Fed. Dist Court of DC Dismisses Due Process and Equal Protection Claims Brought Over Incomplete Zoning Application

This post was authored by Sebastian Perez, Esq.

Mildred E. Francis (the “Plaintiff”) submitted a variance application that sought exemption from zoning rules to build a new structure on her property which was deemed incomplete by the Office of Zoning (the “Office”), and eventually not accepted when Plaintiff then challenged the Office’s rejection of her application in the D.C. Court of Appeals but was dismissed for lack of jurisdiction. Plaintiff then sought a review of the Office’s decision in the Superior Court for the District of Columbia (the “Court”). 

Plaintiff sued the Acting Director of the Office and the D.C. Mayor (collectively the “Defendants”) under 42 U.S.C. Sec. 1983 and alleged refusal of her variance application amounted to an Equal Protection and Due Process violation as well as a violation of her right to access powers vested in the Board of Zoning Adjustment (the “BZA” or the “Board”). The Defendants moved to dismiss under FRCP 12(b)(6). Plaintiff’s alleged right of access to powers vested in the Board was subsumed by her Due Process and Equal Protection claims because no cite was made to an independent source of law granting such right. The Court determined that Plaintiff’s Due Process claim did not establish she possessed a legitimate claim of entitlement to such power vested in the Board when she submitted an incomplete variance application because provision D.C. Code Sec. 6-641.07 merely provided for an appeal of BZA decisions limited to complete applications and reserved within the Board to not accept incomplete applications. The Court was unpersuaded by Plaintiff’s argument that Defendants should have excused the deficiencies in the incomplete application since no law required such action. Plaintiff’s Equal Protection claim was treated as one of disparate racial impact because it did not identify any express racial classifications or facially neutral laws applied in an intentionally discriminatory manner but instead alleged the mayor acquiesced in staff preferences for procedures that resulted in defacto racial discrimination. The Court noted that those allegations could have sufficed to plead Defendants’ policies resulted in racially disproportionate impact but still failed because Plaintiff did not plead the necessary second element of a disparate-impact claim: that Defendants’ policies were motivated by a racially discriminatory purpose. 

In conclusion, the Court granted Defendants’ motion to dismiss. 

Francis v Acting Director, DC Office of Planning, 2023 WL 4846625 (D. DC 7/28/2023.