Nos.

21-CV-0084 and 21-CV-183

Clerk of the Court

In the Received 01/05/2023 09:47 PM

District of Columbia
Court of Appeals

KALORAMA CITIZENS ASSOCIATION, et al.,

Plaintiffs-Appellants,

v.
SUNTRUST BANK COMPANY, et al.,

Defendants-Appellees.

On Appeal from the Superior Court of the District of Columbia,

Civil Division in Case No. CAB4182-17 (Honorable Hiram E. Puig-Lugo, Judge)

PETITION FOR REHEARING EN BANC

OF APPELLEE SUNTRUST BANK

MARY C. ZINSNER MISHA TSEYTLIN*

ELIZABETH BRIONES TROUTMAN PEPPER
TROUTMAN PEPPER HAMILTON SANDERS LLP
HAMILTON SANDERS LLP 227 W. Monroe Street
401 9th Street, NW, Suite 1000 Suite 3900
Washington, D.C. 20004 Chicago, IL 60606
(202) 274-2950 (608) 999-1240
mary.zinsner@troutman.com misha.tseytlin@troutman.com
elizabeth.briones@troutman.com

Counsel for Appellee SunTrust Bank Company

d/b/a SunTrust Bank a/k/a SunTrust Banks, Inc.
January 5, 2023
 i

PARTIES, INTERVENORS, AMICI CURIAE, AND THEIR COUNSEL

A. Parties
Counsel for Plaintiffs/Appellants:
Kalorama Citizens Association
Adams Morgan for Reasonable Development
Paul H. Zukerberg
Zukerberg & Halperin, PLLC
1790 Lanier Place, N.W.
Washington, D.C. 20009-2118

Counsel for Defendants/Appellees:

SunTrust Bank Company d/b/a SunTrust Bank a/k/a SunTrust Banks, Inc.
Misha Tseytlin
Troutman Pepper Hamilton Sanders LLP
227 W. Monroe Street, Suite 3900
Chicago, IL 60606

Mary C. Zinsner
Elizabeth M. Briones
Troutman Pepper Hamilton Sanders LLP
401 9th Street, NW, Suite 1000
Washington, D.C. 20004

1800 Columbia Road, LLC

Potomac Investment Properties, Inc.
P.N. Hoffman & Associates, Inc.
1800 Columbia Potomac Investment Properties, LLC
Philip J. Harvey
Harvey Law Offices, PLLC
717 King Street, Suite 200
Alexandria, VA 22314
B. Intervenors
There were no intervenors in the Superior Court.
C. Amicus Curiae
There were no amici curiae in the Superior Court.
 ii

RULE 26.1 CORPORATE DISCLOSURE STATEMENT

The Complaint named as a defendant the following: SunTrust Bank Company

d/b/a SunTrust Bank a/k/a SunTrust Banks, Inc. (“SunTrust”).* By virtue of a

merger, SunTrust is now Truist Bank. Pursuant to D.C. App. R. 26.1,

Defendant/Appellee SunTrust states the following:

1. Truist Bank was formed on December 7, 2019, by the merger of

SunTrust Bank into Branch Banking and Trust Company and Branch Banking and

Trust Company’s subsequent change of its name to Truist Bank.

2. Truist Bank is a wholly owned subsidiary of Truist Financial

Corporation.

3. Truist Financial Corporation was formed on December 6, 2019, by the

merger of SunTrust Banks, Inc. into BB&T Corporation on December 6, 2019, the

merger of SunTrust Bank Holding Company (a Florida Corporation) into BB&T

Corporation on December 7, 2019, and BB&T Corporation’s subsequent change of

its name to Truist Financial Corporation (also on December 7, 2019).

4. The stock of BB&T Corporation formerly traded publicly under the

symbol “BBT.” The stock of SunTrust Banks, Inc. formerly traded publicly traded

under the symbol “STI.”

*
Truist Bank is the successor by merger to SunTrust. For purposes of
consistency, clarity, and ease of reference, this Petition will refer to the named bank
defendant as “Petitioner.”
 iii

5. The stock of Truist Financial Corporation is publicly traded under the

symbol “TFC.”

