SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

Civil Division

NEIGHBORS FOR RESPONSIVE

Plaintiffs,
Case No. 2016 CA 006290 B
v. Judge Jennifer A. Di Toro

MAYOR MURIEL BOWSER, DISTRICT

Defendants.

ORDER GRANTING DEFENDANTS MOTION TO DISMISS

In the case before the Court, Plaintiffs challenge the validity of paragraph 3(a)(2) of D.C.

Act 21-141, the Homeless Shelter Replacement Act of 2016 (Shelter Act), which authorizes

the steps required prior to construction of a homeless shelter located at 3320 Idaho Avenue,

N.W. in Washington D.C. (Police Station site). Plaintiffs, individual residents of the District of

Columbia who own and reside in properties within the geographic boundaries of Advisory

Neighborhood Commission (ANC) 3C, claim that the Council of the District of Columbia

(Council) and the Mayor of the District of Columbia (Mayor) failed to comply with the

ANC Act before enacting the Shelter Act, specifically, that the Council, sitting as the Committee

of the Whole, revised paragraph 3(a)(2) without notice to the ANC. See Compl. 26. Plaintiffs

contend that because Defendants thereby deprived Plaintiffs of their legally protected right to

raise issues and express concerns before the Council and the Mayor acted, the only remedy that

will vindicate that right is for the Court to invalidate that portion of D.C. Law 21-412 that

designates the Police Station site as the location for a Ward 3 homeless shelter, and require any

further selection process for a homeless shelter site in Ward 3 to proceed with proper ANC

notice and consultation. Pl. Mot. Summ. J. at 3-4. Defendants counter that Plaintiffs lack

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standing to maintain this action, as they have not suffered an injury to a concrete interest, and

even if the Court were to find that Plaintiffs have standing, that the ANC Act does not require

notice of the challenged actions of the Council and the Mayor. Def. Councils MTD at 22-25.

Defendants argue that even if notice were required, Plaintiffs were afforded substantial advance

notice by other means such that Plaintiffs cannot be found to have suffered justiciable injury. Id.

at 27-28. Finally, Defendants argue that the case should be dismissed because this Court lacks

authority to resolve a dispute where the controversy involves a political question . . . where

there is a textually demonstrable constitutional commitment of the issue to a coordinate political

department. Id. at 30 (citing Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012)) (internal citations

omitted). The Court concludes that even making all inferences in favor of Plaintiffs, Plaintiffs

have failed to state a claim on which relief can be granted under D.C. Super. Ct. Civ. R. 12(b)(6).

Plaintiffs have not set forth sufficient evidence to prove such intentional or unjustified failure by

the Defendants to comply with the requirements of the ANC Act that would implicate a

constitutional question and confer jurisdiction on this Court. Moreover, Plaintiffs claim of lack

of notice cannot stand without a concurrent claim of concrete injury, which Plaintiffs have not

alleged they suffered. Without concrete injury, as explained below, the case cannot proceed and

the motion to dismiss shall therefore be granted.

I. Relevant Factual Background

On February 11, 2016, the Mayor introduced Bill 21-0620, proposed legislation that sought

the Councils approval of the terms of a series of leases for property to be used by the District to

provide temporary shelter for families experiencing homelessness. Def. Council Opp. to MSJ at

2, n.2. Among the agreements for which the Mayor sought approval was described via a January

8, 2016 letter of intent for the lease of premises at 2619 Wisconsin Avenue, N.W., located within

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the bounds of ANC 3C in Ward 3. Id. As introduced, Bill 21-0260 also would have exempted the

final lease agreements from certain requirements of the Districts procurement laws and

expressed the support of the Council for expedited review and zoning approval by the Board of

Zoning Adjustment (BZA). Id. Accompanying Bill 21-0620 was an emergency version of the

legislation, Bill 21-618, including substantively identical provisions. Pl. SMF at 1, 4. On

February 19, 2016, the Council noticed a March 17, 2016 public hearing regarding Bill 21-0620.

Def. Council Opp. to MSJ at 2, n. 6.

On March 14, 2016, the ANC met concerning the proposed shelter legislation. Id. n.7.

