                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 2910 GEORGIA AVENUE LLC,

    Plaintiff,
                                                          Civil Action No. 12-1993 (CKK)
           v.

 DISTRICT OF COLUMBIA, et al.,

    Defendants.


                                  MEMORANDUM OPINION
                                    (September 30, 2013)

       Plaintiff 2910 Georgia Avenue LLC filed suit against the District of Columbia, Mayor

Vincent C. Gray, and Michael P. Kelly in his official capacity as Director for the Department of

Housing and Community Development (“DHCD”), alleging the District of Columbia’s

Inclusionary Zoning Program constitutes an unconstitutional taking and violates the Plaintiff’s

substantive due process and equal protection rights.          Presently before the Court is the

Defendants’ [12] Motion to Dismiss. Upon consideration of the pleadings,1 the relevant legal

authorities, and the record for purposes of this motion, the Court finds the Plaintiff’s challenge to

the inclusionary zoning covenant is ripe, but the claim with respect to the inclusionary zoning

program at large is not ripe. Moreover, the Plaintiff has sufficiently alleged a total taking of its

property, and factual disputes preclude the Court from ruling on the remainder of the

Defendants’ arguments. Accordingly, the Defendants’ motion is GRANTED IN PART and

DENIED IN PART. The Defendants’ motion is GRANTED with respect to the Plaintiff’s

takings claim against the set-aside requirement of the inclusionary zoning program, but is

       1
          Defs.’ Mot. to Dismiss, ECF No. [12]; Pl.’s Opp’n, ECF No. [14]; Defs.’ Reply, ECF
No. [16]; Pl.’s Surreply, ECF No. [18]; Pl.’s Notice of Supp. Authority, ECF No. [19].
otherwise DENIED.

                                      I. BACKGROUND

       A.      Regulatory Framework

       The District of Columbia enacted the “Inclusionary Zoning Program,” with the intent to

“increase[e] the amount and expanding the geographic distribution of adequate, affordable

housing available to current and future residents” by requiring new residential developments (or

substantial additions to existing developments) to set aside a certain number of units for sale or

lease to eligible low- and moderate-income households at below-market cost. D.C. Mun. Regs.

tit. 11, § 2600.1. The laws and regulations governing the inclusionary zoning, or “IZ” program,

are codified in three parts: (1) the Inclusionary Zoning Act, D.C. Code §§ 6-1041 et seq.; (2) the

Inclusionary Zoning Regulations administered by the Zoning Commission, D.C. Mun. Regs. tit.

11, §§ 2600.1 et seq.; and (3) the Inclusionary Zoning Implementation regulations administered

by the DHCD, D.C. Mun. Regs. tit. 14, §§ 2200 et seq. In the event of a conflict between the

implementing regulations, the Zoning Commission regulations, and the Inclusionary Zoning Act,

“the most stringent provision shall apply.” D.C. Mun. Regs. tit. 14, § 2200.11.

       The Zoning Commission regulations, effective August 14, 2009, “establish the minimum

obligations of property owners applying for building permits or certificates of occupancy under

an Inclusionary Zoning Program.” D.C. Mun. Regs. tit. 11, § 2600.2. In relevant part, the

regulations require a developer to “devote the greater of 10% of the gross floor area being

devoted to residential use or 75% of the bonus density being utilized for inclusionary units.” Id.

§ 2603.1. Subject to certain exceptions, the set-aside units may only be sold or leased to persons

authorized by the Mayor at a price or rent no greater that the maximum set by the Mayor. D.C.

