From hearing to Listening: Access to Justice and Indirect Displacement

NOTE

From “Hearing” to Listening: Access to Justice and

Indirect Displacement

EMILY MCWEY*

When local government policies cause households and communities to

become homeless, those affected are entitled to due process. Yet when

the government displaces households through zoning-induced gentrif‌ica-

tion, it often acts as the perpetrator of the harm, adjudicator of disputes,

and favored party on appeal. Regardless of the merits of such disputes,

that process raises prohibitive access-to-justice barriers.

The threat of homelessness is undeniably a substantial private interest

for due process purposes. When this threat arises from government-

driven policies, due process becomes particularly critical. For that rea-

son, while the existing access-to-justice discourse about direct displace-

ment is important, this Note reveals that access-to-justice barriers in the

context of indirect displacement through zoning-induced gentrif‌ication

are perhaps even more fundamental.

To illustrate the necessity of such research, this Note examines a

recent case in which Ms. Sharon Cole, a pro se litigant, navigated the

entire available process—from the zoning hearing to the f‌inal appeal—to

defend herself and her community against indirect displacement caused

by zoning-induced gentrif‌ication. The facts and substantive law over-

whelmingly supported her community’s position, but Ms. Cole was

denied a meaningful opportunity to be heard. By the end of the process,

the government had initiated and subsidized the harm, and the legal sys-

tem legitimated, facilitated, and—worst of all—erased it.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

A. HISTORICAL CONTEXT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

B. DISPLACEMENT AND ACCESS TO JUSTICE. . . . . . . . . . . . . . . . . . . . . . . 160

* Georgetown University Law Center, J.D. 2021; Florida State University, B.S. 2018. © 2021, Emily

McWey.

151

II. THE PROCESS OF ZONING-INDUCED INDIRECT DISPLACEMENT IN D.C.’S

H STREET NEIGHBORHOOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

A. STEP 1: EMPTY PROMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

B. STEP 2: FURTIVE PLANNING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

C. STEP 3: HAZARDOUS EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

D. STEP 4: CONSCIOUS SUPPRESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

E. STEP 5: LEGITIMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

F. STEP 6: THE UNSUNG TRUTH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

G. STEP 7: DEVASTATING RESULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

III. ACCESS TO JUSTICE & INDIRECT DISPLACEMENT . . . . . . . . . . . . . . . . . . . . 180

A. PROCEDURAL DUE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

B. MEANINGFUL OPPORTUNITY TO BE HEARD OR THE RIGHT TO SPEAK

WITHOUT BEING INTERRUPTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

1. Bias. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

2. Undue Deference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

3. Disproportionate Standards . . . . . . . . . . . . . . . . . . . . . . . 190

IV. BRIDGING THE GAP BETWEEN LAW AND PRACTICE . . . . . . . . . . . . . . . . . . 193

A. PRIVATE INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

B. RISK OF ERRONEOUS DEPRIVATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

C. GOVERNMENT INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

V. RESEARCH ABOUT THE LEGAL PROCESS OF INDIRECT DISPLACEMENT

CAUSED BY ZONING-INDUCED GENTRIFICATION AS AN ACCESS-TO-

JUSTICE TOOL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

INTRODUCTION

In June 2019, Washington, D.C.’s highest court ruled in favor of the govern-

ment, unmoved by the petitioner’s poignant and well-founded plea: “Is

Washington, D.C. only for the rich?”

1

As a senior citizen, grandmother, and low-

1. Public Hearing at 80, 777 17th Street, LLC, 64 D.C. Reg. 2640 (D.C. Zoning Comm’n Mar. 10,

2017) (No. 15-31) (statement of Sharon Cole).

152 THE GEORGETOWN LAW JOURNAL [Vol. 110:151

income renter in D.C.’s H Street neighborhood, the petitioner, Sharon Cole, rep-

resented herself.

2

As a result of the plans and incentives created by the D.C.

