Borum v. Brentwood Village, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ADRIANN BORUM, et al., :
:
Plaintiffs, : Civil Action No.: 16-1723 (RC)
:
v. : Re Document Nos.: 3, 16
:
BRENTWOOD VILLAGE, LLC, et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFFS’ MOTION FOR A
PRELIMINARY INJUNCTION
I. INTRODUCTION
At first glance, this case places the Court in the unenviable position of either standing in
the way of residential redevelopment or jeopardizing the homes of families who depend on the
status quo. Defendants are several companies planning to redevelop their existing apartment
complex into a more modern development with many more one- and two-bedroom units.
Plaintiffs are a nonprofit organization and two tenants, purporting to represent a class, who
contend that Defendants’ elimination of many three-, four-, and five-bedroom apartments in the
process will disproportionately impact families in violation of the Federal Fair Housing Act and
a comparable District of Columbia statute. Plaintiffs seek preliminary injunctive relief on the
grounds that they face imminent irreparable harm if Defendants proceed with their
redevelopment plan. Defendants counter that any of the alleged injuries would not occur until
years down the road. They also move to dismiss on several procedural grounds, and because
Plaintiffs “cherry-pick” a narrow demographic—“large families”—from the entirety of the class
protected under the FHA—families—and focus only on the destruction of certain apartments and
not the construction of many more. Because Defendants’ procedural arguments are flawed and
Plaintiffs do not cherry-pick data, the Court will deny the Motion to Dismiss. Because Plaintiffs
do not adequately show that the threatened injuries are imminent, the Court will deny the Motion
for a Preliminary Injunction.
II. FACTUAL BACKGROUND
A. Complaint1
Defendants Brentwood Associates, L.P.,2 Mid-City Financial Corporation, and
Edgewood Management Corporation are owners of an affordable housing development located
in Northeast D.C. See Compl. ¶ 3, ECF No. 2. They are in the process of redeveloping their
deteriorating 75-year-old buildings, in part by increasing the total number of units but decreasing
the number of larger-sized apartments. See District of Columbia Zoning Commission, Order No.
14-18, Case No. 14-18 at 33 (Mid-City Fin. Corp.) (Sept. 10, 2015), available at ECF No. 4-18
[hereinafter Mid-City Fin. Corp., Z.C. Case 14-18];3 Compl. ¶¶ 4–5. Their redevelopment plan
1
Because the Court considers different information when analyzing a motion to dismiss
than it does with a motion for a preliminary injunction, the relevant facts are divided into two
sections.
2
Per stipulation, Plaintiffs have voluntarily dismissed the case against Defendant
Brentwood Village, LLC, because Brentwood Village does not have an ownership interest in the
property subject to the suit. See Notice of Voluntary Dismissal, ECF No. 12.
3
With respect to Defendants’ Motion to Dismiss, the Court takes judicial notice of the
facts in the District of Columbia Zoning Commission proceeding involving Defendants and their
proposed redevelopment only to “avoid unnecessary proceedings when an undisputed fact on the
public record makes it clear that the plaintiff does not state a claim upon which relief could be
granted.” Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)
(internal citation and quotations omitted). The Court takes into account only uncontested facts,
and does not “review[] the entire record,” which would require conversion of the Motion to
Dismiss into a motion for summary judgment. See Marshall Cty. Health Care Auth. v. Shalala,
988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting). Plaintiffs never dispute
Defendants’ invocation of the Zoning Commission’s order as a basis for its factual claims. See
generally Pls.’ Br. in Opp’n to Defs.’ Mot. to Dismiss, ECF No. 21 (Plaintiffs even specifically
2
calls for the elimination of 113 four-bedroom and 21 five-bedroom apartment units. See Compl.
¶¶ 32, 46. In light of social, economic, and practical considerations, the D.C. Zoning
Commission agreed with Defendants that, like in other developments nationwide, it would not be
economical to build four- and five-bedroom units. See Mid-City Fin. Corp., Z.C. Case 14-18, at
52, 56. The plan also calls for the decrease of three-bedroom apartments from 75 to 64 units.
Compl. ¶ 47. In all, the redevelopment would decrease the number of three-, four-, and five-
bedroom apartments from 209 to 64. Id. ¶ 5. It would also displace at least 119 households—the
majority of which are families—currently residing at Brookland Manor. Id. ¶¶ 50–53, 75. Even
the remaining three-bedroom apartments might not be affordable, “further reducing the available
housing for larger families.” Id. ¶ 52. Defendant Mid-City’s Vice President Michael Meers
testified before the D.C. Zoning Commission that “all residents in good standing shall have the
opportunity to return to the redeveloped property . . . [a]nd when relocations do occur[,]
ownership will pay for all packing and moving expenses.” Id. ¶ 54.
Plaintiffs allege that the redevelopment plan would have a disparate impact on families.
See id. ¶¶ 69–79. Among the 486 occupied units at Brookland Manor, 253 (52%) are occupied
by “families” that Plaintiffs claim are within the relevant statutory definitions, which the
Complaint defines as “those who have one or more minor children living in the household.” See
id. ¶ 72. Of the 303 one- and two- bedroom apartments, only 104 (34%) are occupied by
families, as defined by Plaintiffs. Id. ¶ 74. Of the 183 three-, four-, and five-bedroom units, 149
(81%) are occupied by families. Id. Taken together, 149 families—comprising 59% of families
overall—are at risk of displacement because of the development, compared to only 34 non-
state that they “are not challenging the Zoning Comission’s approval of Mid-City’s stage-one
PUD application”).
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families—15% overall. Id. ¶ 77. The new development would contain about 1,760 units,
including 1,646 apartments. Id. ¶¶ 48. There are currently around 535 apartment units at
Brookland. See Mid-City Fin. Corp., Z.C. Case 14-18, at 7.
Individual Plaintiffs—Ms. Adriann Borum and Ms. Loretta Holloman—allege that
redevelopment would force them out of their homes and subject them to multiple forms of injury.
See Compl. ¶¶ 80–107. Ms. Borum lives in a four-bedroom apartment unit with her five
children, who range in age from 7 to 21. Id. ¶¶ 94–95. She and her children depend on the local
community for academic, religious, and recreational support. Id. ¶¶ 97–101. If the family is
involuntarily displaced, “Ms. Borum will have an extremely difficult time finding an
adequately[-]sized apartment in D.C. for her family because of the scarcity of affordable housing
of her unit type.” Id. ¶ 105. Ms. Holloman lives with her mother, brother, and three school-aged
children in a four-bedroom Brookland Manor apartment. Id. ¶¶ 80–81. Her brother and one of
her children are both autistic and attend a special-needs programs—one for children and one for
adults—in the community. Id. ¶ 82–83. She too will have a difficult time finding a replacement
apartment for her family, may have to move outside of D.C., and will lose the irreplaceable
community on which she and her family depend. See id. ¶¶ 82–91.
Individual Plaintiffs bring this case on behalf of themselves and “all others similarly
situated” including “[a]ll households who reside or have resided at Brookland Manor in a three-,
four-, or five-bedroom unit with one or more minor child,” and who have either been displaced
or are at risk of being displaced by Defendants’ proposed redevelopment project. See id. ¶ 122.
Plaintiffs allege that at least 149 families are in the Proposed Class, and that the redevelopment
will have “the same impact on all class members.” Id. ¶¶ 125–27. According to Plaintiffs, all
members of the Proposed Class are interested in the case because the redevelopment project
4
significantly decreases the amount of available housing suitable for families, would have a
disparate impact on families, and may have been motivated by a discriminatory purpose. See id.
¶ 127. Moreover, Plaintiffs argue, a single injunction would afford the primary relief that
members of the Proposed Class seek. Id. ¶ 137.
The final Plaintiff, community organization ONE DC, is “comprised of members who
include tenants of affordable housing properties that are seeking to avoid displacement, preserve
affordable housing, ensure fair housing, and further equitable development in D.C.” Id. ¶ 108.
ONE DC seeks this injunction “on its own behalf and as a representatives of its members,
including members who are residents of Brookland Manor and have minor children.” Id. ¶ 109.
It further asserts that Defendants’ conduct has directly “damaged ONE DC by frustrating its
mission of creating and preserving racial and economic equity in D.C. for all and by causing
ONE DC to divert scarce organizational resources,” particularly given that the organization has
only two fulltime staff members. See id. ¶¶ 111–12. As a result of Defendants’ actions, ONE
DC diverted its resources from its mission to “crisis organizing” through “identifying,
investigating, and combating Defendants’ discriminatory policies and practices, and to
counseling, organizing, and reassuring tenants who have been forcibly moved or have feared
imminent displacement under Defendants’ proposed redevelopment plan.” Id. ¶ 113, 118. For
example, after hearing about the proposed redevelopment, ONE DC organized a series of
“Outreach Days.” Id. ¶¶ 114–16. In all, ONE DC alleges that, as of July 28, 2016, it had spent
640 staff-hours on “combat[ing] Defendants’ discriminatory conduct.” Id. ¶ 121.
To implement their redevelopment, Defendants have petitioned the D.C. Zoning
Commission through the “planned unit development (PUD) process.” See id. ¶ 43; D.C. Mun.
