Borum v. Brentwood Village, LLC

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ADRIANN BORUM, et al., :

:

Plaintiffs, : Civil Action No.: 16-1723 (RC)

:

v. : Re Document Nos.: 3, 16

:

BRENTWOOD VILLAGE, LLC, et al., :

:

Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFFS’ MOTION FOR A

PRELIMINARY INJUNCTION

I. INTRODUCTION

At 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.

II. FACTUAL BACKGROUND

A. Complaint1

Defendants Brentwood Associates, L.P.,2 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];3 Compl. ¶¶ 4–5. Their redevelopment plan

1

Because the Court considers different information when analyzing a motion to dismiss

than it does with a motion for a preliminary injunction, the relevant facts are divided into two

sections.

2

Per stipulation, Plaintiffs have voluntarily dismissed the case against Defendant

Brentwood Village, LLC, because Brentwood Village does not have an ownership interest in the

property subject to the suit. See Notice of Voluntary Dismissal, ECF No. 12.

3

With respect to Defendants’ Motion to Dismiss, the Court takes judicial notice of the

facts in the District of Columbia Zoning Commission proceeding involving Defendants and their

proposed redevelopment only to “avoid unnecessary proceedings when an undisputed fact on the

public record makes it clear that the plaintiff does not state a claim upon which relief could be

granted.” Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)

(internal citation and quotations omitted). The Court takes into account only uncontested facts,

and does not “review[] the entire record,” which would require conversion of the Motion to

Dismiss into a motion for summary judgment. See Marshall Cty. Health Care Auth. v. Shalala,

988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting). Plaintiffs never dispute

Defendants’ invocation of the Zoning Commission’s order as a basis for its factual claims. See

generally Pls.’ Br. in Opp’n to Defs.’ Mot. to Dismiss, ECF No. 21 (Plaintiffs even specifically

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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.

Plaintiffs 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-

state that they “are not challenging the Zoning Comission’s approval of Mid-City’s stage-one

PUD application”).

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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.

Individual 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. ¶¶ 82–91.

Individual 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

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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. ¶ 137.

The 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. ¶ 121.

To 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

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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.

During 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.

Plaintiffs 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

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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.

Plaintiffs’ 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.

B. Motion for a Preliminary Injunction

In addition to the above allegations, Plaintiffs and Defendants each put forward evidence

for consideration of Plaintiffs’ Motion for a Preliminary Injunction.

1. Plaintiffs’ Evidence

Plaintiffs 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

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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. ¶¶ 10–11.

Individual 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).

8

To 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.

Plaintiffs 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

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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.

To show 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

10

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.

2. Defendants’ Evidence

Defendants 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

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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.

Defendants 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

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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.

If a 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.” Id.

III. ANALYSIS

Plaintiffs move for a preliminary injunction. In the Motion for a Preliminary Injunction,

Plaintiffs move for the Court to enjoin Defendants from submitting a second-stage PUD

application. See Pls.’ Mot. for Prelim. Inj., ECF No. 3. In the Complaint, Plaintiffs request “any

and all injunctive relief that the Court may deem appropriate, including entering a preliminary . .

. injunction ordering Defendants to . . . cease violating” Plaintiffs’ rights under the Federal Fair

Housing Act and District of Columbia Human Rights Act. See Prayer for Relief, Compl. at 35–

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36. After Plaintiffs filed their Complaint and Motion for a Preliminary Injunction, Defendants

submitted a second-stage PUD application, see Pls.’ Reply Mem. in Supp. of Mot. for Prelim.

Inj. Ex. 2, making the specific request in Plaintiffs’ Motion for a Preliminary Injunction moot.

Nonetheless, the Court considers Plaintiffs’ request for an appropriate preliminary injunction to

remedy their injuries.4

Using a theory of disparate impact, Plaintiffs argue that the redevelopment plan “will

effectively eliminate housing for the majority of large families at the Brookland Manor

property,” and that without a preliminary injunction, “it is almost certain that the nearly 150

families now resident at Brookland Manor will lose their housing during the pendency of this

litigation.” See Pls.’ Mot. for Prelim. Inj., at 1. Defendants oppose a preliminary injunction,

arguing that the alleged injuries are not imminent, Plaintiffs are unlikely to be successful on the

merits, and that preliminarily enjoining the redevelopment would significantly harm Defendants

and the public.5 See generally Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj.

Defendants move to dismiss on a number of grounds. They advance four procedural

arguments: first, that Plaintiffs did not exhaust their administrative remedies through the zoning

4

In their Reply Memorandum, Plaintiffs assert that they “now modify the requested form

of relief and seek to enjoin Defendants from taking any action towards residents meant to

effectuate their challenged redevelopment plan, including relocating tenants on or off the

property, evicting, moving, or otherwise bringing about the cessation of tenancy in preparation

for . . . redevelopment.” Pls.’ Reply Mem. in Supp. of Mot. for Prelim. Inj., at 18, ECF No. 20.

Plaintiffs did not move to amend their request for a preliminary injunction. However, because

these are possible “appropriate” forms of a preliminary injunction meant to preserve Plaintiffs’

rights, the Court will consider them with respect to any preliminary injunction it might issue.

5

Defendants previously argued that Plaintiffs’ proposed injunction preventing the filing

of a second-stage PUD application would have violated the United States Constitution because it

would block access to the Zoning Commission and constitute a prior restraint. See Defs.’ Opp’n

to Pls.’ Mot. for Prelim. Inj., at 11–13. As Plaintiffs acknowledge, because Defendants already

submitted their application, the Court is unable to impose such an injunction, making the

argument moot. See Pls.’ Reply Mem. in Supp. of Mot. for Prelim. Inj., at 17–18.

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process, so principles of “‘res judicata’ and/or collateral estoppel” preclude relief; second, that

the Court does not have jurisdiction under the Rooker–Feldman doctrine, because review would

constitute an appeal of a state-administrative proceeding; third, that the Court should dismiss on

Younger abstention grounds, because the case involves important D.C. matters; and fourth, that

ONE DC lacks standing. See Defs.’ Mem. in Supp. of Mot. to Dismiss, at 9–10. In the

substantive realm, Defendants move to dismiss on the grounds that Plaintiffs impermissibly

cherry-pick the scope of both the protected class and alleged discriminatory action.

The Court will first address Defendants’ Motion to Dismiss, then move to Plaintiffs’

Motion for a Preliminary Injunction.

