Barry Farm Tenants v. D.C. Hous. Auth.

• Decision Date: 30 April 2018
• Docket Number: Civil Action No. 17–1762 (EGS)
• Citation: 311 F.Supp.3d 57
• Parties: BARRY FARM TENANTS and Allies Association, Inc., et. al., Plaintiffs, v. DISTRICT OF COLUMBIA HOUSING AUTHORITY, et.al., Defendants.
• Court: U.S. District Court — District of Columbia

311 F.Supp.3d 57

BARRY FARM TENANTS and Allies Association, Inc., et. al., Plaintiffs,

v.DISTRICT OF COLUMBIA HOUSING AUTHORITY, et.al., Defendants.

Civil Action No. 17–1762 (EGS)

United States District Court, District of Columbia.

Signed April 30, 2018

Catherine Cone, Matthew K. Handley, & Urban Affairs, Brian J. Kapatkin, Joseph D. Edmondson, Jr., Foley & Lardner, LLP, Washington, DC, for Plaintiffs.

Michael William Skojec, Ballard Spahr LLP, Baltimore, MD, Theodore R. Flo, Ballard Spahr LLP, Paul J. Kiernan, Lynn Estes Calkins, Paul J. Kiernan, Holland & Knight LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

I. Introduction

Barry Farm is a historic public housing property located east of the Anacostia River in Southeast District of Columbia ("D.C."). The property was purchased in 1867 and developed as one of the first communities for African–American homeowners after the Civil War. In 2006, the D.C. Council approved a redevelopment plan to transform Barry Farm from a public housing property into a mixed-income, mixed-use community. Pursuant to the redevelopment plan, the existing 444 Barry Farm units will be demolished and over 1,000 mixed-use, mixed-income units will be built in their place. The D.C. Housing Authority ("DCHA") hired private developers Preservation of Affordable Housing ("POAH") and A & R Development ("A & R") to implement the approved plan (collectively, "defendants").

Plaintiffs are individuals who will be displaced and organizations that will be affected by the redevelopment plan. The plaintiffs' four-count complaint alleges that the defendants' redevelopment plan discriminates against Barry Farm tenants based on their familial status in violation of: (1) the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq. ; and (2) the D.C. Human Rights Act ("DCHRA"), D.C. Code §§ 2–1402.21(a)(1), 2–1402.68. Plaintiffs also allege that DCHA: (3) failed to maintain the Barry Farm property in violation of the United States Housing Act ("USHA"), 42 U.S.C. § 1437p ; and (4) discriminated against Barry Farm tenants based on their place of residence in violation of the DCHRA, D.C. Code §§ 2–1402.21(a)(4). All four counts are alleged against DCHA; the first and second counts are also alleged against POAH and A & R.

Pending before the Court are: (1) DCHA's motion to dismiss the four claims against it, see ECF No. 18;¹ and (2) A & R's and POAH's motion to dismiss the two claims against them, see ECF No. 13. After careful consideration of the motions, the consolidated response, the replies thereto, the oral argument at the January 9, 2018 motions hearing, and the applicable law, the defendants' motions to dismiss are GRANTED .²

II. Background

A. The Parties

Associational plaintiffs are: (1) the Barry Farm Tenants and Allies Association, Inc. ("BFTAA"), a non-profit corporation created by Barry Farm residents to address issues related to the Barry Farm redevelopment; and (2) Empower DC, a non-profit corporation that seeks to improve the lives of low- and moderate-income D.C. residents. Compl., ECF No. 1 ¶¶ 13, 14.

Individual plaintiffs are Ismael Vasquez,³ Jacqueline Thrash, and Brenda Lucas, current and former Barry Farm residents who bring the complaint individually and on behalf of two proposed classes of similarly-situated persons. Id. ¶¶ 15–20. The first proposed class consists of Barry Farm families with children, who allege that the redevelopment plan discriminates against them based on their familial status. Id. ¶¶ 106, 112. The second proposed class consists of Barry Farm residents whose units have not been maintained, allegedly in violation of the USHA and the DCHRA. Id. ¶¶ 106, 113.

Plaintiffs bring this action against the entities responsible for implementing the Barry Farm redevelopment plan and maintaining Barry Farm units. DCHA is a D.C. government agency that owns and manages public housing units. Id. ¶ 21. In 2013, DCHA hired private developers POAH and A & R to redevelop the Barry Farm property. Id. ¶ 33. POAH is a non-profit developer that focuses on housing for low- and moderate-income residents, while A & R is a private developer. Id. ; see also id. ¶¶ 22, 23.