Regs. tit. 11-X, § 300. In October, 2014, Defendants submitted an application for a First-Stage
5
PUD and Related Zoning Map Amendment (“First-Stage PUD”) with the D.C. Zoning
Commission. Compl. ¶ 44; see generally D.C. Mun. Regs. tit. 11-X, § 302. The Zoning
Commission approved the First-Stage PUD application in June, 2015, and its order became final
on November 6, 2015. Compl. ¶ 56. Now, Defendants have filed a Second-Stage PUD
application, the approval of which would allow Defendants to begin redevelopment and
destruction of Plaintiffs’ apartments. See Pl. Reply Mem. in Supp. of Mot. for Prelim. Inj., at
17–18, ECF No. 20; Compl. ¶ 57.
During the course of the redevelopment process, Defendants made comments that
Plaintiffs allege are discriminatory. See Compl. ¶ 59. In a December 2014 letter to the
Brookland Manor Residents Association, Defendant Mid-City stated that four- and five-bedroom
apartments are “not an ideal housing type for larger families and there are adverse impacts on the
remainder of the community.” Id. ¶ 61. The following month, Mid-City said that there would
not be four- or five-bedroom units because they are “not consistent with the creation of a vibrant
new community.” Id. ¶ 62. Then, in an April 2015 hearing in front of the Zoning Commission,
Defendant Mid-City, representing Brentwood Village, said that “[c]ommunities and
organizations throughout the country are in agreement that housing very large families in
apartment complexes is significantly impactful upon the quality of life of households as well as
their surrounding neighbors. Therefore, [Defendants do] not propose to construct four or five
bedroom units in the project.” Id. ¶ 60.
Plaintiffs now allege that Defendants violated the Federal Fair Housing Act (“FHA”) by
undertaking the redevelopment project that will disproportionately reduce the amount of
apartments available for families, which they allege constitutes discrimination on the basis of
familial status. See id. ¶¶ 140–50. Plaintiffs further allege that Defendants violated the District
6
of Columbia Human Rights Act (“DCHRA”) on similar grounds. See id. ¶¶ 151–62. Plaintiffs
make separate claims under both statutes alleging discriminatory statements, because of
Defendants’ statements suggesting that housing for large families is incompatible with the
community they seek to create. See id. ¶¶ 163–78. Defendants do not aim the Motion to
Dismiss at Plaintiffs’ claims about these alleged statements.
Plaintiffs’ Complaint seeks certification of a class, a judgment declaring that the
proposed plan’s decrease of the number of units available for certain families violates the FHA
and DCHRA, “any and all injunctive relief that the Court may deem appropriate,” compensatory
and punitive damages, and attorneys’ fees. See Prayer for Relief, Compl. at 35–36.
B. Motion for a Preliminary Injunction
In addition to the above allegations, Plaintiffs and Defendants each put forward evidence
for consideration of Plaintiffs’ Motion for a Preliminary Injunction.
1. Plaintiffs’ Evidence
Plaintiffs put forth evidence that they argue shows that Plaintiffs face threats of injury if
the redevelopment project proceeds. They submit a statement from Defendants to the Zoning
Commission confirming the numerical allegations in the Complaint. See Pls.’ Mem. in Supp. of
Mot. for Prelim. Inj. Ex. 12, ECF No. 4-13. To digest the redevelopment plan in numerical
terms, they also submit the declaration of a social-statistician, Dr. Andrew Beveridge. See Pls.’
Mem. in Supp. of Mot. for Prelim. Inj. Ex. 1 (“Beveridge Decl.”), ¶ 9, ECF No. 4-2. Based on
his analysis of the redevelopment plans, he states that “families would be more than four times as
likely as non-families to be adversely affected by the planned redevelopment because 58.9[%] of
the families at Brookland Manor live in three-, four-, or five-bedroom units . . . [and] [i]n
contrast, only 14.6[%] of non-families live in such . . . units.” See id. ¶ 9. Dr. Beveridge further
7
asserts that families will face difficulty finding new housing, or, for the few families that might
be able to remain at Brookland, overcrowding. See id. ¶¶ 10–11.
Individual Plaintiffs assert specific injuries that they will suffer if Defendants carry out
the redevelopment. Ms. Holloman claims in a declaration that she and her family will “suffer
displacement,” and leave her along with her “aging mother, brother with special needs, and three
minor children with nowhere to go.” See Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. Ex. 5
(“Holloman Decl.”), ¶ 9(a), ECF No. 4-6. She predicates this assertion on her “strong[] belie[f]
that [she] will be unable to find housing that will accommodate [her] family’s size and special
needs” within the community and at an affordable price. See id. ¶ 9(a)(i). She specifically
worries that her mother will be unable to continue her “essential” career training classes, her
brother will lose his “essential” special-needs program, her autistic son will lose his “crucial”
special needs classes, her other children will lose their local schooling, and the whole family will
lose its community connections. See id. ¶¶ 9(a)(i)–(vi). Ultimately, she is “concerned that [her]
family could be forcibly broken up,” leaving her separated from her children. See id. ¶ 9(b). In
addition to the toll moving would take on her family, she claims she will suffer her own
emotional distress. See id. ¶ 9(e). Ms. Borum similarly asserts that without a four-bedroom unit
she and her family cannot reside at Brookland, putting her family at risk of displacement or
fragmentation. See Pl.’ Mem. in Supp. of Mot. for Prelim. Inj. Ex. 4, ¶ 9(a), ECF No. 4-5. She
claims that she personally is “aware of” other families who have “been asked to leave the
property” or been “broken up.” See id. ¶ 8. Like Ms. Holloman, Ms. Borum believes the
redevelopment would make it impossible for her and her family to remain in the community.
See id. ¶ 9(a).
8
To bolster their claims that Defendants’ redevelopment will displace or break apart
families, Plaintiffs submit second-hand declarations of people who claim they know of other
families who have been forced to relocate. See id. ¶ 8; Pls.’ Mem. in Supp. of Mot. for Prelim.
Inj. Ex. 9 (“McFadden Decl.”), ¶ 6, ECF No. 4-10 (declaration of tenant Reginald McFadden,
wherein he asserts that he is “aware of other families who have already had to transfer to another
unit . . . , had their families broken up into smaller units, or been asked to leave”); Pls.’ Mem. in
Supp. of Mot. for Prelim. Inj. Ex. 10 (“Scott Decl.”), ¶ 6, ECF No. 4-11 (declaration of tenant
Valarie Scott asserting the same); Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. Ex. 8 (“Jenkins
Decl.”), ¶ 6, ECF No. 4-9 (declaration of tenant Javon Jenkins asserting the same). Although
Plaintiffs acknowledge that Defendants will allow families the right to return to Brookland, see
Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. Ex. 15, at 3, ECF No. 4-16, they argue that families
cannot do so without larger apartments, which are scarce in the District of Columbia, see Pls.’
Mem. in Supp. of Mot. for Prelim. Inj. Ex. 2 (“Merrifield Decl.”), ¶ 27, ECF No. 4-3. Plaintiffs
assert that families who rely on Section 8 vouchers to subsidize their rent payments will be
particularly affected by redevelopment, because units available to lower-earning households are
even scarcer than they are for the general population. See Merrifield Decl., ¶¶ 18, 32–34.
Plaintiffs also produce evidence that they argue shows that the threatened injuries against
Plaintiffs are imminent, if not occurring already. See Pls.’ Mem. in Supp. of Mot. for Prelim.
Inj., at 26, ECF No. 4. As noted above, several tenants argue that they know of families who
have been forcibly moved or separated by Defendants. More broadly, Plaintiffs argue that
“Defendants will soon receive final approval of their proposed redevelopment.” See id. at 13.
The D.C. Zoning Commission gave first-stage PUD approval to Defendants’ redevelopment
plan, and Defendants submitted an application for second-stage PUD approval weeks before it
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was due. See Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. Ex. 17, ECF No. 4-18 (D.C. Zoning
Commission approval); Pls.’ Reply Mem. in Supp. of Mot. for Prelim. Inj. Ex. 2, ECF No. 20-2
(Defendants’ stage-two application, dated September 20, 2016); Defs.’ Mem. in Supp. of Mot. to
Dismiss, at 9, ECF No. 16-1 (noting that Defendants were required to submit a stage-two
application by November 6, 2016). Plaintiffs argue that Defendants’ early submission of the
stage-two application shows just how quickly they intend to implement the redevelopment. See
Pls.’ Reply Mem. in Supp. of Mot. for Prelim. Inj., at 12. With Defendants’ submission of
another application for stage-two approval, the Zoning Commission can immediately consider
the proposal, and if the Commission gives approval, Defendants may begin redeveloping
immediately thereafter. See D.C. Mun. Regs. tit. 11-Z, § 702. At that point, Plaintiffs argue,
there will be no way to stop Defendants from inflicting irreparable injuries upon Plaintiffs. See
Pls.’ Mem. in Supp. of Mot. for Prelim. Inj., at 14. Plaintiffs further argue that a recent filing
with the Zoning Commission shows that the first phase of redevelopment will affect a building
that is made up almost entirely of three- and four-bedroom units. See Pls.’ Reply Mem. in Supp.
of Mot. for Prelim. Inj. Ex. 3, at 1, ECF No. 20-3.