6. There is no publicly traded corporation that owns more than 10% of the

stock of Truist Financial Corporation.

 iv

TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1
STATEMENT ........................................................................................................... 3
ARGUMENT ............................................................................................................ 7
I. WHETHER THE DISTRICT’S GOVERNMENT MUST
ACCEPT A PUBLIC EASEMENT BY PUBLIC DEDICATION
IN ORDER TO CREATE SUCH AN EASEMENT IS A
QUESTION OF EXCEPTIONAL IMPORTANCE, ON WHICH
MANY STATES DIFFER FROM THE PANEL ................................ 7
II. IF THIS COURT HOLDS THAT PRIVATE PARTIES CAN
CREATE AN EASEMENT BY PUBLIC DEDICATION
WITHOUT THE DISTRICT’S GOVERNMENT’S
ACCEPTANCE, WHETHER SUCH AN EASEMENT MUST
BE RECORDED, OR, AT THE MINIMUM AND
ALTERNATIVELY, AT LEAST MEMORIALIZED IN A
CONTRACT SATISFYING THE STATUTE OF FRAUDS, IS
ALSO A QUESTION OF EXCEPTIONAL IMPORTANCE ON
WHICH STATES DIFFER ................................................................11
III. EN BANC REVIEW IS NECESSARY TO AVOID PUTTING A
CLOUD OVER PROPERTY RIGHTS IN THE DISTRICT ............14
CONCLUSION .......................................................................................................15
 v

TABLE OF AUTHORITIES

Page(s)
Cases

Allied American Invest. Co. v. Pettit,

179 P.2d 437 (Ariz. 1947) ................................................................................2, 11
City of Staunton v. Augusta Corp.,
193 S.E. 695 (Va. 1937) .......................................................................................11

City of Tyler v. Smith Cnty.,

246 S.W.2d 601 (Tex. 1952) ................................................................................11

Curtis v. Whitney,
80 U.S. 68 (1871) .................................................................................................12
*District of Columbia v. Robinson,
14 App. D.C. 512 (D.C. Cir. 1899) .............................................................. passim

Edwards v. Blackman,
129 A.3d 971 (Me. 2015) ...................................................................... 2, 3, 10, 12

Ford v. Dickerson,
662 S.E.2d 503 (W. Va. 2008) .........................................................................2, 10

Ginsberg v. Stanley Aviation Corp.,

551 P.2d 1086 (Colo. Ct. App. 1975) ...............................................................3, 12
*Kalorama Citizens Ass’n v. SunTrust Bank Co.,
No. CV 18-528, 2020 WL 5653695 (D.D.C. Sept. 23, 2020)....................... 6, 8, 9

Kelly v. City of Bethany,

588 P.2d 567 (Okla. 1978) ...............................................................................2, 10

Kraft v. Town of Mt. Olive,

645 S.E.2d 132 (N.C. Ct. App. 2007) ..............................................................2, 10

*Lansburgh v. District of Columbia,

8 App. D.C. 10 (D.C. Cir. 1896) .................................................................. passim
Martin v. Bicknell,
99 A.3d 705 (D.C. 2014) ......................................................................................14
 vi

Olde Severna Park Improvement Ass’n v. Gunby,

936 A.2d 365 (Md. 2007) .................................................................................2, 10
Railan v. Katyal,
766 A.2d 998 (D.C. 2001) ............................................................................. 12, 13

Selway Homeowners Ass’n v. Cummings,

657 N.W.2d 307 (S.D. 2003)............................................................................2, 10

Smith v. State,
282 S.E.2d 76 (Ga. 1981) .................................................................................2, 11

State ex rel. Matthews v. Metro. Gov’t of Nashville & Davidson Cnty.,

679 S.W.2d 946 (Tenn. 1984) ..............................................................................11

Stebbins v. Duncan,
108 U.S. 32 (1883) ...............................................................................................12
Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot.,
560 U.S. 702 (2010) .............................................................................................15
TMS Ventures LLC v. Zachariah,
Nos. 1 CA-CV 18-0712, 1 CA-CV 19-0388,
2021 Ariz. App. Unpub. LEXIS 196 (Ct. App. Feb. 18, 2021) .......................3, 11

