United States District Court, District of Columbia
BARRY FARM TENANTS AND ALLIES ASSOCIATION, INC., et. al. Plaintiffs,
DISTRICT OF COLUMBIA HOUSING AUTHORITY, et. al. Defendants.
G. Sullivan, United States District Judge
Farm is a historic public housing property located east of
the Anacostia River in Southeast District of Columbia
(“D.C.”). The property was purchased in 1867 and
developed as one of the first communities for
African-American homeowners after the Civil War. In 2006, the
D.C. Council approved a redevelopment plan to transform Barry
Farm from a public housing property into a mixed-income,
mixed-use community. Pursuant to the redevelopment plan, the
existing 444 Barry Farm units will be demolished and over 1,
000 mixed-use, mixed-income units will be built in their
place. The D.C. Housing Authority (“DCHA”) hired
private developers Preservation of Affordable Housing
(“POAH”) and A&R Development
(“A&R”) to implement the approved plan
are individuals who will be displaced and organizations that
will be affected by the redevelopment plan. The
plaintiffs' four-count complaint alleges that the
defendants' redevelopment plan discriminates against
Barry Farm tenants based on their familial status in
violation of: (1) the Fair Housing Act (“FHA”),
42 U.S.C. § 3601, et seq.; and (2) the D.C.
Human Rights Act (“DCHRA”), D.C. Code
§§ 2-1402.21(a)(1), 2-1402.68. Plaintiffs also
allege that DCHA: (3) failed to maintain the Barry Farm
property in violation of the United States Housing Act
(“USHA”), 42 U.S.C. § 1437p; and (4)
discriminated against Barry Farm tenants based on their place
of residence in violation of the DCHRA, D.C. Code
§§ 2-1402.21(a)(4). All four counts are alleged
against DCHA; the first and second counts are also alleged
against POAH and A&R.
before the Court are: (1) DCHA's motion to dismiss the
four claims against it, see ECF No.
and (2) A&R's and POAH's motion to dismiss the
two claims against them, see ECF No. 13. After
careful consideration of the motions, the consolidated
response, the replies thereto, the oral argument at the
January 9, 2018 motions hearing, and the applicable law, the
defendants' motions to dismiss are
plaintiffs are: (1) the Barry Farm Tenants and Allies
Association, Inc. (“BFTAA”), a non-profit
corporation created by Barry Farm residents to address issues
related to the Barry Farm redevelopment; and (2) Empower DC,
a non-profit corporation that seeks to improve the lives of
low- and moderate-income D.C. residents. Compl., ECF No. 1
¶¶ 13, 14. Individual plaintiffs are Ismael
Vasquez, Jacqueline Thrash, and Brenda Lucas,
current and former Barry Farm residents who bring the
complaint individually and on behalf of two proposed classes
of similarly-situated persons. Id. ¶¶
15-20. The first proposed class consists of Barry Farm
families with children, who allege that the redevelopment
plan discriminates against them based on their familial
status. Id. ¶¶ 106, 112. The second
proposed class consists of Barry Farm residents whose units
have not been maintained, allegedly in violation of the USHA
and the DCHRA. Id. ¶¶ 106, 113.
bring this action against the entities responsible for
implementing the Barry Farm redevelopment plan and
maintaining Barry Farm units. DCHA is a D.C. government
agency that owns and manages public housing units.
Id. ¶ 21. In 2013, DCHA hired private
developers POAH and A&R to redevelop the Barry Farm
property. Id. ¶ 33. POAH is a non-profit
developer that focuses on housing for low- and
moderate-income residents, while A&R is a private
developer. Id.; see also Id. ¶¶
First-Stage Redevelopment Plan
2005, the D.C. government created the New Communities
Initiative to “revitalize severely distressed
subsidized housing and redevelop communities plagued with
concentrated poverty, high crime, and economic
segregation.” Id. ¶ 28. The program
targeted four neighborhoods, one of which is Barry Farm.
Id. In seeking to create “vibrant mixed-income
neighborhoods, ” the New Communities Initiative
established four principles to guide redevelopment.