Zoning Commission (Commission) to promote a sudden inf‌lux of investment into

her neighborhood,

3

she and her community faced imminent f‌inancial pressures.

These pressures, such as land value destabilization, rising costs of living, dimin-

ishing access to affordable goods and services, and poor rental housing condi-

tions, would soon make it unaffordable for Ms. Cole and many of her neighbors

to remain in their homes.

4

The court admitted that “the Commission’s decision

[did] not include an explicit discussion of” these contested issues but shrugged its

shoulders.

5

The unelected Commission had free rein to make, interpret, and

enforce the rules, the court concluded, even if it caused individuals to become

homeless without even acknowledging their objections.

6

The District’s zoning practices in this case were an example of zoning-induced

gentrif‌ication, and the H Street community’s forced relocation due to the eco-

nomic pressures of those practices was an example of indirect displacement.

Displacement is usually def‌ined generally as involuntary movement, but it hap-

pens in a variety of ways.

7

In the eighties and nineties, displacement research of-

ten focused on direct methods of displacement, such as evictions.

8

However,

2. Reply to Intervenor’s Opposition to Motion for Summary Judgement, Cole v. D.C. Zoning

Comm’n, 210 A.3d 753 (D.C. 2019) (No. 17-AA-0360) [hereinafter Reply to Intervenor’s Opposition];

Motion for Summary Judgement, Cole, 210 A.3d 753 (No. 17-AA-0360).

3. Several D.C. agencies coordinated a plan to “support[] demand for new retail establishments” by

“tak[ing] advantage of proximity to transit” in the H Street neighborhood and created incentives for

private developers to carry it out. D.C. OFF. OF PLAN., BENNING ROAD CORRIDOR REDEVELOPMENT

FRAMEWORK PLAN 13 (2008), https://planning.dc.gov/sites/default/f‌iles/dc/sites/op/publication/

attachments/benningcom1.pdf [https://perma.cc/R38K-F5R3]. In this case, a private developer took

advantage of these incentives with a luxury mixed-use Planned Unit Development (PUD) immediately

adjacent to Ms. Cole’s home. See Motion for Summary Judgement, supra note 2, at 2. The PUD was

expressly designed to spark additional investment in the area, which is known to cause indirect

displacement in low-income communities. See Application to the District of Columbia Zoning

Commission for Review and Approval of a Consolidated Planned Unit Development and Amendment to

the Zoning Map at 3, 777 17th Street, LLC, 64 D.C. Reg. 2640 (No. 15-31) [hereinafter Application].

4. See Public Hearing, supra note 1, at 81 (statement of Sharon Cole).

5. Cole, 210 A.3d at 762.

6. See id. (“[Ms. Cole] is correct that the Commission’s decision does not include an explicit

discussion of ‘rising gentrif‌ication pressures.’ However, . . . where issues were ‘thoroughly analyzed

during the development of the . . . Plan’ for the area of the District in which a PUD is proposed, and

where the Commission has been explicitly guided by an application’s compatibility with the applicable

small-area Plan, we ‘cannot agree with [an] argument that the Commission failed adequately to consider

the impact of th[e] project.’” (second, third, and fourth alterations in original) (footnote omitted)). The

court found that by vaguely referring to the Comprehensive Plan, the Commission had implicitly

concluded “that the pressures of gentrif‌ication [were] inevitable, but [could] be mitigated” through a

general policy that did not accomplish its stated goals in this case. Id. at 762–63.

7. See, e.g., Geoffrey DeVerteuil, Evidence of Gentrif‌ication-Induced Displacement Among Social

Services in London and Los Angeles, 48 URB. STUD. 1563, 1564 (2011) (explaining that scholars usually

“def‌ine displacement generally as involuntary movement”).

8. See, e.g., Rowland Atkinson, Measuring Gentrif‌ication and Displacement in Greater London, 37

URB. STUD. 149, 163 (2000).

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