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) .............................................................................................15

Constitutional Provisions
U.S. Const. art. I, § 8, cl.17 ........................................................................................9

U.S. Const., amend. V..............................................................................................15

Statutes And Rules

D.C. Code § 28-3502 ...............................................................................................12

D.C. Code § 42-201 ...................................................................................................8

D.C. Code § 42-202.01 ............................................................................................12

D.C. Code § 42-401 .................................................................................................12
 vii

D.C. Ct. App. R.35 ........................................................................................ 1, 10, 14

Regulations
D.C. Mun. Reg. § 24-400.1 ........................................................................................4

Other Authorities

D.C. Att’y Gen., Opinion Letter (Nov. 11, 1976), 1976 D.C. AG LEXIS 112 .........8
 1

INTRODUCTION

The panel’s decision creates a “new standard,” Appendix A (“Op.”) 26, of a

drastic new rule for divesting property rights unheard of in the District’s 223-year

history: an unwritten and unrecorded public easement by public dedication, which

the District’s government—the entity with the legal right to speak for the public

here—never itself agreed to. Whether this Court should permit such a destabilizing

property law innovation in the District, which would cloud the titles of property

owners across the District, is an issue of “exceptional importance,” on which many

States around the country differ. D.C. Ct. App. R.35(a)(2).

What happened in the present case illustrates the danger of the panel’s “new

standard.” Op.23, 26. Over 40 years ago, certain community organizations and the

then-owner of a then-vacant lot held discussions about a planned development of a

bank branch at the corner of 18th Street NW and Columbia Road in Adams Morgan.

While there is now disagreement about what the landowner intended almost half-a-

century ago, the District’s government never entered into or approved any such

easement, nor did those parties record any easement at the register of deeds or even

enter into a written contract. When a subsequent owner of the property—Petitioner

SunTrust Bank Company d/b/a SunTrust Bank a/k/a SunTrust Banks, Inc., with

Truist Bank now the successor in interest by merger (“Petitioner”)—sought to sell

the property to a developer that would build a mixed-use project of small retail shops
 2

and residential condominiums, the community organizations sued to stop these

plans, arguing that the prior owner had agreed to an unwritten public easement by

public dedication. Thereafter, the panel announced a “new standard” under which

any group of private citizens can present arguable evidence of the parties’ intent to

create a such an easement—no matter how long ago—thereby necessitating a trial

over whether the original landowner had intended to create that easement.

This Court should grant en banc review on two issues. First, whether private

parties can ever agree to a public easement by public dedication, or whether such a

public easement can only be accepted on the public’s behalf by the District’s

government, the entity that can actually represent and speak for District’s public.

Compare District of Columbia v. Robinson, 14 App. D.C. 512, 544–46 (D.C. Cir.

1899), aff’d, 180 U.S. 92 (1901); Lansburgh v. District of Columbia, 8 App. D.C.

10, 18 (D.C. Cir. 1896); Edwards v. Blackman, 129 A.3d 971, 978 (Me. 2015); Olde

Severna Park Improvement Ass’n v. Gunby, 936 A.2d 365, 372 (Md. 2007); Kraft v.

Town of Mt. Olive, 645 S.E.2d 132, 136–37 (N.C. Ct. App. 2007); Kelly v. City of

Bethany, 588 P.2d 567, 571 (Okla. 1978); Selway Homeowners Ass’n v. Cummings,

657 N.W.2d 307, 313 (S.D. 2003); Ford v. Dickerson, 662 S.E.2d 503, 506 (W. Va.

2008); with Op.18–23; Smith v. State, 282 S.E.2d 76, 82 (Ga. 1981); Allied American

Invest. Co. v. Pettit, 179 P.2d 437, 440–42 (Ariz. 1947). Second, if this Court is

inclined to recognize for the first time a public easement by public dedication
 3

without the District’s government’s agreement, whether this Court should at least

require that the private party insisting that such an easement exists satisfy a

heightened standard of “unequivocal[ ] dedicat[ion],” such as by showing that the

easement has been recorded or, at minimum, satisfies the statute of frauds. Compare

Robinson, 14 App. D.C. at 546; Lansburgh, 8 App. D.C. at 15; Edwards, 129 A.3d

at 978; Ginsberg v. Stanley Aviation Corp., 551 P.2d 1086, 1088 (Colo. Ct. App.

