Library News

Motion for Preliminary Injunction to Prevent the Demolition of Benning Library

Motion for Preliminary Injunction


      Plaintiffs seek a preliminary injunction order enjoining defendants from demolishing Benning Neighborhood Library, 3935 Benning Road, N.E. (“Benning Library”), and compelling defendants to i) immediately stop the dissipation, diversion or depletion of any improvements or additions to the existing Benning Library facility or its premises; ii) provide an environmental impact study for the demolition project, compared to the renovation and expansion of the existing structure iii) provide a timely, objective engineering study, evaluating costs of renovating and expanding the existing Benning Library structure and facilities; iv) address and incorporate as top priority the needs and recommendations of the community into the design and function of the renovated library; v) provide a meaningful process of public consultation and binding oversight; and vi) invest ultimate authority for acceptance of any plans for library development in the public.


Memorandum in Support


      Plaintiff respectfully submits this memorandum of law in support of its motion for a preliminary injunction.


Facts


      The facts are set forth in the verified Complaint and the accompanying affidavits.

Parties


Plaintiff, Rick Tingling-Clemmons, 4614 Central Avenue, NE, Washington, DC 20019.


Plaintiff, Betty Diggs, 3716 Nash Street, SE, Washington, DC 20019.


Plaintiff, Dorothy Douglas, 4401 Minnesota Ave., NE, Washington, DC 20019.


Plaintiff, Louise Gray, 116 35th Street, NE, Washington, DC  20019.


Plaintiff, Cynthia Payne-Davis, 219 – 45th Street, NE, Washington, NE, Washington, DC 20019.

Plaintiff, Eddie Rhodes, 3909 Blaine Street, NE, Washington, DC 20019.


Plaintiff, Jane Zara, 1611 Monroe Street, NW, Washington, DC 20010


Plaintiff, Community to Save Our Libraries (C-SOL), c/o 4614 Central Avenue, NE Washington, DC 20019.


Defendant, Adrian Fenty, in his official capacity as Mayor, District of Columbia, 1350 Pennsylvania Avenue, N.W., Washington, D.C. 20004.


Defendant , John Hill, in his in his official capacity as President of the Board of Library Trustees of the DC Public Library, 1156 15th Street, NW, Suite 600, Washington, DC 20015

Defendant , Ginnie Cooper, in her official capacity as Chief Librarian of the DC Public Library, Martin Luther King Jr., Memorial Library, 901 G Street, NW, 4th Floor


Washington, DC 20001


Argument


I. Standard for Injunctive Relief


   The requirements for obtaining a preliminary injunction are as follows:


Before granting a preliminary injunction, the trial court must be satisfied that the moving party has demonstrated that (1) there is a substantial likelihood he will prevail on the merits; (2) he is in danger of suffering irreparable harm during the pendency of the action and (3) more harm will result to him from the denial of the injunction than to the nonmovant from its grant.

Simpson v. Lee, 499 A.2d 889, 892 (D.C. 1985). In addition, Plaintiff must show “that the public interest will not be disserved” by grant of the injunction. Wieck v. Sterenbulch, 350 A.2d 384, 387 (D.C. 1978). The requirements for obtaining a temporary restraining order (“TRO”) are identical, with a particular focus on the “irreparable injury” element. See In re J., 431 A.2d 587, 589 (D.C. 19981). Plaintiff is able to demonstrate that each of the three elements set forth above are present in this action.



  1. plaintiffs have standing: plaintiffs and members of the community have and will suffer immediate and irreparable injury


      Plaintiffs have standing to assert the right to enjoin the defendants in breaching their duty to use certain funds for the benefit of the community of Benning Library, and to enjoin defendants in their continued negligence which in turn has allowed for the continued deterioration of the Benning Library facilities. “[I]n its closed state, the facility is subject to deterioration.” Young Men’s Christian Assoc. of the City of Washington v. Samuel Covington, Jr., 484 A.2d 589, 593 (D.C. Ct. App. 1984). Plaintiffs have standing to assert the right that public officials and related agencies must comply with D.C. Code §§ 1-207.38(d), 1-309.10(b), 1-309.10(d)(3)(A) and (B), 8-109.01
et seq., and 10-801(a) and (b). 