To show that Defendants do not want “large families to reside on their property,” see
Pls.’ Mem. in Supp. of Mot. for Prelim. Inj., at 15, Plaintiffs put forth statements made by
Defendants in connection with the redevelopment project. See Pls.’ Mem. in Supp. of Mot. for
Prelim. Inj. Ex. 12, at 6; Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. Ex. 18, at 8, ECF No. 4-19.
In a submission to the Zoning Commission, Defendants stated that “housing very large families
in apartment communities is significantly impactful upon the quality of life of households as well
as their surrounding neighbors.” See Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. Ex. 12, at 6.
Then, in response to a question from tenants, Defendants stated that they would “not build any
10
new [four-bedroom] or [five-bedroom] apartment flats as our practical experience has
demonstrated that it is not an ideal housing type for larger families and there are adverse impacts
on the remainder of the community.” See Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. Ex. 18, at
8.
2. Defendants’ Evidence
Defendants produce evidence telling a different story. According to Michael S. Meers,
Executive Vice President of Defendant Mid-City Financial Corporation, the redevelopment is an
innocuous response to two principal concerns. See Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. Ex.
1 (“Meers Aff.”), ¶ 1, ECF No. 18-1. First, “[t]he existing buildings are now 75 years old and
are functionally obsolete with all of the major systems requiring replacement,” with the property
last having been renovated over 40 years ago. Id. ¶ 6. The District of Columbia Office of
Planning concurred with Defendants that “the buildings and the infrastructure [of Brookland] are
not optimally functional.” See Mid-City Fin. Corp., Z.C. Case 14-18, at 64. Second, “the urban
design of the original community and buildings . . . has resulted in the property not being as
safe” as it could be because of crime. Meers Aff. ¶ 7. Mr. Meers attributes the “ongoing crime
problems” to the street configuration’s lack of conduciveness to “efficient pedestrian and
vehicular access through the subject property,” resulting in a kind of isolation from the
surrounding community. See id. In addition, Defendants plan to provide many more homes for
all—regardless of familial status—by expanding the existing 535 apartment units to 1,760 total
units, including 1,646 apartments. See id. ¶ 8, 10. The Zoning Commission agreed with
Defendants that including larger units would be impractical. See Mid-City Fin. Corp., Z.C. Case
14-18, at 52, 56. As for the families who claim to require larger units, Defendants indirectly
invoke a study purportedly showing that several Brookland tenants currently reside in apartments
11
that are too big for their respective occupants, based on “the HUD guidelines of two persons per
bedroom,” so that only “13 exiting households would require four bedrooms and no household
would require five bedrooms.” See Mid-City Fin. Corp., Z.C. Case 14-18, at 38. The Zoning
Commission favorably cited the D.C. Office of Planning as having considered this information
prior to stage-one PUD approval, see id. at 35–38, but neither the HUD guidelines nor the study
are themselves in the record. The Office of Planning also found that Defendant planned to
maintain “[t]he building with the larger units . . . until the later phases at which time they can be
‘right sized’ to accommodate larger families.” See id. at 38.
Defendants emphasize that any displacement of tenants would not occur until years down
the road, during later phases of the redevelopment project. See Defs.’ Opp’n to Pls.’ Mot. for
Prelim. Inj., at 6, ECF No. 18. Defendants plan to implement the redevelopment project in three
phases. See id. During “Phase One” in late 2017, three of the current 19 buildings that
constitute Brookland Manor will be replaced by 28 for-sale units and 200 senior-citizen units.
See Meers Aff. ¶ 17. These buildings are called “Block 7.” See Mid-City Fin. Corp., Z.C. Case
14-18, at 50. All residents in those three buildings will be “relocated at ownership expense to an
appropriate apartment home on the property.” Id. Some tenants have been moved, but “[n]o
tenant in [the three affected buildings] has been forced to move outside the development as a
result of any failure to accommodate that tenant elsewhere in the development.” See Meers Aff.
¶ 17. Because Defendants would need the units created by Phase One to relocate tenants, Phase
Two and Phase Three will not begin until 2019. See Mid-City Fin. Corp., Z.C. Case 14-18, at
50. Individual Plaintiffs would not need to vacate during Phase One. Defendants do not
anticipate forcing Ms. Borum to relocate until “at least 2020” or forcing Ms. Holloman to
relocate “until 2023.” Meers Aff. ¶¶ 18–19 (also declaring that any communication concerning
12
relocation “will not happen until the year 2020 at the earliest for Plaintiff Borum, and the year
2023 at the earliest for Plaintiff Holloman”). The record does not show that any of the affiants
that Plaintiffs cite in their motion, see Pls.’ Mem. in Supp. of Mot. for Prelim. Inj., at 10, will be
required to move away from Brookland as a result of the redevelopment until after Phase One.
See generally Meers Aff.; Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. Ex. 2 (“Sanquist Aff.”), ¶ 6,
ECF No. 18-2.
If a preliminary injunction were to be granted, Defendants argue, they would be severely
harmed. “Based on the Zoning Commission’s approval, Mid-City has subsequently expended
significant capital on architecture, landscaping, engineering, legal services[,] and financing
opportunities in anticipation of . . . construction phasing outlined in the approved PUD.” Meers
Aff. ¶ 23. Not only will this mean that Defendants “would suffer enormous financial harm,” but
it might mean that they would be unable to build the additional units and “be forced to re-
evaluate the commitment to voluntarily retain the Section 8 contract that assists 373 very-low
income families in the District of Columbia.” Id. ¶ 24. In fact, “[i]n the case of delay, Mid-City
could be forced to leave the aging property ‘as is’ and convert the existing units to true
unrestricted market rate units.” Id.
III. ANALYSIS
Plaintiffs move for a preliminary injunction. In the Motion for a Preliminary Injunction,
Plaintiffs move for the Court to enjoin Defendants from submitting a second-stage PUD
application. See Pls.’ Mot. for Prelim. Inj., ECF No. 3. In the Complaint, Plaintiffs request “any
and all injunctive relief that the Court may deem appropriate, including entering a preliminary . .
. injunction ordering Defendants to . . . cease violating” Plaintiffs’ rights under the Federal Fair
Housing Act and District of Columbia Human Rights Act. See Prayer for Relief, Compl. at 35–
13
36. After Plaintiffs filed their Complaint and Motion for a Preliminary Injunction, Defendants
submitted a second-stage PUD application, see Pls.’ Reply Mem. in Supp. of Mot. for Prelim.
Inj. Ex. 2, making the specific request in Plaintiffs’ Motion for a Preliminary Injunction moot.
Nonetheless, the Court considers Plaintiffs’ request for an appropriate preliminary injunction to
remedy their injuries.4
Using a theory of disparate impact, Plaintiffs argue that the redevelopment plan “will
effectively eliminate housing for the majority of large families at the Brookland Manor
property,” and that without a preliminary injunction, “it is almost certain that the nearly 150
families now resident at Brookland Manor will lose their housing during the pendency of this
litigation.” See Pls.’ Mot. for Prelim. Inj., at 1. Defendants oppose a preliminary injunction,
arguing that the alleged injuries are not imminent, Plaintiffs are unlikely to be successful on the
merits, and that preliminarily enjoining the redevelopment would significantly harm Defendants
and the public.5 See generally Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj.
Defendants move to dismiss on a number of grounds. They advance four procedural
arguments: first, that Plaintiffs did not exhaust their administrative remedies through the zoning
4
In their Reply Memorandum, Plaintiffs assert that they “now modify the requested form
of relief and seek to enjoin Defendants from taking any action towards residents meant to
effectuate their challenged redevelopment plan, including relocating tenants on or off the
property, evicting, moving, or otherwise bringing about the cessation of tenancy in preparation
for . . . redevelopment.” Pls.’ Reply Mem. in Supp. of Mot. for Prelim. Inj., at 18, ECF No. 20.
Plaintiffs did not move to amend their request for a preliminary injunction. However, because
these are possible “appropriate” forms of a preliminary injunction meant to preserve Plaintiffs’
rights, the Court will consider them with respect to any preliminary injunction it might issue.
5
Defendants previously argued that Plaintiffs’ proposed injunction preventing the filing
of a second-stage PUD application would have violated the United States Constitution because it
would block access to the Zoning Commission and constitute a prior restraint. See Defs.’ Opp’n
to Pls.’ Mot. for Prelim. Inj., at 11–13. As Plaintiffs acknowledge, because Defendants already
submitted their application, the Court is unable to impose such an injunction, making the
argument moot. See Pls.’ Reply Mem. in Supp. of Mot. for Prelim. Inj., at 17–18.
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process, so principles of “‘res judicata’ and/or collateral estoppel” preclude relief; second, that
the Court does not have jurisdiction under the Rooker–Feldman doctrine, because review would
constitute an appeal of a state-administrative proceeding; third, that the Court should dismiss on
Younger abstention grounds, because the case involves important D.C. matters; and fourth, that
ONE DC lacks standing. See Defs.’ Mem. in Supp. of Mot. to Dismiss, at 9–10. In the
substantive realm, Defendants move to dismiss on the grounds that Plaintiffs impermissibly
cherry-pick the scope of both the protected class and alleged discriminatory action.