1975), aff’d in part, rev’d in part on other grounds, 568 P.2d 35 (Colo. 1977), with

Op.18–23; TMS Ventures LLC v. Zachariah, Nos. 1 CA-CV 18-0712, 1 CA-CV 19-

0388, 2021 Ariz. App. Unpub. LEXIS 196, at *11–14 (Ct. App. Feb. 18, 2021).

STATEMENT

A. Petitioner is the fee simple owner of a plot in the District’s Adams Morgan

neighborhood that is improved by a bank branch building and surrounding plaza.

JA1846–47; see Op.2 & n.1, 5–6. In 1976, decades before Petitioner acquired this

now-developed plot, Perpetual Savings & Loan Association (“Perpetual”) purchased

the then-vacant property and constructed the branch and plaza. Op.4.

Perpetual’s plans to develop the then-vacant plot met opposition in the Adams

Morgan neighborhood at the time, including because certain community members

used the vacant plot for farmers’ markets and other activities. See Op.3; JA40, 1948–

49, 1982–83. During these discussions in late 1976, Perpetual’s then-president,

Thomas Owen, wrote a short letter to the neighborhood. See Op.3–4; JA2023–24.
 4

Owen’s letter stated that Perpetual “agreed to develop the property in such a way as

to preserve its open quality, attractiveness and accessibility to the vendors that

presently use it.” JA2023–24. Owen’s letter did not purport to grant the public the

legal right to use the plaza, such as, for example, through a public easement accepted

by the District’s government or even through the parties’ recording or memorializing

in a written contract. Rather, Perpetual’s allowing the public to use the plaza was

just “a gracious move on the part of the bank.” JA1892–1901 (deposition of the

architect hired to develop the property). “[T]here was never any written easement,”

JA1896, and “no document” and “no contract” granting such an easement, JA1898.

Perpetual never filed a recorded deed or executed a document granting a public

easement to the plaza, see JA1865–66, 1929–30, 1948, 1957–58, 1965, and the

District’s government never accepted any public easement, see JA1103; JA2012–

21; JA2328; D.C. Mun. Reg. § 24-400.1; see generally Op.18–27.

Decades later, Petitioner purchased the bank branch and plaza. See Op.5–6;

JA2315–16. Like Perpetual, Petitioner continued to allow the neighborhood to use

the plaza as “a gracious move” without granting the public any ownership interest.

JA1892–1901; see Op.5–6; JA1831–36, 1847. In fact, Petitioner required

permission, license agreements, and commercial insurance for the farmers’ market

and other organized usage. JA130–32, 1833–36.

 5

In late 2015, Petitioner agreed to sell this plot to a developer who intends to

construct retail space and condominiums on the property. Op.6; JA1840–41.

B. In an effort to disrupt this development agreement, Appellants filed this

lawsuit, claiming that Perpetual had in 1976 granted “an easement by dedication in

favor of the public” to use the plaza after it had acquired the plot decades ago. JA1–

2, 34–36. Appellants sought a declaration that an easement for the benefit of the

public “exists for the [p]laza” and an injunction “enjoining the defendants from

destroying or otherwise interfering with the public easement on the Plaza” or

“limiting the public’s use or access to the [p]laza.” JA46.

