COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Plaintiff Kingman Park Civic Association ("Kingman Park") filed suit against Vincent C. Gray in his official capacity as the Mayor of the District of Columbia, challenging aspects of the District's plan to construct a streetcar line in the northeast quadrant of the District. Presently before the Court is Defendant's [29] Motion to Dismiss the Amended Complaint or, in the alternative, for Summary Judgment and Plaintiff's [33] Motion to Stay and for Reconsideration of the Court's Order Denying
For the purposes of Defendant's Motion to Dismiss, the Court presumes the following facts pled in Plaintiff's Amended Complaint to be true, as required when considering a motion to dismiss.
In September 2012, Plaintiff filed an application with the District for the historic landmark designation of Spingarn Senior High School. Id. ¶ 29. In October 2012, ANC 5B issued a resolution sent to the D.C. Historic Preservation Board ("Preservation Review Board") indicating the Commission's support of Plaintiff's application for historic designation of Spingarn High School and informing the Preservation Review Board of citizen opposition to construction of a car barn on the grounds of the Spingarn campus. Id. ¶ 24 (citing Compl., Pl.'s Ex. 5). In November 2012, the Preservation Review Board accepted Spingarn Senior High School as the site for the new car barn. Id. ¶ 31. Later that same month, the Preservation Review Board designated Spingarn High School as an historic landmark in the District of Columbia Inventory of Historic Sites. Id. ¶ 32. On April 4, 2013, the Preservation Review Board unanimously approved the concept for the streetcar car barn and training center on the Spingarn campus. Id. ¶ 33. On May 2, 2013, the Preservation Review Board gave final approval to the concept and plans for the construction of a car barn and training center on the Spingarn campus. Id. ¶ 36.
Plaintiff Kingman Park Civic Association — an unincorporated neighborhood civic association whose members are residents of the Kingman Park neighborhood in Northeast Washington, D.C. — filed suit on June 28, 2013, against District of Columbia Mayor Vincent Gray in his official capacity challenging the District's plan to construct the streetcar line in the northeast quadrant of the District. Specifically, Plaintiff challenges the construction of the overhead street car wires on H Street and Benning Road and the car barn on the Spingarn campus as violating the Fifth Amendment's Equal Protection Clause, the National Historic Preservation Act, the District of Columbia's Comprehensive Plan, District of Columbia Zoning laws, the District of Columbia Environmental Policy Act of 1989, the Federal-Aid Highway Program, the U.S. Department of Transportation Act of 1966, the District of Columbia Historic Landmark and Historic District Protection Act of 1978, D.C.Code
On August 2, 2013, Plaintiff filed a Motion for Leave to File a Second Amended Complaint seeking to include a Clean Air Act ("CAA") claim and a Fair Housing Act claim. See ECF No. [19]. Before the Court ruled on Plaintiff's motion to amend, Plaintiff withdrew its CAA claim, acknowledging that it failed to satisfy the CAA's pre-suit notice requirements. See ECF No. [24], at 1. On August 26, 2013, the Court denied Plaintiff leave to amend its Complaint to include a Fair Housing Act claim. See Aug. 26, 2013, Order & Mem. Op., ECF Nos. [26] & [27]. Four days later, Defendant filed the present Motion to Dismiss or, in the alternative, for Summary Judgment. See ECF No. [29]. Defendant moves the Court to dismiss all ten counts of Plaintiff's Amended Complaint for lack of standing or, alternatively, failure to state a claim. Following the completion of briefing of Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment, Plaintiff filed a motion moving the Court to reconsider its denial of Plaintiff's Motion for Leave to File Second Amended Complaint and to stay Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment pending the Court's decision on Plaintiff's Motion for Reconsideration. See ECF No. [33]. Although Plaintiff claims to be moving the Court to reconsider its prior decision, Plaintiff only seeks leave to amend its Amended Complaint to include the CAA claim which the Court never denied, but Plaintiff voluntarily withdrew. Accordingly, Plaintiff's "Motion for Reconsideration" is in actuality no more than an additional motion for leave to file a second amended complaint. As the parties have fully briefed Plaintiff's "Motion for Reconsideration," the Court will now consider the propriety of permitting Plaintiff leave to amend its Amended Complaint to include a CAA claim. Since the Court denies Plaintiff leave to amend its Amended Complaint to include a CAA claim, the Court need not stay its consideration of Defendant's Motion to Dismiss to permit Defendant time to respond to Plaintiff's additional claim. Accordingly, the Court shall also consider Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment.
Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a matter of course within a prescribed time period. See Fed.R.Civ.P. 15(a)(1). Where, as here, a party seeks to amend its pleadings outside that time period, it may do so only with the opposing party's written consent or the district court's leave. See Fed.R.Civ.P. 15(a)(2). The decision whether to grant leave to amend a complaint is entrusted to the sound discretion of the district court, but leave "should be freely given unless there is a good reason, such as futility, to the contrary." Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.Cir.
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). "[A] district court has discretion to deny a motion to amend on grounds of futility where the proposed pleading would not survive a motion to dismiss." Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C.Cir.2004), cert. denied, 545 U.S. 1104, 125 S.Ct. 2537, 162 L.Ed.2d 274 (2005). Review for futility is practically "identical to review of a Rule 12(b)(6) dismissal based on the allegations in the amended complaint." In re Interbank Funding Corp. Secs. Litig., 629 F.3d 213, 215-16 (D.C.Cir.2010) (quotation marks omitted). Because leave to amend should be liberally granted, the party opposing amendment bears the burden of coming forward with a colorable basis for denying leave to amend. Abdullah v. Washington, 530 F.Supp.2d 112, 115 (D.D.C.2008).
To survive a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C.Cir.2007). In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted). "At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C.Cir. 2005). "Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1)," the factual allegations in the complaint "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C.2007) (citations omitted).
Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the sufficiency of a complaint on the grounds that it "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "[A] complaint [does not] suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
Plaintiff seeks to file a Second Amended Complaint that includes one count under the Clean Air Act ("CAA"). Defendant opposes Plaintiff amending its Complaint to add the CAA claim because Plaintiff "has not complied with the relevant pre-suit notice requirements and has not stated a plausible claim for relief under the CAA." Def.'s Opp'n. at 1-2.
The CAA explicitly provides that "[n]o action may be commenced" under the citizen suit provision of the statute unless the plaintiff, at least 60 days prior to commencing the suit, provides "notice of the violation (i) to the Administrator [of the U.S. Environmental Protection Agency], (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order." See 42 U.S.C. § 7604(b)(1)(A). Such notice must include:
40 C.F.R. § 54.3(b) (emphasis added). Courts treat these notice requirements as "`mandatory conditions precedent to commencing suit' [that] may not be avoided by employing a `flexible or pragmatic' construction." Monongahela Power Co v. Reilly, 980 F.2d 272, 275 n. 2 (4th Cir.1993) (citing Hallstrom v. Tillamook Cnty., 493 U.S. 20, 26, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989)). As proof of its compliance with the statutory notice requirements, Plaintiff attaches to its Motion the "notice" letters it sent to the U.S. Environmental Protection Agency ("EPA") and the District of Columbia government on September 6, 2013. See Pl.'s Mot. Ex. A, ECF No. [33-2]. Although the letters were sent more than sixty days prior to Plaintiff seeking leave to amend its Amended Complaint to include a CAA claim, the letters do not contain sufficient information to comply with the pre-suit notice requirements. The only information relevant to a CAA claim included in the notice letter is: "Without known or visible permits, and upon information and belief, the removal of trees and dirt has released such known substances as lead, arsenic, mercury and chromium into the air."
In Plaintiff's Opposition, Plaintiff notes that the CAA defines "emission standard or limitation" in part as "any condition or requirement of a permit" or "any other standard, limitation, or schedule established under any permit," 42 U.S.C. § 7604(f) (emphasis added by Plaintiff). Plaintiff appears to argue that since Plaintiff alleged in its letters to the EPA and the District of Columbia that the District conducted the excavation work without all of the proper permits, Plaintiff thus identified the "standard, limitation, or order" that the District violated by releasing certain materials into the air when excavating the Spingarn campus site. However, Plaintiff does not specify in the letter what kind of permits the District should have had nor claim that the District violated the emissions standards or conditions set forth in those permits or any other emission regulations. Alleging that the District failed to obtain unspecified permits for the excavation of the Spingarn campus in no way provides the EPA or the District of Columbia notice of the standard, limitation, or order that was violated by the release of the identified materials into the air.
