Plaintiffs, Community Council for the Homeless at Friendship Place ("CCH") and Community Housing Trust, bring this action pursuant to 42 U.S.C. § 3604(f)(1) and § 3604(f)(2) of the Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988. Plaintiffs contend that defendants, the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA"), the District of Columbia Office of the Chief Financial Officer, the District of Columbia Office of Tax and Revenue, and acting Zoning Administrator for the District of Columbia, Olutoye Bello (collectively, the "District"), violated the Fair Housing Act by (1) enforcing District of Columbia zoning regulations that discriminate against persons with disabilities, and (2) interpreting District of Columbia zoning regulations to place burdens on plaintiffs because they operate a home for persons with disabilities. *fn1 Defendants contest plaintiffs' claims and further allege that this case is non-justiciable because the District's recent voluntary conduct has rendered this controversy moot.
Before this court are defendants' motion for judgment on the pleadings or, in the alternative, for summary judgment, defendants' supplemental motion for summary judgment, and plaintiffs' cross- motion for summary judgment as to liability only. Upon consideration of these submissions and the summary-judgment record, *fn2 the court concludes that defendants' motion for summary judgment must be granted in part and denied in part, and plaintiffs' motion for summary judgment as to liability must also be granted in part and denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, Community Housing Trust and Community Council for the Homeless at Friendship Place, are two non-profit organizations dedicated to serving Washington, D.C. residents who are, have been, or are at risk of becoming, homeless. Plaintiffs engage in a number of activities in support of their mission, including helping the homeless to obtain public benefits, providing health care services and mental counseling, developing and managing housing, educating the community, and advocating for policies to combat homelessness.
On March 8, 2001, in furtherance of their mission to obtain housing for the homeless, plaintiffs purchased a home at 5643 Western Avenue, located in a residential district within the Northwest quadrant of the District of Columbia. This residence was to house six persons: five men with mental disabilities (specifically, paranoid schizophrenia and bi-polar disorder), and one resident manager. *fn3 Under plaintiffs' plan, the residents were to live with one another as a "family." They were to share a kitchen, dining room, living room, recreational room, and garden, share responsibility for the day-to- day upkeep of the property, and come and go freely. The house was to be named "Zeke's House."
Problems arose, however, because upon learning that Zeke's House would be occupied by men with mental disabilities, a number of neighbors raised voices of concern. Less than two weeks after plaintiffs purchased the home, neighbors had gathered fifty-two signatures on a petition opposing Zeke's House. The petition also demanded that Michael Johnson, the then District of Columbia Zoning Administrator, determine whether plaintiffs' proposed use of the property was permitted, and if so, what restrictions and requirements would apply. Pls.' Ex. 18 (petition). *fn4 In addition, neighbors made Zeke's House the first item on the agenda of the next Advisory Neighborhood Commission ("ANC")-3G meeting. At that March 26, 2001, meeting, neighbors expressed their fears and anxieties about living in close proximity to Zeke's House's mentally ill residents.
Two days after the ANC-3G meeting, ANC-3G representative Joseph Bishop sent a letter to Zoning Administrator Johnson. In this letter, Bishop requested a determination regarding whether the residents of Zeke's house would constitute a "family" or a "community-based residential facility" ("CBRF"), under District of Columbia regulations and, if a CBRF, what restrictions would apply. *fn5 This determination was quite important because under D.C. law, a family can locate as a matter of right in any residential district without a certificate of occupancy, but a CBRF can not. D.C. Mun. Regs. tit. 11, § 199.1 (1995), as amended.
Upon receiving Bishop's request, Zoning Administrator Johnson opened an investigation. During the course of this investigation, plaintiffs argued that the Zeke's House residents would constitute a "family" under the District's definition of the term. Under the District's zoning regulations, a "family" is defined as "one (1) or more persons related by blood, marriage, or adoption, or not more than six (6) persons who are not so related, including foster children, living together as a single house-keeping unit, using certain rooms and housekeeping facilities in common . . . ." D.C. Mun. Regs. tit. 11, § 199.1. Plaintiffs maintained that because Zeke's House was a home to be occupied by six unrelated persons living together, it was a "family" residence and entitled to the privileges associated therewith.
The neighbors and the ANC-3G took a different view. They argued that the residence was, not a family residence, but instead a CBRF. Under D.C. law, a CBRF is defined as "a residential facility for persons who have a common need for treatment, rehabilitation, assistance, or supervision in their daily living." Id. Unlike families, CBRFs must obtain a "certificate of occupancy" *fn6 in order to inhabit a dwelling, pursuant to D.C. Mun. Regs. Tit. 11, § 3202.1. See also D.C. Mun. Regs. tit. 11 § 3203.1 ("no person shall use any structure, land, or part of any structure or land for any purpose other than a one-family dwelling until a certificate of occupancy has been issued . . . "). The neighbors' letters also described their fears of having Zeke's House's mentally disabled residents in their neighborhood and suggested that the residents would be inadequately supervised, abuse illegal substances, and engage in violent behavior. The public also weighed in, and editorials and articles opposing and supporting Zeke's House appeared in area newspapers. The Mayor also became involved in the controversy.