Id. ¶ 30. Pursuant to these principles, a
redevelopment plan must: (1) ensure one-for-one replacement
of affordable housing units in the neighborhood; (2) create
opportunities for residents to return to or stay in the
community; (3) build mixed-income housing to end the
concentration of low-income housing and poverty; and (4)
“build first” to make new housing available
before existing housing is demolished. Id. With
these principles in mind, the D.C. Council created and
approved the Barry Farm redevelopment plan in 2006.
Id. ¶¶ 31, 32. In 2013, DCHA hired POAH
and A&R to develop the property. Id. ¶ 33.
February 2014, the defendants filed with the D.C. Zoning
Commission a “first-stage Planned Unit Development
application” (“first-stage PUD”).
Id. ¶ 34. The first-stage PUD application sets
forth the general parameters for the Barry Farm
redevelopment. Id. ¶ 35; see generally
Z.C. Order No. 14-02 (“Z.C. Order”), ECF No.
12-2. For example, the PUD application outlined
the redevelopment project's goals and phases and laid out
the general demolition and construction plans. See
Z.C. Order, ECF No. 12-2. The Zoning Commission approved and
adopted the defendants' PUD application in December
2014. Id. Pursuant to the Zoning
Commission's Order, the defendants will demolish the
existing 444 Barry Farm units and replace them with 1, 400
residential units of various types. Compl., ECF No. 1 ¶
38. Of these new units, 344 will be dedicated as low-income,
“replacement” units. Id. ¶ 38. The
remaining units will be a mix of affordable rental units,
affordable homeownership units, market-rate rental units, and
market-rate homeownership units. Z.C. Order, ECF No. 12-2
¶ 78d. In January 2017, the U.S. Department of Housing
and Urban Development (“HUD”) approved the
defendants' application to demolish Barry Farm pursuant
to the USHA. Compl., ECF No. 1 ¶ 65; see also
Mot. Hearing Tr., ECF No. 25 at 4:15-19; HUD Approval, ECF
No. 24-1 (January 20, 2017).
issue in this case is the future “unit mix”-or,
the number of one-, two-, three-, four-, and six-bedroom
units that will comprise the public housing replacement
units. Specifically, the plaintiffs allege that the
defendants' plan to dramatically increase the number of
one-bedroom replacement units will reduce the number of units
that can accommodate returning families. Compl., ECF No. 1
¶¶ 40, 41. The plaintiffs allege that the
defendants “proposed” a unit mix for the
replacement units in a July 2014 letter to the Zoning
Commission, which included “post-hearing
materials” in support of the PUD application.
Id. ¶ 40 (citing 2014 Letter, Compl. Ex. A, ECF
No. 1-1). Ultimately, the Zoning Commission's Order did
not contain a future unit mix. See generally Z.C.
Order, ECF No. 12-2.
approving the defendants' first-stage PUD application,
the Zoning Commission found that the redevelopment plan was
suitable in part because it will “meet the needs of the
returning residents, ” who “will be able to
return to a unit that includes a bedroom size consistent with
their needs.” Id. ¶ 110. The Zoning
Commission found, among other things, that: (1) the
redevelopment plan “will provide a one-for-one
replacement of all public housing units that are removed from
the PUD site;” and (2) the defendants will
“undertake an extensive relocation and return process
to ensure that current residents have a place to live during
redevelopment . . . and to guarantee that those residents can
return to the PUD Site after redevelopment if they choose to
do so.” Id. ¶ 95c. The Zoning Commission
conditioned its approval on, among other things: (1) that the
344 dedicated replacement units “shall remain as
replacement public housing units for the period required . .
. which will be no less than 40 years;” and (2) that
the defendants include in each second-stage application
“a detailed description of the affordable housing . . .
[and] a breakdown of how the affordable housing is
distributed in terms of unit type (by number of bedrooms . .
.).” Id. at 60-61; see also Mot.