Accordingly, as Plaintiff has failed to comply with the pre-suit notice requirements of the CAA, the Court does not have jurisdiction over Plaintiff's proposed CAA claim. Plaintiff's "Motion for Reconsideration" is thus DENIED. Since Defendant need not amend its Motion to Dismiss to address Plaintiff's CAA claim, Plaintiff's Motion to Stay Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment is also DENIED.
As a threshold matter, Defendant argues that Plaintiff lacks standing to challenge the installation of the overhead wires or construction at the Spingarn campus. The "irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered an "injury-in-fact," that is, "`an invasion of a legally protected interest' that is (i) `concrete and particularized' rather than abstract or generalized, and (ii) `actual or imminent' rather than remote, speculative, conjectural or hypothetical." In re Navy Chaplaincy, 534 F.3d 756, 759-60 (D.C.Cir. 2008) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). Second, the asserted injury must be "fairly traceable to the challenged action of the defendant." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citation omitted). Third, the plaintiff must demonstrate redressability: "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130 (citation omitted). It is axiomatic that the "party invoking federal jurisdiction bears the burden of establishing the[ ] elements" of constitutional standing. Id.
Id. Plaintiff argues that it has standing to sue Defendant both on its own behalf and on behalf of its members.
To establish organizational standing, Kingman Park "must allege that discrete programmatic concerns are being directly and adversely affected by the challenged action." Nat'l Taxpayers Union, 68 F.3d at 1433. The Amended Complaint describes Plaintiff Kingman Park as "an unincorporated neighborhood civic association" which "seeks to preserve and protect the historic buildings, scenic views, integrity and environment within the District of Columbia and specifically, the Kingman Park neighborhood." Am. Compl. ¶ 6. In September 2012, Plaintiff filed an application with the Preservation Review Board seeking to designate Spingarn as an historic landmark. Id. ¶ 29. On November 1, 2012, the Preservation Review Board accepted the Spingarn campus as the site for the new streetcar car barn proposed by the DDOT. Id. ¶ 31. Thereafter, on November 29, 2012, the Preservation Review Board unanimously designated the property as an historic landmark in November 2012. Id. ¶ 32. The Preservation Review Board gave final approval to the concept and plans for the car barn on May 2, 2013. Id. ¶ 36. Defendant is now in the process of building a car barn, maintenance facility, and electrical substation on the grounds of an historic landmark Plaintiff specifically sought to protect, an injury that is directly traceable to the conduct of the Defendant, and would be redressable by an order from this Court barring construction on the site of Spingarn Senior High School. "Such concrete and demonstrable injury to the organization's activities — with the consequent drain on the organization's resources — constitutes far more than simply a setback to the organization's abstract social interests." Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). Accordingly, Kingman Park has met its burden of establishing it has organizational standing to challenge construction on the Spingarn campus.
However, the Court agrees with Defendant that Kingman Park's allegations with respect to the overhead wires are likely insufficient to establish organizational standing. The allegations in the Amended Complaint relate only to Kingman Park's opposition to the construction at Spingarn. Moreover, the Plaintiff's Opposition fails to offer any explanation as to how the overhead wires would concretely affect any of the organization's programmatic concerns. Accordingly, Kingman Park has failed to meet its burden of establishing organizational standing to challenge the installation of overhead wires on H Street and Benning Road.
As Plaintiff has established organizational standing to challenge the construction on Spingarn campus, the Court need not consider whether Plaintiff also has associational standing to challenge the Spingarn construction. Consequently, the Court will only consider whether Plaintiff has associational standing to challenge the installation of overheard wires on H Street and Benning Road.
In support of its earlier Motion for a Temporary Restraining Order, Plaintiff submitted declarations from James R. Wiggins, Charlie L. Murray, Jr., Joan Johnson, Allen Green, Dr. Jean Marie Miller, and Veronica E. Raglin. See generally Pl.'s Reply in support of Mot. for TRO, Ex. 1, ECF No. [9-1]. Curiously, only Joan Johnson, Allen Green, and Dr. Miller indicated that they are members of the Kingman Park Civic Association. In support of its Opposition to Defendant's Motion to Dismiss, Plaintiff submitted amended declarations from James R. Wiggins and Charlie L. Murray, which now indicate that they are members of the Kingman Park Civic Association. See generally Pl.'s Opp'n., Ex. 5. Therefore, the Court shall look to Ms. Johnson's, Mr. Green's, Dr. Miller's, Mr. Wiggin's, and Mr. Murray's declarations to determine if Plaintiff has demonstrated that it has associational standing to challenge the Defendant's streetcar project.
