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Barry Farm Tenants and Allies Association, Inc. v. District of Columbia Housing Authority

United States District Court, District of Columbia

April 30, 2018



          Emmet G. Sullivan, United States District Judge

         I. Introduction

         Barry 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 (collectively, “defendants”).

         Plaintiffs 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.

         Pending before the Court are: (1) DCHA's motion to dismiss the four claims against it, see ECF No. 18;[1] 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 GRANTED.[2]

         II. Background

         A. The Parties

         Associational 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[3], 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.

         Plaintiffs 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. ¶¶ 22, 23.

         B. First-Stage Redevelopment Plan

         In 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.

         In 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.[4] 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.[5] 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).

         At 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.

         In 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;[6]” 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).

         Second-stage 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, [7] 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 Commission. Id.

         C. DCHA's Alleged Failure to Maintain Barry Farm Units

         Barry 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.

         III. Standards of Review

         A. Federal Rule of Civil Procedure 12(b)(1)

         “A 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).

         B. Federal Rule of Civil Procedure 12(b)(6)

         A 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).

         Despite 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.

         “[W]hen 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 678.

         A 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.”).

         IV. Analysis

         Defendant 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.[8] 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.

         A. The Court Lacks Jurisdiction Over Counts I and II Because the Plaintiffs' Claims are Not Ripe for Judicial Review

         1. The Plaintiffs' Allegations

         In 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.

         The 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.

         The 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 affordable[9]housing . . . [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.

         2. Familial Status Disparate Impact Discrimination

         The 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 ...

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