"absent unusual circumstances, a district court should abstain under the Burford doctrine from exercising jurisdiction in cases arising solely out of state or local zoning or land use law, despite attempts to disguise the issues as federal claims." Id. at 1327.
Although Pomponio does not bind the courts of this circuit, it is a strong, well-reasoned opinion, and one that would certainly give this court pause were it not distinguishable on its facts. There is a crucial difference, however, between the plaintiff's allegations in Pomponio and those in the instant case. Pomponio involved a dispute between Arthur Pomponio, a real estate developer who sought to subdivide his property into numerous lots (thereby maximizing the number of houses he could build on the land), and a county planning commission which rejected Pomponio's plan on the grounds that it violated several county zoning ordinances. In his § 1983 due process suit, Pomponio alleged that the decision to reject his plan was made in bad faith, and not on the basis of any genuine belief that the plan in fact ran afoul of any zoning laws. The court of appeals characterized the suit as "no more than a difference of opinion in this garden variety zoning dispute," id. at 1322, and found abstention under Burford to be appropriate. Id. at 1328. Significantly, the court noted that "cases involving questions of state and local land use and zoning law are a classic example of situations in which the exercise of federal review...would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Id. at 1327 (internal quotations omitted).
Resolution of the plaintiffs' claims in the instant case, by contrast, will not involve "disruptive" federal intrusion into a sensitive area of local land use law. The record in this case reveals that the plaintiffs' project had been reviewed--more than once, in some cases--by numerous D.C. regulatory agencies. Plaintiffs claim that the project had been approved at every level of review and that the only remaining step was for the DCRA to issue building permits. Plaintiffs claim, and indeed defendants' own filings demonstrate, that the DCRA must issue a building permit when the Director is "'satisfied that the proposed work conforms to the requirements of the construction Codes and all applicable laws, rules and regulations.'" Defs.' Mem. Supp. M. Dis. at 14 (quoting 12 D.C.M.R. § 112.1 (1992)). The statements of counsel at oral argument further persuade the court that the narrow question presented by this case is whether plaintiffs were improperly denied building permits to which they were legally entitled, and which District officials had extremely limited discretion to withhold. Thus, the court agrees with plaintiffs that this case does not present the type of complex zoning or land use issues which occasionally motivate federal courts to invoke the Burford abstention doctrine. Resolution of the plaintiffs' fundamental allegation--namely, that District officials improperly withheld building permits to which the plaintiffs were legally entitled--will not require this court to intrude unduly into sensitive areas of local policy or regulation. Consequently, defendants' motion to dismiss pursuant to the Burford abstention doctrine will be denied.
In addition to the defendants' motions to dismiss, the parties have filed various motions relating to discovery of assertedly privileged materials. Specifically, plaintiffs have filed a motion to compel production of certain documents alleged to be in the possession of the Council member defendants; defendants have opposed this motion and filed a motion for an order staying discovery until the privilege issues are resolved. Defendants have also filed a motion for a protective order precluding plaintiffs from inquiring in depositions into deliberative thought processes of certain executive branch officials. The court will address these motions in turn.
A. Discovery Motions Regarding Legislative Immunity
Plaintiffs seek a ruling from this court compelling the defendant Council members to produce, in essence, all documents in their possession which relate to the Dominion Cogen project. In light of the court's resolution of the legislative immunity issue, such a request is obviously overbroad. First, the court has dismissed Council member Nathanson from the suit; accordingly, Council member Nathanson need not accede to plaintiffs' discovery requests. Second, with regard to Council members Ray and Evans, the court has determined that only certain specific acts of these defendants were arguably outside of the legislative sphere. Thus defendants shall hone their Interrogatories to request production of documents related to these acts only.
B. Deliberative Processes of Executive Officials
Plaintiffs have noticed the deposition of various executive branch officials who the plaintiffs believe had some role in deciding to withhold the building permits from plaintiffs' project. Defendants maintain that the so-called "deliberative process" privilege precludes plaintiffs from inquiring into recommendations, advice, or other communications or thoughts these individuals may have offered in connection with plaintiffs' project.
The deliberative process privilege is a qualified rather than absolute privilege. The validity of such a privilege may depend upon "a balance of the public interest in nondisclosure with the need for the information as evidence." United States v. American Telephone and Telegraph Co., 524 F. Supp. 1381, 1386 n.14 (D.D.C. 1981). Furthermore, "an exception to the general thought-process rule is made where there are allegations of misconduct or misbehavior." Id. at 1389. See also Dept. of Economic Development v. Arthur Andersen, 139 F.R.D. 594, 596 (S.D.N.Y. 1991) (holding that the deliberative process privilege is inapplicable where deliberations of government personnel are directly in issue).
Here, the plaintiffs allege that they were legally entitled to the issuance of building permits which were "indefinitely suspended" by the defendants. Plaintiffs further allege that the decision not to issue the permits was based on illegitimate political motives, and not by a good faith belief on the part of the defendants that serious concerns regarding potential public health risks remained unresolved. As such, these allegations do raise questions of governmental misconduct and place the deliberative process itself directly in issue. Therefore, defendants' motion for a protective order will be denied.
For the reasons set forth herein, the City Council members' motion to dismiss will be granted in part and denied in part as to defendants Ray and Evans, and granted as to defendant Nathanson. Plaintiffs shall file an amended complaint reflecting the court's resolution of the City council members' motion to dismiss. The joint motion of all defendants to dismiss for failure to state a claim or pursuant to this court's discretion under the abstention doctrine will be denied. With respect to the discovery motions, defendants' request for a protective order regarding certain deposition questions will be denied, as will defendant's motion for a stay of discovery. Finally, plaintiffs' motion to compel will be denied without prejudice to file a new motion once plaintiffs have honed their discovery requests in accordance with this opinion. A separate Order shall issue this date.
Royce C. Lamberth
United States District Judge
For the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that:
1. Council member Nathanson's motion to dismiss is GRANTED, and Council member Nathanson is hereby DISMISSED from this action.
2. The motion to dismiss of Council members Evans and Ray is GRANTED in part and DENIED in part; the allegations in plaintiffs' complaint concerning these defendants are hereby DISMISSED except insofar as they relate to conduct described in paragraphs 31, 47, and 50 of the complaint.
3. Plaintiffs shall file an amended complaint conforming to the accompanying Memorandum Opinion within ten days of the date of this Order.
4. The motion of all defendants to dismiss for failure to state a claim or pursuant to the court's discretion under the abstention doctrine is DENIED.
5. Defendants' motion for a protective order is DENIED.
6. Plaintiffs' motion to compel discovery is DENIED, without prejudice.
7. Defendant's motion for a protective order staying discovery is DENIED.
8. Any further discovery in this action shall be completed by July 30, 1995.
Royce C. Lamberth
United States District Judge