With respect to the installation of overhead wires, the declarations submitted each contain an identical paragraph alleging that the wires "will adversely affect the clear and unobstructed views of (1) the nationally historic Langston Dwellings; (2) the historic Spingarn High School and its grounds; (3) the nationally historic Langston Golf Course; and (4) the Anacostia River." Johnson Decl. ¶ 2; Green Decl. ¶ 2; Miller Decl. ¶ 2; Wiggins Decl. ¶ 2; Murray Decl. ¶ 2. "[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks omitted). Neither Ms. Johnson, Mr. Green, nor Dr. Miller alleges that he or she derives any aesthetic or recreational value from the four areas listed. Nor do these declarants assert that any value they might derive would be adversely affected by the overhead wires.
Mr. Wiggins and Mr. Murray, however, each aver in their declarations: "We use the Spingarn green space for recreational activities, including walking, playing ball games, and meeting with neighbors. The creation of an electromagnetic field on the green space and on Benning Road will create health problems for the residents and visitors to the neighborhood." Wiggins Decl. ¶ 7; Murray Decl. ¶ 6. Contrary to Defendant's contention, the Court finds that Mr. Wiggins and Mr. Murray have sufficiently alleged personal — not just generalized — injury to their recreational use of the Spingarn campus due to the overhead wires. Both declarants assert that they personally derive recreational value out of the Spingarn campus and provide several specific examples of their recreational use of the campus. Both declarants then aver that residents of the neighborhood — which each declarant states that he is — will suffer health problems as a result of the electromagnetic field on the Spingarn campus.
Nevertheless, Plaintiff fails to establish associational standing to challenge the installation of the overhead wires
Accordingly, the Court finds that Plaintiff has neither organizational nor associational standing to bring claims relating to the overhead street car wires. Therefore, the Court dismisses Counts I and III of Plaintiff's Amended Complaint and Counts IV and X to the extent that they relate to the overhead wires. As the Court has found Plaintiff has established organizational standing to challenge the construction on the Spingarn campus, the Court shall now evaluate whether Plaintiff has stated a claim in Counts II and V-IX, and Counts IV and X to the extent that they relate to the Spingarn campus construction.
In Count II of Plaintiff's Amended Complaint, Plaintiff brings an Equal Protection Clause claim pursuant to 42 U.S.C. § 1983. "To state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Count II alleges, in relevant part, that the District's decision to construct the car barn on the Spingarn campus violated Plaintiff's right to equal protection as set forth in the Fifth and Fourteenth Amendments. Am. Compl. ¶¶ 37-60. The Fourteenth Amendment does not apply to the District of Columbia, but the Equal Protection Clause of the Fourteenth Amendment applies to the District of Columbia through the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Dixon v. District of Columbia, 666 F.3d 1337, 1339 (D.C.Cir.2011).
"The Equal Protection Clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, and for contending that general rules are being applied in an arbitrary or discriminatory way." Jones v. Helms, 452 U.S. 412, 423-424, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981). In other words, plaintiffs may allege two types of equal protection violations: (1) that the plaintiff was subject to differential treatment because of membership in a protected class, such as one based on race; or (2) that the plaintiff was "arbitrarily and intentionally treated differently from others who are similarly situated — and the government has no rational basis for the disparity." Kelley v. District of Columbia, 893 F.Supp.2d 115, 122 (D.D.C.2012) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564-565, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). The Plaintiff's Amended Complaint frames the Plaintiff's equal protection claim as the second type of claim. See, e.g., Am. Compl. ¶ 52 ("Defendant violated the equal protection clause of the U.S. Constitution when the District limited the streetcar barn and maintenance industrial facility to the historic Spingarn High School site in northeast Washington, D.C., and to no other area of the city or historic site."). The Plaintiff alleges a disparate impact on African-American and low-income residents in Kingman Park, but "[i]n order to prove that a facially neutral statute, such as the one involved here, violates equal protection guarantees, a challenger