D.C. Councilmember Mary M. Cheh attended the meeting and agreed with some of the

communitys concerns. Id. n. 8. That same day, the ANC passed ANC 3C Resolution No. 2016-

013, asking the Council to consider several issues related to Bill 21-0620. Id. at 3. A number of

concerns were expressed in the ANC Resolution, which were submitted together with written

testimony to the Council, including the ANCs opposition to the request for expedited review by

the Board of Zoning Adjustment, to the waiver of District procurement law in connection with

Council approval of the final lease, and to the emergency version of the legislation which would

require only a single vote by the Council to ensure passage. Id. at 3, n. 10. On April 6, 2016,

Councilmember Cheh proposed three alternate sites for a temporary homeless shelter in Ward 3.

Id., Ex. 2A (letter from Councilmember Cheh, April 6, 2016). The first proposed alternate site

was the site of the Metropolitan Police Departments Second District Station at 3320 Idaho

Avenue, N.W. Id. On April 13, 2016, Councilmember Cheh sent an email to all of the Ward 3

ANC Commissioners reporting that she had requested that the Mayor and the Department of

General Services (DGS) consider the alternate sites for placement of the Ward 3 shelter,

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including the Idaho Avenue site. Id., Ex. 2 (Declaration of Councilmember Mary M. Cheh at

4).

In May 2016, local news channels reported on Council Chairman Philip H. Mendelsons

plan to utilize District-owned property to for the site of the shelter. Id. Ex. 1 (Declaration of

Council Chairman Philip H. Mendelson at 3). On May 16, 2016, the Councils Committee of

the Whole posted the revised version of Bill 21-260 to Chairman Mendelsons website. Id. at Ex.

1, 4. The revised Bill 21-620 was then issued on May 16, 2016, authorizing the Mayor to use

funds appropriated for the placement of a temporary homeless shelter in Ward 3 at the Police

Station site. Id. ANC 3C met that same evening. Id. at 5. On May 17, 2016, the Council voted

unanimously to pass the revised version of Bill 21-620, rather than the emergency version of Bill

620. Id., n. 23.

On May 26, 2016, a public meeting was held in Ward 3, at which Councilmembers Cheh

and Mendelson were present, to address local residents concerns regarding placement of a

shelter at the Police Station site. Id. at 6, n. 24. On May 31, 2016, the Council voted unanimously

to pass a revised version of the Bill to specify that the shelter site would have no more than 50

housing units. Id., n. 27. The final legislation, the Homeless Shelter Requirement Act,

(Shelter Act) became effective on July 29, 2016, following the required 3-day period of

congressional review. Id.; see also D.C. Law 21-141; 63 DCR 8435.

II. Legal Standard

In determining whether a complaint sufficiently sets forth a claim to survive a motion to

dismiss, the court must construe the complaint in the light most favorable to the plaintiff and

must take the facts alleged in the complaint as true. Casco Marina Dev., L.L.C., v. District of

Columbia Redevelopment Land Agency, 834 A.2d 77, 81 (D.C. 2003). However, the tenet that

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a court must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice, and unadorned, the-defendant-unlawfully-harmed-me

accusation[s] also are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a plaintiffs obligation to provide the

grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.). Rather, [t]o survive a motion to

dismiss [under Rule 12 (b)(6)], a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully. Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C. 2011)

(quoting Ashcroft, 556 U.S. at 678); see also Bell Atl. Corp., 550 U.S. at 555 (Factual

allegations must be enough to raise a right to relief above the speculative level.). Likewise,

[w]here a complaint pleads facts that are merely consistent with a defendants liability, it

stops short of the line between possibility and plausibility of entitlement to relief. Id.

In addition to the facts pled, a motion to dismiss pursuant to Rule 12 (b)(6) may rely

upon documents that are in the public record or are referred to in the complaint. Chamberlain v.

Am. Honda Fin. Corp., 931 A.2d 1018, 1025 (D.C. 2007) (Documents that a defendant attached

to a motion to dismiss are considered part of the pleadings if they are referred to in plaintiffs

complaint and are central to her claim.); see also Buaiz v. United States, 471 F. Supp. 2d 129,

134 (D.D.C. 2007) (citing Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002))

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(in addition to relying on the allegations in the Complaint, the Court may rely upon documents

attached as exhibits or incorporated by reference in the complaint, and matters about which the