Mun. Regs. tit. 14, § 2200.4; see id. §§2207-14 (outlining procedures for setting maximum sale

                                                2
prices and selecting eligible households). “Bonus density” allows developments subject to the IZ

program to “construct up to twenty percent (20%) more gross floor area than permitted as a

matter of right.” D.C. Mun. Regs. tit. 11, § 2604.1; see id. §§ 2604.2, 2604.3 (listing the

modifications to height and lot occupancy permitted under the bonus density provision). “The

Board of Zoning Adjustment is authorized to permit some or all of the set-aside requirements of

§ 2603 to be constructed off-site upon proof, based upon a specific economic analysis, that

compliance on-site would impose an economic hardship.” Id. § 2607.1. If the Board denies an

application for off-site construction, the developer may appeal to the Board for partial or

complete relief from the set-aside requirement “upon a showing that compliance (whether on

site, offsite or a combination thereof) would deny the applicant economically viable use of its

land.” Id. § 2606.1.

       “No building permit shall be issued for an Inclusionary Development unless the Mayor

approves a Certificate of Inclusionary Zoning Compliance and a covenant signed by the Owner

of the Inclusionary Development.” D.C. Mun. Regs. tit. 14, § 2200.5(a). The “covenant of

inclusionary development” must include, among other things:

       A provision requiring that the present and all future Owners of a For Sale
       Inclusionary Development shall construct and maintain Inclusionary Units at such
       affordability levels and in such number, and square footage as indicated on the
       Certificate of Inclusionary Zoning Compliance and shall sell each Inclusionary
       Unit in accordance with the Inclusionary Zoning Program and the Certificate of
       Inclusionary Zoning Compliance;

       A provision binding all assignees, mortgagees, purchasers, and other successors in
       interest to the Inclusionary Development Covenant; and

       A provision providing for the release or extinguishment of the Inclusionary
       Development Covenant only upon the reasonable approval of the Department of
       Housing and Community Development Inclusionary Zoning Administrator.

       A provision requiring that the sale or resale of an Inclusionary Unit shall be only
       to a Household selected by the [DHCD] or otherwise authorized by this Chapter,
                                               3
       at a price that does not exceed the Maximum Resale Price established in
       accordance with § 2218.

Id. § 2204.1. The DHCD may waive the inclusionary development covenant and any other

provision of chapter 22 of title 14 of the D.C. municipal regulations if (1) the developer is

participating in a District of Columbia or federal program to provide affordable housing to low

or moderate-income households; (b) “[t]he waived provision is not required by the Zoning

Commission's Inclusionary Zoning Regulations or the Inclusionary Zoning Act”; and

(c) application of the provision is “burdensome when combined with other . . . regulations or

standards, the goal of the provision is adequately addressed by other . . . regulations or standards,

or waiver of the provision is in the best interests of the District.” Id. § 2223.1.

       B.      Factual Background

       Plaintiff purchased the property at 2910 Georgia Avenue, N.W., from Howard University

in 2009, intending to construct a twenty-two unit condominium building. Compl., ECF No. [1],

¶ 19. Zoning approval was granted in March 2010, but approval was subsequently revoked so as

to require the Plaintiff to comply with the IZ program. Id. ¶ 20. The Plaintiff’s development

was the first condominium development in the District subject to the IZ program. Id. The

Plaintiff did not redesign the development to incorporate the bonus density, and instead set aside

two units for sale under the IZ program. Id. ¶ 21. The Plaintiff executed the inclusionary

development covenant on May 20, 2010, and obtained a certificate of zoning compliance in June

2010. Id.

       DHCD began marketing the set-aside units in May 2011. Compl. ¶ 22. In June and

again in August 2011, DHCD conducted lotteries to select households eligible to purchase the

units, but neither lottery led to the sale of either unit. Id. ¶¶ 22-23. DHCD subsequently opened

registration for an alternative selection procedure, but none of the potential candidates identified
                                                 4
through the alternative were able to purchase either unit. Id. ¶ 26. The Plaintiff alleges that

mortgage lenders are unwilling to offer loans to households seeking to purchase the units

because the inclusionary development covenant substantially restricts the lender’s ability to

foreclose on and resell the properties if the purchaser defaults on the mortgage. Id. ¶ 24. To the

Court’s knowledge, neither of the set-aside units has been sold to date. By contrast, the twenty

other units in the development sold for market rates between $225,000 and $404,000 within four

months. Id. ¶ 27.