The Superior Court granted summary judgment to Petitioner on Appellants’

claims, JA2285–2334, concluding that there was no genuine dispute over whether

“an easement by public dedication” existed. JA2322. The Superior Court explained

that, under this Court’s caselaw, an easement by public dedication “requires, at a

minimum, informal or implied acceptance by a public entity.” JA2323. Yet here,

“[t]he District Government has never expressed any acceptance of any easement, if

any easement was conveyed at all.” JA2324. The Superior Court’s conclusion

followed Chief Judge Howell’s opinion remanding this case to the Superior Court

from the U.S. District Court for the District of Columbia, JA2316–17, 2322–28, at

an earlier stage in these proceedings. Chief Judge Howell’s opinion had explained

that Appellants lacked standing because this Court does not recognize “common law
 6

easements by public dedication without involving the District government as the

designated easement holder.” Kalorama Citizens Ass’n v. SunTrust Bank Co., No.

CV 18-528, 2020 WL 5653695, at *8 (D.D.C. Sept. 23, 2020) (citations omitted).

C. A three-judge panel of this Court reversed and remanded to the Superior

Court, announcing a “new standard” for creating a public easement by public

dedication in the District. Op.1, 26. Under the panel’s approach, private parties can

create a public easement by public dedication where “the owner offered the

dedication, and that [ ] dedication was accepted.” Op.19. As for the “offer” element,

the panel explained that “there are no particular words of art necessary”; rather,

“traditional rules of contractual interpretation apply,” with the court reviewing “the

plain language of the purportedly interest-creating document” and “the surrounding

circumstances” as needed. Op.20 (brackets omitted; citations omitted). As for the

“acceptance” element, the panel rejected Petitioner’s position that the District itself

must accept the dedication to create a public easement by public dedication. Op.21.

Instead, the panel held that “easements by public dedication” may be accepted “by

the government” or “may also be accepted by the public at large,” even if—as here—

the only parties purporting to accept this easement are two local community

organizations with no authority to speak for the “public at large.” Op.21 (emphasis

added). Thus, the panel “h[e]ld that in the District of Columbia an easement by
 7

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

without acceptance by the government.” Op.23.

Applying this “new standard,” the panel then held that genuine disputes of

material fact existed as to both elements. Op.24–27. For the “offer” element, the

panel concluded that genuine disputes existed over, for example, Owen’s letter,

which was “drafted [i]n . . . 1976”; the architect’s design plans for the plaza over

four decades ago; and the various conversations and agreements between Perpetual

and Appellants from that same time period. Op.24–25. For the “acceptance”

element, the panel found genuine disputes of fact over, among other things, the

“negotiat[ions]” between Appellants and Perpetual regarding the “creation and

devlop[ment]” of the plaza in the late 1970s.” Op.26–27.

ARGUMENT

I. WHETHER THE DISTRICT’S GOVERNMENT MUST ACCEPT A

PUBLIC EASEMENT BY PUBLIC DEDICATION IN ORDER TO
CREATE SUCH AN EASEMENT IS A QUESTION OF
EXCEPTIONAL IMPORTANCE, ON WHICH MANY STATES
DIFFER FROM THE PANEL

In the District, a “public easement by public dedication” is the grant of a

property owner to the public of the right to use its private property, which is accepted

by government on behalf of the public, see Robinson, 14 App. D.C. at 526;

Lansburgh, 8 App. D.C. at 18, and thus “create[s] an interest in real property held

by the District of Columbia on the public’s behalf,” Kalorama Citizens Ass’n, 2020
 8

WL 5653695, at *7. Although “D.C. common law on such easements may not be

extensive,” the “available cases” establish that the District has only ever recognized

the creation of such easements after the “acceptance on the part of the public

authorities.” Id. (emphasis added) (quoting Robinson, 14 App. D.C. 512, and citing

Lansburgh, 8 App. D.C. 10). Thus, in Robinson, 14 App. D.C. 512, this Court held

that “the grant or dedication [for a public easement] would not be binding” unless

there was “a complete acceptance on the part of the representatives of the public

interest.” Id. at 544–46 (emphasis added). Likewise, in Lansburgh, 8 App. D.C. 10,

this Court required the government’s acceptance of a public dedication to create a

public easement, finding that the Commissioners of the District had impliedly made

such an acceptance by their conduct. Id. at 18–19. This requirement of acceptance

of public dedications only by public entities is consistent with the District’s Uniform

Conservation Easement Act of 1986, D.C. Code § 42-201, et seq., which, as relevant

here, allows for private enforcement of a conservation easement in court where the

“holder” of the conservation easement is “[a] governmental body empowered to hold

an interest in [the] real property,” D.C. Code § 42-201(2)(A); see also D.C. Att’y

Gen., Opinion Letter (Nov. 11, 1976), 1976 D.C. AG LEXIS 112, at *6–7.