Court may take judicial notice.). The Court cannot, however, consider matters outside the

pleading when ruling on a motion to dismiss without converting the motion to one for summary

judgment. See Super. Ct. Civ. R. 12(b) (If, on a motion asserting the defense numbered (6) to

dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading

are presented to and not excluded by the Court, the motion shall be treated as one for summary

judgment); see also Washkoviak v. Sallie Mae, 900 A.2d 168, 177-78 (D.C. 2006). In this

case, both parties have cited matters of public record of which the Court is entitled to take notice

without converting the motion to one for summary judgment. Drake v. McNair, 933 A.2d 607,

616 (D.C. 2010); Cagliotti v. District Hosp. Partners, LP, 933 A.2d 800, 807 (D.C. 2007). The

Court therefore shall consider whether Plaintiffs claims survive a Motion to Dismiss under Rule

12(b)(6).

III. Analysis

A. Political Question

In 1973, Congress passed the District of Columbia Self-Government and Government

Reorganziation Act, Pub. L. No. 93-198, 87 Stat. 777, commonly known as the Home Rule

Act. The Home Rule Act operates much like a state constitution, and it specifies that the

Council has no authority to pass any act contrary to its provisions. D.C. Code 1-207.71(c);

Washington D.C. Assn of Realtors, Inc. v. District of Columbia, 44 A.3d 299, 301 (D.C. 2012).

The District of Columbia Charter is set out in Title IV of the Home Rule Act and establishes the

organizational structure of the District Government. (codified at D.C. Code 1-204.01-1-

204.115 (2006)). The Charter created a tripartite form of government such that the same

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general principles should govern the exercise of such power in the District Charter as are

applicable to the three branches of government at the federal level. Wilson v. Kelly, 615 A.2d

229, 231 (D.C. 1992). Defendants argue that this case should be dismissed because section

404(c) of the District Charter firmly commits to the discretion of the Council the establishment

of procedures for public notification of intended Council actions. See D.C. Code 1-204.04

(the council shall adopt and publish rules of procedures which shall include provisions for

adequate public notification of intended actions of the Council) ; see also Baker v. Carr, 369

U.S. 186, 217 (Prominent on the surface of any case held to involve a political question, is a

textually demonstrable constitutional commitment of the issue to a coordinate political

department.). The District further alleges that the the ANC Act could not require advance notice

of the actions involved in enactment of legislation because the requirements of legislative

enactment are set by the Charter and prior notification of an ANC is not among them.1

Defendants contend that one legislature cannot bind a future legislation and for any conflict, the

later statute superceedes the earlier. Councils Reply in Support of MTD at 6 (quoting

Washington D.C. Assn of Realtors, 44 A.3d at 306). The Plaintiffs note that the provision

requiring the Council to notify the ANC is not in direct contravention with any provision of the

Home Rule Act.2 District MTD at 12. ANCs are political subdivisions of the District of

Columbia government and therefore do not receive due process protections under the

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Defendants argue that the Districts Charter, part of the Home Rule Act, does not include prior notification of an
ANC as among the requirements for enactment of a law in the District. Specifically, neither Section 404(4) of the
Home Rule Act, which defines the procedures by which the Council and Mayor approve legislation, nor Section
606(c), which defines the congressional review period, includes any requirement that notice be given to any entity
other than Congress. Def. MTD at 13; citing D.C. Code 1-204.04(3) (Home Rule Act); 1-206.02(c)
(Congressional review period). Drawing all inferences in Plaintiffs favor, the Court will address their claims
without concluding that the requirement of ANC notification is properly considered part of the legislative enactment
procedure.
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On December 20, 2016, the Council passed the Advisory Neighborhood Commissions Ombinus Amendment Act
of 2016 (B21-0697), in part to clarify that the only actions for which all District agencies must give ANCs a 30-day
notice are the intent to acquire property or the intent to change the use of a property the government owns or leases.
The bill exmpts the Council from this advance notice requirement.

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Constitution against actions of the District of Columbia. Williams v. Baltimore, 289 U.S. 36, 40

(1933). However, this case is brought by the individual residents who own and reside in

properties within the geographic boundaries of ANC 3C who do have due process protections

under the Constitution. Thus the Court must determine whether the procedural flaw has violated

a substantive right.