Plaintiff has failed to sufficiently allege facts to allow the Court to conclude, assuming the alleged facts are true, that the District had a racially discriminatory purpose in selecting the Spingarn campus for the car barn. Plaintiff alleges that Defendant denied the Plaintiff equal protection by "performing excavation work on the grounds of an historic African American site — Spingarn Senior High School, although there are other alternative sites." Am. Compl. ¶¶ 52-53. The Constitution "does not require things which are different in fact or opinion to be treated in law as though they were the same." Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (citation omitted). "[T]he [d]issimilar treatment of dissimilarly situated persons does not violate equal protection. The threshold inquiry in evaluating an equal protection claim is, therefore, to determine whether a person is similarly situated to those persons who allegedly received favorable treatment." Women Prisoners of D.C. Dep't of Corrections v. District of Columbia, 93 F.3d 910, 924 (D.C.Cir.1996) (citations omitted). Plaintiff fails to identify any neighborhood, much less one that is a similarly situated non-African-American neighborhood — that has been treated more favorably than Kingman Park. Simply alleging that Defendant selected the Spingarn campus in an African-American community while other unidentified alternative sites were available is insufficient to demonstrate a racially discriminatory purpose behind Defendant's actions and, therefore, insufficient to "plausibly give rise to an entitlement to relief" under the Equal Protection Clause. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. See Ekwem v. Fenty, 666 F.Supp.2d 71, 78-79 (D.D.C.2009) (holding that the court could not reasonably infer that defendants were "motivated by discriminatory intent or purpose" where plaintiff's only factual support was the conclusory allegation that "[o]lder supervisors and caseworkers, particularly those of a different national origin," were "general[ly]" assigned "inordinate" numbers of cases and threatened with disciplinary action" but presented no evidence of the caseloads, national origins, or ages of other supervisors or caseworkers to support his claim); Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 688 (D.C.Cir.2009) (affirming dismissal of equal protection claims where plaintiff's "spare facts and allegations" did "`not permit the court to infer more than the mere possibility of misconduct.'" (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937)). Accordingly, the Court finds that Plaintiff fails to state an equal protection claim under a disparate impact theory.
In its Opposition, Plaintiff seems to frame its Amended Complaint as also alleging that the decision to construct the car barn on the Spingarn campus was based on the fact that the Kingman Park community is predominantly African-American — i.e. the first type of equal protection
In summary terms, the Plaintiff alleges five factors that demonstrate the District's decision to construct the car barn on the Spingarn campus was motivated by the fact that Kingman Park is predominantly African-American:
As set forth below, Plaintiff does not succeed on its independent claims reflected in the first and fifth factors. As for the third factor — the Preservation Review Board's allegedly arbitrary and capricious decision to approve the construction on Spingarn campus — Plaintiff makes no more than the conclusory allegation that the Preservation Review Board acted arbitrarily and capriciously and abused its discretion. Plaintiff has not identified which decisions by the Preservation Review Board regarding construction on the Spingarn campus were in error. Nor does Plaintiff articulate any basis on which the Court could conclude that the Preservation Review Board's decision was arbitrary or capricious. Accordingly, Plaintiff's conclusory allegation does not lend weight to the conclusion that the District acted with a discriminatory purpose, much less any improper purpose or method at all. The fourth factor — the District's failure to notify ANC Commissioner Blacknell of the proposed construction in violation of D.C.Code § 1-309.10 ANC notice requirements — is sufficient to support the conclusion
Count IV of the Amended Complaint alleges that the construction on the Spingarn campus "violates the District's Comprehensive Plan." Am. Compl. ¶ 70. "Pursuant to the Home Rule Act, §§ 203(a), 423(a), the D.C. Council enacted the Comprehensive Plan on April 10, 1984." Tenley & Cleveland Park Emergency Comm. v. D.C. Bd. of Zoning Adjustment, 550 A.2d 331, 336 (D.C.1988). "The Comprehensive Plan Act adopted most of the District Elements of the Comprehensive Plan including those for economic development, housing, environmental protection, transportation, public facilities, urban design, preservation and historic features, the downtown area and human services." Id. "[T]he Comprehensive Plan is a broad framework intended to guide the future land use planning decisions for the District.... In short, the Comprehensive Plan is not self-executing." Id. at 337. The Comprehensive Plan Act is clear that "[t]he District elements of the Plan ... are not binding policy directives." Id. at 336. Moreover, the District of Columbia Court of Appeals held in Tenley that the "Zoning Commission is the exclusive forum for addressing issues of inconsistency under the Comprehensive Plan." Id. at 332. Plaintiff does not acknowledge Tenley in its Opposition and fails to respond to Defendant's contention that the Comprehensive Plan does not create a cause of action, and that Plaintiff must seek relief for any purported violations of the Plan before the Zoning Commission.