A. Defendant’s Motion to Dismiss

Defendants’ arguments concerning exhaustion, Younger abstention, and Plaintiffs’ data

interpretation are non-jurisdictional in nature and ask the Court to determine whether Plaintiffs’

complaint states a cognizable claim. See William Penn Apartments v. D.C. Court of Appeals, 39

F. Supp. 3d 11, 19 (D.D.C. 2014) (analyzing Younger abstention in the context of a 12(b)(6)

motion instead of a 12(b)(1) motion); Johnson v. District of Columbia, 368 F. Supp. 2d 30, 36

(D.D.C. 2005), aff’d, 552 F.3d 806 (D.C. Cir. 2008) (noting that “in cases where state courts

properly treat a state administrative exhaustion requirement as a matter of subject matter

jurisdiction . . . similar jurisdictional status for that state-law exhaustion requirement in federal

courts will not be theoretically justified”). To survive such a motion a complaint must contain

sufficient factual allegations that, if accepted as true, would state a plausible claim to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. Instead, plaintiffs must

“nudge[] their claims across the line from conceivable to plausible.” See Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). “In evaluating a Rule 12(b)(6) motion to dismiss, a court

may consider the facts alleged in the complaint, documents attached as exhibits or incorporated

by reference in the complaint, or documents upon which the plaintiff’s complaint necessarily

relies even if the document is produced not by the parties.” Busby v. Capital One, N.A., 932 F.

Supp. 2d 114, 133–34 (D.D.C. 2013) (internal citations and quotations omitted).

In contrast, Defendants’ Rooker–Feldman and standing arguments concern whether the

Court has subject-matter jurisdiction over the case at all. See Bradley v. DeWine, 55 F. Supp. 3d

31, 41 (D.D.C. 2014) (Rooker–Feldman doctrine); Cheeks v. Fort Myer Const. Co., 722 F. Supp.

2d 93, 108 (D.D.C. 2010) (standing). Federal courts are courts of limited jurisdiction, and the

law presumes that “a cause lies outside this limited jurisdiction.” Rasul v. Bush, 542 U.S. 466,

489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see

also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited

jurisdiction, we begin, and end, with an examination of our jurisdiction.”). Thus, it is the

plaintiff’s burden to establish that the Court has subject-matter jurisdiction. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992). When considering whether it has jurisdiction, a court must

accept “the allegations of the complaint as true.” Banneker Ventures, LLC v. Graham, 798 F.3d

1119, 1129 (D.C. Cir. 2015) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.

1992)).

The Court will analyze Defendants’ Motion to Dismiss using these standards, beginning

first with Defendants’ procedural arguments before moving to their argument that Plaintiffs do

not state a cognizable claim.

16

1. Exhaustion

Defendants argue that because Plaintiffs knew about the Zoning Commission proceedings

but did not choose to challenge the proposed redevelopment, both their FHA and DCHRA claims

are barred by the doctrines of exhaustion and preclusion. See Defs.’ Mem. in Supp. of Mot. to

Dismiss, at 18–19. The Court will address Defendants’ argument starting with an analysis of the

FHA before moving to the DCHRA.

Fair Housing Act

Although Defendants do not bifurcate their analysis of exhaustion, the Court will begin

with federal law. In support of their exhaustion argument, Defendants invoke Auger v. D.C.

Board of Appeals & Review, a District of Columbia Court of Appeals case, where the plaintiff

sought review “of his administrative appeal from the District of Columbia’s imminent

enforcement of an order revoking his permit for a neon sign atop his hotel” and a preliminary

injunction prohibiting authorities from removing the sign. See 477 A.2d 196, 199 (D.C. 1984).

In Auger, the plaintiff did not administratively appeal his case, despite notice and an opportunity

to do so. See id. at 206. As a result of the plaintiff’s failure to exhaust, the District of Columbia

courts did not have jurisdiction over the action. See id. at 207. Defendants further note that

parties alleging injury from a Zoning Commission order can appeal their case to the D.C. Court

of Appeals. See D.C. Library Renaissance Project/W. End Library Advisory Grp. v. D.C. Zoning

Comm’n, 73 A.3d 107, 119 (D.C. 2013); see also York Apartments Tenants Ass’n v. D.C. Zoning

Comm’n, 856 A.2d 1079, 1081 (D.C. 2004).

Under 42 U.S.C. § 3613(a)(1)(A), “[a]n aggrieved person may commence a civil action

in a[] . . . court . . . to obtain appropriate relief with respect to . . . [a] discriminatory housing

practice or breach.” Thus, a plaintiff filing under § 3613 “may proceed directly into federal

17

court, deferring neither to the Secretary of Housing and Urban Development nor to state

administrative and judicial processes.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 125

(1979). Congress “carefully chose[] language” allowing immediate judicial recourse to

individuals “directly victimized by a discriminatory housing practice.” Id. at 125–26. The fact

that Plaintiffs had District of Columbia administrative remedies available is irrelevant. As

Plaintiffs argue, to require individuals seeking relief from an imminent violation of their federal

rights to proceed through state-level administrative or judicial avenues would defeat the

purpose—as evinced from the “carefully chosen language” of the statute—of the remedy that

Congress provided. See id. at 125. The FHA “would be seriously undercut if Section 812

actions were conditioned upon prior exhaustion of state administrative remedies.” Huntington

Branch, N.A.A.C.P. v. Town of Huntington, N.Y., 689 F.2d 391, 393 n.3 (2d Cir. 1982)

(analyzing state-level administrative zoning remedies). Defendants cite cases analyzing the

processes governing appeals of unfavorable District of Columbia zoning restrictions generally—

but not in the context of the violation of federal rights. See Auger, 477 A.2d at 200 (appeal of

the denial of a permit to place a neon sign atop the plaintiff’s hotel); Capitol Hill Restoration

Soc. v. Zoning Comm’n, 287 A.2d 101, 102 (D.C. 1972) (appeal of a zoning application to build

an office building); C. Library Renaissance Project/W. End Library Advisory Grp., 73 A.3d at

111 (appealing “certain zoning requirements”); York Apartments Tenants Ass’n, 856 A.2d at

1081 (appealing an application to modify a PUD on procedural grounds). Because Plaintiffs

seek relief from alleged discrimination, Defendants’ cases are inapposite and Plaintiffs’ FHA

claims are not barred for failure to exhaust.