B. Standing

In order for a Court to adjudicate a question, Plaintiffs must first establish that they have

standing under Article III of the Constitution, which limits the reach of the judiciary to cases and

controversies. See U.S. Const. art. III 2; Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82

L.Ed. 2d 556 (1984). Although the Superior Court of the District of Columbia was established

under Article I of the United States Constitution, it generally adheres to the case and

controversy requirement of Article III as well as prudential principles of standing, and looks to

federal standing jurisprudence, both constitutional and prudential, when considering issues of

standing. Riverside Hosp. v. District of Columbia Dept of Health, 944 A.2d 1098, 1104 (D.C.

2008); Padou v. District of Columbia, 77 A.3d 383, 389 n. 6 (D.C. 2013); Padou v. District of

Columbia Alcholic Bev. Control Bd., 70 A.3d 201, 211 (D.C. 2013). As standing is an essential

and unchanging part of the case or controversy requirement, a finding that Plaintiffs in the case

before this Court have standing is a necessary predicate to the exercise of the Courts jurisdiction

over this matter. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed. 2d

351 (1992). Viewing the question of standing in the context of a motion to dismiss, the Court

may either rule upon the Complaints well-pleaded allegations, or alternatively, order the

plaintiff to demonstrate its standing by affidavit. Grayson v. AT&T Corp., 15 A.3d 219, 245-46

(D.C. 2011).

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 Plaintiffs argue that their case presents a justiciable issue because the Council and the

Mayor improperly bypassed the statutorily prescribed procedure that would have required them

to give great weight to ANC issues and concerns that would have been raised via the pre-

enactment ANC consultation process. Specifically, Plaintiffs argue that Defendants failed to

follow the requirements of D.C. Code 1-309.10(b) and to afford them, 30 days in advance,

written notice by first-class mail to . . . the Commissioner representing a single-member district

affected by said actions. Compl. 28. The Court recognizes that Plaintiffs who claim a

procedural injury such as this one may have standing, because a person who has been accorded

a procedural right to protect his concrete interests can assert that right without meeting all the

normal standards for redressibility and immediacy. Lujan, 504 U.S. at 572 n. 7; see also Kopff

v. D.C. Alcoholic Beverage Control Bd., 381 A.2d 1372, 1377 (D.C. 1977). However, a plaintiff

who alleges a deprivation of a procedural protection to which he is entitled still must

demonstrate more than simply procedural injury; there must also be an actual injury flowing

from the procedural flaw. See Smith v. Henderson, 982 F. Supp. 2d 32, 42 (D.D.C. 2013). In the

absence of a substantive injury that would otherwise confer Article III standing, the procedural

injury doctrine could swallow essential standing requirements. Id. at 42. The Court is therefore

required to consider whether Plaintiffs claim that the lack of notice and the alleged ANCs

inadequate presentation of neighborhood views constitutes concrete injury sufficient to confer

standing. Pl. Opp. District MTD at 4, (citing Kopff, 381 A.2d at 1377).

As established by the Supreme Court, denial of the ability to file comments is not a

sufficient injury in fact to satisfy the requirements of standing. Summers v. Earth Island Inst.,

555 U.S. 488, 496-97 (2009); Lujan, 504 U.S. at 556. Summers is instructive. There, petitioners

filed suit based on alleged violations of the Forest Service Decisionmaking and Appeals Reform

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Act. Summers, 555 U.S. at 490. While there was no dispute that petitioners had been denied a

procedural right conferred by statute, the Court held that no concrete interest had been injured by

the denial, as petitioners could cite no concrete injury in fact. Id. In the case before the Court,

Plaintiffs seek to distinguish Summers and Lujan, pointing that there is no precedent in the

District of Columbia questioning the Kopff conclusion that violation of the ANC right to

comment is actual injury suffered by the residents themselves. 381 A.2d at 1377. Lujan was

decided in 1992. In 2009, using the framework set forth in Lujan, the Summers Court concluded

that denial of the ability to file comments is not sufficient injury to satisfy the standing

requirements of Article III. Summers, 555 U.S. at 496. The Court finds that while the ANC Act

confers the procedural right to comment on the proposed location of the shelter, Plaintiffs have

not alleged any injury in fact such that this Court could properly consider the claim.

Plaintiffs further argue that the failure of the Council and the Mayor to follow the ANC

Acts requirements that Commissioners comments be given great weight affords them

standing to bring this action. See D.C. Code 1-309.10(a), (d)(3)(A); Pl. MSJ at 2-3. However,

our Court of Appeals has expressly recognized that the right to compliance with the ANC Act is

of statutory, not constitutional, dimension. Tenley & Cleveland Park Emergency Comm. v.