       Art Linde, the managing member of the Plaintiff, contacted DHCD in December 2011 to

request relief from the IZ program. Compl. ¶ 28. Mr. Linde suggested that pursuant to section

2204.1(d) of title 14 of the D.C. Municipal regulations, the DHCD administrator for the IZ

program could waive the inclusionary zoning covenant. Id. ¶ 29. DHCD responded that this

provision only allows for the release of the covenant “in the event of demolition or if the IZ

Covenant needs to be corrected, for example. Administrative Regulations do not give DHCD the

authority to exempt a project from the IZ program.” Compl., Ex. B.

       Recognizing the flaws in the inclusionary zoning covenant regulations, in November

2012, the Zoning Commission adopted emergency rulemaking providing for the automatic

termination of affordable housing controls (i.e., application of the IZ program) if title to the

mortgaged property is transferred by foreclosure or deed-in-lieu of foreclosure, or if the

mortgage is assigned to the Department of Housing and Urban Development. Compl., Ex. C at

2. The rulemaking further authorized the Mayor or District of Columbia Housing Authority to

acquire title to any inclusionary unit if title to that unit is at risk of foreclosure. Id. However, it

appears the emergency rulemaking does not affect the inclusionary zoning covenant that

currently binds the units set aside by the Plaintiff.       Compl. ¶ 38.      Moreover, despite the

                                                  5
emergency rulemaking and a third lottery in November 2012, the Plaintiff alleges that no

qualified candidates have expressed interest and ability to purchase either of the two units at their

current IZ Program pricing, “which is discounted roughly 50% below market.” Id. ¶ 33.

       The Plaintiff filed suit on December 13, 2012. Count I of the Complaint alleges a claim

for just compensation under the takings clause of the Fifth Amended pursuant to 42 U.S.C.

§ 1983. Compl. ¶¶ 56-73. This claim alleges in the alternative that the IZ program constitutes an

unconstitutional private use taking. Id. ¶ 74. Count II alleges that the way in which the District

has administered the IZ Program with respect to the Plaintiff’s set-aside units deprived the

Plaintiff of substantive due process and equal protection in violation of the Fifth Amendment.

Id. ¶¶ 75-79. Count III seeks a declaratory judgment that the IZ Program is unconstitutional, that

the Defendants, acting under color of state law, deprived the Plaintiff of rights guaranteed by the

United States Constitution, and that the Plaintiff is entitled to compensation. Id. ¶¶ 80-84.

                                    II. LEGAL STANDARD

       A.      Motion to Dismiss for Lack of Jurisdiction

       The Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) on the grounds the Plaintiff’s claims are not ripe, depriving the Court of

subject matter jurisdiction. To survive a motion to dismiss pursuant to Rule 12(b)(1), the

plaintiff bears the burden of establishing that the court has subject matter jurisdiction over its

claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining

whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed

facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's

resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003) (citations omitted). “At the motion to dismiss stage, counseled complaints, as

                                                 6
well as pro se complaints, are to be construed with sufficient liberality to afford all possible

inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429

F.3d 1098, 1106 (D.C. Cir. 2005). “Although a court must accept as true all factual allegations

contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the

factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than

in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance

Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (citations omitted).

       B.      Motion to Dismiss for Failure to State a Claim

       The Defendants also move to dismiss the Complaint on the grounds the Plaintiff failed to

state a takings claim. Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to

dismiss a complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint

must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. In deciding a Rule

12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as

exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiff's

complaint necessarily relies even if the document is produced not by [the parties].” Ward v. D.C.

Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (citations omitted).



