United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
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.
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
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.
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
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.
(“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
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.
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.
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
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.
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.
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
https://app.dcoz.dc.gov/Login.aspx to make a submission.
Visit http://dcoz.dc.gov/resources/Party Person /index .shtm
for an explanation of the difference between a
“person” and a “party”.
Id. at 2.
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,
https://dcoz.dc.gov/node/1211526 (“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.
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.
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).
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. ¶
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.
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. 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