The Court will first address Defendants’ Motion to Dismiss, then move to Plaintiffs’
Motion for a Preliminary Injunction.
A. Defendant’s Motion to Dismiss
Defendants’ arguments concerning exhaustion, Younger abstention, and Plaintiffs’ data
interpretation are non-jurisdictional in nature and ask the Court to determine whether Plaintiffs’
complaint states a cognizable claim. See William Penn Apartments v. D.C. Court of Appeals, 39
F. Supp. 3d 11, 19 (D.D.C. 2014) (analyzing Younger abstention in the context of a 12(b)(6)
motion instead of a 12(b)(1) motion); Johnson v. District of Columbia, 368 F. Supp. 2d 30, 36
(D.D.C. 2005), aff’d, 552 F.3d 806 (D.C. Cir. 2008) (noting that “in cases where state courts
properly treat a state administrative exhaustion requirement as a matter of subject matter
jurisdiction . . . similar jurisdictional status for that state-law exhaustion requirement in federal
courts will not be theoretically justified”). To survive such a motion a complaint must contain
sufficient factual allegations that, if accepted as true, would state a plausible claim to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. Instead, plaintiffs must
“nudge[] their claims across the line from conceivable to plausible.” See Bell Atl. Corp. v.
15
Twombly, 550 U.S. 544, 570 (2007). “In evaluating a Rule 12(b)(6) motion to dismiss, 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.” Busby v. Capital One, N.A., 932 F.
Supp. 2d 114, 133–34 (D.D.C. 2013) (internal citations and quotations omitted).
In contrast, Defendants’ Rooker–Feldman and standing arguments concern whether the
Court has subject-matter jurisdiction over the case at all. See Bradley v. DeWine, 55 F. Supp. 3d
31, 41 (D.D.C. 2014) (Rooker–Feldman doctrine); Cheeks v. Fort Myer Const. Co., 722 F. Supp.
2d 93, 108 (D.D.C. 2010) (standing). Federal courts are courts of limited jurisdiction, and the
law presumes that “a cause lies outside this limited jurisdiction.” Rasul v. Bush, 542 U.S. 466,
489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see
also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited
jurisdiction, we begin, and end, with an examination of our jurisdiction.”). Thus, it is the
plaintiff’s burden to establish that the Court has subject-matter jurisdiction. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992). When considering whether it has jurisdiction, a court must
accept “the allegations of the complaint as true.” Banneker Ventures, LLC v. Graham, 798 F.3d
1119, 1129 (D.C. Cir. 2015) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.
1992)).
The Court will analyze Defendants’ Motion to Dismiss using these standards, beginning
first with Defendants’ procedural arguments before moving to their argument that Plaintiffs do
not state a cognizable claim.
16
1. Exhaustion
Defendants argue that because Plaintiffs knew about the Zoning Commission proceedings
but did not choose to challenge the proposed redevelopment, both their FHA and DCHRA claims
are barred by the doctrines of exhaustion and preclusion. See Defs.’ Mem. in Supp. of Mot. to
Dismiss, at 18–19. The Court will address Defendants’ argument starting with an analysis of the
FHA before moving to the DCHRA.
Fair Housing Act
Although Defendants do not bifurcate their analysis of exhaustion, the Court will begin
with federal law. In support of their exhaustion argument, Defendants invoke Auger v. D.C.
Board of Appeals & Review, a District of Columbia Court of Appeals case, where the plaintiff
sought review “of his administrative appeal from the District of Columbia’s imminent
enforcement of an order revoking his permit for a neon sign atop his hotel” and a preliminary
injunction prohibiting authorities from removing the sign. See 477 A.2d 196, 199 (D.C. 1984).
In Auger, the plaintiff did not administratively appeal his case, despite notice and an opportunity
to do so. See id. at 206. As a result of the plaintiff’s failure to exhaust, the District of Columbia
courts did not have jurisdiction over the action. See id. at 207. Defendants further note that
parties alleging injury from a Zoning Commission order can appeal their case to the D.C. Court
of Appeals. See D.C. Library Renaissance Project/W. End Library Advisory Grp. v. D.C. Zoning
Comm’n, 73 A.3d 107, 119 (D.C. 2013); see also York Apartments Tenants Ass’n v. D.C. Zoning
Comm’n, 856 A.2d 1079, 1081 (D.C. 2004).
Under 42 U.S.C. § 3613(a)(1)(A), “[a]n aggrieved person may commence a civil action
in a[] . . . court . . . to obtain appropriate relief with respect to . . . [a] discriminatory housing
practice or breach.” Thus, a plaintiff filing under § 3613 “may proceed directly into federal
17
court, deferring neither to the Secretary of Housing and Urban Development nor to state
administrative and judicial processes.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 125
(1979). Congress “carefully chose[] language” allowing immediate judicial recourse to
individuals “directly victimized by a discriminatory housing practice.” Id. at 125–26. The fact
that Plaintiffs had District of Columbia administrative remedies available is irrelevant. As
Plaintiffs argue, to require individuals seeking relief from an imminent violation of their federal
rights to proceed through state-level administrative or judicial avenues would defeat the
purpose—as evinced from the “carefully chosen language” of the statute—of the remedy that
Congress provided. See id. at 125. The FHA “would be seriously undercut if Section 812
actions were conditioned upon prior exhaustion of state administrative remedies.” Huntington
Branch, N.A.A.C.P. v. Town of Huntington, N.Y., 689 F.2d 391, 393 n.3 (2d Cir. 1982)
(analyzing state-level administrative zoning remedies). Defendants cite cases analyzing the
processes governing appeals of unfavorable District of Columbia zoning restrictions generally—
but not in the context of the violation of federal rights. See Auger, 477 A.2d at 200 (appeal of
the denial of a permit to place a neon sign atop the plaintiff’s hotel); Capitol Hill Restoration
Soc. v. Zoning Comm’n, 287 A.2d 101, 102 (D.C. 1972) (appeal of a zoning application to build
an office building); C. Library Renaissance Project/W. End Library Advisory Grp., 73 A.3d at
111 (appealing “certain zoning requirements”); York Apartments Tenants Ass’n, 856 A.2d at
1081 (appealing an application to modify a PUD on procedural grounds). Because Plaintiffs
seek relief from alleged discrimination, Defendants’ cases are inapposite and Plaintiffs’ FHA
claims are not barred for failure to exhaust.
Throughout their argument on exhaustion, Defendants invoke concepts of claim
preclusion and issue preclusion, so the Court will address them separately. Defendants argue
18
that “Plaintiffs’ [indirect] challenge . . . to the Zoning Order is barred by jurisprudence on the
preclusive effect of state administrative agency orders on later-filed [f]ederal claims involving
matters decided in agency adjudicative proceedings.” See Defs.’ Mem. in Supp. of Mot. to
Dismiss, at 24. Defendants cite to Univ. of Tennessee v. Elliott, a case in which the Supreme
Court reasoned that it saw “no reason to suppose that Congress, in enacting the Reconstruction
civil rights statutes, wished to foreclose the adaptation of traditional principles of preclusion to
such subsequent developments as the burgeoning use of administrative adjudication in the 20th
century.” See 478 U.S. 788, 797 (1986). Even putting aside the technical requirements of claim
and issue preclusion, Elliott is not controlling here. Unlike in that case, where there was “no
reason to suppose that Congress” intended to foreclose preclusion, as noted above, Congress
“carefully chose[]” to allow plaintiffs to “proceed directly into federal court” to vindicate their
federal rights. Gladstone Realtors, 441 U.S. at 125–26. This shows that “Congress did not
intend for administrative determinations . . . whether issued by [federal] or certified state
agencies, to preclude aggrieved parties from seeking vindication of their rights through civil
actions.” United States v. E. River Hous. Corp., 90 F. Supp. 3d 118, 146 (S.D.N.Y. 2015).
Thus, “it would make little sense to give res judicata effect to a proceeding,” Miller v. Poretsky,
409 F. Supp. 837, 838 (D.D.C. 1976), whether federal or state, under the FHA. See id.; E. River
Hous. Corp., 90 F. Supp. 3d at 146. Accordingly, the Zoning Commission’s findings do not
have preclusive effect over Plaintiffs’ FHA claims.
But even if Congress did intend for state-level administrative proceedings to have
preclusive effect, the Court could not give such an effect here. Both claim and issue preclusion
require a ruling by “a court of competent jurisdiction.” See Smalls v. United States, 471 F.3d
186, 192 (D.C. Cir. 2006) (claim preclusion); Yamaha Corp. of Am. v. United States, 961 F.2d
19
245, 254 (D.C. Cir. 1992) (issue preclusion). The D.C. Zoning Commission has power to
“regulate the location, height, bulk, number of stories and size of buildings . . ., the percentage of
lot which may be occupied, the sizes of yards . . . and other open spaces, the density of
population, and the uses of buildings, structures, and land for trade, industry, residence,
recreation, public activities, or other purposes.”6 D.C. Code § 6-641.01. Although the
Commission does have the power to ensure that zoning regulations are consistent with the
District of Columbia’s “comprehensive plan,” see Tenley & Cleveland Park Emergency Comm.
v. D.C. Bd. of Zoning Adjustment, 550 A.2d 331, 332 (D.C. 1988), which, according to
Defendants, is “a broad framework intended to guide the future land use planning decisions for
the District of Columbia,” see Defs.’ Reply to Pls.’ Opp’n to Mot. to Dismiss, at 15, ECF No. 24,
the Zoning Commission has no power to implement the plan. Tenley & Cleveland Park
Emergency Comm., 550 A.2d at 341 n.22. Because DC’s “broad framework” is not comparable
to the Federal FHA and Defendants do not identify any power to independently review private
FHA violations,7 there is no indication that the District of Columbia Zoning Commission could
be considered a “competent” “court” for purposes of reviewing FHA claims.