Throughout their argument on exhaustion, Defendants invoke concepts of claim

preclusion and issue preclusion, so the Court will address them separately. Defendants argue

18

that “Plaintiffs’ [indirect] challenge . . . to the Zoning Order is barred by jurisprudence on the

preclusive effect of state administrative agency orders on later-filed [f]ederal claims involving

matters decided in agency adjudicative proceedings.” See Defs.’ Mem. in Supp. of Mot. to

Dismiss, at 24. Defendants cite to Univ. of Tennessee v. Elliott, a case in which the Supreme

Court reasoned that it saw “no reason to suppose that Congress, in enacting the Reconstruction

civil rights statutes, wished to foreclose the adaptation of traditional principles of preclusion to

such subsequent developments as the burgeoning use of administrative adjudication in the 20th

century.” See 478 U.S. 788, 797 (1986). Even putting aside the technical requirements of claim

and issue preclusion, Elliott is not controlling here. Unlike in that case, where there was “no

reason to suppose that Congress” intended to foreclose preclusion, as noted above, Congress

“carefully chose[]” to allow plaintiffs to “proceed directly into federal court” to vindicate their

federal rights. Gladstone Realtors, 441 U.S. at 125–26. This shows that “Congress did not

intend for administrative determinations . . . whether issued by [federal] or certified state

agencies, to preclude aggrieved parties from seeking vindication of their rights through civil

actions.” United States v. E. River Hous. Corp., 90 F. Supp. 3d 118, 146 (S.D.N.Y. 2015).

Thus, “it would make little sense to give res judicata effect to a proceeding,” Miller v. Poretsky,

409 F. Supp. 837, 838 (D.D.C. 1976), whether federal or state, under the FHA. See id.; E. River

Hous. Corp., 90 F. Supp. 3d at 146. Accordingly, the Zoning Commission’s findings do not

have preclusive effect over Plaintiffs’ FHA claims.

But even if Congress did intend for state-level administrative proceedings to have

preclusive effect, the Court could not give such an effect here. Both claim and issue preclusion

require a ruling by “a court of competent jurisdiction.” See Smalls v. United States, 471 F.3d

186, 192 (D.C. Cir. 2006) (claim preclusion); Yamaha Corp. of Am. v. United States, 961 F.2d

19

245, 254 (D.C. Cir. 1992) (issue preclusion). The D.C. Zoning Commission has power to

“regulate the location, height, bulk, number of stories and size of buildings . . ., the percentage of

lot which may be occupied, the sizes of yards . . . and other open spaces, the density of

population, and the uses of buildings, structures, and land for trade, industry, residence,

recreation, public activities, or other purposes.”6 D.C. Code § 6-641.01. Although the

Commission does have the power to ensure that zoning regulations are consistent with the

District of Columbia’s “comprehensive plan,” see Tenley & Cleveland Park Emergency Comm.

v. D.C. Bd. of Zoning Adjustment, 550 A.2d 331, 332 (D.C. 1988), which, according to

Defendants, is “a broad framework intended to guide the future land use planning decisions for

the District of Columbia,” see Defs.’ Reply to Pls.’ Opp’n to Mot. to Dismiss, at 15, ECF No. 24,

the Zoning Commission has no power to implement the plan. Tenley & Cleveland Park

Emergency Comm., 550 A.2d at 341 n.22. Because DC’s “broad framework” is not comparable

to the Federal FHA and Defendants do not identify any power to independently review private

FHA violations,7 there is no indication that the District of Columbia Zoning Commission could

be considered a “competent” “court” for purposes of reviewing FHA claims.

6

Defendants contend that this is not the proper provision providing the Zoning

Commission with its powers. See Defs.’ Reply to Pls.’ Opp’n to Mot. to Dismiss, at 15, ECF

No. 24. They cite part (a) of D.C. Code § 6-621.01 for the proposition that the Zoning

Commission has general power “[t]o protect the public health, secure the public safety, and to

protect property.” See id. However, after this clause follows: “there is created a Zoning

Commission.” See D.C. Code § 6-621.01(a). Then, part (e), which grants the Commission its

power, provides that “[t]he Zoning Commission shall exercise all the powers . . . with respect to

zoning . . . as provided by law.” See D.C. Code § 6-621.01(e) (emphasis added). So, although

part (a) outlines broad purposes for creating a Zoning Commission, it does not by itself grant

power.

7

In their reply memorandum, Defendants assert that a footnote of a D.C. District Court

“not[ed] that the Zoning Commission may find that regulations governing community-based

residential facilities are violative of the FHA.” See Defs.’ Reply to Pls.’ Opp’n to Mot. to

Dismiss, at 15. In fact, this is not the case, at least using any meaningful definition of the word

“find.” That footnote quoted the Zoning Commission as simply stating that a regulation “could

20

D.C. Human Rights Act

Defendants also seek dismissal of the DCHRA count on exhaustion grounds. Similar to

the FHA, the DCHRA provides that “[a]ny person claiming to be aggrieved by an unlawful

discriminatory practice shall have a cause of action in any court of competent jurisdiction for

damages and such other remedies as may be appropriate, unless such person has filed a[n

administrative] complaint.” D.C. Code § 2-1403.16(a); see also Williams v. District of

Columbia, 467 A.2d 140, 141 (D.C. 1983) (noting that the DCHRA provides “direct resort to the

courts,” but holding that government employees must exhaust administrative remedies in some

cases). The plain language of the DCHRA commands the same finding as the language of the

FHA. Because the Court is one of “competent jurisdiction” and Plaintiffs claim to be “aggrieved

by an unlawful discriminatory practice” under the DCHRA, Plaintiffs did not need to exhaust

any District of Columbia administrative remedies. Given the arguably stronger language in the

D.C. statute (“[a]ny person . . . shall have a cause of action”), this reasoning applies equally to

issues of preclusion here. Moreover, there is no indication that the District of Columbia Zoning

Commission is a competent “court” to review such a claim. The Court will not give preclusive

effects to any findings by the Zoning Commission.

2. The Rooker–Feldman Doctrine

The Court next considers Defendants’ argument that the Court lacks subject-matter

jurisdiction to consider this matter under the Rooker–Feldman doctrine. Defendants argue that

review of this case would functionally constitute an appeal of a state-level judgment. “The

Rooker–Feldman doctrine . . . is confined to . . . cases brought by state-court losers complaining

be subject to challenge under the provisions of the Fair Housing Amendments Act,” not ruling on

it substantively. See Cmty. Hous. Tr. v. Dep’t of Consumer & Regulatory Affairs, 257 F. Supp.

2d 208, 223 n.18 (D.D.C. 2003).