                                                  7
                                      III. DISCUSSION

       A.      Ripeness

       Initially, the Defendants move to dismiss the Complaint on the grounds that the

Plaintiff’s claims are not ripe. The ripeness doctrine is “designed to prevent the courts, through

avoidance of premature adjudication, from entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a concrete way by the

challenging parties.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08

(2003) (citation omitted). “[A] claim that the application of government regulations effects a

taking of a property interest is not ripe until the government entity charged with implementing

the regulations has reached a final decision regarding the application of the regulations to the

property at issue.” Williamson Cty. Regional Planning Comm’n v. Hamilton Bank of Johnson

City, 473 U.S. 172, 186 (1985)). Relying on Williamson County, the Defendants argue that the

Plaintiff’s claims are not ripe unless and until the Plaintiff appeals to the Board of Zoning

Adjustments for exemption from the IZ Program pursuant to title 11 section 2606.1 of the D.C.

municipal regulations.

       As a threshold matter, the Court notes that the Plaintiff’s due process/equal protection

claim alleges violations of the Plaintiff’s rights arising out of the administration of the IZ

program by the DHCD apart from the underlying regulations, thus the Defendants’ ripeness

arguments do not apply to Count II of the Complaint. Rumber v. District of Columbia, 487 F.3d

941, 944-45 (D.C. Cir. 2007) (noting courts have “recognized that bona fide equal protection

claims arising from land use decisions may be made independently of a takings claim and not be

subject to Williamson County ripeness requirements”).

                                                8
       The Plaintiff suggests the ripeness requirements set forth in Williamson County does not

apply to the Plaintiff’s takings claim because the Plaintiff alleges a private taking, otherwise

known as a violation of the “public use” clause. The Fifth Amendment to the Constitution

provides, in relevant part that “[n]o person shall . . . be deprived of . . . property, without due

process of law; nor shall private property be taken for public use, without just compensation.”

U.S. Const. amend. V. “The Fifth Amendment thus prohibits takings without just compensation

and takings for a private purpose. A taking for a private purpose is unconstitutional even if the

government provides just compensation.” Rumber, 487 F.3d at 944 (citing Haw. Hous. Auth. v.

Midkiff, 467 U.S. 229, 241 (1984)). The Plaintiff alleges that by requiring the Plaintiff to sell the

two set-aside units to private households, the IZ program constitutes a private taking of the

Plaintiff’s property. However, whether a taking is for a “private purpose” is not determined by

the identity of the party to whom the state transfers the property, but “whether the City’s

development plan serves a ‘public purpose.’” Kelo v. City of New London, Conn., 545 U.S. 469,

480 (2005).

       The Supreme Court has defined “public purpose” broadly, “reflecting [a] longstanding

policy of deference to legislative judgments in this field.” Id. For example, in Midkiff the Court

considered a program by the state of Hawaii in which fee simple title to certain land was taken

from lessors and transferred to the lessees, for just compensation. 467 U.S. at 233. The Supreme

Court upheld the program as proper use of the state’s eminent domain power despite the fact the

program transferred title from one private party to another, noting that “it is only the taking’s

purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.” Id. at 244;

see id. (“The Act advances its purposes without the State’s taking actual possession of the

land.”). Reaffirming a “deferential approach to legislative judgments in this field, [the Court]

                                                 9
concluded that the State’s purpose of eliminating the ‘social and economic evils of a land

oligopoly’ qualified as a valid public use.” Kelo, 545 U.S. at 482 (quoting Midkiff, 467 U.S. at

241-42). Applying this deferential approach, this Court agrees that the IZ program’s goal of

increasing the geographic distribution of affordable housing is likewise a valid public use. D.C.

Mun. Regs. tit. 11, § 2600.1. In fact, the Plaintiff conceded in the Complaint that the IZ program

has the “laudable” goal of increasing homeownership opportunities for low and moderate income

households and increasing the geographic distribution of affordable housing. Compl. ¶¶ 10-11.

By the Plaintiff’s own admission, the IZ program serves a public purpose, and thus does not

constitute a private taking.

       In the alternative, the Plaintiff argues it obtained a final administrative decision when the

DHCD refused to waive the inclusionary zoning covenant. The Defendants argue the Plaintiff’s

efforts were insufficient because only the Board of Zoning Adjustments has authority to waive

compliance with the IZ Program. The regulatory framework governing the IZ Program indicates

both parties are correct: the Board of Zoning Adjustments is vested with the authority to waive

the set-aside requirement, but the DHCD is charged with waiving any of the implementing

regulations, including the inclusionary zoning covenant.

