Gordon v. D.C.

309 A.3d 543

Peter GORDON et al., Appellants,

v.DISTRICT OF COLUMBIA et al., Appellees.

No. 20-CV-0568

District of Columbia Court of Appeals.

Argued April 6, 2022

Decided February 15, 2024

Appeal from the Superior Court of the District of Columbia (2016-CA-004493-B), (Hon. Elizabeth C. Wingo, Hon. Steven M. Wellner & Hon. José M. López, Trial Judges)

Don Padou for appellants.

Grace Fuscoe, Assistant Attorney General at the time, for appellees. Karl A. Racine, Attorney General for the District of Columbia at the time, Loren L. AliKhan, Solicitor General at the time, Carl J. Schifferle, Deputy Solicitor General, and Harrison M. Stark, Assistant Attorney General at the time, were on the brief for appellees.

Before Easterly and Deahl, Associate Judges, and Thompson, Senior Judge.

Easterly, Associate Judge:

Peter and John Gordon ("the Gordons") sued the District of Columbia for claims related to the designation of their family home as a historic property by the Historic Preservation Review Board. The Superior Court dismissed some of the Gordons’ claims in an order partially granting the District’s motion to dismiss and subsequently dismissed the Gordons’ remaining claims in an order granting the District’s cross-motion for summary judgment. The Gordons appeal both orders. We hold that the Superior Court erred in granting summary judgment to the District on the Gordons’ claim that District employee Kim Williams’ entry into their home constituted common law trespass. We otherwise affirm the judgment of the Superior Court.

I. Facts and Procedural History

In 2014, brothers Peter and John Gordon inherited their childhood home, located at 3020 Albemarle Street, NW, in the Forest Hills neighborhood of the District. Intending to sell the house, the Gordons signed a listing agreement with Long & Foster Real Estate, Inc. and hired Adam Pollin as their listing agent. The listing agreement authorized Long & Foster to market the house by displaying the property online and to "allow key-entry showings and the installation of a lock box" for members of local realtor associations to access the house in order "to accompany prospective buyers, inspectors, … and other parties necessary for showings and inspecting the Property." The Gordons requested that Mr. Pollin refrain from holding any open houses and limit the house showings to appointments only.

Concerned that the property was being sold as a development opportunity, a group of individuals undertook an effort to preserve the house in its current state by nominating it for historic landmark designation. Among these individuals was Sally Berk, a historic preservation consultant. Ms. Berk in particular made a vigorous but secretive push for historic designation of the Gordon house (and sought a four-figure payment for this work). To this end, Ms. Berk retained Denise Warner, a real estate agent with Long & Foster and the president of the Forest Hills Neighborhood Alliance, as her real estate agent to gain "access to the [Gordon] house on the pretext that [she was a] serious shopper[ ]."¹ She planned to maintain this façade "to protect Denise. [Warner]" and then "ghost write[ ]" the petition to nominate the property for historic preservation.

Ms. Berk and Ms. Warner entered the Gordon house on April 30, 2015, after Ms. Warner reached out to Mr. Pollin asking if he was available to meet Ms. Warner and "clients" for a "tour." Mr. Pollin instructed that the group could let themselves in with the keys in the lockbox.

Soon after her first visit, Ms. Berk organized a second tour of the Gordon house, to which she invited, among others, Kim Williams, a staff member of the District’s Historic Preservation Office ("HPO") and a longtime friend of Ms. Berk.² In an email to a group that included Ms. Williams, Ms. Berk disclosed that she was "strategizing [the] rescue" of the Gordon house; she explained, "there’s a real estate agent (not the listing agent) in Forest Hills who wants to save it," and that this "sympa-thetie-to-preservation agent" had made arrangements for the group to photograph the house for the landmark petition. Ms. Williams accepted Ms. Berk’s invitation to view the house, replying via email, "I would love to have a site visit." (Ms. Williams later explained in her deposition that site visits are a precursor to writing a staff report, which is later submitted to the Historic Preservation Review Board ("HPRB"), the District agency responsible for reviewing and granting applications for historic landmark designation.)

In a separate email, Ms. Berk extended invitations to view the property to: Dave Maloney, the head of the HPO; Steve Callcott, Ms. Williams’s supervisor at the HPO; and Gretchen Pfaehler, the chairperson of the HPRB. Ms. Berk stated in her email that her "favorite house in Washington" was "threatened."