21

of injuries caused by state-court judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of those judgments.” Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The doctrine is rooted in the

Supreme Court’s appellate jurisdiction over state-court judgments granted by Congress. See 28

U.S.C. § 1257. In D.C. Court of Appeals v. Feldman, the Supreme Court “held that this grant of

jurisdiction is exclusive.” Lance v. Dennis, 546 U.S. 459, 463 (2006); see also D.C. Court of

Appeals v. Feldman, 460 U.S. 462, 482 (1983). The doctrine is named after Feldman and the

only other case where the Supreme Court has “applied this rule to find that a Federal District

Court lacked jurisdiction,” Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). See Lance, 546

U.S. at 463. In Rooker, the plaintiff sought Supreme Court review of an Indiana Supreme Court

decision. Id. When the Supreme Court declined review, the plaintiff filed an action in a federal

district court. Id. The Supreme Court “viewed the action as tantamount to an appeal of the

Indiana Supreme Court decision, over which only [the Supreme] Court had jurisdiction, and said

that the ‘aggrieved litigant cannot be permitted to do indirectly what he no longer can do

directly.’” Id. (quoting Rooker, 263 U.S. at 416). Sixty years later in Feldman, the Court

applied the same reasoning to a District of Columbia Court of Appeals decision refusing

admission to a bar applicant. Id. The Supreme Court emphasized the difference between a

judicial decision and an administrative one, holding that “to the extent plaintiffs challenged the

Court of Appeals decisions themselves—as opposed to the bar admission rules promulgated

nonjudicially by the Court of Appeals—their sole avenue of review was with this Court.” Id.

“Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the jurisdiction

22

of lower federal courts, and [Supreme Court] cases since Feldman have tended to emphasize the

narrowness of the Rooker–Feldman rule.”8 Id. at 464.

As Defendants candidly point out, see Defs.’ Mem. in Supp. of Mot. to Dismiss, at 25,

the Supreme Court has held that “[t]he doctrine has no application to judicial review of executive

action, including determinations made by a state administrative agency.” Verizon Maryland, Inc.

v. Pub. Serv. Comm’n, 535 U.S. 635, 644 n.3 (2002). Defendants attempt to distinguish Verizon

Maryland by arguing that “not all federal courts have confined the scope of that remark to the

specific factual scenario addressed in that decision,” citing an unpublished Central District of

California case, Reiner v. California Dep’t of Indus. Relations. See Defs.’ Mem. in Supp. of

Mot. to Dismiss, at 25. (citing No. 12-8649, 2012 WL 7145706, (C.D. Cal. Dec. 18, 2012),

report and recommendation adopted, 2013 WL 571797 (C.D. Cal. Feb. 10, 2013), aff’d sub nom.

Reiner v. California, 612 F. App’x 473 (9th Cir. 2015)). In Reiner, the plaintiff sought review of

determinations made in a state-level workers’ compensation appeal board and “state tribunals.”

See 2012 WL 7145706, at *2. In finding that the Rooker–Feldman doctrine applied, the

Magistrate Judge emphasized that the case was based primarily on state law, not federal law as in

Verizon Maryland, and that the party in Reiner had actually filed a state-level claim previously,

unlike in Verizon Maryland. See id. at *3.

Given that the Rooker–Feldman doctrine is “narrow and focused,” Thana v. Board of

License Comm’rs, 827 F.3d 314, 319 (4th Cir. 2016), the Court is not inclined to go against the

black-letter of Verizon Maryland that “[t]he doctrine has no application to judicial review of

8

Courts and scholars alike emphasize that the Supreme Court has trended toward

narrowing the doctrine since Feldman, particularly in Lance. See, e.g., Thana v. Board of License

Comm’rs, 827 F.3d 314, 319–20 (4th Cir. 2016) (calling the doctrine “narrow and focused”);

Samuel Bray, Rooker Feldman (1923–2006), 9 Green Bag 2d 317 (2006) (mock obituary of the

doctrine).

23

executive action, including determinations made by a state administrative agency.” 535 U.S. at

644 n.3. But even if it were, this is not a case of “primarily . . . state law,” Reiner, 2012 WL

7145706, at *3, and, as noted above, the Zoning Commission could not have substantively heard

these types of discrimination claims. This is a case of primarily federal law with the actions of a

state administrative agency looming in the background; in no way is the current action an appeal

of the Zoning Commission’s order. Accordingly, Rooker–Feldman is inapplicable.

3. Younger Abstention

Defendants invoke the related doctrine of Younger abstention in support of their Motion

to Dismiss. “In Younger v. Harris and its progeny, the Supreme Court held that, except in

extraordinary circumstances, a federal court should not enjoin a pending state proceeding

(including an administrative proceeding) that is judicial in nature and involves important state

interests.” JMM Corp. v. District of Columbia, 378 F.3d 1117, 1120 (D.C. Cir. 2004). The

doctrine stems from the equitable principle that “courts . . . should not act, and particularly

should not act to restrain a criminal prosecution, when the moving party has an adequate remedy

at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401

U.S. 37, 43–44 (1971). At its core, Younger abstention stems from concerns of comity and

federalism and prevents federal courts from enjoining ongoing criminal prosecutions. See id.;

see also Samuels v. Mackell, 401 U.S. 66, 73 (1971). Moving beyond the core of the doctrine,

federal courts also abstain in quasi-criminal contexts. Huffman v. Pursue, Ltd., 420 U.S. 592,

604 (1975) (abstaining in a civil context because “the proceeding is both in aid of and closely

related to criminal statutes which prohibit the dissemination of obscene materials”). The

periphery of the doctrine may encompass proceedings not in courts, but that are judicial in nature

and concern important state interests. See New Orleans Pub. Serv., Inc. v. Council of City of

24

New Orleans, 491 U.S. 350, 364–73 (1989). The doctrine has even been applied to suits

between two non-state parties where the underlying dispute concerned important state interests.

See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17 (1987). In a case between private parties,

federal courts must abstain when (1) the relief sought would enjoin an ongoing state proceeding,

(2) the state proceeding is judicial in nature, (3) “the state proceedings implicate important state

interests,” and (4) “the proceedings afford an adequate opportunity to raise the federal claims.”

See William Penn Apartments, 39 F. Supp. at 19 (internal citations and quotations omitted).