B. First–Stage Redevelopment Plan

In 2005, the D.C. government created the New Communities Initiative to "revitalize severely distressed subsidized housing and redevelop communities plagued with concentrated poverty, high crime, and economic segregation." Id. ¶ 28. The program targeted four neighborhoods, one of which is Barry Farm. Id. In seeking to create "vibrant mixed-income neighborhoods," the New Communities Initiative established four principles to guide redevelopment. Id. ¶ 30. Pursuant to these principles, a redevelopment plan must: (1) ensure one-for-one replacement of affordable housing units in the neighborhood; (2) create opportunities for residents to return to or stay in the community; (3) build mixed-income housing to end the concentration of low-income housing and poverty; and (4) "build first" to make new housing available before existing housing is demolished. Id. With these principles in mind, the D.C. Council created and approved the Barry Farm redevelopment plan in 2006. Id. ¶¶ 31, 32. In 2013, DCHA hired POAH and A & R to develop the property. Id. ¶ 33.

In February 2014, the defendants filed with the D.C. Zoning Commission a "first-stage Planned Unit Development application" ("first-stage PUD"). Id. ¶ 34. The first-stage PUD application sets forth the general parameters for the Barry Farm redevelopment. Id. ¶ 35; see generally Z.C. Order No. 14–02 ("Z.C. Order"), ECF No. 12–2.⁴ For example, the PUD application outlined the redevelopment project's goals and phases and laid out the general demolition and construction plans. See Z.C. Order, ECF No. 12–2. The Zoning Commission approved and adopted the defendants' PUD application in December 2014.⁵ Id. Pursuant to the Zoning Commission's Order, the defendants will demolish the existing 444 Barry Farm units and replace them with 1,400 residential units of various types. Compl., ECF No. 1 ¶ 38. Of these new units, 344 will be dedicated as low-income, "replacement" units. Id. ¶ 38. The remaining units will be a mix of affordable rental units, affordable homeownership units, market-rate rental units, and market-rate homeownership units. Z.C. Order, ECF No. 12–2 ¶ 78d. In January 2017, the U.S. Department of Housing and Urban Development ("HUD") approved the defendants' application to demolish Barry Farm pursuant to the USHA. Compl., ECF No. 1 ¶ 65; see also Mot. Hearing Tr., ECF No. 25 at 4:15–19; HUD Approval, ECF No. 24–1 (January 20, 2017).

At issue in this case is the future "unit mix"—or, the number of one-, two-, three-, four-, and six-bedroom units that will comprise the public housing replacement units. Specifically, the plaintiffs allege that the defendants' plan to dramatically increase the number of one-bedroom replacement units will reduce the number of units that can accommodate returning families. Compl., ECF No. 1 ¶¶ 40, 41. The plaintiffs allege that the defendants "proposed" a unit mix for the replacement units in a July 2014 letter to the Zoning Commission, which included "post-hearing materials" in support of the PUD application. Id. ¶ 40 (citing 2014 Letter, Compl. Ex. A, ECF No. 1–1). Ultimately, the Zoning Commission's Order did not contain a future unit mix. See generally Z.C. Order, ECF No. 12–2.

In approving the defendants' first-stage PUD application, the Zoning Commission found that the redevelopment plan was suitable in part because it will "meet the needs of the returning residents," who "will be able to return to a unit that includes a bedroom size consistent with their needs." Id. ¶ 110. The Zoning Commission found, among other things, that: (1) the redevelopment plan "will provide a one-for-one replacement of all public housing units that are removed from the PUD site;"⁶ and (2) the defendants will "undertake an extensive relocation and return process to ensure that current residents have a place to live during redevelopment ... and to guarantee that those residents can return to the PUD Site after redevelopment if they choose to do so." Id. ¶ 95c. The Zoning Commission conditioned its approval on, among other things: (1) that the 344 dedicated replacement units "shall remain as replacement public housing units for the period required ... which will be no less than 40 years;" and (2) that the defendants include in each second-stage application "a detailed description of the affordable housing ... [and] a breakdown of how the affordable housing is distributed in terms of unit type (by number of bedrooms ...)." Id. at 60–61; see also Mot. Hearing Tr., ECF No. 25 at 75:15–76:8 (stating that the unit mix for the replacement units will be submitted for approval in second-stage applications).

Second-stage PUD applications are due every two years; there will be four second-stage applications in total. Id. at 64. The first second-stage application for the first four land parcels is currently due by May 2019,⁷ while the fourth and final second-stage application for all remaining land parcels is currently due by May 2025. Id. Each second-stage application is subject to approval by the Zoning Commission. Id.

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

Barry Farm has fallen into a "deep state of disrepair." Compl., ECF No. 1 ¶ 58. For example, residents allege that there are holes in the floor and walls, leaking ceilings, broken appliances and fixtures, broken doors and windows, persistent rodent and insect infestations, broken heating, water damage, and sewage leaks. Id. ¶¶ 58, 60. The plaintiffs allege that DCHA is either "non-responsive" or "slow" to fix these many issues, especially when compared to its maintenance record at other public housing properties. Id. ¶¶ 55–60. According to the plaintiffs, this is increasingly the case now that the defendants' first-stage PUD application was approved...