      “[A] party ‘assuredly can’ enforce procedural rights ‘so long as the procedures in question are designed to protect some threatened concrete interest of [the party] that is the ultimate basis of the party’s standing.’ Friends of Tilden Park, Inc. v. District of Columbia et al., 806 A.2d 1201, 1208, 1211 (D.C. Ct. App. Nos. 00-CV-1560, 01-CV-376) (2002); Tilden Park at 1211,

quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n. 8, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A procedural injury from failure to prepare an EIS, or from failure to comply with existing D.C. laws can support standing provided that the plaintiff has “a sufficient geographical nexus to the site of the challenged project” to suffer its environmental or economic consequences. Friends of Tilden Park, A.2d 1201,1211
citing Lujan, 504 U.S. 555 at 572 n. 7.


      When the Supreme Court considered procedural injury as a basis for standing, it recognized that “[t]here is this much truth to the assertion that ‘procedural rights’ are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Tilden Park

supra at 1211
citing Lujan, 504 U.S. at 572 n. 7. The District’s failure to provide an EIS regarding the impact of the demolition of Benning Library deprives plaintiffs of their procedural rights. The deprivation of this procedural right creates a risk that environmental damage will go undiscovered. 


      Plaintiffs have standing to assert the right to the determination of its public resources, including the right to be informed and participate in the planning and use of its public property, including its public library resources. Young Men’s Christian Assoc.,
484 A.2d 589, 593; Friends of Tilden Park, Inc. v. District of Columbia et al., 806 A.2d 1201, 1208 (D.C. Ct. App. Nos. 00-CV-1560, 01-CV-376) (2002); Uniform Unincorporated NonProfit Association Act (1996). Plaintiffs have standing to assert the right of equal access to their community public library facilities, and standing to assert the right of due process in determining the disposition of their community property rights. Id; Bolling v. Sharpe, 347 U.S. 497, 499-500, 98 L.Ed. 884 (1954).

      Plaintiffs satisfy the irreparable injury prong of the test for a temporary restraining order and preliminary injunction. Demolition of the library must be enjoined in order to preserve the status quo and allow for the enforcement of government’s duties under D.C. Code §§ 1-207.38(d), 1-309.10(b), 1-309.10(d)(3)(A) and (B), 8-109.01
et seq., and 10-801(a) and (b), which have been violated by the Defendant’s actions. Immediate relief is required because the precious rights of our citizenship have been significantly impaired, and irreparable harm and loss ensue. These rights include the public’s right of compliance with existing DC laws by all relevant agencies and their representatives; the public’s right to the protection of its public property from harmful neglect; the right of the public to participate in and to determine the use and disposition of its public properties, including its public library facilities; and the right to equal access by all citizens to their community library resources.


      Injunctive relief is clearly necessary to prevent the property owner from irreparably altering the status quo by commencing the destruction of the Benning Library, including the improper removal and storage of hazardous material. “[I]n its closed state, the facility is subject to deterioration.” Young Men’s Christian Assoc. of the City of Washington v. Samuel Covington, Jr., 484 A.2d 589, 593 (DATE!!). 

      Without question, Plaintiffs will suffer irreparable injury unless the demolition of the Benning Library is enjoined. “The act of demolition is irrevocable. Consideration of alternative plans ... is permanently foreclosed once the structures have been razed.” Boston Waterfront Residents Association v. Romney, 343 F. Supp. 89, 91 (D. Mass. 1972). As one federal court noted in affirming the grant of an injunction against the demolition of buildings, "the district judge was surely correct in finding irreparable injury; demolition is generally irreparable." WATCH v. Harris, 603 F.2d 310, 312 n.2 (2d Cir. 1979). Accordingly, there can be no doubt that Plaintiffs have satisfied the irreparable injury prong of the standard for a temporary restraining order and preliminary injunction. An injunction directing the D.C. government to revoke and/or stop work on the demolition of the Benning Library is clearly needed to ensure that the library replacement plans proceed in conformity with the law.



  1. plaintiffs have a substantial likelihood of success on the merits because defendants have not fulfilled their duties or met the statutory requrements of
    D.C. Code §§ 1-207.38(d), 1-309.10(b), 1-309.10(d)(3)(A) and (B), 8-109.01, 8-109.03(a) and (b), 10-801(a) and (b) in their management of Benning Library 


      Defendants have not fulfilled their duties or met the statutory requirements with respect to the notice, planning and accountability of the disposition of the Benning Road Library, especially as benefiting the public interest. Regarding the disposition of public property in D.C., defendants have the duty to describe the manner in which economic factors are weighted and evaluated, including estimates of the monetary benefits and costs to the District that will result from changes in the disposition of real property. D .C. Code § 10-801(b)(6)(b-1)(1)(2). This includes any proposed methods of disposition. Id. 