The Court need not address all four requirements, because Defendants’ argument fails to

establish that the Zoning Commission proceedings “afford an adequate opportunity to raise the

federal claims.” Defendants argue that a D.C. Federal District Court has said that “[t]he Board

of Zoning Adjustment ha[s] authority to consider reasonable accommodation request[s],”

implying that the board could consider such requests under the FHA. See Defs.’ Mem. in Supp.

of Mot. to Dismiss, at 29. In fact, that court suggested the opposite—although acknowledging

that the Board of Zoning Adjustment has the power to make a reasonable accommodation sua

sponte under the “functional equivalent” of the FHA under D.C. regulations, the court explicitly

stated that “the [DC Department of Consumer and Regulatory Affairs] is the body to whom a

request for reasonable accommodation is properly lodged in the first instance.” See United

States v. District of Columbia, 538 F. Supp. 2d 211, 218 (D.D.C. 2008). The court cited 14

D.C.M.R. § 111, which is entitled “Procedures Regarding Requests for Reasonable

Accommodation Under the Fair Housing Act.” That regulation provides that “[a]ll requests for

reasonable accommodation under the Fair Housing Act shall be submitted to the Director,

Department of Consumer and Regulatory Affairs . . . or such office as the District may assign or

delegate.” 14 D.C.M.R. § 111.3. Similarly, here, as noted above in the Court’s discussion of

25

issue and claim preclusion, the Zoning Commission is not a body empowered to hear FHA

claims. Thus, the Court will not abstain from addressing the merits of Plaintiffs’ federal claims.

4. ONE DC Standing

The Court next addresses Defendants’ argument that ONE DC—the community

organization with some members who are residents of Brookland Manor with minor children, see

Compl. ¶¶ 108–09—lacks standing to bring this matter. Defendants specifically argue that ONE

DC lacks a sufficiently concrete injury-in-fact. See Defs.’ Mem. in Supp. of Mot. to Dismiss, at

31–35. “The Supreme Court has held that standing to bring an FHA claim is coextensive with

constitutional standing.” Nat’l Fair Hous. All., Inc. v. Prudential Ins. Co. of Am., 208 F. Supp.

2d 46, 52 (D.D.C. 2002); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982).

ONE DC “bears the burden of establishing” its standing. See Lujan, 504 U.S. at 561. “An

organization can have standing on its own behalf . . . or on behalf of its members.” Abigail All.

for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006)

(internal citations omitted). Standing based on an organization’s own injury—“organizational

standing”—requires an organization, “like an individual plaintiff, to show actual or threatened

injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a

favorable court decision.” Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1138 (D.C.

Cir. 2011) (internal quotations omitted). For an organization to sue on behalf of its members

through “associational standing,” it must show that (1) “its members would otherwise have

standing to sue in their own right,” (2) “the interests it seeks to protect are germane to the

organization’s purpose,” and (3) “neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” United Food & Commercial Workers Union

26

Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple

Advert. Comm’n, 432 U.S. 333, 343 (1977).

Plaintiffs assert that ONE DC has both organizational and associational standing.

Because the Court finds that ONE DC has organizational standing, it need not address the

associational standing issue. As noted above, organizational standing requires a concrete injury,

not “a mere setback to [the organization’s] abstract social interests.” See Equal Rights Ctr., 633

F.3d at 1138 (internal citations and quotations omitted). “An organization’s expenditure of

resources on a lawsuit does not constitute an injury in fact sufficient to establish standing.” Id.

However, it is “clear . . . that if the defendant’s allegedly wrongful action prompts an

organization to ‘increase[] the resources [it] must devote to programs independent of its suit’ . . .

, the organization has shown an injury in fact.” Id. (alterations in original) (quoting Spann v.

Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). There is “an important limitation” on this

principle: if an injury is “self-inflicted as a result of the organization’s own budgetary choices,”

the party cannot claim an injury-in-fact as a result of the defendant’s behavior. Id. at 1139

(internal quotations omitted). This “does not automatically mean that [a party diverting

resources] cannot suffer an injury sufficient to confer standing.” Id. at 1140. The crucial test for

determining whether an injury is self-inflicted is whether the party “undertook the expenditures

in response to, and to counteract, the effects of the defendants’ alleged discrimination rather than

in anticipation of litigation.” Id. In the housing context, using resources for a program to

counteract a defendant’s discriminatory advertisement constitutes an adequate injury-in-fact,

because it is used for the practical purpose of responding to allegedly illegal activity, not to

prepare for litigation. See id. (citing Spann, 899 F.2d at 27–29). In Spann v. Colonial Village,

Inc., the plaintiff-organizations established standing when they alleged that the defendants’

27

“preferential advertising tended to steer black home buyers and renters away from the advertised

complexes,” requiring the plaintiffs to “devote more time, effort, and money to endeavors

designed to educate not only home buyers and renters, but the DC area real estate industry.” 899

F.2d at 27. So, if Defendants’ alleged actions frustrated ONE DC’s mission and ONE DC used

resources to counteract that harm, it has standing to maintain the action. See Equal Rights Ctr.,

633 F.3d at 1140.

Based on the facts alleged in the Complaint, ONE DC has standing to maintain this

action. 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.” Compl. ¶ 108. The alleged discrimination

plainly frustrates ONE DC’s mission. Plaintiffs allege that ONE DC has had to divert its scarce

resources away from its central mission to “crisis organizing” in the form of investigation,

counseling, organizing, canvassing, and other Brookland-specific programming. See id. ¶¶ 113–

121. In all, Plaintiffs allege that, as of July 28, 2016, ONE DC has “diverted approximately 640

hours of its staff members’ time to identify and combat Defendants’ discriminatory conduct

through outreach, organizing, advocacy, and tenant counseling efforts.” Id. ¶ 121. This places

ONE DC’s case squarely within the holdings in Equal Rights Center and Spann. ONE DC did

not spend 640 hours concocting an injury in anticipation of litigation, but instead did so for the

practical purpose of combating alleged discrimination in the community. Defendants’ alleged

discrimination forced ONE DC to address an exigency in the community at the expense of its

broader social goals. Accordingly, ONE DC has sufficiently alleged organizational standing to

withstand Defendants’ Motion to Dismiss.

28

5. Failure to State Disparate Impact Claims

Defendants move to dismiss for failure to state a claim with respect to Plaintiffs’

disparate impact claims under the FHA and DCHRA. Defendants argue that Plaintiff

erroneously assumes that “large families” are a protected group under the FHA, instead of the

broader protected class of “families.” Defendants further argue that without an FHA claim,

Plaintiff cannot invoke supplemental jurisdiction to maintain its DCHRA claim. The Court will

address these arguments in turn.

Fair Housing Act

Defendants move to dismiss Plaintiffs’ FHA disparate impact claim for failure to state a

claim on the basis that Plaintiffs’ statistical analysis cherry-picks “large families” from the

broader “familial status,” and in so doing fails to analyze the effect that the entire redevelopment

plan would have on all families that reside or will reside in the new community. See Defs.’