6
Defendants contend that this is not the proper provision providing the Zoning
Commission with its powers. See Defs.’ Reply to Pls.’ Opp’n to Mot. to Dismiss, at 15, ECF
No. 24. They cite part (a) of D.C. Code § 6-621.01 for the proposition that the Zoning
Commission has general power “[t]o protect the public health, secure the public safety, and to
protect property.” See id. However, after this clause follows: “there is created a Zoning
Commission.” See D.C. Code § 6-621.01(a). Then, part (e), which grants the Commission its
power, provides that “[t]he Zoning Commission shall exercise all the powers . . . with respect to
zoning . . . as provided by law.” See D.C. Code § 6-621.01(e) (emphasis added). So, although
part (a) outlines broad purposes for creating a Zoning Commission, it does not by itself grant
power.
7
In their reply memorandum, Defendants assert that a footnote of a D.C. District Court
“not[ed] that the Zoning Commission may find that regulations governing community-based
residential facilities are violative of the FHA.” See Defs.’ Reply to Pls.’ Opp’n to Mot. to
Dismiss, at 15. In fact, this is not the case, at least using any meaningful definition of the word
“find.” That footnote quoted the Zoning Commission as simply stating that a regulation “could
20
D.C. Human Rights Act
Defendants also seek dismissal of the DCHRA count on exhaustion grounds. Similar to
the FHA, the DCHRA provides that “[a]ny person claiming to be aggrieved by an unlawful
discriminatory practice shall have a cause of action in any court of competent jurisdiction for
damages and such other remedies as may be appropriate, unless such person has filed a[n
administrative] complaint.” D.C. Code § 2-1403.16(a); see also Williams v. District of
Columbia, 467 A.2d 140, 141 (D.C. 1983) (noting that the DCHRA provides “direct resort to the
courts,” but holding that government employees must exhaust administrative remedies in some
cases). The plain language of the DCHRA commands the same finding as the language of the
FHA. Because the Court is one of “competent jurisdiction” and Plaintiffs claim to be “aggrieved
by an unlawful discriminatory practice” under the DCHRA, Plaintiffs did not need to exhaust
any District of Columbia administrative remedies. Given the arguably stronger language in the
D.C. statute (“[a]ny person . . . shall have a cause of action”), this reasoning applies equally to
issues of preclusion here. Moreover, there is no indication that the District of Columbia Zoning
Commission is a competent “court” to review such a claim. The Court will not give preclusive
effects to any findings by the Zoning Commission.
2. The Rooker–Feldman Doctrine
The Court next considers Defendants’ argument that the Court lacks subject-matter
jurisdiction to consider this matter under the Rooker–Feldman doctrine. Defendants argue that
review of this case would functionally constitute an appeal of a state-level judgment. “The
Rooker–Feldman doctrine . . . is confined to . . . cases brought by state-court losers complaining
be subject to challenge under the provisions of the Fair Housing Amendments Act,” not ruling on
it substantively. See Cmty. Hous. Tr. v. Dep’t of Consumer & Regulatory Affairs, 257 F. Supp.
2d 208, 223 n.18 (D.D.C. 2003).
21
of injuries caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The doctrine is rooted in the
Supreme Court’s appellate jurisdiction over state-court judgments granted by Congress. See 28
U.S.C. § 1257. In D.C. Court of Appeals v. Feldman, the Supreme Court “held that this grant of
jurisdiction is exclusive.” Lance v. Dennis, 546 U.S. 459, 463 (2006); see also D.C. Court of
Appeals v. Feldman, 460 U.S. 462, 482 (1983). The doctrine is named after Feldman and the
only other case where the Supreme Court has “applied this rule to find that a Federal District
Court lacked jurisdiction,” Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). See Lance, 546
U.S. at 463. In Rooker, the plaintiff sought Supreme Court review of an Indiana Supreme Court
decision. Id. When the Supreme Court declined review, the plaintiff filed an action in a federal
district court. Id. The Supreme Court “viewed the action as tantamount to an appeal of the
Indiana Supreme Court decision, over which only [the Supreme] Court had jurisdiction, and said
that the ‘aggrieved litigant cannot be permitted to do indirectly what he no longer can do
directly.’” Id. (quoting Rooker, 263 U.S. at 416). Sixty years later in Feldman, the Court
applied the same reasoning to a District of Columbia Court of Appeals decision refusing
admission to a bar applicant. Id. The Supreme Court emphasized the difference between a
judicial decision and an administrative one, holding that “to the extent plaintiffs challenged the
Court of Appeals decisions themselves—as opposed to the bar admission rules promulgated
nonjudicially by the Court of Appeals—their sole avenue of review was with this Court.” Id.
“Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the jurisdiction
22
of lower federal courts, and [Supreme Court] cases since Feldman have tended to emphasize the
narrowness of the Rooker–Feldman rule.”8 Id. at 464.
As Defendants candidly point out, see Defs.’ Mem. in Supp. of Mot. to Dismiss, at 25,
the Supreme Court has held that “[t]he doctrine has no application to judicial review of executive
action, including determinations made by a state administrative agency.” Verizon Maryland, Inc.
v. Pub. Serv. Comm’n, 535 U.S. 635, 644 n.3 (2002). Defendants attempt to distinguish Verizon
Maryland by arguing that “not all federal courts have confined the scope of that remark to the
specific factual scenario addressed in that decision,” citing an unpublished Central District of
California case, Reiner v. California Dep’t of Indus. Relations. See Defs.’ Mem. in Supp. of
Mot. to Dismiss, at 25. (citing No. 12-8649, 2012 WL 7145706, (C.D. Cal. Dec. 18, 2012),
report and recommendation adopted, 2013 WL 571797 (C.D. Cal. Feb. 10, 2013), aff’d sub nom.
Reiner v. California, 612 F. App’x 473 (9th Cir. 2015)). In Reiner, the plaintiff sought review of
determinations made in a state-level workers’ compensation appeal board and “state tribunals.”
See 2012 WL 7145706, at *2. In finding that the Rooker–Feldman doctrine applied, the
Magistrate Judge emphasized that the case was based primarily on state law, not federal law as in
Verizon Maryland, and that the party in Reiner had actually filed a state-level claim previously,
unlike in Verizon Maryland. See id. at *3.
Given that the Rooker–Feldman doctrine is “narrow and focused,” Thana v. Board of
License Comm’rs, 827 F.3d 314, 319 (4th Cir. 2016), the Court is not inclined to go against the
black-letter of Verizon Maryland that “[t]he doctrine has no application to judicial review of
8
Courts and scholars alike emphasize that the Supreme Court has trended toward
narrowing the doctrine since Feldman, particularly in Lance. See, e.g., Thana v. Board of License
Comm’rs, 827 F.3d 314, 319–20 (4th Cir. 2016) (calling the doctrine “narrow and focused”);
Samuel Bray, Rooker Feldman (1923–2006), 9 Green Bag 2d 317 (2006) (mock obituary of the
doctrine).
23
executive action, including determinations made by a state administrative agency.” 535 U.S. at
644 n.3. But even if it were, this is not a case of “primarily . . . state law,” Reiner, 2012 WL
7145706, at *3, and, as noted above, the Zoning Commission could not have substantively heard
these types of discrimination claims. This is a case of primarily federal law with the actions of a
state administrative agency looming in the background; in no way is the current action an appeal
of the Zoning Commission’s order. Accordingly, Rooker–Feldman is inapplicable.
3. Younger Abstention
Defendants invoke the related doctrine of Younger abstention in support of their Motion
to Dismiss. “In Younger v. Harris and its progeny, the Supreme Court held that, except in
extraordinary circumstances, a federal court should not enjoin a pending state proceeding
(including an administrative proceeding) that is judicial in nature and involves important state
interests.” JMM Corp. v. District of Columbia, 378 F.3d 1117, 1120 (D.C. Cir. 2004). The
doctrine stems from the equitable principle that “courts . . . should not act, and particularly
should not act to restrain a criminal prosecution, when the moving party has an adequate remedy
at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401
U.S. 37, 43–44 (1971). At its core, Younger abstention stems from concerns of comity and
federalism and prevents federal courts from enjoining ongoing criminal prosecutions. See id.;
see also Samuels v. Mackell, 401 U.S. 66, 73 (1971). Moving beyond the core of the doctrine,
federal courts also abstain in quasi-criminal contexts. Huffman v. Pursue, Ltd., 420 U.S. 592,
604 (1975) (abstaining in a civil context because “the proceeding is both in aid of and closely
related to criminal statutes which prohibit the dissemination of obscene materials”). The
periphery of the doctrine may encompass proceedings not in courts, but that are judicial in nature
and concern important state interests. See New Orleans Pub. Serv., Inc. v. Council of City of
24
New Orleans, 491 U.S. 350, 364–73 (1989). The doctrine has even been applied to suits
between two non-state parties where the underlying dispute concerned important state interests.