       The Plaintiff appealed to the DHCD to waive the inclusionary zoning covenant, but the

DHCD refused to do so, averring that it only had the authority to release the covenant in the

event of a demolition or if the covenant needed to be corrected, but cannot as a general matter

waive the covenant. Compl., Ex. B. at 1. The Defendants defends this decision, citing section

2223.1, which precludes DHCD from waiving any provision that is “required by the Zoning

Commission’s Inclusionary Zoning Regulations or the Inclusionary Zoning Act.” D.C. Mun.

Regs. tit. 14, § 2223.1(b). The Defendants explain that DHCD is only authorized to waive the

                                                10
provisions set forth in title 14, chapter 22 of the D.C. municipal regulations, that is, the

inclusionary zoning implementation regulations. Defs.’ Mot. at 26. The set-aside and bonus

density provisions are codified in title 11, chapter 26. The Defendants’ interpretation of section

2223.1 is correct, but does not lead to the conclusion urged by the Defendants. The Plaintiff

asked DHCD to waive the inclusionary zoning covenant, which, among other things, requires

mortgagees to notify the District before initiating foreclosure proceedings and requires the

mortgagee to sell the foreclosed unit through the IZ Program. Compl., Ex. A (inclusionary

zoning covenant) §§ 5.7, 8.1-8.4. Neither the requirement that a covenant be executed, nor the

provisions of the covenant, are dictated by the Inclusionary Zoning Act or the Zoning

Commission regulations; both are established by DHCD’s implementing regulations codified in

title 14, chapter 22, and thus can be waived by the DHCD. The Plaintiff asked DHCD to waive

the covenant and it refused, therefore the Plaintiff’s claims with respect to the covenant are ripe.

With respect to the Plaintiff’s challenge to the set-aside requirement itself, the Plaintiff has not

sought relief from the Board of Zoning Adjustments---the only body empowered to waive the

set-aside requirement---meaning the Plaintiff’s takings claim with respect to the set-aside

requirement itself is not ripe.2 Accordingly, the Court lacks subject matter jurisdiction over the

Plaintiff’s challenge to the IZ Program writ large, but can consider the Plaintiff’s challenge to the

inclusionary zoning covenant restricting the sale of the units in question.

       B.      Adequacy of the Claims

       The Defendants also move to dismiss the Complaint for failure to state a claim, arguing

that the Plaintiff failed to state a claim for a regulatory taking. “[W]hile property may be



       2
          For this reason, the Court does not reach the Defendant’s argument that the Plaintiff’s
facial challenge to the IZ program is time barred.
                                                11
regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992) (citation omitted). “[W]hether a

particular restriction will be rendered invalid by the government’s failure to pay for any losses

proximately caused by it depends largely upon the particular circumstances [in that] case.” Penn

Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978) (citation omitted). While

engaging in this factual inquiry, the court considers a number of factors, including “[t]he

economic impact of the regulation on the claimant,” including “the extent to which the regulation

has interfered with distinct investment-backed expectations,” and the “character of the

governmental action,” for example, whether the state action can be characterized as a physical

invasion of the property at issue. Id. at 124. However, the Supreme Court has held that certain

discrete categories of regulatory actions are compensable “without case-specific inquiry into the

public interest advanced in support of the restraint,” for example, “[w]here regulation denies all

economically beneficial or productive use of land.” Lucas, 505 U.S. at 1015. The Defendants

argue that under the Penn Central test, the Plaintiff failed to state a claim as a matter of law. The

Plaintiff contends the IZ Program constitutes a total taking denying all economically beneficial

use of the relevant property pursuant to Lucas, making the Penn Central test inapplicable.