Mem. in Supp. of Mot. to Dismiss, at 11–12.

The Federal FHA prohibits “mak[ing] unavailable . . . a dwelling to any person because

of . . . familial status.” See 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. 42 U.S.C. 3602(k). It is

important to note that the FHA is generally a repository of negative rights—it does not

affirmatively provide special privileges to parents living with minor children, but rather protects

them from discriminatory acts. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive

Communities Project, Inc., 135 S. Ct. 2507, 2522 (2015) (“The FHA is not an instrument to force

housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities

can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.”).

29

For example, the FHA does not entitle families to occupy units in excess of nondiscriminatory,

reasonable occupancy requirements that apply to the population in general. Fair Hous.

Advocates Ass’n, Inc. v. City of Richmond Heights, Ohio, 209 F.3d 626, 636 (6th Cir. 2000); see

also City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 733 (1995) (contrasting

impermissible policies that target families with permissible policies that “apply uniformly to all

residents of all dwelling units”). It is also important to emphasize that the FHA only protects

minor children domiciled with parents (or other such persons in a guardian role, as provided by

the statute). As Plaintiffs concede, see Pls.’ Br. in Opp’n to Defs.’ Mot. to Dismiss, at 8 n.4,

ECF No. 21, the sub-class of “large families” is not a protected class under the FHA. Debolt v.

Espy, 832 F. Supp. 209, 215 (S.D. Ohio 1993), aff’d, 47 F.3d 777 (6th Cir. 1995) (“The Court

notes that as opposed to families in general, ‘large families’ are not a specifically protected class

under Title VIII.”); see also Fair Hous. Advocates Ass’n, Inc., 209 F.3d at 638 (concluding that

“families of four, as opposed to families of three, are not protected classes”).

“[D]isparate-impact claims are cognizable under the Fair Housing Act . . . .” Texas Dep’t

of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2518, 2525

(2015). “To prevail on a disparate impact claim, a plaintiff must offer sufficient evidence to

support a finding that the challenged policy actually disproportionately affected a protected

class.” 2922 Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d 673, 681 (D.C. Cir.

2006). The Secretary of Housing and Urban Development has “[t]he authority and responsibility

for administering” the FHA. 42 U.S.C. § 3608(a); see also Mhany Mgmt., Inc. v. County of

Nassau, 819 F.3d 581, 618 (2d Cir. 2016). Part of that authority is the power to promulgate rules

“to carry out” the FHA. See 42 U.S.C. § 3614a; see also Mhany Mgmt., Inc., 819 F.3d at 618.

Accordingly, in line with the Second Circuit in Mhany Management, the Court “must defer to

30

[HUD]’s reasonable interpretation” of the FHA with respect to its rules on disparate impact. See

819 F.3d at 618 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837

(1984)); accord Boykin v. Fenty, 650 F. App’x 42, 44 (D.C. Cir. 2016). HUD has adopted a

burden-shifting framework for evaluating disparate impact claims. See 24 C.F.R. § 100.500(c).

First, the plaintiff has “the burden of proving that a challenged practice caused or predictably

will cause a discriminatory effect.” 24 C.F.R. § 100.500(c)(1). Once the plaintiff makes such a

showing, the “defendant has the burden of proving that the challenged practice is necessary to

achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or

defendant.” 24 C.F.R. § 100.500(c)(2). If the defendant is able to do so, the “plaintiff may still

prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the

challenged practice could be served by another practice that has a less discriminatory effect.” 24

C.F.R. § 100.500(c)(3).

To make an initial showing of disparate impact at “step one,” courts often rely on

statistical analyses. See, e.g., R.I. Comm’n for Human Rights v. Graul, 120 F. Supp. 3d 110,

124–25 (D.R.I. 2015); Gashi v. Grubb & Ellis Prop. Mgmt. Servs., Inc., 801 F. Supp. 2d 12, 16–

17 (D. Conn. 2011). Such an analysis requires a plaintiff to “compar[e] those affected by the

policy with those unaffected by the policy.” See Gashi, 801 F. Supp. 2d at 16 (citing

Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 575–76 (2d Cir.2003)); accord Graul, 120

F. Supp. 3d at 124 (internal citation and quotations omitted). In the “context . . . [of] housing

discrimination, a wide enough contrast between the way a policy burdens members of a

protected group as opposed to non-members is cognizable as a disparate impact.” Graul, 120 F.

Supp. 3d at 125. In Gashi, the court found a 30.76% effect on households with children and a

9.88% effect on households without children sufficient to constitute a disparate impact. See 801

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F. Supp. 2d at 16–17. In Graul, the court found a threefold difference sufficient. See 120 F.

Supp. 3d at 126.

Defendants move to dismiss on the grounds that Plaintiffs have not made a showing at

step one of HUD’s framework, because, according to Defendants, Plaintiffs’ statistical analysis

inappropriately focuses on a particular subset of the protected class—large families—and a

particular aspect of the redevelopment—the elimination of larger-occupancy apartments. See

Defs.’ Mem. in Supp. of Mot. to Dismiss, at 11–18. The Court will address these two

contentions in turn.

i. “Familial Status” vs. “Large Families”

Defendants’ first qualm with Plaintiffs’ reasoning is that it relies on discrimination

against large families rather than families as a protected group. See Defs.’ Mem. in Supp. of

Mot. to Dismiss, at 9. As noted above, the FHA protects all families, as defined by statute,

regardless of size. Courts have consistently assumed that “‘[f]amilial status’ refers to the

presence of minor children in the household.” See Gilligan v. Jamco Dev. Corp., 108 F.3d 246,

247 (9th Cir. 1997); see also Graul, 120 F. Supp. 3d at 125–26 (favorably citing methodology

comparing “households with children” and “households with no children”); United States v.

Branella, 972 F. Supp. 294, 298 (D.N.J. 1997) (“Specifically, the FHAA provides that it is

unlawful to make a dwelling unavailable to any prospective buyer or renter because of the

presence of minor children in the prospective household.”). So, although there is no special

treatment for “large families” under the FHA, they are still protected under the umbrella of

“families” if minors are in the household.

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Although Plaintiffs do repeatedly refer to “large families” in their Complaint, their

statistical analysis specifically concerns “those who have one or more minor children living in

the household.” See Compl. ¶¶ 72, 37. Similarly, Plaintiffs define their proposed class as “[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.” See id. ¶ 122. Plaintiffs’ statistical analysis includes

apartments of all sizes, comparing those with minor children to those without them. See id. ¶ 75.