See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17 (1987). In a case between private parties,
federal courts must abstain when (1) the relief sought would enjoin an ongoing state proceeding,
(2) the state proceeding is judicial in nature, (3) “the state proceedings implicate important state
interests,” and (4) “the proceedings afford an adequate opportunity to raise the federal claims.”
See William Penn Apartments, 39 F. Supp. at 19 (internal citations and quotations omitted).
The Court need not address all four requirements, because Defendants’ argument fails to
establish that the Zoning Commission proceedings “afford an adequate opportunity to raise the
federal claims.” Defendants argue that a D.C. Federal District Court has said that “[t]he Board
of Zoning Adjustment ha[s] authority to consider reasonable accommodation request[s],”
implying that the board could consider such requests under the FHA. See Defs.’ Mem. in Supp.
of Mot. to Dismiss, at 29. In fact, that court suggested the opposite—although acknowledging
that the Board of Zoning Adjustment has the power to make a reasonable accommodation sua
sponte under the “functional equivalent” of the FHA under D.C. regulations, the court explicitly
stated that “the [DC Department of Consumer and Regulatory Affairs] is the body to whom a
request for reasonable accommodation is properly lodged in the first instance.” See United
States v. District of Columbia, 538 F. Supp. 2d 211, 218 (D.D.C. 2008). The court cited 14
D.C.M.R. § 111, which is entitled “Procedures Regarding Requests for Reasonable
Accommodation Under the Fair Housing Act.” That regulation provides that “[a]ll requests for
reasonable accommodation under the Fair Housing Act shall be submitted to the Director,
Department of Consumer and Regulatory Affairs . . . or such office as the District may assign or
delegate.” 14 D.C.M.R. § 111.3. Similarly, here, as noted above in the Court’s discussion of
25
issue and claim preclusion, the Zoning Commission is not a body empowered to hear FHA
claims. Thus, the Court will not abstain from addressing the merits of Plaintiffs’ federal claims.
4. ONE DC Standing
The Court next addresses Defendants’ argument that ONE DC—the community
organization with some members who are residents of Brookland Manor with minor children, see
Compl. ¶¶ 108–09—lacks standing to bring this matter. Defendants specifically argue that ONE
DC lacks a sufficiently concrete injury-in-fact. See Defs.’ Mem. in Supp. of Mot. to Dismiss, at
31–35. “The Supreme Court has held that standing to bring an FHA claim is coextensive with
constitutional standing.” Nat’l Fair Hous. All., Inc. v. Prudential Ins. Co. of Am., 208 F. Supp.
2d 46, 52 (D.D.C. 2002); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982).
ONE DC “bears the burden of establishing” its standing. See Lujan, 504 U.S. at 561. “An
organization can have standing on its own behalf . . . or on behalf of its members.” Abigail All.
for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006)
(internal citations omitted). Standing based on an organization’s own injury—“organizational
standing”—requires an organization, “like an individual plaintiff, to show actual or threatened
injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a
favorable court decision.” Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1138 (D.C.
Cir. 2011) (internal quotations omitted). For an organization to sue on behalf of its members
through “associational standing,” it must show that (1) “its members would otherwise have
standing to sue in their own right,” (2) “the interests it seeks to protect are germane to the
organization’s purpose,” and (3) “neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” United Food & Commercial Workers Union
26
Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple
Advert. Comm’n, 432 U.S. 333, 343 (1977).
Plaintiffs assert that ONE DC has both organizational and associational standing.
Because the Court finds that ONE DC has organizational standing, it need not address the
associational standing issue. As noted above, organizational standing requires a concrete injury,
not “a mere setback to [the organization’s] abstract social interests.” See Equal Rights Ctr., 633
F.3d at 1138 (internal citations and quotations omitted). “An organization’s expenditure of
resources on a lawsuit does not constitute an injury in fact sufficient to establish standing.” Id.
However, it is “clear . . . that if the defendant’s allegedly wrongful action prompts an
organization to ‘increase[] the resources [it] must devote to programs independent of its suit’ . . .
, the organization has shown an injury in fact.” Id. (alterations in original) (quoting Spann v.
Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). There is “an important limitation” on this
principle: if an injury is “self-inflicted as a result of the organization’s own budgetary choices,”
the party cannot claim an injury-in-fact as a result of the defendant’s behavior. Id. at 1139
(internal quotations omitted). This “does not automatically mean that [a party diverting
resources] cannot suffer an injury sufficient to confer standing.” Id. at 1140. The crucial test for
determining whether an injury is self-inflicted is whether the party “undertook the expenditures
in response to, and to counteract, the effects of the defendants’ alleged discrimination rather than
in anticipation of litigation.” Id. In the housing context, using resources for a program to
counteract a defendant’s discriminatory advertisement constitutes an adequate injury-in-fact,
because it is used for the practical purpose of responding to allegedly illegal activity, not to
prepare for litigation. See id. (citing Spann, 899 F.2d at 27–29). In Spann v. Colonial Village,
Inc., the plaintiff-organizations established standing when they alleged that the defendants’
27
“preferential advertising tended to steer black home buyers and renters away from the advertised
complexes,” requiring the plaintiffs to “devote more time, effort, and money to endeavors
designed to educate not only home buyers and renters, but the DC area real estate industry.” 899
F.2d at 27. So, if Defendants’ alleged actions frustrated ONE DC’s mission and ONE DC used
resources to counteract that harm, it has standing to maintain the action. See Equal Rights Ctr.,
633 F.3d at 1140.
Based on the facts alleged in the Complaint, ONE DC has standing to maintain this
action. ONE DC is “comprised of members who include tenants of affordable housing
properties that are seeking to avoid displacement, preserve affordable housing, ensure fair
housing, and further equitable development in D.C.” Compl. ¶ 108. The alleged discrimination
plainly frustrates ONE DC’s mission. Plaintiffs allege that ONE DC has had to divert its scarce
resources away from its central mission to “crisis organizing” in the form of investigation,
counseling, organizing, canvassing, and other Brookland-specific programming. See id. ¶¶ 113–
121. In all, Plaintiffs allege that, as of July 28, 2016, ONE DC has “diverted approximately 640
hours of its staff members’ time to identify and combat Defendants’ discriminatory conduct
through outreach, organizing, advocacy, and tenant counseling efforts.” Id. ¶ 121. This places
ONE DC’s case squarely within the holdings in Equal Rights Center and Spann. ONE DC did
not spend 640 hours concocting an injury in anticipation of litigation, but instead did so for the
practical purpose of combating alleged discrimination in the community. Defendants’ alleged
discrimination forced ONE DC to address an exigency in the community at the expense of its
broader social goals. Accordingly, ONE DC has sufficiently alleged organizational standing to
withstand Defendants’ Motion to Dismiss.
28
5. Failure to State Disparate Impact Claims
Defendants move to dismiss for failure to state a claim with respect to Plaintiffs’
disparate impact claims under the FHA and DCHRA. Defendants argue that Plaintiff
erroneously assumes that “large families” are a protected group under the FHA, instead of the
broader protected class of “families.” Defendants further argue that without an FHA claim,
Plaintiff cannot invoke supplemental jurisdiction to maintain its DCHRA claim. The Court will
address these arguments in turn.
Fair Housing Act
Defendants move to dismiss Plaintiffs’ FHA disparate impact claim for failure to state a
claim on the basis that Plaintiffs’ statistical analysis cherry-picks “large families” from the
broader “familial status,” and in so doing fails to analyze the effect that the entire redevelopment
plan would have on all families that reside or will reside in the new community. See Defs.’
Mem. in Supp. of Mot. to Dismiss, at 11–12.
The Federal FHA prohibits “mak[ing] unavailable . . . a dwelling to any person because
of . . . familial status.” See 42 U.S.C. 3604(a). “‘Familial status’ means one or more individuals
(who have not attained the age of 18 years) being domiciled with . . . a parent or another person
having legal custody of such . . . individuals,” or the parent’s designee. 42 U.S.C. 3602(k). It is
important to note that the FHA is generally a repository of negative rights—it does not
affirmatively provide special privileges to parents living with minor children, but rather protects
them from discriminatory acts. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive
Communities Project, Inc., 135 S. Ct. 2507, 2522 (2015) (“The FHA is not an instrument to force
housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities
can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.”).
29
For example, the FHA does not entitle families to occupy units in excess of nondiscriminatory,
reasonable occupancy requirements that apply to the population in general. Fair Hous.
Advocates Ass’n, Inc. v. City of Richmond Heights, Ohio, 209 F.3d 626, 636 (6th Cir. 2000); see
also City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 733 (1995) (contrasting
impermissible policies that target families with permissible policies that “apply uniformly to all
residents of all dwelling units”). It is also important to emphasize that the FHA only protects
minor children domiciled with parents (or other such persons in a guardian role, as provided by
the statute). As Plaintiffs concede, see Pls.’ Br. in Opp’n to Defs.’ Mot. to Dismiss, at 8 n.4,
ECF No. 21, the sub-class of “large families” is not a protected class under the FHA. Debolt v.