On September 6, 2001, at the conclusion of his six-month investigation, Zoning Administrator Johnson determined that Zeke's House would indeed constitute a CBRF-and would thus require a certificate of occupancy. *fn7 Pls.' Ex. 4 (Zoning Administrator Opinion).
There are seven categories of CBRF's under District of Columbia law. These include: (1) adult rehabilitation home; (2) community residence facility; (3) emergency shelter; (4) health care facility; (5) substance abusers home; (6) youth rehabilitation home; and (7) youth residential care home. D.C. Mun. Regs. tit. 11, § 199.1. The Zoning Administrator initially provided that Zeke's House constituted either an emergency shelter or a community residence facility ("CRF"). Pls.' Ex. 4 (Zoning Administrator Opinion). An "emergency shelter," defined as "temporary housing," can locate in any residential zone as a matter of right, as long as it is occupied by only four residents. D.C. Mun. Regs. tit. 22, § 3099.1. Because Zeke's House was to provide permanent, not temporary, housing and was to house six persons, not four, it did not fit neatly into the definition of an "emergency shelter." Thus, the Zoning Administrator concluded that the home likely constituted a CRF, pursuant to D.C. Mun. Regs. tit. 11, § 199.1. A CRF is defined as:
a facility providing safe, hygienic sheltered living arrangements for one (1) or more individuals aged eighteen (18) years or older . . . who are ambulatory and able to perform the activities of daily living with minimal assistance. The definition includes . . . group homes for mentally retarded persons, which provide a sheltered living arrangement for persons who desire or require supervision or assistance within a protective environment because of physical, mental, familial, or social circumstances, or mental retardation. D.C. Mun. Regs. tit. 22, § 3099.1.
Plaintiffs contend that this preliminary characterization presented yet another hurdle. They assert that under District of Columbia law, a CRF must be licensed under the Community Residence Facilities Regulations. See D.C. Mun. Regs. Tit. 11, § 119.1. Pursuant to these regulations, Zeke's House would best qualify as a "CRF for mentally ill persons." However, such a CRF is defined as a facility for adults with "a principal diagnosis of mental illness" who "require twenty-four hour (24 hr.) on site supervision, personal assistance, lodging and meals. . . ." D.C. Mun. Regs. Tit. 22 § 3800.2. Because Zeke's House residents are not given, and indeed do not require, twenty-four-hour supervision, *fn8 Zeke's House did not satisfy the requirements to obtain a license as a CRF for "mentally ill persons." Without such a license, plaintiffs contend that Zeke's House could not be in legal status, and as such, could not obtain a certificate of occupancy. Thus, according to plaintiffs, Zeke's House was unable to "meet the requirements for a certificate of occupancy without a fundamental alteration of their supportive housing model." Pls.' Opp. to Summ. J. at 3, 32. See Pls.' Ex. 10 at 34 (Dep. of Coonrod) (providing that the entire purpose of Zeke's House is to allow the men to "live independently, with support that is similar to support in other households").
Defendants disagree, evincing a fundamentally different view of what the certificate of occupancy requirement entails. This disagreement, as explored below, figures prominently in this controversy.
Defendants maintain that the certificate of occupancy requirement is a mere formality and that, had plaintiffs applied for a certificate of occupancy, one would have been granted forthwith. Defendants cite to the deposition testimony of Johnson, who, when asked "what would be the requirements for [obtaining] a certificate of occupancy" replied "simply fill out the application and if [sic] would have been granted. It would have been a perfunctory process." Defs.' Ex. 13 at 138-39 (Dep. of Johnson); see also Defs.' Ex 14 at 100 (Dep. of Bello) ("Q: what would be the process for the owners of Zeek's [sic] House to get a certificate of occupancy? A: By simply applying for it and go through the inspection process.").
In late September 2001, a few weeks after the Zoning Administrator rendered his decision classifying Zeke's House as a CBRF, Zeke's House's six residents-five formerly homeless men with mental disabilities and a resident manager-moved in to their home on 5643 Western Avenue. They did not have a certificate of occupancy; indeed, they had not applied for one. Within three days, Zoning Administrator Johnson personally arrived at the house, concluded that the home was occupied by a non-family without a certificate of occupancy, and issued a Notice of Infraction. The Notice cited a violation of D.C. Code 52.207 and D.C. Mun. Regs. tit. 11, § 3203.1 (2000), and levied a $500 fine. *fn9 On January 15, 2002, moreover, the Office of Tax and Revenue for the District of Columbia declared Zeke's House to be a rooming house under the zoning laws and denied plaintiffs' request for a real- property tax exemption, unless and until plaintiffs obtained this certificate. *fn10 Pls.' Ex. 8 (Branham Ltr. to Coonrod, Jan. 15, 2002).