Using that metric, Plaintiffs arrive at the conclusion that the proposed redevelopment would

adversely affect 59% of families overall, compared to 15% of nonfamilies. See id. ¶ 77. It does

not matter that many of the protected individuals are part of “large families” for the purpose of

the Complaint, so long as the unprotected group and protected group are correctly defined.

Because the Complaint shows that Plaintiffs do correctly define these groups, Plaintiffs did not

“cherry-pick” protected families from the larger protected class.

ii. The Elimination of Large Apartments vs. the Project as a Whole

Defendants also argue that Plaintiffs fail to take into account “all families that reside or

will reside in the revitalized community,” citing Boykin v. Gray. See Defs.’ Mem. in Supp. of

Mot. to Dismiss, at 11 (second emphasis added). In Boykin, a group of homeless men claimed

that the District of Columbia’s closure of a particular homeless shelter violated the FHA, because

a disproportionate amount of the D.C. homeless population is black and Hispanic. See 986 F.

Supp. 2d 14, 16 (D.D.C. 2013). The closure of the homeless shelter was part of a “broader shift

in the District’s policy toward its homeless citizens” that had a net-positive impact on the

minority population in the District. Id. at 21. Applying a disparate-impact standard, that court

found that “[t]he fundamental defect in the plaintiffs’ argument is that the adverse impact of

which they complain was suffered not by the entire homeless population in the District of

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Columbia, nor even by a significant portion of its more than 6,000 members.” See id. at 20.

Closing the specific shelter affected 90 people, but the overall number of beds available to

homeless persons rose as a result of the District’s program. See id. at 20–21. By referring to “its

homeless citizens,” “the entire homeless population in the District of Columbia,” and “its 6,000

members,” the above excerpts show that the court was interested in the District of Columbia’s

overall universe of homeless persons.

In the context of a private landlord, courts are similarly concerned with the private

party’s universe of tenants. In Betsey v. Turtle Creek Associates, the tenants of a particular

building contended that a policy would have a disparate racial impact on them as individuals.

736 F.2d 983, 985–87 (4th Cir. 1984). Because the plaintiffs did not show a “continuing

disproportionate impact,” a sufficient racial impact of the entire complex, or any impact on the

local community, the district court dismissed the claim. See id. at 986–87. Reversing, the

Fourth Circuit held that “members of a discrete minority[] are required to prove only that a given

policy had a discriminatory impact on them as individuals.” Id. at 987. That court found

“consideration of the rest of the local community, the rest of [the residential community], or even

prospective applicants for space in [the building] irrelevant.” See id. (internal quotations

omitted). “The correct inquiry is whether the policy in question had a disproportionate impact on

the minorities in the total group to which the policy was applied.” Id.

Here, it does not matter that the redevelopment might open up space for families in the

local community to occupy smaller apartments at the redeveloped project. Defendants’ universe

of persons are the existing tenants at Brookland Manor. If the current families of Brookland

Manor are disparately impacted by the redevelopment, it is irrelevant that some protected

persons in the local community might end up filling their shoes in units that could not support

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them. Plaintiffs do analyze the effect that the entire project will have on all existing tenants of

Brookland Manor. See Compl. ¶¶ 75–79. Given that Plaintiffs adequately allege that the

proposed redevelopment project will affect Brookland Manor families over three times as much

as it will nonfamilies, they state a claim.

D.C. Human Rights Act

Defendants’ only contention specific to the DCHRA is that “elimination of [Plaintiffs’]

federal claims would dictate dismissal of the rest of their claims as failing the test for

supplemental jurisdiction.” See Defs.’ Mem. in Supp. of Mot. to Dismiss, at 18 n.7. Even if

true, the Court simply notes that, as set forth above, it is not dismissing the federal-question

claims under the federal FHA, so supplemental jurisdiction remains.

B. Plaintiffs’ Motion for a Preliminary Injunction

Plaintiffs move for a preliminary injunction to prevent Defendants from proceeding with

their redevelopment plan.9 “To warrant preliminary injunctive relief, the moving party must

show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable

injury if the injunction were not granted, (3) that an injunction would not substantially injure

other interested parties, and (4) that the public interest would be furthered by the injunction.”

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). There

must be a showing of likely irreparable harm for a preliminary injunction to issue. Id.; see also

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (“Our frequently reiterated standard

requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the

absence of an injunction.”). The D.C. Circuit “has set a high standard for irreparable injury,”

9

See supra note 4 and accompanying text.

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requiring that the injury “be both certain and great,” and “actual and not theoretical.”

Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (internal citations and quotations omitted).

“The moving party must show ‘[t]he injury complained of is of such imminence that there is a

“clear and present” need for equitable relief to prevent irreparable harm.’” Id. (alteration in

original) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). To

meet the standard, “the harm must be so imminent as to be irreparable if a court waits until the

end of trial to resolve the harm.” Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 235

(2d Cir. 1999). The moving party must also show that the threatened injury is “beyond

remediation” with other forms of relief. See Chaplaincy of Full Gospel Churches, 454 F.3d at

297.

Plaintiffs argue that the threatened injuries are imminent, because when Defendants

receive Stage Two approval, they will be free to commence destruction of Plaintiffs’ homes. See

Pls.’ Mem. in Supp. of Mot. for Prelim. Inj., at 26. Specifically, they argue that “D.C. Municipal

Regulations make clear that second-stage approval is the final step before a redeveloper may

commence demolition.” See id. They further argue that Defendants have already required

families who reside in large units to “relocate, break up, and downsize.” See id. In support of

their assertion, Plaintiffs cite to several declarations of tenants who claim to know others at

Brookland Manor who have been forced to move. See id. at 27; McFadden Decl. ¶ 6; Jenkins

Decl. ¶ 6; Scott Decl. ¶ 6. However, they do not cite to any first-hand account of a family who

has been forced to relocate off the property, nor any family who has been told they will need to

relocate but will be unable to do so on the property.10

10

Plaintiffs’ argument that a recent submission to the Zoning Commission shows that the

first block to be demolished contains almost all three- and four-bedroom apartments is

unavailing. See Pls.’ Reply Mem. in Supp. of Mot. for a Prelim. Inj., at 13, ECF No. 20. If, as

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Defendants argue that any displacement would not occur until years in the future. See

Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj., at 6. Michael Meers, Vice President of Defendant

Mid-City Financial Corporation, has stated that demolition will not commence until late 2017, at

the earliest, because of the length of time it takes to receive Stage Two approval and then obtain

the requisite permits to begin the project. See Meers Aff. ¶ 17. Moreover, because the existing

buildings are collateral on a HUD loan until August 1, 2017, it is “highly unlikely” that

Defendants could begin demolition any earlier.11 See id. ¶ 21. Even then, the project will be

limited to “Phase One,” meaning that only three of the 19 buildings will be demolished. See id.

