Friends of Tilden Park, Inc. v. DC

• Decision Date: 19 September 2002
• Docket Number: No. 00-CV-1560, No. 01-CV-376.
• Citation: 806 A.2d 1201
• Parties: FRIENDS OF TILDEN PARK, INC., Appellant, v. DISTRICT OF COLUMBIA and Clark Realty Capital, LLC, Appellees.
• Court: D.C. Court of Appeals

806 A.2d 1201

FRIENDS OF TILDEN PARK, INC., Appellant, v. DISTRICT OF COLUMBIA and Clark Realty Capital, LLC, Appellees.

Nos. 00-CV-1560, 01-CV-376.

District of Columbia Court of Appeals.

Argued May 23, 2002.

Decided September 19, 2002.

Lawrence M. Levine, with whom Hope M. Babcock and Andrea C. Ferster, Washington, DC, were on the brief, for appellant.

Donna M. Murasky, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel at the time, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee District of Columbia.

Roger J. Marzulla, with whom Nancie G. Marzulla, Washington, DC, was on the brief, for appellee Clark Realty Capital, LLC.

Before FARRELL, RUIZ, and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge.

This appeal turns on the question of an organization's standing to maintain a lawsuit. Friends of Tilden Park, Inc. ("Friends") is a District of Columbia nonprofit corporation formed in May of 2000 for "educational, charitable and social" purposes, according to its articles of incorporation, "including the organization of people interested in the development and preservation of the North Cleveland Park neighborhood." Notwithstanding this stated purpose, Friends is not a membership organization. Its articles of incorporation specifically prohibit Friends from having members. Friends is governed by a self-perpetuating board of directors. The articles of incorporation require a majority of the directors to reside in the District of Columbia, and provide that "at least two of the directors shall reside within the area bounded by Reno Street [sic] on the west, Van Ness Street on the north, Rock Creek Park on the east and Porter Street on the south." The initial board comprised three members, all of whom resided in the area thus delineated.

Friends was formed in reaction to the construction by Clark Realty Capital, LLC ("Clark") of a nine-story apartment building at 3883 Connecticut Avenue, N.W., a site that is within the North Cleveland Park area described in Friends' articles of incorporation.¹ Friends eventually sued Clark and the District of Columbia in Superior Court to enjoin the construction on the ground that the District should have required Clark to prepare an Environmental Impact Statement ("EIS") for the project pursuant to the District of Columbia Environmental Policy Act ("DCEPA"), D.C.Code § 8-109.01 et seq. (2001).

The Superior Court denied Friends' motion for preliminary injunctive relief, and thereafter granted summary judgment to Clark and the District of Columbia. Although the motions judge granted summary judgment on the merits, Clark also had contested Friends' standing to maintain the action and the motions judge had expressed her doubts about Friends' standing. Friends has appealed to this court from both the denial of a preliminary injunction and the entry of summary judgment. On the threshold question of standing, Friends contends, as it did in its complaint, that it has the requisite standing to sue "on behalf of itself and its adversely affected members."

We disagree. Friends has no standing to sue on its own behalf because it suffered no injury or threatened injury. Friends has no standing to sue in a representational capacity because it has no members and no one whom it represents. We remand to permit the entry of an order dismissing Friends' complaint for lack of standing. We therefore do not reach the merits of its appeals.

I.

The legal wrangling surrounding Clark's erection of an apartment building at 3883 Connecticut Avenue, N.W., began in August 2000, when Friends commenced its first action in Superior Court to enjoin construction. Charging that the construction threatened environmental harm to nearby Rock Creek Park, Friends identified material omissions and misstatements in the Environmental Impact Screening Form ("EISF") that Clark had submitted to the District of Columbia government to secure its building permit.

Prompted by Friends' complaint, the Building and Land Regulation Administration of the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") issued a stop work order, halting construction at 3883 Connecticut Avenue until the District reevaluated its environmental impact. Friends thereupon voluntarily dismissed its lawsuit without prejudice pursuant to Super. Ct. Civ. R. 41(a)(1)(i). Clark submitted a revised and corrected EISF. DCRA convened a public meeting at which it received the views of interested parties on the environmental effects of the Clark project. Both Friends and the National Park Service (which oversees Rock Creek Park) participated in the public meeting. At DCRA's direction, Clark supplemented its EISF with an engineering report that addressed several potential environmental concerns.

