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States v. District of Columbia

United States District Court, District of Columbia

January 23, 2019




         Plaintiff, Timothy States, brought this suit against the District of Columbia alleging that he was denied due process in violation of the Fifth Amendment of the Constitution when he was denied the opportunity to participate as a party in a zoning proceeding concerning the construction of a building behind his property. Compl. [Dkt. # 1] at 1; id. ¶¶ 11-12, 22. Plaintiff contends that the Board of Zoning Adjustment (“BZA” or “Board”) fails to provide residents with “specific, direct, and clear notice regarding their rights to request and secure ‘party status'” in proceedings to challenge proposed zoning variances. Id. at 1. Party status gives affected residents the “right to: (1) legal counsel; (2) present evidence; and (3) cross-examine witnesses.” Id. at 2. Without party status plaintiff contends that residents are “relegate[d] . . . to a limited three (3) minute presentation.” Id. ¶ 7. Plaintiff's complaint consists of three counts: Count I - “Defendant's Violation of Plaintiff's Procedural Due Process Rights” - alleges that the letter plaintiff received notifying him of the hearing was defective in that it failed to specify when a party status application would be due. Id. ¶¶ 25-28. Count II - “Declaratory Relief” - seeks an order declaring the notices defective for failing to clearly notify residents of the party status application deadline, id. ¶¶ 29- 30; and Count III requests unspecified “Equitable Relief.” Id. ¶¶ 31-34. Plaintiff also asks the Court to award him attorneys' fees, and notwithstanding his characterization of the action as an equitable one, his “Prayer for Relief” also seeks “compensatory damages for emotional damages in excess of $100, 000.00.” Compl. at 9.

         While the complaint filed on July 13, 2018 purported to seek not only a permanent injunction, but also a temporary restraining order (“TRO”) and a preliminary injunction, Compl. at 9, plaintiff did not file a motion for either at that time, and defendant filed a timely motion to dismiss on August 6, 2018. Def.'s Mot. to Dismiss Pl.'s Compl. [Dkt. # 5] (“Mot. to Dismiss”). Defendant argued that the Court lacks subject matter jurisdiction to consider the merits of a challenge to the local zoning board's decisions, and that the due process claim fails on the merits. Mem. of P. & A. in Supp. of Mot. to Dismiss [Dkt. # 5-1] (“Def.'s Mem.”) at 4-18. Plaintiff opposes the motion, Pl.'s Opp. to Mot. to Dismiss [Dkt. # 8] (“Pl.'s Opp.”) at 1, and the matter is ripe for decision. See also Def.'s Reply in Supp. of Mot. to Dismiss [Dkt. # 10] (“Def.'s Reply”).

         Five months after the case was filed, after the close of business on Friday, December 14, 2018, plaintiff decided it was time to file a motion for a TRO, and he claimed that he would suffer imminent irreparable harm absent interim relief. Mem. of P. & A. in Supp. of Pl.'s Mot. for TRO & Prelim. Inj. [Dkt. # 11] (“TRO Mot. I”) at 16-17. But the motion identified no impending harm that was not set forth in the original complaint; plaintiff asserted that the deprivation of due process itself was the irreparable harm. Id. at 17.

         The Court held a scheduling conference on December 18, 2018, and counsel for the plaintiff - who objected to being asked questions about his own allegations concerning irreparable harm during what had been denoted as a “scheduling conference” - informed the Court for the first time that the variance had been issued in July and that construction could begin. After further discussion and with the parties' consent, the Court consolidated the TRO motion with the merits under Federal Rule of Civil Procedure 65 given the complete overlap of the issues involved. The Court informed the parties that it had the motion under advisement, and that it acknowledged plaintiff's interest in expedition.

         Then, on the afternoon of Friday, December 28, 2018, plaintiff purported to withdraw the first motion for preliminary injunctive relief, see Notice of Withdrawal of Mot. [Dkt. # 13], and he moved for another TRO. Mem. of P. & A. in Supp. of Pl.'s Mot. for TRO & Prelim. Inj. [Dkt.

         # 14] (“TRO Mot. II”). He again asked the Court to enjoin the BZA from issuing any variances concerning the property notwithstanding the fact that the variance had already been issued. Id. at 1 (“Plaintiff seeks to enjoin [BZA] from granting any variances to the developer herein, pursuant to the BZA's 2018 hearing on BZA Application No. 19768, and its subsequent favorable consideration thereof.”). At the conclusion of the pleading, though, plaintiff indicated that he was seeking broader relief:

Plaintiff urges this Court to grant [his] motion for temporary restraining order and a preliminary injunction, to wit, to restrict Defendant's grant of variances to the Developer herein, essentially to overturn the BZA's decision, until such time that it grants Plaintiff party status, reopen the subject hearing on the Developer's variance application, BZA Application No. 19768, develop a full and complete record, and otherwise preserve all of Plaintiff's constitutional protections on a matter that will greatly affect Plaintiff's property rights.

Id. at 22.

         After review of plaintiff's submission, the Court concluded once again that the appropriate course of action would be to consolidate the motion with the merits of the case, noting that plaintiff's showing of irreparable harm remained quite thin and that his request to “enjoin the issuance of the variance is now moot.” Order [Dkt. # 16] at 3-4.

         For the reasons that follow, the Court finds that it lacks jurisdiction to consider plaintiff's objections to the zoning Board's decisions and that plaintiff's due process claim fails under Federal Rule of Civil Procedure 12(b)(6).