Plaintiff alleges in Count V of the Amended Complaint that the proposed construction on the Spingarn campus violates District of Columbia zoning laws, D.C.Code § 6-641.01 et seq. Am. Compl. ¶ 78. Specifically, Plaintiff alleges that the placement of an industrial facility — the car barn — on the Spingarn campus violates District of Columbia zoning laws because the Spingarn campus is zoned "residential" and the adjacent Benning Road area is zoned "commercial." Id. ¶¶ 78-79. Defendant argues, and Plaintiff does not dispute, that any zoning-based challenge to construction on the Spingarn campus must be brought in the first instance before the Board of Zoning Adjustment. D.C.Code
Count VI of the Amended Complaint alleges Defendant violated section 4 of the District of Columbia Environmental Policy Act ("D.C.EPA") of 1989, D.C.Code § 8-109.01 et seq., by failing to conduct an Environmental Impact Statement ("EIS") regarding the anticipated construction on the Spingarn campus. Am. Compl. ¶ 84. The D.C. EPA provides that
D.C.Code § 8-109.03(a) (emphasis added). Plaintiff alleges that the preparation of an EIS is required because the District's Streetcar Report ... concluded that DDOT initially "did not evaluate" "extensively" Spingarn High School as a location for the car barn "due to traffic and community impact," noting "[t]his alternative would involve the streetcar tracks crossing the westbound travel lanes from the median into the yard adjacent to Spingarn High School." Am. Compl. ¶ 84 (emphasis added). Plaintiff alleges that since "the District Government has admitted that the proposal would have a major adverse impact on the community," but "to [Plaintiff's] knowledge, an EIS has not been prepared or issued," Defendant has violated the D.C. EPA. Id. (emphasis added). However, the D.C. EPA only requires an EIS if the project is likely to have a substantial negative impact on the environment. The D.C. EPA defines "environment" as "the physical conditions that will be affected by a proposed action, including but not limited to, the land, air, water, minerals, flora and fauna." D.C.Code § 8-109.02(3). Plaintiff's reliance on community impact is thus not sufficient to state a claim under the D.C. EPA.
Count VI of Plaintiff's Amended Complaint goes on to list three bullet points of alleged "[d]amage created by the [e]xcavation work on the Spingarn [s]ite." Id. The latter two bullet points discuss "storm water and sewage run-off" and "excavation and construction vibration" that will damage "over 500 homes." Id. As with Plaintiff's previous allegations about community impact, these allegations cannot trigger the need for an EIS as they
Plaintiff alleges in Count VII of the Amended Complaint that the Defendant violated certain provisions of the Federal-Aid Highways Program, 23 U.S.C. § 138, and the U.S. Department of Transportation Act of 1966, 49 U.S.C. § 1653(f). Am. Compl. ¶ 87. However, the statutory provisions cited by Plaintiff place certain obligations on the Secretary of Transportation,
In Count VIII of the Amended Complaint, the Plaintiff contends, without elaboration, that "[t]he D.C. Preservation Review Board's decision to permit the streetcar construction on the grounds of Spingarn was arbitrary, capricious, and an abuse of discretion, and in violation of the D.C. Historic Landmark and Historic District Protection Act of 1978 (D.C. Law 2-144), D.C.Code Title 6, Chapter 11." Am. Compl. ¶ 92. Defendant argues that the Historic Landmark Act does not create a private right of action through which Plaintiff could challenge the Preservation Review Board's decision. Def.'s Mot. at 29. Plaintiff does not dispute that even assuming the Plaintiff can challenge the Preservation Review Board's decision, Plaintiff must seek review before the Mayor's agent, and then petition the District of Columbia Court of Appeals. See Embassy Real Estate Holdings, LLC v. D.C. Mayor's Agent for Historic Preservation, 944 A.2d 1036, 1044 (D.C.2008); D.C.Code §§ 6-1112, 2-510. Moreover, as with the Plaintiff's zoning law claim, the D.C. Circuit discourages federal courts in this District from exercising supplemental jurisdiction over claims challenging administrative decisions by the District of Columbia, assuming Plaintiff could bring the claim at all. Lightfoot, 448 F.3d at 399; see also Hameetman v. City of Chicago, 776 F.2d 636, 640 (7th Cir.1985) ("Federal courts have no general appellate authority over state courts or state agencies."). Here, Plaintiff effectively asks this Court to do no more than review the decision of a state agency. Accordingly, Plaintiff has failed to state a claim over which this Court has jurisdiction.