Hearing Tr., ECF No. 25 at 75:15-76:8 (stating that the unit
mix for the replacement units will be submitted for approval
in second-stage applications).
PUD applications are due every two years; there will be four
second-stage applications in total. Id. at 64. The
first second-stage application for the first four land
parcels is currently due by May 2019,  while the fourth
and final second-stage application for all remaining land
parcels is currently due by May 2025. Id. Each
second-stage application is subject to approval by the Zoning
DCHA's Alleged Failure to Maintain Barry Farm
Farm has fallen into a “deep state of disrepair.”
Compl., ECF No. 1 ¶ 58. For example, residents allege
that there are holes in the floor and walls, leaking
ceilings, broken appliances and fixtures, broken doors and
windows, persistent rodent and insect infestations, broken
heating, water damage, and sewage leaks. Id.
¶¶ 58, 60. The plaintiffs allege that DCHA is
either “non-responsive” or “slow” to
fix these many issues, especially when compared to its
maintenance record at other public housing properties.
Id. ¶¶ 55-60. According to the plaintiffs,
this is increasingly the case now that the defendants'
first-stage PUD application was approved and Barry Farm is
slated for demolition. Id. ¶ 50. The plaintiffs
allege that DCHA has “systematically failed to maintain
Barry Farm units in an attempt to clear the property for
redevelopment, ” driven by its decision to
“disinvest” in Barry Farm. Id.
¶¶ 50, 63. The “uninhabitable”
conditions have allegedly caused some tenants to leave; DCHA
has allegedly kept those units vacant in anticipation of
demolition. Id. ¶¶ 50, 58.
Standards of Review
Federal Rule of Civil Procedure 12(b)(1)
federal district court may only hear a claim over which it
has subject-matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a
court's jurisdiction.” Gregorio v. Hoover,
238 F.Supp.3d 37, 44 (D.D.C. 2017) (internal citation and
quotation omitted). To survive a Rule 12(b)(1) motion, the
plaintiff bears the burden of establishing that the court has
jurisdiction by a preponderance of the evidence. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
“Because Rule 12(b)(1) concerns a court's ability
to hear a particular claim, the court must scrutinize the
plaintiff's allegations more closely . . . than it would
under a motion to dismiss pursuant to Rule 12(b)(6).”
Schmidt v. U.S. Capitol Police Bd., 826 F.Supp.2d
59, 65 (D.D.C. 2011)(internal citations omitted). In so
doing, the court must accept as true all of the factual
allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff, but the court need not
“accept inferences unsupported by the facts alleged or
legal conclusions that are cast as factual
allegations.” Rann v. Chao, 154 F.Supp.2d 61,
64 (D.D.C. 2001). In reviewing a motion to dismiss pursuant
to Rule 12(b)(1), the court “may consider materials
outside the pleadings” in determining whether it has
jurisdiction to hear the case. Jerome Stevens Pharm.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). A complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal quotations and citations omitted).
this liberal pleading standard, to survive a motion to
dismiss, a complaint “must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotations and citations
omitted). A claim is facially plausible when the facts pled
in the complaint allow the court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The standard does not
amount to a “probability requirement, ” but it
does require more than a “sheer possibility that a
defendant has acted unlawfully.” Id.
ruling on a defendant's motion to dismiss [pursuant to
Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint.”
Atherton v. D.C. Office of the Mayor, 567 F.3d 672,
681 (D.C. Cir. 2009) (internal quotations and citations
omitted). In addition, the court must give the plaintiff the
“benefit of all inferences that can be derived from the
facts alleged.” Kowal v. MCI Commc'ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Even so,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements” are
not sufficient to state a claim. Iqbal, 556 U.S. at
dismissal of a claim brought pursuant to Section 1983 for
lack of an enforceable right amounts to dismissal for failure
to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). See Duberry v. District of Columbia, 824
F.3d 1046, 1050-51 (D.C. Cir. 2016)(“Our review of the
Rule 12(b)(6) dismissal of the amended complaint [for lack
of an enforceable right] is de novo.”).
