United States District Court, District of Columbia
MEMORANDUM OPINION RE DOCUMENT NOS: 3, 16
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Defendants' Motion to Dismiss; Denying Plaintiffs'
Motion for a Preliminary Injunction
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.
Brentwood Associates, L.P.,  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]; 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.
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.
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.
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. ¶
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.
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.
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.
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.
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.
Motion for a Preliminary Injunction
addition to the above allegations, Plaintiffs and Defendants
each put forward evidence for consideration of
Plaintiffs' Motion for a Preliminary Injunction.
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.
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).
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.
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.
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.
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.
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.
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.”