The allegations in Count IX of the Amended Complaint are less than clear, but the thrust of the claim appears to be that the Defendant did not accord "great weight" to ANC 5B's opposition to the construction of the car barn on the Spingarn campus.
The Amended Complaint alleges ANC 5B "voted to oppose the District's proposed streetcar barn construction on the grounds of Spingarn High School. The 5B ANC Commission's official opposition was issued by letter dated October 31, 2012." Am. Compl. ¶ 95 (citing "Exhibit #5"). Plaintiff did not attach any exhibits to the Amended Complaint, so the Court assumes the reference in paragraph 95 is to Exhibit 5 of the original Complaint. However, Exhibit 5 to the original Complaint is a letter dated October 31, 2012, and addressed to the D.C. Preservation Office and Review Board in support of Plaintiff's "Application for Historic Designation of Spingarn High School." Compl., Ex. 5 at 1. The letter states that ANC 5B voted to support Kingman Park's application for Historic Designation of Spingarn High School and sets forth the reasons ANC 5B recommends the Preservation Review Board's approval of Kingman Park's application. Id. As part of those reasons, the letter asserts that
Id. at 2. The letter does not state what ANC 5B recommends with regards to the construction on the Spingarn campus, it simply indicates that citizens in surrounding Wards are opposed to the construction. Furthermore, the letter does not state that ANC 5B voted on the Spingarn campus construction and does not make any recommendation on the part of ANC 5B that the Preservation Review Board not approve the construction, nor does the letter indicate that the Commission ever issued a written recommendation related to the Spingarn campus construction as required by D.C.Code § 1-309.10(d)(3)(A). Indeed, the only recommendation given by ANC 5B in this letter — and the clear purpose of the letter, including the discussion of the Spingarn campus construction — is that the Preservation Review Board should approve the Historic Designation of Spingarn High School.
ANC 5B Commissioner Blacknell indicated in her affidavit attached to the Plaintiff's original complaint that "[t]he 5B ANC Commission [sic] also issued a resolution which opposed the construction of a car barn on the grounds of Spingarn High School," but Plaintiff did not provide a copy of the resolution or any additional details. Compl., Ex. 4 (Blacknell Decl.) ¶ 9. In any event, in Plaintiff's Opposition to Defendant's Motion to Dismiss, Plaintiff affirms that the October 2012 letter to the Preservation Review Board constituted the written recommendations to which the District failed to accord "great weight." Pl.'s Opp'n. at 37. As this letter does not state the recommendations of the ANC with regards to the Spingarn construction nor was it sent to the agency responsible for implementing the D.C. Streetcar project, the Court dismisses Plaintiff's claim that Defendant failed to give "great weight" to ANC 5B's recommendations regarding the construction on Spingarn campus.
Plaintiff's final claim, Count X, contends that Defendant violated unspecified provisions of the District of Columbia's Human Rights Act ("DCHRA"). Although Plaintiff does not identify the specific provision on which its claims are based, it does note that the "D.C. Human Rights Act provides in pertinent part":
Plaintiff alleges Defendant intentionally discriminated against African-Americans
Defendant makes a number of arguments in response to this claim, but Plaintiff fails to respond to any of Defendant's arguments. Plaintiff does not dispute Defendant's suggestion that construction on the Spingarn campus does not violate the Act because, assuming the construction alters the view of the campus or surrounding historical sites, "all District residents w[ill] be denied the benefit of an unaltered, unobstructed view of the historic site." Def.'s Mot. at 36. Nor does Plaintiff respond to Defendant's argument that since "the District as a whole is predominately African American" the DCHRA "cannot be violated simply by the District choosing to build a [car barn] in an area that is predominately African American while not choosing to build a similar facility in a different part of the city" because otherwise "virtually any decision by the District to build a facility of any kind in one quadrant, ward, or neighborhood could be challenged as discriminatory under the DCHRA." Id. at 35. Indeed, as Judge Paul L. Friedman held in a similar situation in Boykin v. Gray, 895 F.Supp.2d 199 (D.D.C.2012)
In response, Plaintiff only asserts that Count X "speaks for itself." Pl.'s Opp'n at 37. The Court is persuaded by Defendant's arguments that Plaintiff has failed to sufficiently allege a claim cognizable under the DCHRA. Accordingly, the Court finds that Plaintiff has failed to state a claim that Defendant violated the District of Columbia Human Rights Act.