DCRA referred Clark's revised EISF to the Environmental Health Administration of the District of Columbia Department of Health ("DOH") for evaluation. DOH ultimately issued an environmental assessment report recommending that Clark submit either an EIS or a plan to mitigate what DOH termed the "potential large impacts" of the construction on surface and underground water in the vicinity of the project. See D.C.Code § 8-109.03(a) (requiring preparation of an EIS if a "major action ... is likely to have substantial negative impact on the environment, if implemented"). DCRA accepted this recommendation and notified Clark that it would order an EIS "to evaluate the full impact" of the project unless Clark revised its project to address DOH's specific concern.

Seeking to avoid the delay, expense and difficulty of preparing a full-scale EIS, see D.C.Code § 8-109.03(a) (listing what an EIS must include), Clark submitted a mitigation plan. The mitigation plan described Clark's proposals for protecting a groundwater seep on the construction site, "dewatering" the excavation during the construction process, and maintaining groundwater flow once construction was completed. DOH conditionally approved the plan, subject to reporting and other requirements which Clark readily accepted. Based on DOH's approval, DCRA determined that Clark's construction of an apartment building at 3883 Connecticut Avenue was "not likely to have substantial negative impact on the environment" and did not need an EIS. DCRA then rescinded its stop work order, allowing Clark to resume its construction activities.

Upon learning of DCRA's decision, Friends filed a new complaint in Superior Court on November 27, 2000, to enjoin construction at 3883 Connecticut Avenue on the ground that an EIS was required by the DCEPA. In this complaint, Friends described itself as "a nonprofit organization incorporated under the laws of the District of Columbia to protect and preserve the historic and natural resources and quality of life in North Cleveland Park." Friends alleged that it sued on behalf of itself and "its adversely affected members [who] reside in the immediate vicinity of the proposed new apartment building, and use, enjoy, and derive benefit from the nearby Rock Creek Park, Melvin Hazen Trail, and the mature trees, plants, and wildlife that currently occupy the site." Friends alleged that its members' "use, enjoyment, and appreciation of these resources will be threatened and adversely affected by" the District's decision to permit Clark to build without first submitting an EIS.² That decision, Friends further alleged, would cause "irreparable injury to Plaintiff and the natural resources and environment that Plaintiff (and the DCEPA) seek to protect." Friends sought a temporary restraining order, which was issued, and a preliminary injunction.

On December 7, 2000, after holding a hearing, the motions judge denied preliminary injunctive relief. In a comprehensive memorandum opinion, the motions judge ruled that Friends had shown neither a substantial likelihood of success on the merits of its claim nor irreparable injury as a consequence of DCRA's decision to permit Clark to proceed without an EIS. Regarding the latter point, the judge found that the evidence did not support Friends' claims of irreparable harm to the environment. The judge also found that notwithstanding the allegations of its complaint, Friends in fact had no members and had "fail[ed] to demonstrate that it, as a corporate entity without members, could be harmed, let alone irreparably harmed, by the proposed project." "Indeed," the judge observed, "it is unclear whether plaintiff has legal standing to raise the instant claims inasmuch as it does not appear to represent any persons." Friends took a timely appeal from this ruling.³

Thereafter, in January and February of 2001, the District of Columbia and Clark filed motions to dismiss or for judgment on the pleadings or, alternatively, for summary judgment. The District argued that DCRA's decision not to require an EIS was supported by substantial evidence and did not violate the DCEPA. Clark raised that and other grounds, including lack of jurisdiction, failure to exhaust administrative remedies, and Friends' lack of standing to pursue the action given that it had no members. Clark supported its standing argument with a copy of Friends' articles of incorporation, which stated specifically that "[t]he Corporation shall have no members." Friends filed no opposition to either motion. At a subsequent status hearing, counsel for Friends explained that "we no longer have the resources to continue to file pleadings in both [the Superior Court] and the pending action in the Court of Appeals [i.e., the appeal from the denial of a preliminary injunction]."

On March 2, 2001, the motions judge issued separate orders granting summary judgment in favor of the District of Columbia and Clark. Each order stated without further explanation that the defendant's motion for summary judgment was granted "for the reasons stated in the memorandum of points and authorities in support thereof." The orders did...