         Plaintiff is a homeowner whose property is located at 948 S Street N.W., Washington, D.C., 20001. Compl. ¶ 11. On May 14, 2018, he received a notice from the BZA informing him that a developer had applied for several zoning variances to build a condominium in the vacant lot behind his home. Id. ¶¶ 6, 12. According to plaintiff, the proposed development, which will stand five feet taller than his two-story home, will “significantly obstruct [p]laintiff's light, air, and space, thereby affecting [p]laintiff's enjoyment of his property and its value.” Id. ¶13.

         The May 14 letter notice informed plaintiff that the BZA planned to hold a public hearing on June 27, 2018 at 9:30 a.m. on the developer's zoning variance application No. 19768. Ex. 1 to Pl.'s Praecipe [Dkt. # 15-1] (“Notice”) at 1. The notice listed four proposed zoning variances relating to minimum parking requirements, lot occupancy requirements, rear yard requirements, and side yard requirements, and it explained that District of Columbia regulations require parties seeking zoning relief appear before the BZA in a public hearing “to make their case.” Id. The letter also noted that the regulations require that the BZA notify “property owners within 200 feet of the subject property” of the public hearing, and it included instructions on “How to Familiarize Yourself with the Case” by accessing the online case record. Id.

         Importantly, the notice also included a section titled “How to Participate in the Case:”

There are many different ways to participate in a case, including submitting a letter in support or opposition into the record, participating in person as a witness, or filing for party status. Visit the Interactive Zoning Information System (IZIS) on our website at to make a submission. Visit Person /index .shtm for an explanation of the difference between a “person” and a “party”.

Id. at 2.

         The second website directs the reader to a sixteen-page “tutorial” on “[w]hat is the difference between party status and testifying as a person?” See D.C. Office of Zoning, “Tutorial-Party vs. Person, ” Jan. 12, 2017, (“Party Status Tutorial”). The tutorial explains that a party “is a participant in a proceeding who has an interest in the outcome that is greater than that of the general public, ” id. at 3, and is thus granted the right to present witnesses, cross-examine witnesses, file motions, seek reconsideration or rehearing after issuance of the final order, and receive a copy of filings and decisions in the case. Id. at 9-11.

         By contrast, according to the information the District provides on the internet, “a person is an individual, partnership, association, corporation, public agency, or other legal entity, ” who “may submit testimony into the record or testify at a hearing, but they do not have the rights of a party.” Id. at 4. “Anyone can submit a signed letter in support or opposition into the record, as long as the record is still open, ” id. at 6, and “anyone can appear and give oral testimony in support or opposition to a case.” Id. “[A] person may also file an appeal (or petition for review) with the Court of Appeals, if they can show they have been aggrieved by the decision, ” id. at 4, meaning “it is not necessary to be a party in order to appeal the outcome of the case.” Id. at 3.[1]

         Except for the applicant seeking the zoning variance and the Advisory Neighborhood Commission covering the subject property, party status is not a matter of right. Id. at 7-8. While anyone can apply for it, ultimately “becoming a party is subject to the approval by the BZA or [Zoning Commission].” Id. at 7. Individuals interested in applying for party status must fill out “Form 140, ” id. at 15, and the tutorial warns that “in order for the BZA or [Zoning Commission] to entertain your request for party status, you must submit Form 140 to [the Zoning Office] at least 14 days before the hearing.” Id. (emphasis in the original).

         Plaintiff did not file an application within that time period. He states that about nine days before the public hearing, he “re-read the BZA's two-page notice letter and then accessed the link referenced within, which directed him to complete Form 140.” Compl. ¶ 15. According to plaintiff, just as he was about to electronically submit his party status application, he “came across the 14-day party status deadline.” Id. He alleges that “as a result of the BZA's failure to include a specific and prominent notice of the significant 14-day party status application deadline” in the original letter, his application was filed six days late. Id. ¶ 16.

         On June 20, 2018, counsel for plaintiff wrote to the BZA to state that he had been retained, and that “by this correspondence, ” plaintiff was “requesting leave to be identified as a party” in the upcoming hearing. Ex. 4 to Compl. [Dkt. # 1-1] at 1. Counsel explained that “prior to the immediate representation, Mr. States did not dutifully grasp the 14-day notice provision indicated on the Form 140, because that deadline was in a ‘separate and distinct document, '” and not expressly mentioned in the notice itself. Id.

         At the scheduled June 27, 2018 public hearing, plaintiff and his counsel were permitted to argue in support of the request for a waiver of the party status application deadline and to be granted party status. Ex. A to Def.'s Reply [Dkt. # 10-1] (“Tr.”) at 68-99. Plaintiff detailed his objections to the project and its anticipated impact on his property, and he explained that he had been aware of the planned project since April 2018 and that he had lodged objections at prior proceedings along the way, including the Office of Planning, the Historic Preservation and Review Board, and the Advisory Neighborhood Commission (“ANC”) meeting at which the ANC decided to support the project.[2] Id. 70-79. Counsel was also invited to speak and among other things he advanced an argument that since the BZA letter did not place plaintiff on notice as due process required, the late filing should be excused. Id. at 84-87.

Mr. TEMPLE: We were not making the point that there was per se no notice of the hearing. We were making the point that there was no notice of the 14-day period of time for party status and the actual written communication. And that particular notice comes when you refer to the website that's listed on page 2 of 3 on how to participate in the ...

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