The District’s longstanding practice and this Court’s previously uniform

caselaw requiring the District’s government’s acceptance before creating a public

easement by public dedication makes good sense, as the facts of this case show.
 9

Community organizations like Appellants are emphatically not “authorized to act for

and on behalf of the public”—unlike the government of the District. Robinson, 14

App. D.C. at 526; Kalorama Citizens Ass’n, 2020 WL 5653695, at *8. Thus,

community organizations like Appellants here have no authority to decide, on the

entire public’s behalf, whether the benefits from the creation of a public easement

by public dedication in the plaza outweigh its corresponding burdens. It is the

District’s government that must consider, for example, whether this plaza in the

District’s limited land area is better utilized as the site for weekly farmers’ markets

or for a series of small retailers and condominiums where the District’s residents can

shop and live. Op.5–6; see generally U.S. Const. art. I, § 8, cl.17. It is also the

District’s government that weighs whether the public should assume the “duty to . . .

repair” and maintain the plaza through tax dollars in order to obtain a public

easement in the plaza. Lansburgh, 8 App. D.C. at 18–19; compare Op.5–7. And it

is the District’s government that decides whether a public easement in the plaza is

worth the loss of property-tax revenue from the plaza, considering that Petitioner

had paid such taxes without reference to any public easement. See Op.6.

The panel’s new rule, which allows organizations of certain citizens to create

public easements by public dedication, without the District’s government’s

approval, Op.21, is incorrect. The panel misunderstood the District’s longstanding

rule expressed in Robinson and Lansburgh, concluding that both cases recognized
 10

the creation of a public easement by public dedication by the public’s acceptance,

which acceptance is manifested by lengthy public use. Op.22–23. But with respect,

the panel’s reading of these cases is wrong. Although Lansburgh and Robinson both

noted that lengthy public use had occurred, see Lansburgh, 8 App. D.C. at 16, 19;

Robinson, 14 App. D.C. at 544, both cases still required acceptance by the

government for the creation of the easement, see supra pp.7–8. Further, nowhere

did the panel grapple with how private community organizations like Appellants

could speak for and bind the public at large without obtaining the District’s

government’s agreement, see generally Op.18–23—which is the “representative[ ]

of the public interest” in the District, Robinson, 14 App. D.C. at 544.

While the panel’s reliance on out-of-jurisdiction cases fails to support its

position, Op. 26, the existence of very substantial disagreement among States on this

issue supports en banc review, see D.C. Ct. App. R.35(a)(2). As a threshold matter,

the panel’s approach conflicts with multiple States’ approaches to the same issue.

Maine, Maryland, North Carolina, Oklahoma, South Dakota, and West Virginia hold

that only “a proper public authority” can accept a public easement by public

dedication. Kraft, 645 S.E.2d at 136–37 (citations omitted; emphasis added); see

also Edwards, 129 A.3d at 978; Gunby, 936 A.2d at 372; Kelly, 588 P.2d at 571;

Cummings, 657 N.W.2d at 313; Ford, 662 S.E.2d at 506. Thus, with all respect, the

panel was simply wrong to state that “[t]he weight of authority” supported its
 11

approach, Op.21, with only decisions from Georgia, see Smith, 282 S.E.2d at 82, and

Arizona, see Pettit, 179 P.2d at 440–42, providing limited† support for the panel’s

approach. In the Virginia decision that the panel cited, public use was only evidence

of the acceptance of a dedication when the public authorities exercised control over

the dedicated land. City of Staunton v. Augusta Corp., 193 S.E. 695, 699–700 (Va.

1937). And in the Tennessee and Texas decisions, the courts relied on both public

use and governmental treatment of the spaces to decide the issue. City of Tyler v.