On October 10, 2001, shortly after the Notice of Infraction was issued, the DCRA suspended enforcement of the Notice without prejudice. The citation's enforcement was suspended for two reasons. First, the DCRA found that the property owners had "met the substance of the requirements for health and safety at Zeke's House as contemplated in the certificate of occupancy guidelines." Defs.' Ex. 8 (Love Ltr. to Shea, Oct. 9, 2001). Second, the Mayor stated an intention to convene a task force to review all regulations applicable to group homes. The Notice of Infraction was therefore held in abeyance pending the outcome of the Mayor's task force. Id.
The day after this suspension was issued, on October 11, 2001, plaintiffs filed the instant action, seeking a declaratory judgment, preliminary and permanent injunctive relief, and compensatory and punitive damages. *fn11 Thereafter, plaintiffs filed an amended complaint, and defendants filed their motion for judgment on the pleadings, or, in the alternative, for summary judgment, and plaintiffs filed their cross-motion for partial summary judgment.
Subsequently, by letter dated December 6, 2002, defendant DCRA seemed to back down. The DCRA informed plaintiff CCH that, pursuant to a change in District policies and a "pending revision" of Title 11 of the D.C. Municipal Regulations, Zeke's House was exempt from the certificate of occupancy requirement. Defs.' Supp. Ex. A (Kelly Ltr. to Shea, Dec. 6, 2002). A few weeks later, defendant Office of Tax and Revenue informed plaintiff CCH that, as a result of the DCRA's decision not to require a certificate of occupancy, Zeke's House was entitled to an exemption from real-property taxation, effective April 1, 2001. Defs.' Supp. Ex. B (Branham Ltr. to Coonrod, Dec. 31, 2002). Moreover, in December 2001, the Office of Tax and Revenue amended its regulations to specifically allow tax exemptions for programs that provide housing and supportive services to persons with disabilities. Notice of Final Rulemaking, 48 D.C. Reg. 11705, 11708-09 (Dec. 28, 2001).
Defendants contend that these recent events moot this controversy, and at a status conference on January 10, 2003, this court heard defendants' argument to that effect. Based upon defendants' claims, the court allowed further briefing on the question. *fn12 Defendants subsequently filed a supplemental motion for summary judgment, which plaintiffs oppose. *fn13
Plaintiffs bring a facial and as-applied challenge to the District's zoning regulations, claiming that the District's zoning scheme and the Zoning Administrator's decision to classify Zeke's House as a CBRF, frustrated the missions of their respective organizations, thwarted their plans to develop more homes, precipitated a reduction in donations, and drained their limited resources. Defendants refute plaintiffs' allegations and further contend that: (1) actions taken in December 2002 moot this controversy, and (2) some defendants must be dismissed because they are non sui juris. To these claims the court now turns.
Because both parties have presented material outside the pleadings, and the court has relied upon such material, the parties' motions will be treated as motions for summary judgment. Under Fed. R. Civ. P. 56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56 (e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50.
Defendants first claim that certain defendants named in this suit are non sui juris. Specifically, defendants argue that the District of Columbia Department of Consumer and Regulatory Affairs, the District of Columbia Office of the Chief Financial Officer, and the District of Columbia Office of Tax and Revenue, are not amenable to suit. Plaintiffs do not contest this allegation.
The law is clear that "agencies and departments within the District of Columbia government are not suable as separate entities." Does I through III v. District of Columbia, 238 F. Supp. 2d 212, 222 (D.D.C. 2002) (quoting Gales v. District of Columbia, 47 F. Supp. 2d 43, 48 (D.D.C. 1999) (in turn citing Fields v. District of Columbia Dep't of Corr., 789 F. Supp. 20, 22 (D.D.C. 1992)); see also Arnold v. Moore, 980 F. Supp. 28, 33 (D.D.C. 1997) ("[g]overnmental agencies of the District of Columbia are not suable entities") (citing Roberson v. District of Columbia Bd. of Higher Educ., 359 A.2d 28, 31 n.4 (D.C. 1976); Miller v. Spencer, 330 A.2d 250, 251 n.1 (D.C. 1974)); Jenkins v. District of Columbia, 1996 WL 440551, *1 n.2 (D.D.C. 1996). ...