DCHA moves to dismiss the complaint, arguing that: (1) the
plaintiffs' two claims for discrimination based on
familial status (Counts I and II) are not ripe for
adjudication, or alternatively, the plaintiffs fail to state
a disparate impact discrimination claim; (2) the
plaintiffs' constructive demolition claim (Count III)
must be dismissed for lack of an enforceable federal right;
and (3) the plaintiffs' claim for discrimination based on
place of residence (Count IV) must be dismissed for failure
to state a claim. See generally DCHA's Mot., ECF
No. 18. Defendants POAH and A&R move to
dismiss the two counts alleged against them for
discrimination based on familial status (Counts I and II)
because the claims are not ripe for adjudication, or
alternatively, for failure to state a disparate impact
discrimination claim. POAH's/A&R's Mot., ECF No.
13. The Court analyzes each argument in turn.
The Court Lacks Jurisdiction Over Counts I and II Because the
Plaintiffs' Claims are Not Ripe for Judicial
The Plaintiffs' Allegations
Count I, the plaintiffs allege that the defendants have
violated the FHA “by designing and undertaking
implementation of a redevelopment plan that will
significantly reduce the number of two-, three-, four-, and
six-bedroom apartment units at Barry Farm, and thus will have
a disparate impact or disproportionate effect on families
with children.” Compl., ECF No. 1 ¶ 130. The
plaintiffs further allege that the “[d]efendants,
individually and through their agents, adopted a
redevelopment plan that . . . [will] mak[e] housing
unavailable to families with children, ” which
“will have a disparate impact on families who live at
Barry Farm based on their family status.” Id.
¶¶ 133, 134. In Count II, the plaintiffs allege the
same facts to be in violation of the DCHRA. Id.
¶¶ 142, 145-46.
plaintiffs' allegations are based entirely on a July 2014
letter that the defendants sent to the Zoning Commission
containing “post-hearing materials” in support of
their first-stage PUD application. 2014 Letter, Compl. Ex. A,
ECF No. 1-1 at 2 (attached to complaint). This letter
provides information “regarding unit mix and
targets” in order to “inform the [Zoning
Commission of] future unit sizes.” Id. at 4-6.
To that end, it included a “possible housing mix”
for the Barry Farm replacement units. Id. If
adopted, the possible mix would add almost 100 one-bedroom
units to the existing unit mix, resulting in 163 fewer units
with more than one bedroom. Id. at 5-6. This
possible unit mix was developed after the defendants surveyed
current Barry Farm tenants and D.C. residents on the public
housing waiting list to learn about their future housing
needs. Id. at 6.
possible unit mix described in the July 2014 letter was not
incorporated into the Zoning Commission's Order. See
generally Z.C. Order, ECF No. 12-2. Rather, the Zoning
Commission explained that “[a] first-stage PUD involves
(i) general review of a site's suitability . . .; (ii)
the appropriateness, character, scale, mixture of uses, and
design of the uses proposed; and (iii) the compatibility of
the proposed development city-wide . . . and other goals of
the PUD process.” Id. ¶ 150. The Zoning
Commission ordered the defendants to include “a
detailed description of the affordablehousing . . .
[and] a breakdown of how the affordable housing is
distributed in terms of unit type (by number of bedrooms . .
.)” in their second-phase PUD applications.
Id. at 61.
Familial Status Disparate Impact Discrimination
plaintiffs contend that the defendants discriminated against
Barry Farm families on the basis of familial status by
“adopt[ing]” a redevelopment plan that will
reduce the number of available larger units. Compl., ECF No.
1 ¶¶ 127-149. The FHA prohibits “mak[ing]
unavailable ... a dwelling to any person because of ...
familial status.” Borum v. Brentwood Vill.,
LLC, 218 F.Supp.3d 1, 20-21 (D.D.C. 2016) (quoting 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.” Id. (quoting 42
U.S.C. § 3602(k)). Therefore, to state a claim for
“familial status” disparate impact
discrimination, plaintiffs must “offer sufficient
evidence to support a finding that the ...