Smith Cnty., 246 S.W.2d 601, 604–06 (Tex. 1952); State ex rel. Matthews v. Metro.

Gov’t of Nashville & Davidson Cnty., 679 S.W.2d 946, 949 (Tenn. 1984).

II. IF THIS COURT HOLDS THAT PRIVATE PARTIES CAN CREATE

AN EASEMENT BY PUBLIC DEDICATION WITHOUT THE
DISTRICT’S GOVERNMENT’S ACCEPTANCE, WHETHER SUCH
AN EASEMENT MUST BE RECORDED, OR, AT THE MINIMUM
AND ALTERNATIVELY, AT LEAST MEMORIALIZED IN A
CONTRACT SATISFYING THE STATUTE OF FRAUDS, IS ALSO A
QUESTION OF EXCEPTIONAL IMPORTANCE ON WHICH
STATES DIFFER

If this Court recognizes for the first time a public easement by public

dedication without the District’s government’s approval, contra Part I, this Court

should hold that such a previously unheard of easement in the District must have

†
The Georgia Supreme Court’s decision only applied to cemeteries, streets, and
parks. Smith, 282 S.E.2d at 82. The Arizona Supreme Court’s decision relied upon
a now-superseded statute that only authorized the public-use acceptance for the
dedication of specific tracts of land as parks. Pettit, 179 P.2d at 440–42; see also
TMS Ventures, 2021 Ariz. App. Unpub. LEXIS 196, at *11–14.
 12

been recorded formally in the register of deeds to be valid. See generally D.C. Code

§ 42-401 et seq.; see also id. § 42-202.01. Recordation here is critical for two

reasons. Recordation first gives “notice” to the public, including “subsequent

purchasers and creditors,” that the property is encumbered by a public easement,

thus allowing for the continued alienation of the property among responsible and

knowledgeable parties. Stebbins v. Duncan, 108 U.S. 32, 49 (1883); see also Curtis

v. Whitney, 80 U.S. 68, 71 (1871). And second, recordation ensures that the “owner”

of the to-be-encumbered private property has “unequivocally dedicate[d] his land to

the use of the public” through a public easement, rather than simply “tolerated” the

public’s use of his land out of good will. Robinson, 14 App. D.C. at 543, 545

(emphasis added); see Lansburgh, 8 App. D.C. at 4 (“clearly indicates an intention

to dedicate”); see also Edwards, 129 A.3d at 978; Ginsberg, 551 P.2d at 1088.

Alternatively, if this Court does not require recordation, then it should hold,

at the very minimum, that a public easement by public dedication not accepted by

the District’s government requires a writing that satisfies the statute of frauds. See

D.C. Code § 28-3502, et seq.; Railan v. Katyal, 766 A.2d 998, 1007 (D.C. 2001).

While a statute-of-frauds requirement does not fulfill a public-notice function of the

recordation requirement just discussed to the same degree, requiring the property

owner to memorialize an agreement to convey an public easement in a legally

binding writing ensures that the owner “clearly indicates an intention to dedicate,”
 13

Lansburgh, 8 App. D.C. at 4, in an “unequivocal[ ]” way, Robinson, 14 App. D.C.

at 545–46. Finally, applying this requirement for the conveyance of a public

easement here is consistent with the statute of frauds more generally, which applies

broadly to “agreements . . . concerning real estate.” Railan, 766 A.2d at 1007.

The panel’s decision does not adequately address these recordation or statute-

of-frauds considerations in the course of announcing its “new jurisprudence.”

Op.23. As for recordation, the panel does not even mention this method to determine

whether a private-property owner has, in fact, intended to convey an easement. See

generally Op.18–23. Rather, the panel just held that any “interest-creating

document” may convey a public easement by public dedication, so long as the “plain

language” of the document, the document’s “surrounding circumstances,” and/or the

“conduct of the parties” demonstrate an intent to convey such an easement. Op.20.