Espy, 832 F. Supp. 209, 215 (S.D. Ohio 1993), aff’d, 47 F.3d 777 (6th Cir. 1995) (“The Court
notes that as opposed to families in general, ‘large families’ are not a specifically protected class
under Title VIII.”); see also Fair Hous. Advocates Ass’n, Inc., 209 F.3d at 638 (concluding that
“families of four, as opposed to families of three, are not protected classes”).
“[D]isparate-impact claims are cognizable under the Fair Housing Act . . . .” Texas Dep’t
of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2518, 2525
(2015). “To prevail on a disparate impact claim, a plaintiff must offer sufficient evidence to
support a finding that the challenged policy actually disproportionately affected a protected
class.” 2922 Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d 673, 681 (D.C. Cir.
2006). The Secretary of Housing and Urban Development has “[t]he authority and responsibility
for administering” the FHA. 42 U.S.C. § 3608(a); see also Mhany Mgmt., Inc. v. County of
Nassau, 819 F.3d 581, 618 (2d Cir. 2016). Part of that authority is the power to promulgate rules
“to carry out” the FHA. See 42 U.S.C. § 3614a; see also Mhany Mgmt., Inc., 819 F.3d at 618.
Accordingly, in line with the Second Circuit in Mhany Management, the Court “must defer to
30
[HUD]’s reasonable interpretation” of the FHA with respect to its rules on disparate impact. See
819 F.3d at 618 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984)); accord Boykin v. Fenty, 650 F. App’x 42, 44 (D.C. Cir. 2016). HUD has adopted a
burden-shifting framework for evaluating disparate impact claims. See 24 C.F.R. § 100.500(c).
First, the plaintiff has “the burden of proving that a challenged practice caused or predictably
will cause a discriminatory effect.” 24 C.F.R. § 100.500(c)(1). Once the plaintiff makes such a
showing, the “defendant has the burden of proving that the challenged practice is necessary to
achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or
defendant.” 24 C.F.R. § 100.500(c)(2). If the defendant is able to do so, the “plaintiff may still
prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the
challenged practice could be served by another practice that has a less discriminatory effect.” 24
C.F.R. § 100.500(c)(3).
To make an initial showing of disparate impact at “step one,” courts often rely on
statistical analyses. See, e.g., R.I. Comm’n for Human Rights v. Graul, 120 F. Supp. 3d 110,
124–25 (D.R.I. 2015); Gashi v. Grubb & Ellis Prop. Mgmt. Servs., Inc., 801 F. Supp. 2d 12, 16–
17 (D. Conn. 2011). Such an analysis requires a plaintiff to “compar[e] those affected by the
policy with those unaffected by the policy.” See Gashi, 801 F. Supp. 2d at 16 (citing
Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 575–76 (2d Cir.2003)); accord Graul, 120
F. Supp. 3d at 124 (internal citation and quotations omitted). In the “context . . . [of] housing
discrimination, a wide enough contrast between the way a policy burdens members of a
protected group as opposed to non-members is cognizable as a disparate impact.” Graul, 120 F.
Supp. 3d at 125. In Gashi, the court found a 30.76% effect on households with children and a
9.88% effect on households without children sufficient to constitute a disparate impact. See 801
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F. Supp. 2d at 16–17. In Graul, the court found a threefold difference sufficient. See 120 F.
Supp. 3d at 126.
Defendants move to dismiss on the grounds that Plaintiffs have not made a showing at
step one of HUD’s framework, because, according to Defendants, Plaintiffs’ statistical analysis
inappropriately focuses on a particular subset of the protected class—large families—and a
particular aspect of the redevelopment—the elimination of larger-occupancy apartments. See
Defs.’ Mem. in Supp. of Mot. to Dismiss, at 11–18. The Court will address these two
contentions in turn.
i. “Familial Status” vs. “Large Families”
Defendants’ first qualm with Plaintiffs’ reasoning is that it relies on discrimination
against large families rather than families as a protected group. See Defs.’ Mem. in Supp. of
Mot. to Dismiss, at 9. As noted above, the FHA protects all families, as defined by statute,
regardless of size. Courts have consistently assumed that “‘[f]amilial status’ refers to the
presence of minor children in the household.” See Gilligan v. Jamco Dev. Corp., 108 F.3d 246,
247 (9th Cir. 1997); see also Graul, 120 F. Supp. 3d at 125–26 (favorably citing methodology
comparing “households with children” and “households with no children”); United States v.
Branella, 972 F. Supp. 294, 298 (D.N.J. 1997) (“Specifically, the FHAA provides that it is
unlawful to make a dwelling unavailable to any prospective buyer or renter because of the
presence of minor children in the prospective household.”). So, although there is no special
treatment for “large families” under the FHA, they are still protected under the umbrella of
“families” if minors are in the household.
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Although Plaintiffs do repeatedly refer to “large families” in their Complaint, their
statistical analysis specifically concerns “those who have one or more minor children living in
the household.” See Compl. ¶¶ 72, 37. Similarly, Plaintiffs define their proposed class as “[a]ll
households who reside or have resided at Brookland Manor in a three-, four- or five[-]bedroom
unit with one or more minor child.” See id. ¶ 122. Plaintiffs’ statistical analysis includes
apartments of all sizes, comparing those with minor children to those without them. See id. ¶ 75.
Using that metric, Plaintiffs arrive at the conclusion that the proposed redevelopment would
adversely affect 59% of families overall, compared to 15% of nonfamilies. See id. ¶ 77. It does
not matter that many of the protected individuals are part of “large families” for the purpose of
the Complaint, so long as the unprotected group and protected group are correctly defined.
Because the Complaint shows that Plaintiffs do correctly define these groups, Plaintiffs did not
“cherry-pick” protected families from the larger protected class.
ii. The Elimination of Large Apartments vs. the Project as a Whole
Defendants also argue that Plaintiffs fail to take into account “all families that reside or
will reside in the revitalized community,” citing Boykin v. Gray. See Defs.’ Mem. in Supp. of
Mot. to Dismiss, at 11 (second emphasis added). In Boykin, a group of homeless men claimed
that the District of Columbia’s closure of a particular homeless shelter violated the FHA, because
a disproportionate amount of the D.C. homeless population is black and Hispanic. See 986 F.
Supp. 2d 14, 16 (D.D.C. 2013). The closure of the homeless shelter was part of a “broader shift
in the District’s policy toward its homeless citizens” that had a net-positive impact on the
minority population in the District. Id. at 21. Applying a disparate-impact standard, that court
found that “[t]he fundamental defect in the plaintiffs’ argument is that the adverse impact of
which they complain was suffered not by the entire homeless population in the District of
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Columbia, nor even by a significant portion of its more than 6,000 members.” See id. at 20.
Closing the specific shelter affected 90 people, but the overall number of beds available to
homeless persons rose as a result of the District’s program. See id. at 20–21. By referring to “its
homeless citizens,” “the entire homeless population in the District of Columbia,” and “its 6,000
members,” the above excerpts show that the court was interested in the District of Columbia’s
overall universe of homeless persons.
In the context of a private landlord, courts are similarly concerned with the private
party’s universe of tenants. In Betsey v. Turtle Creek Associates, the tenants of a particular
building contended that a policy would have a disparate racial impact on them as individuals.
736 F.2d 983, 985–87 (4th Cir. 1984). Because the plaintiffs did not show a “continuing
disproportionate impact,” a sufficient racial impact of the entire complex, or any impact on the
local community, the district court dismissed the claim. See id. at 986–87. Reversing, the
Fourth Circuit held that “members of a discrete minority[] are required to prove only that a given
policy had a discriminatory impact on them as individuals.” Id. at 987. That court found
“consideration of the rest of the local community, the rest of [the residential community], or even
prospective applicants for space in [the building] irrelevant.” See id. (internal quotations
omitted). “The correct inquiry is whether the policy in question had a disproportionate impact on
the minorities in the total group to which the policy was applied.” Id.
Here, it does not matter that the redevelopment might open up space for families in the
local community to occupy smaller apartments at the redeveloped project. Defendants’ universe
of persons are the existing tenants at Brookland Manor. If the current families of Brookland
Manor are disparately impacted by the redevelopment, it is irrelevant that some protected
persons in the local community might end up filling their shoes in units that could not support
34
them. Plaintiffs do analyze the effect that the entire project will have on all existing tenants of
Brookland Manor. See Compl. ¶¶ 75–79. Given that Plaintiffs adequately allege that the
proposed redevelopment project will affect Brookland Manor families over three times as much
as it will nonfamilies, they state a claim.
D.C. Human Rights Act
Defendants’ only contention specific to the DCHRA is that “elimination of [Plaintiffs’]
federal claims would dictate dismissal of the rest of their claims as failing the test for
supplemental jurisdiction.” See Defs.’ Mem. in Supp. of Mot. to Dismiss, at 18 n.7. Even if
true, the Court simply notes that, as set forth above, it is not dismissing the federal-question
claims under the federal FHA, so supplemental jurisdiction remains.