      DC law also expressly provides that the affected ANC, as well as the ANC Commissioner in the affected Single Member District be given 30 days written notice of all “district government actions or proposed action, including … (2) the intent to change the use of property owned or leased by on behalf of the government.” D.C. Code § 1-309.10(b). The decision to demolish the Benning Neighborhood Library, which was closed in 2004, is plainly a permanent change in the use of property and subject to notice requirements. 


      Notice requirements apply to “each executive agency, and all independent agencies, boards, and commissions,” including the D.C. Public Library and the Board of Library Trustees. Id. § 1-309.10(a). The courts have emphasized the importance of this required notice in ensuring, for instance, that the ANC is able to perform its statutory function of providing advice on proposed district government actions. Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372 D.C. 1977. This statutory function includes having the ANC’s “issues and concerns” be accorded “great weight” in a written agency decision on the proposed action. “The written rationale of the decision shall articulate with particularity and precision the reasons why the [ANC] does or does not offer persuasive advice under the circumstances. In so doing, the government entity must articulate specific findings and conclusions with respect to each issue and concern raised by the [ANC].” D.C. Code § 1-309.10(d)(3)(A) and (B).

      Defendants have not fulfilled their duties or met the statutory requirements with respect to requiring the issuance of an Environmental Impact Statement (EIS) for the Benning Library project. The District should have and must prepare an EIS for the Benning Library project, pursuant to the District of Columbia Environmental Policy Act (DCEPA), before it arrives at any plans to demolish Benning Library. D.C.Code § 8-109.01
et seq. (2001). Friends of Tilden Park, Inc. v. District of Columbia et al., 806 A.2d 1201, 1203-4 (D.C. Ct. App. Nos. 00-CV-1560, 01-CV-376) (2002). Furthermore, the DCEPA “provides for public review and comment when an EIS is prepared, and for a public hearing if there is sufficient interest.” Id.
citing D.C. Code § 8-109.03(b).


      The District’s failure to provide an EIS regarding the impact of the demolition of Benning Library deprives plaintiffs of their procedural rights. The deprivation of this procedural right creates a risk that environmental damage will go undiscovered. 

      It is self-evident that the benefit of the disposition of public property must first and foremost inure to the benefit of its citizens. It is also self-evident that, in order for the public and their corresponding ANC to be accorded a meaningful opportunity to provide its views and receive the statutorily required “great weight,” notice of a proposed action must be provided before the decision to take the action is made. 



  1. more harm will result to the community from the denial of injunctive relief and the continued failure by the trustees and staff to fairly and openly advance the redesign of the libraries in our city for public use and benefit


      The trustees and staff have significantly failed for over two and a half years to effectively and efficiently advance the planning for the redesign of four libraries, including Benning Library, in a manner that has been fair and open to the public. The trustees and staff have failed to provide adequate reports on buildings, developing options for transformation, evaluating option costs and outlining a program plan for services to be delivered by DCPL at a renewed Benning Branch Public Library. 


      Despite their failure to execute the legally required tasks in public property disposition, the Trustees instead successfully lobbied City Council for passage of the LEAD Act, unlawfully authorizing the sale or lease of all library assets and mandating the formation of a taskforce to develop a strategic plan of public private partnerships to help fund transformation. Accompanying this strategic plan for private partnerships, the $4 million dollar library - originally planned and never manifested in repairs or improvements to the library - has now become a $12 million library. Over $3 million dollars have been expended on the demolition and promised reconstruction of four libraries in the city, including Benning Library. There are no available public records explaining the economic factors considered in determining any proposed changes in the disposition of this property (e.g. it’s demolition, the potential leasing or sale of air rights), in determining the “estimates of the monetary benefits and costs to the District that will result” from any changes in the disposition of this property, including revenues, fees, and other payments to the District, as well as the creation of jobs, as required by D.C. Code § 10-801(b)(6)(b-1)(1) and (2).

      There are no available public records explaining i) how the decision was reached to demolish Benning Library; ii) why it is assumed to be more feasible to demolish the building than remodel the existing structure; iii) where and how this money (in excess of $3 million dollars) was spent and how it has benefited the Benning Library community; iv) what the environmental impact is on the community in demolishing the building, and what the environmental impact would be for any proposed plans, as required by D.C. Code §8-109.03(a) and (b).