On May 7, 2015, Ms. Warner met Ms. Berk and a group of her "friends and colleagues" at the Gordon home and let them in. Ms. Warner later testified at her deposition that she did not know any of Ms. Berk’s companions and, though they introduced themselves to her, she indicated that their identities were not a concern to her. Ms. Williams visited the home with Ms. Berk’s group, although she testified at her deposition that she arrived separately, "knocked on the door [of the house,] and was invited in." Ms. Williams further testified that Ms. Warner, who Ms. Williams did not know, seemed to be expecting her and "introduced herself when [Ms. Williams] arrived." Ms. Williams testified she was "pretty sure" that Ms. Warner was the person who let her into the Gordon house. When asked who the representative was who "could give consent on behalf of the [Gordons] to conduct a site visit" that day, Ms. Williams responded that she "assumed that the realtor was representing the owner … [because] that’s what realtors do," According to Ms. Williams, once she entered the home, she "took a quick tour, went out to the deck, looked out on to the site, … went up-stairs[,] … went outside to photograph the exterior," and "gave [her] professional advice" to Ms. Berk’s group about the landmark application process.

On May 10, 2015, three days after Ms. Williams’s visit to the house, Ms. Warner introduced Ms. Berk to the Gordons’ realtor, Mr. Pollin, and informed him via email of Ms. Berk’s "interest[ ] in preparing the materials necessary to landmark the home … with the DC Historic Preservation Review Board." In his email back to Ms. Warner, Mr. Pollin asked, "[s]o you brought her inside and took photos? And didn't bring in a purchaser?" Ms. Warner responded, "I was told that a potential purchaser would be with Sally [Berk]" on May 7, 2015, but "[a]pparently, he could not make it and she tells me that we will reschedule with him." On May 11, 2015, the Forest Hills Neighborhood Alliance submitted a petition, drafted partly by Ms. Berk, nominating the Gordon house to be designated a historic landmark. Around this same time, Ms. Berk was awarded a lifetime achievement award by the HPRB.

Weeks after submission of the Gordon petition to the HPRB, Ms. Berk invited HPRB Chairperson Ms. Pfaehler to her home in the Adirondacks, the same property Ms. Williams had visited, see supra, n.2. Ms. Pfaehler responded, "[t]hat would be lovely. Thank you for the gracious invitation." In early July 2015, Ms. Berk informed Ms. Williams that she would like to recommend Ms. Williams’s husband, an architect, for a commission to design a museum. Ms. Williams replied, "I think he would consider it, and if not, he should, so I will talk to him," and asked for more information on the project.

Soon after this email exchange, Ms. Williams submitted her staff report for the Gordon house, which contained input from Mr. Maloney, recommending that HPRB approve the historic designation petition. Days before the HPRB hearing, Ms. Berk texted Ms. Williams to thank her "for the positive staff report." Ms. Berk followed up with another text asking Ms. Williams if her thank you note was "incriminating."

On July 23, 2015, the HPRB held a two-hour hearing to consider the petition. Parties in favor of the designation, including Ms. Berk, spoke at the hearing. Ms. Williams also presented her case based on the staff report she had drafted. Peter Gordon spoke in opposition and brought an architect to substantively challenge the staff report. At the end of the hearing, the HPRB voted 3-2 to designate the Gordon house a historic landmark. All three of the board members who voted in favor indicated that their vote was based, at least in part, on the staff report. Ms. Pfaehler was one of the three who voted in favor of the designation.

Four days after the HPRB’s vote, Ms. Berk invited Ms. Williams to stay at her Adirondacks home in late August or September. Ms. Williams, expressing interest, indicated she and her husband were coordinating summer plans with their children’s travel, and responded, "great job and congrats at HPRB." Ms. Berk then thanked Ms. Williams, saying "it wouldn’t have happened without you." A few months later, Ms. Williams texted Ms. Berk asking that she "keep all emails to [her] on [a] professional level," because the Gordons had "submitted a FOIA request." Months after that, Ms. Berk wrote Ms. Williams an email with the subject line "BRIBE," again offering Ms. Williams a week at the Adirondacks cabin.

Before the designation, the Gordons had received an offer to purchase their home for $1.55 million dollars, but that offer was withdrawn the day after the Historic Preservation designation. The same buyers later made the Gordons another offer for $1.2 million dollars; they cited the landmark designation as the reason for their reduced offer.

Almost a year after the designation of their home as a historical landmark, the Gordons filed a complaint against the District and several named defendants,³ alleging twenty-two constitutional and common law claims and seeking damages and equitable relief. The District filed a ...