B. Plaintiffs’ Motion for a Preliminary Injunction
Plaintiffs move for a preliminary injunction to prevent Defendants from proceeding with
their redevelopment plan.9 “To warrant preliminary injunctive relief, the moving party must
show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable
injury if the injunction were not granted, (3) that an injunction would not substantially injure
other interested parties, and (4) that the public interest would be furthered by the injunction.”
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). There
must be a showing of likely irreparable harm for a preliminary injunction to issue. Id.; see also
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (“Our frequently reiterated standard
requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the
absence of an injunction.”). The D.C. Circuit “has set a high standard for irreparable injury,”
9
See supra note 4 and accompanying text.
35
requiring that the injury “be both certain and great,” and “actual and not theoretical.”
Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (internal citations and quotations omitted).
“The moving party must show ‘[t]he injury complained of is of such imminence that there is a
“clear and present” need for equitable relief to prevent irreparable harm.’” Id. (alteration in
original) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). To
meet the standard, “the harm must be so imminent as to be irreparable if a court waits until the
end of trial to resolve the harm.” Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 235
(2d Cir. 1999). The moving party must also show that the threatened injury is “beyond
remediation” with other forms of relief. See Chaplaincy of Full Gospel Churches, 454 F.3d at
297.
Plaintiffs argue that the threatened injuries are imminent, because when Defendants
receive Stage Two approval, they will be free to commence destruction of Plaintiffs’ homes. See
Pls.’ Mem. in Supp. of Mot. for Prelim. Inj., at 26. Specifically, they argue that “D.C. Municipal
Regulations make clear that second-stage approval is the final step before a redeveloper may
commence demolition.” See id. They further argue that Defendants have already required
families who reside in large units to “relocate, break up, and downsize.” See id. In support of
their assertion, Plaintiffs cite to several declarations of tenants who claim to know others at
Brookland Manor who have been forced to move. See id. at 27; McFadden Decl. ¶ 6; Jenkins
Decl. ¶ 6; Scott Decl. ¶ 6. However, they do not cite to any first-hand account of a family who
has been forced to relocate off the property, nor any family who has been told they will need to
relocate but will be unable to do so on the property.10
10
Plaintiffs’ argument that a recent submission to the Zoning Commission shows that the
first block to be demolished contains almost all three- and four-bedroom apartments is
unavailing. See Pls.’ Reply Mem. in Supp. of Mot. for a Prelim. Inj., at 13, ECF No. 20. If, as
36
Defendants argue that any displacement would not occur until years in the future. See
Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj., at 6. Michael Meers, Vice President of Defendant
Mid-City Financial Corporation, has stated that demolition will not commence until late 2017, at
the earliest, because of the length of time it takes to receive Stage Two approval and then obtain
the requisite permits to begin the project. See Meers Aff. ¶ 17. Moreover, because the existing
buildings are collateral on a HUD loan until August 1, 2017, it is “highly unlikely” that
Defendants could begin demolition any earlier.11 See id. ¶ 21. Even then, the project will be
limited to “Phase One,” meaning that only three of the 19 buildings will be demolished. See id.
¶ 17. Later phases will not begin until 2019, and neither individual Plaintiff will need to vacate
until 2020, at the earliest. See id. ¶¶ 17–19. When the buildings are demolished during Phase
One, Michael Meers asserts that all residents in those buildings will be “relocated at owner
expense to an appropriate apartment home on the property.” See id. ¶ 17 (emphasis added). Mr.
Meers further declares that, although some tenants have been moved, none have been unable to
relocate at Brookland Manor. See id. Citing to HUD guidelines and the D.C. Office of
Planning’s finding that the D.C. Zoning Commission cited favorably, Defendants’ own numbers
they argue, Defendants have already relocated “the overwhelming majority of [that block’s]
residents,” id. at 12 they should be even more capable of providing the Court with something in
the record to show that a family has been relocated and unable to move into another apartment
on the property. If anything, this supports Defendants’ argument that all families who will be
relocated from Block 7 will be able to relocate on the property. But even more to the point, the
submission that Plaintiffs reference refers specifically to Block 7. See Pls.’ Reply Mem. in Supp.
of Mot. for Prelim. Inj. Ex. 3, at 1, ECF No. 20-3. The D.C. Zoning Commission knew that
Block 7 was going to be demolished during Phase One, yet still credited a report that the larger
units would not be phased out until the later stages of redevelopment. See Mid-City Fin. Corp.,
Z.C. Case 14-18, at 38, 50.
11
For the same reasons noted in note 10, Plaintiffs’ arguments about relocation occurring
well in advance of demolition are unavailing. See Pls.’ Reply Mem. in Supp. of Mot. for a
Prelim. Inj., at 13. Although it is obviously true that relocation must occur before demolition,
this fact, if anything, shows that Defendants are capable of relocating tenants to other locations
on the property.
37
show that only 13 Brookland Manor households would currently require a four-bedroom
apartment, and none would require a five-bedroom apartment.12 See Mid-City Fin. Corp., Z.C.
Case 14-18, at 38. The same finding from the D.C. Office of Planning noted that “[t]he building
with the larger units would remain on the site until the later phases at which time they can be
‘right sized’ to accommodate the larger families.” Id.
Plaintiffs have failed to demonstrate that any families—let alone a disproportionate
number of them—are facing the imminent threat of being forced to relocate until well after the
case can be fully adjudicated. Plaintiffs do not, for example, point to a particular family that
lives in the block of houses scheduled to be demolished during Phase One that would be unable
to move into an apartment elsewhere at Brookland Manor. Although Plaintiffs cite to certain
second-hand sources alluding to the idea of relocation, see, e.g., Jenkins Decl., Defendants cite to
specific attributes of the redevelopment project showing otherwise. The Vice President of Mid-
City has stated that it is “highly unlikely” that Phase One could begin until August, 2017, and
that it would be much more likely to begin later in 2017. And, assuring the Court that the harm
is not imminent even further into the future, he states that no resident will be forced to move
away from Brookland Manor during Stage One, leaving the Plaintiffs with no ground to stand on
until Stage Two, which is at least three years away. This makes sense in the context of
Defendants’ contention that many families are in apartments that are too large, that the building
with larger units will remain until later phases of redevelopment, and that vacancies currently
exist that can be used to house displaced households from Block 7.13 The situations of individual
12
Plaintiffs are correct that D.C. occupancy law may make this number higher in certain
cases. However, they do not tell the Court how frequently this is the case, or otherwise carry
their burden of showing the extent of the issues in light of Defendants’ evidence.
13
It is worth noting that although Plaintiffs’ methodology is plausible for HUD’s “step
one” showing of disparate impact at the motion-to-dismiss stage, it comes up short in showing
38
Plaintiffs give the Court further assurance: there are no plans that would require Ms. Borum to
relocate until 2020 at the earliest or Ms. Holloman until 2023. Even if the proposed class were
certified here, vague stories and misgivings from tenants are insufficient for Plaintiffs to shoulder
their burden of showing that an irreparable injury will likely occur if the Court waits to
adjudicate the dispute on the merits. Although it is certainly possible that Defendants’ plans
could change by moving the process up considerably, Plaintiffs have not met the “high standard”
of showing that they imminently face their alleged injuries. The chance that the timeline moves
up, disparate impact will occur at Phase One, or Plaintiffs will otherwise suffer injury does not
rise to the level of a “clear and present threat” necessary for a showing of irreparable injury.
Because some showing of imminent irreparable injury is required for the issuance of a
preliminary injunction, the Court must deny Plaintiffs’ motion.
If Plaintiffs do obtain evidence showing that imminent injury is likely to occur, the
Motion can be renewed and will be reconsidered in light of such new evidence. And, because
Defendants applied for Stage Two PUD approval ahead of schedule and stop short of
guaranteeing that they will follow the timeline set forth in their declarations, the Court will
impose on Defendants a requirement to report to the Court and Plaintiffs any changes in schedule
that “families”—as defined by the FHA—will necessarily be forced to relocate away from the
property at a disproportionate rate during the later stages of redevelopment. As noted above and
shown by a plain reading of the statutory text, the FHA protects only minor children living with
parents (or similar guardians). See 42 U.S.C. § 3602(k). The definition of “family” does not, for
example, “encompass groups of more than one family.” Doe v. City of Butler, 892 F.2d 315, 326
(3d Cir. 1989) (Roth, J., dissenting). Thus, a group of people cannot talismanically receive
protection under the FHA just because one of them happens to be a parent domiciled with a
minor child. Although the Court need not reach the issue given the lack of imminent irreparable
injury, in light of the fact that all tenants will eventually have to relocate to different units on the
property, see Mid-City Fin. Corp., Z.C. Case 14-18, at 2 (noting that all the existing buildings
will be replaced), the Court queries whether breaking up groups of people—including extended
families—into separate apartments will necessarily disparately impact “families.”
39
that might make displacement of tenants at Brookland Manor more imminent than it was when
they made their declarations in opposition to Plaintiffs’ Motion for a Preliminary Injunction.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiffs’
Motion for a Preliminary Injunction is DENIED. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: November 21, 2016 RUDOLPH CONTRERAS
United States District Judge
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