  1. the public interest will be served by an injunction to this process because the public has an abiding interest in receiving the best value for its money


      It may be less expensive to renovate the Benning Library than to demolish and rebuild. The case for taking the building down to its underlying structure and thoroughly building and expanding it is supported by its original structure, which was designed for future expansion. It is not known how or why the DC Public Library Trustees or DCPL staff came to their decision to demolish the Benning Library, or whether the economically viable options of renovating, refurbishing and expanding it, or any other possibility for its revitalization and transformation were publicly discussed and properly evaluated. There is no record of an engineering study, environmental impact study, or other report detailing the options for renewing the Benning Library. None of the expended $3.2 million dollars have benefited the citizens of Benning Library neighborhood.


      The Board of Library Trustees and DCPL staff of 2003-2004 failed in their responsibility to perform due diligence related to the options and costs for rebuilding Benning Library. This process could have been done during the two and a half years the library has been closed. Continued failure to do so has denied people in the Benning Library community equal access to local library facilities in the District. It falls to the current Board of Library Trustees to carry out this task. There is little evidence to suggest that this Board can be entrusted to carry out oversight of the renovation of Benning Library in a way that is fair, open and most beneficial for the affected community.

      Until the findings of a full report are known, and options based on the findings assessed, plans for the library cannot be properly developed. Demolition of the library building before plans are properly developed serves no clear benefit to the public, and may in fact compound the detriment to the public good that has occurred, especially in light of the history of Benning Library and persistent lack of fair and equal access to public library facilities for our community.


II. No Security Bond Should Be Required.


      Rule 65(c) of the D.C. Superior Court Rules of Civil Procedure governs the requirement of posting a security bond for a preliminary injunction or temporary restraining order. It is identical to Fed. R. Civ. P. 65(c), and our courts routinely follow federal court precedents in construing this rule. See e.g., L’Enfant Planza Properties, Inc. v. Fitness Systems, Inc., 354 A.2d 233, 236-37 (D.C. 1976) It is well-established that, "under appropriate circumstances bond may be excused, notwithstanding the literal language of Rule 65(c).” Wayne Chemical, Inc. v. Columbus Agency Service Corp. 567 F.2d 692, 701 (7th Cir. 1977).

      Here, a security bond should not be required in order to protect the Plaintiffs’ ability to enforce, as a “private attorney general,” the important statutory mandate of D.C. Law 2-144 and the DCEPA. The principle favoring waiver of a bond in public interest cases has long been applied by the courts in environmental and historic preservation cases where imposition of a bond would preclude “effective and immediate appellate review” and “would seriously undermine the mechanisms” in environmental protection laws “for private enforcement.” Friends of the Earth v. Brinegar, 518 F.2d 322, 323 (9th Cir. 1975); People v. State of California ex rel. Van de Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, modified, 775 F.2d 998 (9th Cir. 1985). See also Powelton Civic Home Owners Association v. Department of H.U.D., 284 F. Supp. 809, 840-41 (E.D. Pa. 1968) (court rejected "the proposition that Rule 65(c) was intended to raise virtually insuperable financial barriers insulating the agency's decisions from effective judicial scrutiny.").

      The plaintiffs in this case are concerned residents of Deanwood with no financial stake in the outcome of the suit. If they were forced to post thousands of dollars in security, they and other groups around the country would be effectively deterred from bringing this sort of action. Such deterrence would contravene their ability to serve as watchdogs to aid in the enforcement of governmental policy. See Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 173-74 (1st Cir. 1980); Wisconsin Heritages, Inc. v. Harris, 476 F. Supp. 300, 302 (E.D. Wis. 1979). The interests Plaintiffs seek to protect here, as well as the absence of any financial benefit to them from this action, argue strongly for waiver of any bond requirement.


      In any event, this Court has ample discretion to require no more than a nominal bond. A nominal bond is particularly appropriate when plaintiffs are suing to enforce public rights. See, e.g., Natural Resources Defense Council, Inc. v. Morton, 337 F. Supp. 167 (D.D.C. 1971) ($100 bond); Environmental Defense Fund v. Corps of Engineers of the U.S. Army, 331 F. Supp. 925 (D.D.C. 1971) ($1 bond). Since Plaintiffs seek to enforce declared D.C. law and policy, only a nominal bond, if any, is appropriate.