Finally, in Plaintiff's Opposition, Plaintiff appears to try to salvage several of its claims for which Defendant contends there is no private cause of action or jurisdiction in this Court by framing these claims as 42 U.S.C. § 1983 claims. Specifically, Plaintiff argues that the Court has jurisdiction pursuant to § 1983 to consider Plaintiff's claims invoking the District of Columbia's Comprehensive Plan (Count IV), District of Columbia Zoning laws (Count V), the D.C. EPA (Count VI), the Federal Aid Highway Act (Count VII), the U.S. Department of Transportation Act of 1966 (Count VII), the D.C. Historic Landmark and Historic District Protection Act (Count VIII), and ANC notice and great weight requirements (Count IX). However, Plaintiff's Amended Complaint — which is far from a model of clarity — could only arguably be interpreted to allege four violations
In its Opposition, Plaintiff only makes the broad, conclusory assertion that this Court has jurisdiction over these claims pursuant to § 1983 because they constitute violations of Plaintiff's Fifth Amendment due process and equal protection rights.
As for the District's alleged violation of the D.C. Historic Landmark and Historic District Protection Act claim, Plaintiff claims only that the Preservation Review Board's decision to permit the construction on the grounds of Spingarn campus "was arbitrary, capricious, and an abuse of discretion, and in violation of the D.C. Historic Landmark and Historic District Protection Act of 1978." Am. Compl. ¶ 92. This claim is no more than a claim for this Court to review the actions of a state agency. But as this Circuit has recognized, a § 1983 suit is not one to review the actions of a state agency. Lightfoot, 448 F.3d at 398, 399; see also Hameetman v. City of Chicago, 776 F.2d 636, 640 (7th Cir.1985) ("Federal courts have no general appellate authority over state courts or state agencies."). Accordingly, Plaintiff's D.C. Historic Landmark claim is not cognizable under § 1983.
Finally, Plaintiff argues that the District's alleged failure to give ANC Commissioner Blacknell notice of the proposed construction on the Spingarn campus and its failure to give the ANC's recommendations "great weight" in deciding where to construct the car barn are cognizable under § 1983. Even if the District failed to comply with formal notice requirements, Plaintiff concedes that ANC Commissioner Blacknell was orally informed about the Spingarn construction at a March 2012 community meeting. The D.C. Court of Appeals has held that "actual notice to the affected ANC which allows meaningful participation in a proceeding is sufficient to cure merely technical violations of the thirty-day notice requirement of the ANC Act." Comm. For Washington's Riverfront Parks v. Thompson, 451 A.2d 1177, 1183 (D.C.1982) (citing Shiflett v. Dist. of Columbia Board of Appeals and Review, 431 A.2d 9, 10-11 (D.C.1981)). Here, ANC Commissioner Blacknell learned of the proposed construction in March 2012 and, according to Plaintiff's allegations, had the opportunity to object to the construction at several different public meetings as well as submit to the District a citizens petition and, allegedly, a resolution opposing the construction in the several months prior to the Spingarn campus finally being selected as the location for the car barn.
For the foregoing reasons, Defendant's [29] Motion to Dismiss or, in the alternative, for Summary Judgment is GRANTED IN PART and HELD IN ABEYANCE IN PART. Defendant's Motion is GRANTED as to Counts I and III of Plaintiff's Amended Complaint and Counts IV and X in so far as they relate to the overhead wires because Plaintiff failed to establish it has standing to litigate these claims. Defendant's Motion is further GRANTED as to Counts IV, V, and VII-X as Plaintiff fails to state a claim for relief or a claim over which this Court has jurisdiction. The Court further HOLDS IN ABEYANCE Counts II and VI and Plaintiff's 42 U.S.C. § 1983 claim regarding the alleged violation of the District of Columbia Environmental Policy Act of 1989 pending Defendant's production of the Environmental Impact Screening Form and the related agency recommendations and environmental reports. The Court finds that Plaintiff has also failed to meet the strict notice requirements under the Clean
An appropriate Order accompanies this Memorandum Opinion.
Ward v. D.C. Dep't of Youth Rehab. Serv's., 768 F.Supp.2d 117, 119 (internal quotations and citations omitted).