergies;  the focus on the landowner's 
historical, rather than proposed, use further skews the analy-
sis.  But the Supreme Court's general approach seems to 
militate in favor of looking to the parcel as a whole.  Similar-
ly, although resting uncompensated landmark preservation on 
the idea of reciprocal advantage stretches the concept into 
meaninglessness, and the denial of compensation discourages 
ex ante what it hopes to foster ex post, the current cases give 
these arguments little purchase.  Accordingly, I concur in the 
majority's decision to affirm.

                                                                              