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Borum v. Brentwood Village, LLC

United States District Court, District of Columbia

November 21, 2016

ADRIANN BORUM, et al., Plaintiffs,
v.
BRENTWOOD VILLAGE, LLC, et al., Defendants.

          MEMORANDUM OPINION RE DOCUMENT NOS: 3, 16

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         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. Complaint [1]

         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 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- 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 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 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 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 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).

         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 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 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 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 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. ...


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