That all-things-considered analysis does not provide the public-notice and

unambiguous-intent-of-the-owner functions that a recordation requirement would

fulfill. See supra p.12. And as for the statute-of-frauds considerations, while the

panel’s decision does leave these considerations open on remand—given that

Petitioner’s statute-of-frauds argument was one of the “several alternative grounds”

that it had raised that was “not addressed by the Superior Court,” Op.26–27;

Appellee Br.30—satisfaction of the statute of frauds should have been part of the
 14

panel’s new standard for determining when a public easement by public dedication

has been created in the absence of the District’s acceptance.

III. EN BANC REVIEW IS NECESSARY TO AVOID PUTTING A CLOUD

OVER PROPERTY RIGHTS IN THE DISTRICT

Applying the panel’s new standard retroactively not only impairs Petitioner’s

property rights, but also places a cloud over property rights generally within the

District. As a result, the two issues presented are of “exceptional importance” on

which other States disagree, justifying en banc review, D.C. Ct. App. R.35(a)(2).

Under the panel’s “new standard,” any property owner who has even arguably

allowed the public to use his property as a “gracious move,” JA1892–1901, may

have inadvertently created a public easement by public dedication without any

notice, or at least subjected itself to an expensive trial to disprove the assertion. That,

in turn, would deter companies and individuals from allowing neighbors or friends

to use their land “for fear of being held to have granted, or irrevocably dedicated,

their land to the public use.” Robinson, 14 App. D.C. at 544. Thus, when subsequent

owners sell or develop this property, disgruntled members of the public may sue,

forcing the owner into costly litigation, given the fact-specific analysis required by

the panel’s new standard. Op.23–26. Such a cloud on title will chill the useful

development of the scarce available real property in the District, contrary to the

principle that “[w]here the right to use real property is at issue, . . . [c]larity is best.”

Martin v. Bicknell, 99 A.3d 705, 706 (D.C. 2014).

 15

The Supreme Court has recognized that such grave, cloud-of-title problems

may violate the Constitution’s Takings Clause and Due Process Clause when applied

retroactively, concerns the panel’s approach implicates. See Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160–65 (1980); Stop the Beach

Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 715 (2010) (plurality

op.); see also id. at 735–39 (Kennedy, J., concurring in part and concurring in the

judgment). The property owners who acquired the plot at issue here decades ago

had no way to know that, after they acquired this property, the panel would impose

a “new standard” creating a new kind of public easement by public dedication that

would retroactively apply to this property. Op.26. The retroactive imposition of this

new standard on Petitioner’s previously acquired ownership of this property could

deprive it of a portion of its “private property . . . without just compensation,” in

violation of the Takings Clause, U.S. Const., amend. V, under Webb’s and Stop the

Beach. Similarly, retroactively applying this “new standard,” Op.26, to Petitioner’s

longstanding ownership interest in this property could potentially work a

“depriv[ation] of” Petitioner’s “property” without prior notice, violating the Due

Process Clause, U.S. Const. amend. V.

CONCLUSION
This Court should grant this Petition For Rehearing En Banc.
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Dated: January 5, 2023 Respectfully submitted,

SUNTRUST BANK

By: /s/ Misha Tseytlin

Misha Tseytlin

*Misha Tseytlin, Esq., D.C. Bar No. 991031

TROUTMAN PEPPER HAMILTON SANDERS LLP
227 W. Monroe Street
Suite 3900
Chicago, IL 60606
(608) 999-1240
misha.tseytlin@troutman.com

Mary C. Zinsner, Esq., D.C. Bar No. 430091

Elizabeth M. Briones, Esq., D.C. Bar No. 888324983
TROUTMAN PEPPER HAMILTON SANDERS LLP
401 9th Street NW, Suite 1000
Washington, D.C. 20004
Tel: 202.274.1932
Tel: 202.274.2937
E-mail: mary.zinsner@troutman.com
E-mail: elizabeth.briones@troutman.com

Counsel for Appellee SunTrust Bank Company d/b/a SunTrust Bank a/k/a SunTrust
Banks, Inc.
 17

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of January, 2023, a true and correct copy

of the foregoing was filed electronically using the Court’s filing system which will

cause electronic notice of filing to be served on all registered parties.

/s/ Misha Tseytlin

Misha Tseytlin