       The fundamental dispute between the parties is, when determining whether the District’s

regulation amounts to a taking of the Plaintiff’s “property,” whether the Court should consider

the effect the IZ Program has on (1) the individual set-aside units, or (2) the twenty-two unit

development as a whole. The Supreme Court recognized the difficulty of this inquiry in Lucas:

       Regrettably, the rhetorical force of our “deprivation of all economically feasible
       use” rule 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. When, for
       example, a regulation requires a developer to leave 90% of a rural tract in its
       natural state, it is unclear whether we would analyze the situation as one in which

                                                 12
         the owner has been deprived of all economically beneficial use of the burdened
         portion of the tract, or as one in which the owner has suffered a mere diminution
         in value of the tract as a whole.

Lucas, 505 U.S. at 1016, n.7. The answer “may lie in how the owner’s reasonable expectations

have been shaped by the State’s law of property,” that is, “whether and to what degree the State’s

law has accorded legal recognition and protection to the particular interest in land with respect to

which the takings claimant alleges a diminution in (or elimination of) value.” Id.

         Ultimately the relevant “property” for purposes of this case is a fact-intensive inquiry.

District of Columbia law provides that “[e]ach condominium unit shall constitute for all purposes

a separate parcel of real estate, distinct from all other condominium units,” D.C. Code § 42-

1901.03, lending strong support to the Plaintiff’s approach. None of the cases cited by the

Defendants offer any useful guidance in determining the relevant parcel in this context.

Therefore, for purposes of a motion to dismiss, the Plaintiff has sufficiently alleged that the IZ

program constitutes a total taking of each of the two condominium units set aside by the

Plaintiff, entitling the Plaintiff to compensation pursuant to the Supreme Court’s decision in

Lucas.

         C.     Miscellaneous Arguments

         The Defendant makes a two other arguments, un-tethered to its 12(b)(6) and 12(b)(1)

motions, neither of which are persuasive. First, the Defendants contend that the Plaintiff failed

to mitigate the economic effects of the IZ Program by either (1) transferring the set-aside units to

another location; or (2) redesigning the development to include the bonus density. Whether the

Plaintiff in fact could have benefited from either provision is a factual issue not appropriate for

resolution upon a motion to dismiss. Decl. of A. Linde, ECF No. [14-1], ¶¶ 7-11, 16 (indicating

that redesigning the development to include the bonus density was economically infeasible and

                                                13
the Plaintiff had no other property to which it could transfer the set-aside units).

        Second, for the first time in the reply, the Defendants argue that the Plaintiff failed to

state a claim with respect to the alleged equal protection and due process violations. Although

the Defendants argued these claims were not ripe, the Defendants did not move to dismiss these

claims pursuant to Rule 12(b)(6) in their initial motion, therefore the Court declines to consider

this argument. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (“We need

not consider this argument because plaintiffs . . . raised it for the first time in their reply brief.”).

Moreover the Defendants’ argument relies on the same flawed arguments regarding ripeness and

mitigation rejected elsewhere by the Court. See Defs.’ Reply at 17-18.

                                        IV. CONCLUSION

        For the foregoing reasons, the Court finds the Court finds the Defendants’ motion to

dismiss should be granted only in part. The Plaintiff obtained a final administrative decision

with respect to waiver of the inclusionary zoning covenant when the Department of Housing and

Community Development declined to waive the provision, but the Plaintiff failed to seek relief

from the appropriate administrative body with respect to its challenge to the set-aside

requirements of the IZ program generally. Moreover, the Plaintiff has sufficiently alleged a total

taking of the two condominium units at issue for purposes of the present motion to dismiss. The

Defendants’ remaining arguments were either not properly raised or not amenable to disposition

in the context of a motion to dismiss. Accordingly, the Defendants’ [12] Motion to Dismiss is

GRANTED IN PART and DENIED IN PART.                        An appropriate Order accompanies this

Memorandum Opinion.

                                                            /s/
                                                        COLLEEN KOLLAR-KOTELLY
                                                        UNITED STATES DISTRICT JUDGE

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