District of Columbia Bd. of Zoning Adjustment, 550 A.2d 331, 342 n. 27 (D.C. 1988). While the

Court recognizes that the ANC Act is designed to ensure effective participation of

neighborhood views, Kopff, 381 A.2d at 1377, and that the Court of Appeals long ago made

clear that citizens have a legally protected right to ensure compliance with the ANC Act,

Plaintiffs claim that the procedural violation here affords them standing fails in the absence of

an allegation of injury in fact.

C. Injury in fact

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 A plaintiff alleging a deprivation of a procedural protection nevertheless must prove that

he has suffered a substantive injury that would otherwise confer standing. Here, Plaintiffs make

the complaint that they were denied the right to comment on the location of the proposed shelter.

Compl. at 35. Although the statute requires written notice by first-class mail, actual notice will

also satisfy the legal requirements as long as the relevant Commissioner has had sufficient time

to comment. Henderson, 982 F. Supp. at 42, citing Comm. For Washingtons Riverfront Parks v.

Thompson, 451 A.2d 1177, 1183 (D.C. 1982) ([a]ctual 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.). Actual notice, therefore, may be found even

where technical violations of the ANC Act have been proven, if Defendants can demonstrate that

the Plaintiffs were given the right to advise. Shiflett v. D.C. Bd. of Appeals & Review, 431 A.2d

9, 11 (D.C. 1981). Plaintiffs argue that Shiflett is inapposite, because the plaintiffs in that matter

did not submit comments to be afforded great weight, while Plaintiffs in the case before the

Court did make clear that the ANC had issues regarding the proposed site, and argue that the

Councils failure to solicit and address those concerns and explain their decision with specific

written findings deprives them of statutory protections to which they are entitled and this Court

should enforce. Compl. 46-48. However, while Plaintiffs allege that they were given no

advance notice of the actions of the Council and the Mayor, the record shows that the Council

informed them of the decision to utilize the Police Station site on May 17, 2016, when the

Committee of the Whole amended the Homeless Shelter Act and issued its report. Compl. 27,

30. Thus, Plaintiffs had thirteen days prior to the Councils adoption of the Homeless Shelter Act

and 126 days before it would become effective to submit any issues and concerns. Id. 33.

Plaintiffs themselves acknowledge that they first received actual notice of the planned

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amendments to the Shelter Act a month prior to the issuance of the May report, in April 2016,

when Councilmember Cheh first informed residents that she planned to propose the Police

Station site. Compl. Ex. 2 at 1 (WHEREAS, on April 13, Councilmember Cheh wrote to [the

Department of General Services] and asked for a feasibility study of 3320 Idaho Avenue

NW.). On May 2, 2016, a press release was issued by Councilmember Chehs office

informing the public that she had written to the Department of General Services regarding the

Police Station site for the Ward 3 shelter. Def. Opp. at 25. For her part, the Mayor

acknowledged her intent to sign the Homeless Shelter Act on May 27, 2016, by issuing a letter to

Chairman Mendelson and by signing the Bill on June 13, 2016. Id.; Compl. at 31. Thus, under

Plaintiffs facts, the Court finds that Plaintiffs had actual knowledge of the actions within the

parameters of the advance notice requirements under the ANC Act. D.C. Code 1-309.10(b).

Our Court of Appeals has found that substantial compliance with notice requirements

may suffice where verbatim compliance has not been found. See Richardson, 452 A.2d at 124 (J.

Nebeker, concurring) (The ANC Act permits affected citizens to provide notice to agencies

regarding actions that affect their communities. Violation of an alleged notice requirement does

not prohibit them from doing so.) The record shows that Plaintiffs exercised their right to testify

regarding their concerns about the Police Station site and expressed their concerns through

ANC3C resolutions. Compl. Ex. 2; ANC Resolution No. 2016-013 (March 14, 2016).