¶ 17. Later phases will not begin until 2019, and neither individual Plaintiff will need to vacate

until 2020, at the earliest. See id. ¶¶ 17–19. When the buildings are demolished during Phase

One, Michael Meers asserts that all residents in those buildings will be “relocated at owner

expense to an appropriate apartment home on the property.” See id. ¶ 17 (emphasis added). Mr.

Meers further declares that, although some tenants have been moved, none have been unable to

relocate at Brookland Manor. See id. Citing to HUD guidelines and the D.C. Office of

Planning’s finding that the D.C. Zoning Commission cited favorably, Defendants’ own numbers

they argue, Defendants have already relocated “the overwhelming majority of [that block’s]

residents,” id. at 12 they should be even more capable of providing the Court with something in

the record to show that a family has been relocated and unable to move into another apartment

on the property. If anything, this supports Defendants’ argument that all families who will be

relocated from Block 7 will be able to relocate on the property. But even more to the point, the

submission that Plaintiffs reference refers specifically to Block 7. See Pls.’ Reply Mem. in Supp.

of Mot. for Prelim. Inj. Ex. 3, at 1, ECF No. 20-3. The D.C. Zoning Commission knew that

Block 7 was going to be demolished during Phase One, yet still credited a report that the larger

units would not be phased out until the later stages of redevelopment. See Mid-City Fin. Corp.,

Z.C. Case 14-18, at 38, 50.

11

For the same reasons noted in note 10, Plaintiffs’ arguments about relocation occurring

well in advance of demolition are unavailing. See Pls.’ Reply Mem. in Supp. of Mot. for a

Prelim. Inj., at 13. Although it is obviously true that relocation must occur before demolition,

this fact, if anything, shows that Defendants are capable of relocating tenants to other locations

on the property.

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show that only 13 Brookland Manor households would currently require a four-bedroom

apartment, and none would require a five-bedroom apartment.12 See Mid-City Fin. Corp., Z.C.

Case 14-18, at 38. The same finding from the D.C. Office of Planning noted that “[t]he building

with the larger units would remain on the site until the later phases at which time they can be

‘right sized’ to accommodate the larger families.” Id.

Plaintiffs have failed to demonstrate that any families—let alone a disproportionate

number of them—are facing the imminent threat of being forced to relocate until well after the

case can be fully adjudicated. Plaintiffs do not, for example, point to a particular family that

lives in the block of houses scheduled to be demolished during Phase One that would be unable

to move into an apartment elsewhere at Brookland Manor. Although Plaintiffs cite to certain

second-hand sources alluding to the idea of relocation, see, e.g., Jenkins Decl., Defendants cite to

specific attributes of the redevelopment project showing otherwise. The Vice President of Mid-

City has stated that it is “highly unlikely” that Phase One could begin until August, 2017, and

that it would be much more likely to begin later in 2017. And, assuring the Court that the harm

is not imminent even further into the future, he states that no resident will be forced to move

away from Brookland Manor during Stage One, leaving the Plaintiffs with no ground to stand on

until Stage Two, which is at least three years away. This makes sense in the context of

Defendants’ contention that many families are in apartments that are too large, that the building

with larger units will remain until later phases of redevelopment, and that vacancies currently

exist that can be used to house displaced households from Block 7.13 The situations of individual

12

Plaintiffs are correct that D.C. occupancy law may make this number higher in certain

cases. However, they do not tell the Court how frequently this is the case, or otherwise carry

their burden of showing the extent of the issues in light of Defendants’ evidence.

13

It is worth noting that although Plaintiffs’ methodology is plausible for HUD’s “step

one” showing of disparate impact at the motion-to-dismiss stage, it comes up short in showing

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Plaintiffs give the Court further assurance: there are no plans that would require Ms. Borum to

relocate until 2020 at the earliest or Ms. Holloman until 2023. Even if the proposed class were

certified here, vague stories and misgivings from tenants are insufficient for Plaintiffs to shoulder

their burden of showing that an irreparable injury will likely occur if the Court waits to

adjudicate the dispute on the merits. Although it is certainly possible that Defendants’ plans

could change by moving the process up considerably, Plaintiffs have not met the “high standard”

of showing that they imminently face their alleged injuries. The chance that the timeline moves

up, disparate impact will occur at Phase One, or Plaintiffs will otherwise suffer injury does not

rise to the level of a “clear and present threat” necessary for a showing of irreparable injury.

Because some showing of imminent irreparable injury is required for the issuance of a

preliminary injunction, the Court must deny Plaintiffs’ motion.

If Plaintiffs do obtain evidence showing that imminent injury is likely to occur, the

Motion can be renewed and will be reconsidered in light of such new evidence. And, because

Defendants applied for Stage Two PUD approval ahead of schedule and stop short of

guaranteeing that they will follow the timeline set forth in their declarations, the Court will

impose on Defendants a requirement to report to the Court and Plaintiffs any changes in schedule

that “families”—as defined by the FHA—will necessarily be forced to relocate away from the

property at a disproportionate rate during the later stages of redevelopment. As noted above and

shown by a plain reading of the statutory text, the FHA protects only minor children living with

parents (or similar guardians). See 42 U.S.C. § 3602(k). The definition of “family” does not, for

example, “encompass groups of more than one family.” Doe v. City of Butler, 892 F.2d 315, 326

(3d Cir. 1989) (Roth, J., dissenting). Thus, a group of people cannot talismanically receive

protection under the FHA just because one of them happens to be a parent domiciled with a

minor child. Although the Court need not reach the issue given the lack of imminent irreparable

injury, in light of the fact that all tenants will eventually have to relocate to different units on the

property, see Mid-City Fin. Corp., Z.C. Case 14-18, at 2 (noting that all the existing buildings

will be replaced), the Court queries whether breaking up groups of people—including extended

families—into separate apartments will necessarily disparately impact “families.”

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that might make displacement of tenants at Brookland Manor more imminent than it was when

they made their declarations in opposition to Plaintiffs’ Motion for a Preliminary Injunction.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiffs’

Motion for a Preliminary Injunction is DENIED. An order consistent with this Memorandum

Opinion is separately and contemporaneously issued.

Dated: November 21, 2016 RUDOLPH CONTRERAS

United States District Judge

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