Plaintiffs claim, however, that because adoption of Section 3(a)(2) of the Shelter Act is a

final policy decision by defendant on public improvements affecting the ANC3C area, the

Court should find that Plaintiffs deprivation of the 30-day written notice is sufficient injury to

confer standing. Compl. 43; Pl. Opp. MTD at 3. Even assuming that Plaintiffs are correct and

adoption of Section 3(a)(2) is a final decision on the location of the Ward 3 shelter, the Court

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finds that violation of the statutory right to comment only amounts to actual injury suffered by

residents if there is a connection between the procedural flaw and a substantive injury that would

otherwise confer Article III standing. Claims of lack of notice cannot stand without injury. The

question, therefore, remains whether Plaintiffs were injured by the lack of notice. Based on the

record, and drawing all inferences in favor of Plaintiffs, the Court concludes that while the

Plaintiffs were entitled to notice, they suffered no concrete injury because they received actual

notice via the Councils announcement of the decision to utilize the Police Station site on May

17, 2016, when the Committee of the Whole amended the Homeless Shelter Act and issued its

report, and again via ANC3C resolutions which were submitted to Councilmember Cheh. Compl.

at 27, 30.

D. Causation and Redressibility

In order for this Court to find that Plaintiffs have standing, Plaintiffs must also

demonstrate that their alleged injuries from the lack of notice and issuance of the Amended Act

were both caused by the Defendants and are capable of redress. As discussed above, standing for

a procedural injury is special, in that Lujan affords a person who has been accorded a

procedural right to protect his concrete interests can assert that right without meeting all the

normal standards for redressibilty and immediacy. Lujan, 504 U.S. at 572 n.7. Plaintiffs do not

have to prove that had they received the procedure, the substantive result would have been

altered. All that is necessary is to show that the procedural step was connected to the

substantive result. Richardson, 982 F. Supp. at 41 (citing Sugar Cane Growers Co-op of Fla. v.

Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002)). Nonetheless, Plaintiffs still must demonstrate

more than a procedural flaw for this Court to find that they have met the requirements of

standing. While they have demonstrated the procedural flaw, they have failed to persuade the

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Court that the failure to give their comments great weight affected the substantive result. The

Court notes that construction has not begun; nothing in the Homeless Shelter Act itself indicates

that construction is imminent. Should the Mayor propose to proceed with construction, the

Council is free under the Act to reject any proposed contract, which would render the disputed

section unlawful, null and void under the Home Rule Act. See Council MTD at 31. The

substantive result, namely, construction of the shelter, has not yet materialized such that the

Court could find that the procedural flaw affected any substantive result. Court intervention,

therefore, does not provide the only remedy by which Plaintiffs claims may be redressed. As

noted at oral argument, no final actions have been taken; the Shelter Act only authorizes

preliminary actions by which the construction project may proceed. See, e.g., Foggy Botton

Assn v. D.C. Zoning Assn, 979 A.2d 1160, 1165-66 (D.C. 2009) The Shelter Act authorizes

Mayoral actions; no final decision has been made regarding the Police Station site.

Conclusion

Having concluded that Plaintiffs have not sustained an injury in fact so as to confer

standing, the Court then turns to the question whether judicial action may still required because

no other remedy is available. In this case, the original decision-making process has not been

completed. Construction has not begun. Plaintiffs remedy, therefore, remains in the political

arena, whereby pursuant to D.C. Code 1-309.10(a), Plaintiffs can seek to intervene in the

political process such that the Council or Mayor may decide not to proceed with construction at

the Police Station site. The Supreme Court has clearly indicated that a court lacks the authority

to intervene when the controversy involves a political question Zivotofsky v. Clinton, 566 U.S.

at 195, and plaintiffs have not been shut out of the political process. Davis v. Bandemer, 478

U.S. 109, 139 (1986). As none of the Plaintiffs can claim a sufficient injury in fact, this

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challenge cannot survive a motion to dismiss under Super. Ct. Civ. R. 12(b)(1), (4), or (6), which

shall therefore be granted.

Accordingly, it is this 7th day of February, 2017, hereby

ORDERED, that Defendant Council of the District of Columbias Motion to Dismiss is

GRANTED. It is further

ORDERED, that Defendant District of Columbias Motion to Dismiss is GRANTED. It

is further

ORDERED, that Plaintiffs Motion for Summary Judgment is DENIED.

SO ORDERED.

________________________
Judge Jennifer A. Di Toro
Associate Judge
Signed in Chambers

Copies to:

David W. Brown, Esq.

Daniel Golden, Esq.

Conrad Z. Risher, Esq.

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